text:
    Elizabeth Atherton, Appellee, v. East Side Levee & Sanitary District, Appellant.
    1. Sanitary districts — what is duty of in constructing levee and canal and changing watercourse. A levee and sanitary district has power to construct a levee and canal whereby the course of a watercourse is changed, but must exercise this power in such a manner as not to obstruct or retard the natural flow of the water and not to throw or hold it back upon adjacent land to the damage thereof.
    2. Sanitary districts — what is duty as to restoring changed stream, to former or useful state. The duty of one interfering with the flow of water in a stream to restore the stream to its former state or so restore it as not to impair its usefulness rests with the same force on a municipal corporation, such as a levee and sanitary district, as it does on an individual.
    3. Action, § 61

       — when only one recovery may he had for damages for construction of improvement on land. Damages resulting from the construction of a permanent and lawful improvement accrue at the time of the construction and there can be only one recovery therefor, the measure being the depreciation of the market value of the land.
    4. Action, § 61* — when successive actions may he maintained for negligent erection of structure. Where a structure, though permanent and lawful, is negligently or defectively constructed, it constitutes a continuing nuisance, and each injury occasioned by it creates a new cause of action and successive recoveries may be had for the successive injuries caused by it.
    5. Sanitary districts, § 12* — when right of action for construction of levee and canal lies in favor of adjacent landowner. Where none of the land of an adjacent owner is taken for the construction of a levee and canal, such owner has no right of action because of their construction until he has sustained damage, in which event he may recover for such damage.
    6. Sanitary districts, § 13a* — what duty imposed upon as to disposal of water to prevent overflow hy construction of levee and canal. It is the duty of a sanitary district constructing a levee and canal for the purpose of changing the course of a stream to make provision for disposing of the water which escapes from the stream in time of overflow, the same duty being imposed in this respect with regard to surface water, channel water and overflow or flood water.

      7. Sanitary districts, § 13a

       — what floods must be guarded against in constructing levee and canal to divert watercourse. A sanitary district in constructing a levee and canal to divert a watercourse is required to provide an outlet for only the. waters of such floods or freshets as men of ordinary prudence could have foreseen, which includes the necessity of providing against a rainfall which is greater than ordinary.
    8. Sanitary districts — what are questions for jury in action to recover damages for overflow due to negligent construction of levee and canal-. In an action against a sanitary district to recover damages alleged to have been caused by the negligent and defective construction of a levee and canal whereby plaintiff’s land was overflowed, the questions whether the overflow was due to defendant’s alleged negligence in constructing the levee and canal or to such an extraordinary flood as ordinary prudence could not have anticipated, and whether the rainfall causing the overflow was an extraordinary flood in the locality, are for the jury.
    9. Sanitary districts, § 17* — when evidence supports verdict for plaintiff in action for negligence causing flooding of land. In an action against a levee and sanitary district to recover for damages by the flooding of land, alleged to have been caused by defendant’s negligent and defective construction of a levee and canal, evidence held sufficient to support a verdict for plaintiff.
    10. Sanitary districts, § 17* — when evidence as to other obstructions in stream below defendant’s is inadmissible in action for damages for flooding land. Where the declaration, in an action against a sanitary district to recover for damage to land by flooding, alleges that the injury was caused by defendant’s unlawfully obstructing or retarding the flow of water, it is not error to refuse to permit defendant to show the location and character of other obstructions further down the stream than defendant’s obstruction, where there is nothing in the case warranting the admission of the evidence in mitigation of damages.
    Appeal from the Circuit Court of Madison county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Rehearing denied June 22, 1918.
    F. A. Garesche, J. B. Harris and D. H. Mudge, for appellant; Thomas E. Gillespie, of counsel.
    Williamson, Burroughs & Ryder, for appellee.

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

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

   Mr. Justice Higbee

delivered the opinion of the court.

This is an action by appellee to recover damages alleged to have been occasioned by the construction and maintenance of appellant’s levee and diversion canal. It is claimed by appellee that the levee and canal interfered with the natural flow of the waters of Cahokia Creek and Indian Creek and held the same back upon premises owned by her,- thereby destroying and injuring various crops, personal property and the dwelling and outbuildings on said premises.

The declaration consists of two counts, the first of which alleges that on August 20, 1915, appellee was possessed of certain real estate in Madison county, Illinois; • that shortly prior to said date, heavy rainstorms occurred and large quantities of water fell in the vicinity of appellee’s land; that Cahokia Creek, a natural watercourse, flowed near and past the land of appellee and from time immemorial carried off and drained the water falling and flowing upon her lands; that appellant wrongfully and negligently caused to have erected and placed across the channel of Cahokia Creek, a dam, levee or obstruction about one-half mile south of her land and wrongfully and negligently placed in said channel various logs, piles, chains and other obstructions, and thereby greatly interfered with, lessened and reduced the flow of water through the said natural watercourse, and that by reason thereof the water from the rain above referred to was retarded and held back upon her land, whereby her buildings and crops were injured. The second count alleges that appellant undertook to divert and change the flow and outlet of Cahokia Creek from a point about one-half mile south of appellee’s land and to carry the waters of said creek from that point through an artificial channel, and that in the construction of said artificial channel appellant carelessly, negligently and wrongfully failed to make an outlet sufficient in size to carry away the waters of Cahokia Creek; and that on account of the insufficient size of said outlet into said artificial channel the waters of Cahokia Creek were unable to flow and escape as in a state of nature, but were retarded and held back upon appellee’s land whereby her buildings and crops were damaged. It was stipulated on the trial that appellant might introduce any evidence which would be admissible under any special plea well pleaded. Upon the trial of the case a verdict in the sum of $500 was returned in favor of appellee. Motion for new trial having been overruled, judgment was entered on the verdict and the district brings the case here by appeal.

A short distance after Cahokia Creek emerges from the bluffs it is joined by Indian Creek which comes from a northwesterly direction. From this point Cahokia Creek formerly took a tortuous and meandering course through what is termed the American Bottoms and flowed into the Mississippi Biver at a point approximately 30 miles south of the junction of Cahokia and Indian Creeks. Appellant is a municipal corporation organized under an act of the legislature entitled “An Act to create sanitary districts in certain localities and to drain and protect the same from overflow1, for sanitary purposes,” approved May 17, 1907 (J. & A. 4325 et seq.). After appellant was organized it passed an ordinance for the construction of Cahokia Creek diversion channel, for the purpose of diverting the waters of Cahokia Creek from a point about one-half mile below and south of the junction of, Cahokia Creek and Indian Creek, through an artificial channel about 4y2 miles in length, directly into the Mississippi Biver instead of following the tortuous channel of the creek. Appellee’s land consists of 28 acres lying immediately between Cahokia and Indian Creeks just north of their junction. The distance across plaintiff’s land from Cahokia to Indian Creek is about a quarter of a mile. West of Indian Creek and appellee’s land, several hundred feet, there is a natural elevation in the ground known as Grillkam Badge, which is probably 3 or 4 feet higher on an average than appellee’s land. The land east of appellee’s premises and between Cahokia Creek and the bluffs is several hundred feet in width and is lower than the land to the west of Indian Creek. The Cahokia Creek diversion channel was completed in 1912. It was excavated about 12 or 13 feet below the natural surface of the ground, was approximately 100 feet wide at the bottom with a two to one slope and an average width of about 152 or 153 feet and extended almost due west to the Mississippi Biver. Levees from 4 to 8 feet high were constructed on both sides of the channel. The levee on the south side of the channel crossed Cahokia Creek and then extended in a northeasterly direction across the lowland east of Cahokia Creek to the bluffs. As completed there is a solid earth embankment beginning at the bluff or high ground a little more than a quarter of a mile east of appellee’s land and extending southwesterly for some distance and thence substantially west, crossing the old channel of Cahokia Creek at a point about one-half mile south of appellee’s land. The elevation of this levee east of the creek is about 447 or 448 feet (Memphis datum). Appellee’s land has an average elevation of 442 or 443 feet. Her dwelling was near the highest point of her land, which was about 443, and was on a foundation about 2 feet high. On August 20,1915, there was a rainfall in that community of about 8% inches. As a result thereof Cahokia and Indian Creeks overflowed their banks and the water stood in appellee’s house at a depth of 5 or 5% feet, so that the water at this point was about 7 feet deep over appellee’s land. This suit was brought to recover damages sustained by appellee on account of this overflow to her crops, dwelling, outbuildings and household goods. The evidence shows that south of appellant’s levees and extending across CahoMa Creek valley there were, prior to the construction of appellant’s levees, certain railroad and other embankments.

Appellant contends the judgment in this case should "be reversed for the reasons, First: That the levee and canal complained of are permanent, lawful improvements, and that any damages caused by their construction are recoverable in a single action only, and that the measure of such damages is the depreciation in the fair cash market value of the land or leasehold injured thereby. Second: That appellee’s damages were caused by an extraordinary rainfall and that appellant is not required by law to provide and care for rainfalls of that character. Third: That her damages were due to natural causes, and would have occurred even though the levee and canal had not been constructed; and fourth: That the trial court erred in not permitting appellant to show in detail the existence and character of certain railroad embankments below appellant’s levee at the time it was constructed. All these reasons with the exception of the fourth may be considered together. The contention that appellant had the authority under the law to construct the levee and canal and thus change the course of Cahokia Creek is correct as a principle of law. It is as equally well established that while appellant had this right it must have exercised that authority in such a manner as not to obstruct or retard the natural flow of the water, and not to throw or hold it back upon adjacent land to the damage of the same. “It is settled by all the authorities that it is the right of each proprietor of land upon a natural watercourse to insist that the water shall continue to run as it has been accustomed to do, and to insist that no one shall obstruct or change its course injuriously to him without being liable in damages.” (Ohio & M. Ry. Co. v. Thillman, 143 Ill. 127.) The law imposes upon any one interfering with the flow of the water in a stream to restore the stream to its former state or to so restore it as not to impair its usefulness. The same obligation rests upon a municipal corporation in this respect as rests upon an individual. (Ohio & M. Ry. Co. v. Thillman, supra; Sanitary Dist. of Chicago v. Ray, 199 Ill. 63; Handfelder v. East Side Levee & Sanitary Dist., 194 Ill. App. 262; Hoehn v. East Side Levee & Sanitary Dist., 203 Ill. App. 48.)

Appellant’s contention that damages resulting from the construction of a permanent and lawful improvement accrue at the time of its construction for which there can be only one recovery, and the measure of which is the depreciation of the market value of the land, is also correct as a proposition of the law. That rule, however, presupposes the lawful and proper construction of the improvement and does not prevent the recovery of damages resulting from its alleged negligent and wrongful or defective construction. The authorities uniformly hold that such a permanent and lawful structure, negligently or defectively constructed, constitutes a continuing nuisance,- and each injury thereby occasioned creates a new cause of action and successive recoveries may be had for successive injuries caused by such negligent or defective construction. (Ohio & M. Ry. Co. v. Thillman, supra; Sanitary Dist. of Chicago v. Ray, supra; Ramey v. Baltimore & O. S. W. R. Co., 235 Ill. 502; Handfelder v. East Side Levee & Sanitary Dist., supra.) The record here does not disclose that any lands in the possession of appellee were taken for the construction of the levee or canal and she would not, therefore, have any right of action because of their construction until she had sustained damages, hut when such damages had occurred she should have a right to recover therefor. (Hoehn v. East Side Levee & Sanitary Dist., supra.)

The principal negligence charged in the declaration is, in substance, that appellant wrongfully and negligently caused to be erected and placed across Cahokia Creek a natural watercourse, a certain dam or levee, and thereby greatly interfered with, lessened and reduced the natural flow of water in such watercourse and undertook to divert the natural flow of the water of Cahokia Creek into the diversion canal and negligently and wrongfully failed to provide a sufficient outlet for the water. The proof shows that original plans and specifications for the work provided for a spillway 3 feet deep and 50 feet wide over the levee where it crosses Cahokia Creek, but this spillway was never built. The land east of Cahokia Creek and appellee’s premises, and which is crossed by that portion of the levee extending from the point where it crosses Cahokia Creek northeasterly to the bluffs, is low. The evidence tends to show that in times of overflow, prior to the building of the levee, a portion of the water from Cahokia Creek would run off in that direction. It was as much appellant’s duty to provide for this overflow water as the channel water of Cahokia Creek. The courts make no distinction, regarding appellant’s duty in this respect, between surface water, channel water and overflow or flood waters (Chicago, P. & St. L. Ry. Co. v. Reuter, 223 Ill. 387). The evidence also shows that in times of overflows prior to the construction of the levee the water would extend from Grillham’s ridge on the west of appellee’s premises to the bluffs on the east, a distance of about one-half mile, to a depth of 2 or 3 feet, and possibly more on one or two occasions. Counsel for appellant state in their argument, and such statement is supported by the testimony of one of appellant’s engineers, that in order to accommodate the same quantity of water as would be contained in a valley one-half mile wide and 3 or 4 feet deep, it would require a diversion channel, excavated to the elevation of which Cahokia Creek diversion channel is excavated, more than 600 feet wide. Cahokia Creek diversion channel is only about 100 feet wide at the bottom and has an average width of about 152 or 153 feet, and it is manifest that this channel could not accommodate the flood waters of the valley in times of overflows of the same magnitude as some of those which occurred prior to the construction of the levee.

The evidence is somewhat conflicting as to whether the rain of August 20, 1915, was an unprecedented rainfall in that community. Several witnesses testified it was, while other witnesses recalled former rains at least almost as heavy. One witness produced by appellant who had acted as observer for the United States Weather Bureau testified that a rain in July, 1912, at Wanda, a short distance from appellee’s land, was only one-fourth inch less than the 1915 rain. It is true that in constructing its levee and canal appellant was required to provide an outlet for only the waters of such floods or freshets as men of ordinary prudence could have foreseen. This has been held to mean more than the ordinary rainfall. In considering this question in the case of Ohio & M. Ry. Co. v. Ramey, 139 Ill. 9, the Supreme Court of this State used the following language: “The principle clearly is that, although a rainfall may be more than ordinary, yet if it be such as has occasionally occurred, and, it may be, at irregular intervals, it is to be foreseen that it will occur again, and it is the duty of those changing or restraining the flow of water to provide against the consequences that will result from it. It is within the knowledge of all who have long resided in this State that our streams are occasionally subject, after intervals which are sometimes of shorter and at other times of longer duration, to great floods, occasioned by very heavy rainfalls, and their heights are known by those who have felt interested in them. Such rainfalls were not usual and ordinary, but they were unusual and beyond ordinary, i. e., they were extraordinary; and yet it is just as certain that like rainfalls will occur in the future as it is that the same laws of nature by which they are produced, and the same conditions to be affected by those laws, will continue to exist in the future as they have in the past. Though of rare occurrence, such rainfalls are not phenomenal, and therefore beyond reasonable anticipation, and it is hence but the prudence that a discreet man would exercise in his own affairs to provide against injury from them. The question then is not whether appellant has sufficiently provided for the escape of the water of ordinary floods, bnt has it provided for the escape of the water of such unusual or extraordinary floods as it should have anticipated would occasionally occur in the future, because they had occasionally occurred after intervals, though of irregular duration, in the past?” After quoting this language with approval in the case of Chicago, P. & St. L. Ry. Co. v. Reuter, supra, the court said, as may be well said in this case: “There was a great deal of evidence submitted on this question, some of it conflicting, but from the evidence in this record it could not by any possible means be held that the damage was caused by such an unprecedented rainfall as could not have been reasonably anticipated. (Drainage Com’rs v. Illinois Cent. R. Co., 158 Ill. 353; Ohio & M. Ry. Co. v. Thillman, supra.) In any event, this was solely a question for the jury, and if they were correctly instructed on that point this court cannot interfere.” There is no contention in the case at bar that the jury were not correctly instructed on this point.

The evidence clearly shows that appellee was damaged to the amount of the verdict by the overflowing of her land. Whether such overflow was due to appellant’s alleged negligent or defective construction of its levee and canal or to such an extraordinary flood as ordinary prudence could not have anticipated were questions of fact to be determined by the jury, as was also the question whether the rainfall of August, 1915, was an extraordinary flood in that locality. In the case of Sanitary Dist. of Chicago v. Ray, supra, the court said: “The evidence tended to prove that the defendant excavated the new channel to a greater depth than the old, and threw up embankments on the sides of the channel, but did not make the new channel of sufficient capacity to carry off the water of the river in time of freshets, and by the diversion of such waters caused the land in question to overflow. The land was bottom land, near the river, and was subject to overflow before the channel was changed, but there was evidence tending to prove that such overflow, and consequent injury to crops, etc., were increased by the alleged negligent construction of the new channel, and while it seems from the record that it would not be a wholly unjustifiable inference to draw that the defendant has been charged with losses which would have occurred had the channel, remained as it was in a state of nature, still we cannot say that the verdict is so clearly against the weight of the evidence as that it should be set aside for that reason.” With little change that language is most applicable to the facts in this case, and by like reasoning we conclude that the verdict in this case should prevail.

Upon the trial the court refused to permit appellant to show the location and character of other railroad embankments and levees in Cahokia Creek valley south of or further down the stream than the levee of appellant, and the question is presented whether a refusal of this evidence by the court was reversible error. It was charged in the declaration here that appellant had unlawfully obstructed or retarded the flow of the water to the damage of appellee’s premises, and it was no defense for appellant to show that others had been guilty of a like injury to appellee by obstructing the natural flow of the waters in that locality through the construction of embankments prior to the construction of appellant’s levee. While cases might arise where such evidence would be permissible in mitigation of damages, no state of facts was shown which appeared to us to have warranted the admission of such proof in this case. We find in the record no reason for the reversal of the judgment in this case and the judgment in favor of appellee is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Robert L. Finley, Appellee, v. Federal Life Insurance Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Randolph county; the Hon. Lotus Beeneettiei!, Judge, presiding. Heard in this court at the October term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 5, 1918.
    Rehearing denied and opinion modified and refiled June 22, 1918.
    Statement of the Case.
    Action by Robert L. Finley, plaintiff, against Federal Life Insurance Company, defendant, to recover on • a policy of accident insurance. From a judgment for plaintiff for $2,500, defendant appeals.
    C. A. Atkinson, A. C. Bollinger and J. Fred Gilster, for appellant.
    William M. Schuwerk and William H. Schuwerk, for appellee.

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

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

   Mr. Justice Higbee

delivered the opinion of the court.

Abstract of the Decision.

1. Insurance, § 601 — what is presumption against self-destruction. "While, in an action to recover on an insurance policy insuring against injury resulting from external, violent and purely accidental means, the burden is on plaintiff to show that the injury was accidental and not self-inflicted, he may invoke the presumption that men do not ordinarily take their own lives or inflict injury upon themselves, this presumption not being conclusive however.

2. Insurance, § 667* — when shown that injury was accidental. In an action to recover on an accident insurance policy, where there was no eyewitness save plaintiff and he testifies that the injury was accidental, such evidence, which is fortified by the presumption against one’s purposely injuring himself, is sufficient to support a verdict for plaintiff, even though defendant introduces evidence that plaintiff was in straitened circumstances and in need of money to settle a serious charge against him, and that the injury was caused by a gun which he had borrowed a few days before, stating that he intended to go hunting at noon, whereas it appeared that he had no hunting license.

3. Insurance, § 686* — when question whether injury was accidental is for jury. In an action to recover on an accident policy, where the evidence as to whether the injury was accidental is conflicting, the question whether it was or was not of that character is for the jury.

4. Appeal and error, § 1411* — when finding based on conflicting evidence not disturbed. In an action to recover on an accident policy where the jury are correctly instructed in regard to the effect of falsity in warranties or material representations by plaintiff, and the evidence as to the truth of the representations by plaintiff, which are claimed to be false while conflicting, tends to sustain the finding of the jury, their verdict will not be disturbed.

5. Insurance, § 1177* — what evidence is inadmissible to show that representations in accident policy that habits were correct is false. In an action to recover on an accident insurance policy, it is not proper to admit evidence that on two different occasions, one several years before plaintiff applied for a policy and the other a few months before, plaintiff had made improper proposals to two of his female patients, for the purpose of showing that plaintiff’s representation in his policy that his habits of life were correct and temperate was false.

6. Insurance, § 690* — when instruction on liability on accident policy, to which defense of falsity of answers in application is made, is not erroneous. In an action to recover on an accident insurance policy in which defendant sets up the falsity of plaintiff’s answer, in his application, to the question whether his habits were correct and temperate, an instruction at plaintiff's request that if the jury believe “from the evidence” that defendant issued the policy, that the policy was based on the application, that the answers bj plaintiff to the questions in the application “were true at the time they were made,” and that plaintiff “lost his foot by accident as charged in the declaration,” the verdict shall be for plaintiff, is not subject to the objection that it confines the question of plaintiff’s habits to the day the application was made, especially where plaintiff’s habits were several times referred to in defendant’s instructions as “at the time the application for the policy was made,” nor is it subject to the objection that it assumes that an accident happened.

7. Appeal and ekbob, § 1241 — when error in instructions may not he complained of. One cannot complain of error in the adverse party’s instructions when a like error appears in those given at his own request.

8. Appeal and ebbob, § 1241* — when error may not he complained of. One cannot complain on appeal of an instruction given at his own request.


author: Mr. Justice McBride

text:
    Silas Williams, Administrator, Appellee, v. Mt. Vernon Car Manufacturing Company, Appellant.
    (Not to Tbe reported in full.)
    Appeal from the Circuit Court of Jefferson county; the Hon. J. C. Eaeleton, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Rehearing denied and opinion modified and refiled June 22, 1918.
    Statement of the Case.
    Action by Silas Williams, administrator of the estate of Willie Williams, deceased, plaintiff, against Mt. Vernon Car Manufacturing Company, defendant, to recover for the death of plaintiff’s intestate while employed by defendant. From a judgment for plaintiff for $5,000, defendant appeals.
    Abstract of the Decision.
    1. Master and servant, § 537

       — when declaration in action for death of servant is sufficient. In an action to recover damages for the death of an employee, the declaration held to set forth the elements essential to constitute a good cause of action.
    2. Master and servant, § 198* — when employer negligent as to warning servant going between cars. If an employer is guilty of negligence in failing to give warning before an employee starts between cars in its yard that the cars are going to be moved, it cannot excuse itself by saying it gave warning at the moment the employee was in peril without showing that he understood the warning and that it was given under such circumstances that he could have escaped from the impending danger.
    3. Master and servant, § 717* — when sufficiency of warning to servant going between cars is question for jury. In an action to recover for the death of an employee, alleged to have been caused by the moving of cars in the employer’s yard without proper warning, where the evidence shows that the yard was noisy and is conflicting as to the nature of the warning, and some witnesses testify that they heard the warning and others that they did not hear it, the sufficiency of the warning is a question for the jury.
    4. Master and servant, § 103* — when servant is engaged in performance of duties. An employee who is returning to the part of his employer’s plant from his employer’s supply shop where he has been to procure material for use in his work is engaged in the performance of his duties.
    5. Master and servant, § 683* — when evidence sustains verdict for death of car factory employee hilled by moving cars. In an action to recover for the death of an employee killed by the moving of cars in the yard of his employer’s car factory as he was passing between them, evidence examined and held sufficient to support a verdict for the plaintiff.

      G. Gale Gilbert, Harman Gilbert and Robert M. Farthing, for appellant.
    Conrad Schul, Hart & Hart and Moses Pulverman, 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.

6. Workmen’s Compensation Act, § 1 — what was effect of repeal of Act of 1911 by Act of 1913 on common-law defenses, and how preserved. The repeal of the Workmen’s Compensation Act of 1911 (J. & A. If 5449 et seq.) by the Workmen’s Compensation Act of 1913 [Callaghan’s 1916 St. Supp. If 5475(1) et seq.) did not have the effect of putting in force the common-law defenses of contributory negligence, assumed risk and negligence of a fellow-servant as to a right of action existing, at the time the Act of 1911 was in force, but section 32 of the Act of 1913 [Callaghan’s 1916 St. Supp. 1f 5475(32)] and section 4 of chapter 131 (J. & A. 1f 11105) preserve rights of action existing at the time the Act of 1913 took effect.

7. Workmen’s Compensation Act, § 12* — when instructions are properly refused. Instructions which ignore the rights of plaintiff under the Workmen’s Compensation Act of 1911 (J. & A. f 5449 et seq.), which was in effect when plaintiff’s cause of action accrued, are properly refused.

8. Appeal and error, § 1650* — when error in instruction on damages is cured. In an action to recover for the death of an employee, even though one of plaintiff’s series of instructions omits to state that the contributory negligence of deceased is to be considered in reducing the amount of the recovery, such omission is cured by a subsequent instruction which states that if the jury find that the death was proximately caused by the contributory negligence of deceased, “they must consider such ■ contributory negligence in reducing such amount of damages they will allow in event they do allow damages.”

9. Appeal and error, § 1523* — when instructions in language of statutes not reversibly erroneous. In an action to recover for the death of an employee, even though it may not be proper, it is not reversible error to give instructions in the language of the statutes.

10. Appeal and error, § 812* — when error on ground of improper argument of counsel not reviewable. Error charged on the ground of improper argument of counsel will not be considered where the objectionable remarks are not preserved in the bill of exceptions but are merely included in the affidavit on the motion for a new trial.

11. Appeal and error, § 365* — when new point may not be made. A new point cannot be made for the first time on a petition for rehearing.


text:
    L. M. Griffin et al., Appellants, v. W. L. Pfeffer Lumber Company, Appellee.
    1. Landlord and tenant — when third person liable as assignee on lease. An actual legal assignment is necessary to render a third person liable on the covenants in a lease as an assignee.
    2. Frauds, Statute of, § 41

       — when defense in action against assignee of lease. Where one taking under an oral assignment a lease which does not by its terms expire for more than a year after he comes into possession sets up the Statute of Frauds as a defense, he cannot be held liable for the performance of covenants therein.
    3. Assumpsit, Action of, § 44* — when suit may be maintained to recover money. Where one has money equitably belonging to another, the latter may sue in assumpsit and recover such funds.
    4. Insurance, § 83* — who have insurable interest in leased property. Both the lessor and lessee of property have an insurable interest therein.
    5. Insurance, § 494* — when lessee not deemed to hold insurance money collected for benefit of lessor. A lessee who insures his interest in the leased property cannot be said to hold the money collected under the policy for the benefit of the lessor, even though such property belonged to the lessor and the amount so collected is greater than his interest in the property was worth.
    6. Frauds, Statute of, § 41* — what is not written acceptance of lease. A receipt by the lessor to the assignee of the lease wherein the lease is recognized cannot be construed as a written acceptance of the lease where the receipt was not signed or indorsed by the assignee.
    Appeal from the Circuit Court of Richland county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Lynch & Martin, for appellants.
    John A. MacNeil and H. G. Morris, for appellee; R. D. W. Holder, of counsel.

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

   Mr. Justice McBride

delivered the opinion of the court.

At the conclusion of the plaintiffs’ testimony the court directed a verdict for the defendant. Upon this judgment was rendered, to reverse which the plaintiffs prosecute this appeal.

It is disclosed by the record in this case that the appellants are the owners of the south 105 feet of Lots 19, 20 and 21, in Kitchell’s Addition to Olney, Rich-land county, Illinois. That on January 21, 1907, appellants leased the said lots to Barney & Hines for a period of 10 years. The lessees were to have the lots cleared of any other buildings. The lease provided that the premises were to be used for a lumberyard and contained this provision: “The said parties of the second part are to erect and construct all the buildings and structures necessary for the conducting of the business, at their expense, and all such buildings and structures, when so erected, shall become the property of the parties of the first part.” The lessees entered into possession of the premises and they and their successors from time to time erected the buildings hereinafter described as having been destroyed by fire. It was admitted that all the buildings were erected by the various lessees and occupants. The contract provided- for a yearly rental of $240, payable $20 each month. It further provided for a forfeiture at the option of the lessors and gives the lessees the option of purchasing, and also gives the lessees the right to extend the lease for a period of 10 years on certain conditions; and further provided: “Any assignment of this lease shall be made to parties that are satisfactory to the parties of the first part, and, if so made, shall release parties of the second part from their liability under the terms hereof.” And further provided: “Parties of the second part shall have the right to cancel this lease by giving 30 days’ notice to parties of the first part of their intention of so doing, and by paying to parties of the first part $120.00 as damages.” On April 29, 1907, the lease was assigned in writing by Barney & Hines to the Richland Lumber Company. On September 5, 1907, the same was assigned in writing to the W. M. Simpson Lumber Company, and on May 3, 1909, the lease was assigned in writing to James Gr. McLean, and in the written assent to said assignment to McLean there was added the following provision: “It is hereby expressly stipulated and agreed that the insurance on the buildings on the premises described in said contract shall be taken out and placed in the name of the lessors, and in consideration thereof the said lessors expressly stipulate and agree that in event of loss on or destruction of said buildings or any of them whereby loss is payable under said insurance that they, the said lessors, will repair or replace or erect and construct suitable buildings for said lumber yard and plant, under the direction and supervision of lessee, at their own cost and expense, to an amount not exceeding the amount received from said insurance.”

After McLean had obtained possession of the premises he organized a corporation under the name of the McLean Lumber Company, which organization was completed on May 27, 1909, and this corporation took over the lumber business and continued to transact business on said lots for about 2 years, during which time McLean was an officer of the company and had transferred this lumber business to the corporation in payment of stock received by him, but no written assignment was made by McLean of this lease to the McLean Lumber Company. Shortly thereafter the McLean Lumber Company changed the name of the corporation to the W. L. Pfeifer Lumber Company, appellee herein, and appellee continued to transact the lumber business upon said lots until January 8, 1915, when the lease was canceled at the request of appellee. At the time of the cancellation of the lease the appellants prepared and left upon the desk of appellee the following receipt:

“January 8, 1915.
“Received of the W. L. Pfeffer Lbr. Co. $160.00 being in settlement in full for rent and $120.00 for termination of lease of property, being 105 feet off of the 'South end of Lots 19, 20 and 21 of A. Kitehell’s First Addition as per original lease given to Barney & Hines, March 1st, 1907 by lessors. Terminating under conditions of said lease which is as follows:— ‘Parties of the second part shall have the right to cancel this lease by giving 30 days’ notice to parties of the first part of their intention of so doing and paying to parties of the first part $120.00 as damages.
C. H. Griffin, for Griffin Heirs.’ ”

The appellee denies that it received this receipt or in any manner accepted the same but claims that the payment was made in full settlement of all demands of appellee against appellants.

It further appears from the evidence that this was the only lease"'ever executed. No agreement of any kind was ever made after appellee obtained possession of the premises and no assignment of this lease was ever made to the appellee but it simply paid the rent monthly at the rate of $20 per month. At the time that appellants purchased the business from the McLean Lumber Company the' buildings were valued at $2,500. C. H. Griffin claims that he had a conversation with W. L. Pfeffer, after appellee purchased from McLean, in which Pfeffer spoke of giving a notice for the purchase of the property, under the lease, but Pfeffer denies that he had any knowledge of the terms of the lease in question. After appellee purchased from McLean it caused the buildings and other property upon said lots to be insured and the insurance was taken in the name of appellee, paid for by appellee and made without the knowledge of the appellants. On October 27, 1914, a fire occurred and the buildings and property upon said lots were destroyed, and on the 5th of November, 1914, appellee made proofs of loss and obtained from the companies insurance to the amount of $3,937.73, which was the total amount •of the liability. On January 15, 1915, the appellants made a written demand upon appellee for this money which appellee refused to pay, and suit was instituted to recover this amount.

The appellants filed a declaration consisting of a special count and two counts for money had and received by appellee for the use of appellants, and the fourth count for interest due upon divers sums of money owing by appellee to appellants. The special count above referred to set forth the facts substantially as contained in the foregoing statement. To this declaration the defendant’s first plea was that of general issue; the second was a plea of the Statute of Frauds, averring that the action was predicated upon an agreement not to be performed within one year; and the third was a plea denying that any written assignment was ever made to appellee of the lease set forth in the declaration, or delivered to it. Also a fourth plea setting forth that if there was an indebtedness it was that of one James G. McLean and not of appellee, and that there was not any memoranda in writing signed by appellee agreeing to assume said obligation of McLean. The fifth plea denies that the lease set forth in the declaration was ever assigned in writing and delivered to this defendant. The replication to the second plea denies that the cause of action is predicated upon an agreement which was not to be performed within one year, upon which issue was joined. The replication as to the fourth plea denies that the several promises referred to were special promises to answer for the debt of James G. McLean. The replication to the fifth. plea sets forth substantially the same facts as are alleged in the declaration, and then alleged that the appellee collected the insurance money which lawfully belonged to the appellants. The rejoinder to the replication to the fifth plea denies that the McLean Lumber Company took over said lease and modification in writing or by any assignment in writing by the said McLean or any other person; and denies that any written acceptance of said lease was ever executed by the McLean Lumber Company or the appellee; and denies that the insurance was taken out for the benefit of appellants, but avers it was taken out by the appellant at its own cost and expense upon its insurable interest in the said build-' ings, and that the moneys paid to it were for its own loss and damage and for no loss and damage to the plaintiffs, upon which issue was joined by the appellants.

The pleadings in this case are quite voluminous, but we do not regard it as necessary to take up and determine the issues made by each plea, for when all of the pleadings are taken together we are of the opinion that the controlling questions in the case are: First. Was the appellee by reason of the possession it had of the premises in question in privity with the appellants, and being so was it liable for the fulfillment of the terms of the lease? Second. If no such privity existed as to create a liability under the lease, did the fact tha.t the buildings were owned by the appellants under the terms of the lease at the time of the fire create a liability upon the part of the appellee to pay the appellants the amount of insurance collected by reason of the loss by fire of such buildings ? We think that under the first proposition the principal question to determine is, Was the appellee in privity with the appellants by reason of its possession and use of the lots? It will be borne in mind that at the time this lease was assigned by Barney & Hines to the W. M. Simpson Lumber Company and by the W. M. Simpson Lumber Company to James G. McLean, there was in each instance a written assignment made upon the lease and assented to in writing by the appellants, and in the assent given to the assignment made to James ?G. McLean, the statement set forth in the foregoing -part of this opinion was attached to said lease. It further appears from the evidence that no other assignment was made of this lease and that the McLean Lumber Company and the appellee respectively occupied the premises without any assignment of the lease. While it is argued that McLean was a stockholder and officer in the McLean Lumber Company, yet the party then in possession was wholly different from James G. McLean, to whom the assignment had been made, and when the appellee came into possession of the property it bought the lumber interests and buildings of the McLean Lumber Company but received no assignment of the lease. “In order that a third person may become liable on the covenants in the lease as an assignee, it is necessary that there should have been an actual legal assignment so as to constitute him a legal assignee as distinguished from an equitable assignee.” Am. & Eng. Encyc. of Law, vol. 18, page 671. It will be borne in mind that in this case appellee pleaded and relied upon the Statute of Frauds in its defense, and our Supreme Court has said: “And since, as against the plea of the Statute of Frauds here interposed, the title to the term cannot pass, pursuant to contract, unless that contract, or some memorandum or note thereof, shall be in writing and signed by the lessees, this parol contract of assignment is not executed. In the cases cited, had no deeds been executed and delivered and accepted, although everything else might have been done which was required to be done by the oral contract, it is manifest the contract, so far as it was a contract for the sale of real estate, could not have been held to be executed, since no title could have passed; and the writing is here just as indispensable to the passing of the title to the term, as the deed was there to the passing of the title to the land.” Chicago Attachment Co. v. Davis Sewing Mach. Co., 142 Ill. 183; Curtis v. Sage, 35 Ill. 22; Worden v. Sharp, 56 Ill. 104.

It is conceded by the pleadings that the lease in question did not by its terms expire for about 4 years from the time that appellee came into possession of the lots, and we are constrained to hold that as the Statute of Frauds is relied upon and as no written assignment was made to the appellee, that the appellee did not become liable for the performance of the covenants of the lease as contended for by appellants. There is another reason why appellee would not be liable, as it is very doubtful if the covenant referred to was a covenant running with the land but was only a personal covenant, and in reading this specification made by appellants it does not appear that it required the lessee or McLean to perform any act, but it is not necessary to determine that, in the view we have above taken of the case.

Again, it is insisted that at the time of the fire the appellants were under the terms of the lease the owners of the buildings that were destroyed and that, as they were the owners of the buildings, any insurance collected for the loss thereof equitably belongs to the appellants and can be recovered in an action of assumpsit, and many authorities are referred to in support of this doctrine, notably the cases of Wilson v. Turner, 164 Ill. 398; Board of Highway Com’rs v. City of Bloomington, 253 Ill. 164. We fully recognize the doctrine laid down in the cases referred to and claimed by appellants that where a person has money that equitably belongs to another, such other may sue and recover such funds, but the question that confronts the appellants is, “Does this particular fund belong to them under the law?” The appellee had an interest in these buildings; it had paid the McLean Lumber Company $2,500 for the buildings; it obtained insurance upon the buildings and other property in its own name, paid the premiums and had the policies made payable to it in case of loss by fire. This it had a right to do even though it be conceded that the buildings belonged to appellants. Both the lessor and the lessee had an insurable interest in the premises, and as we have seen there is no liability upon the part of appellee to restore the buildings destroyed by fire, then there is no reason why the appellee should not have insured its interest in the buildings and collected such insurance, and when so collected it cannot be said to have been received for the use of the plaintiff. Clemson v. Trammell, 34 Ill. App. 414. Any one having an interest in the premises may insure and collect such insurance. Ely v. Ely, 80 Ill. 532. A lessee having possession of property has an insurable interest therein and may insure and collect. Grand Pacific Hotel Co. v. Michigan Commercial Ins. Co., 243 Ill. 110. In speaking of the rights of one to acquire insurance, the Supreme Court has said: “It is enough if he holds such a relation to the property that its destruction by the peril insured against involves pecuniary loss to him.” Home Ins. Co. of New York v. Mendenhall, 164 Ill. 467. Where one has an insurable interest in the property and the insurance company sees fit to issue a policy and accept the premium, and pay the entire amount of the insurance in case of loss, that was a matter entirely between the assured and the company and could not be taken into consideration when other parties are claiming the insurance money from the assured. Ketcham v. Ketcham, 269 Ill. 584. Even though the appellee collected a greater amount of insurance than his interest in the buildings was worth, as claimed by appellants, that was in our judgment a matter between the appellee and the insurance company, and we can see no reason why that alone would give appellants any right to this fund..

It is contended by appellants that the appellee terminated the lease and received a receipt from the appellants in which the lease was recognized, but this receipt was not signed by the appellee or in any manner indorsed by it in writing, and under the pleadings in this case we are unable to see how it could be construed as an acceptance of the lease in writing as required by law.

We are of the opinion that under the lease and pleadings appellee was not bound to insure the property in question for the appellants; that it did not insure it for the use of appellants; that it had a right to insure for its own use and benefit and that appellants were not under the law entitled to the fund received by the appellee.

We are of the opinion that the court did not err in directing a verdict for the appellee and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    Barney Childers, Appellee, v. Chicago, Wilmington & Franklin Coal Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Franklin county; the Hon. Junius C. Kern, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Action by Barney Childers, plaintiff, against Chicago, Wilmington & Franklin Coal Company, a corporation, defendant, to recover for personal injuries received while employed in defendant’s mine. From a judgment for plaintiff for $475, defendant appeals.
    Mastin & Sherlock and Robert E. Hickman, for appellant; C. B. Chapman, of counsel.
    Moses Pulverman and Harmon & Mitchell, for appellee.

      Abstract of the Decision.
    1. Master and servant, § 598

       — when burden of proof not shifted on master in action for personal injuries. In an action by an employee to recover for personal injuries, the mere proof of the accident or injury does not place upon the master the burden of showing that the injury did not result from his negligence.
    2. Master and servant, § 126* — what degree of care required of master as to furnishing safe place to work. The master does not insure that the place where he sets his men to work shall be absolutely safe, but is merely required to exercise reasonable care to see that it is reasonably safe.
    3. Mines and minerals, § 176* — when not shown that place of working in mine was dangerous. In an action by a mine employee to recover for personal injuries, plaintiff held not only not to have shown that a dangerous condition existed as to the place of working before the accident, but also to have shown that no such condition did exist.
    4. Mines and minerals, § 176* — when evidence is insufficient to support verdict for mine employee Jor injuries. In an action to recover for personal injuries to an employee by the fall of coal from a mine roof, evidence held insufficient to support a verdict for plaintiff.

      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:
    Homer E. Bailey, Plaintiff in Error, v. Mary Niebruegge, Executrix, Defendant in Error.

      (Not to be reported in full.)
    Abstract of the Decision.
    1. Instructions, § 98

       — when on credibility of witness are erroneous. In an action in which the evidence is highly contradictory and defendant’s witnesses are interested in the result, it is erroneous to instruct the jury to take into consideration plaintiff’s interest in determining the credit to be attached to his testimony.
    2. Physicians and surgeons, § 2* — what is purpose of statute requiring license to practice. The purpose of the statute requiring a license to practice medicine (Hurd’s Rev. St. ch. 91, sec. 2, J. & A. K 7378) is to prevent persons who are not qualified from practicing medicine upon the citizens of the State.

      Error to the Circuit Court of Madison county; the Hon. Louis Bbrnbeuter, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Rehearing denied June 22, 1918.
    Statement of the Case.
    Action by Homer B. Bailey, plaintiff, against Mary Niebruegge, executrix of the last will and testament of Herman Niebruegge, deceased, defendant, to recover for medical services rendered to defendant’s testator. It appeared that plaintiff was not licensed to practice in Illinois and that while the treatment was administered by him in Missouri, he diagnosed the case in Illinois. To reverse a judgment for defendant, plaintiff prosecutes this writ of error.
    C. W. Butledge and Warnock, Williamson & Burroughs, for plaintiff in error.
    Terry, Gueltig & Powell, 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.

3. Physicians and suegeons, § 5* — when license to practice medicine necessary. The act requiring a license for the practice of medicine (Hurd’s Rev. St. ch. 91, J. & A. 7377 et seq.) applies to one who examines a person, diagnoses his ailment and professes his ability to treat, even though the actual treatment is administered in another State.

4. Witnesses, § 64* — when person not competent on ground of interest. The exclusion of one from testifying on the ground that he is interested in the suit, held warranted by the evidence, even though the person denied that he was interested.

5. Witnesses, § 254* — when evidence of witness need not he accepted. A court is not required to accept the story of a witness as true, even though there is no direct testimony refuting it, but the story may be overcome by inherent improbabilities or contradictions.

6. Appeal and erbob, § 1625* — when error in exclusion of evidence is cured. Error in excluding evidence of a witness is cured where he is permitted later on to testify in regard to the matter.


text:
    William Smith, Appellee, v. B. F. Bush, Receiver of St. Louis, Iron Mountain & Southern Railway Company, Appellant.
    1. Mandamus, § 1

       — nature of writ of. The writ of mandamus is not a writ of right.
    2. Railroads, § 278* — when railroad company not compelled to erect overhead crossing to connect farms. Where, • on a petition for a writ of mandamus to compel a railroad company to erect an overhead crossing to connect two farms at a certain point, the undisputed evidence is that owing to the curve in the track and the height of the embankment at such point, such a crossing will constitute a danger to public travel and to persons crossing the track, the petition for the writ should be denied, especially Where the benefits accruing from the crossing will not be proportionate to the increased danger.

      3. Railroads, § 267

       — what considered in determining question of compelling erection of farm crossing. The existence of other places of crossing the track and the proportion between the cost to the railroad company and the benefit to the property owner are to be considered, in determining whether a railroad company will be required to erect a farm crossing at a particular point.
    4. Railroads, § 267* — when company not compelled to erect farm crossing. A railroad company will not be compelled to erect a farm crossing where the property owner can avail himself of crossings at other points and the cost to the railroad company of erecting a safe crossing at the point will far exceed the benefits which will accrue to the property owner from the crossing.
    5. Railroads, § 278* — what presumption as to payment for inconvenience due to right of way considered in proceedings to compel erection of farm crossing. Where a farm owner sold a right of way through his land to a railway company, it is presumed that allowance was made and paid at the time for inconvenience which might arise through the interference with passing from one part of the farm to the other, and this presumption, while not conclusive, will be considered on a subsequent petition by the property owner for a writ of mandamus to compel the railroad company to erect a farm crossing.
    6. Railroads, § 267* — what is nature of right to farm crossing and what considered in determining whether building granted. The right to a farm crossing given by the statute (J. & A. if 8811) is not absolute, but in determining whether or not the building of such a crossing will be granted, the court should take into consideration the danger to public travel, the expense of erecting the crossing, the necessity for a crossing and the benefits which will accrue from it.
    Appeal from the Circuit Court of Randolph county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    L. O. Whitnel, for appellant; Edward J. White, J. Fred Gilster and Josiah Whitnel, of counsel.
    William M. Schuwerk, 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.

The appellee in this proceeding sought and obtained a writ of mandamus requiring the appellant to build and construct a farm crossing over its railroad to be used by appellee in passing from his farm on the east to the west of the railroad. It appears from the record in this case that in 1902, and prior thereto, the appellee was the owner of 80 acres of land situated in Randolph county, Illinois, near the Okaw River. It is bottom land, some of it is susceptible of cultivation and other parts of it is low and swampy. In 1902 the appellant constructed its railroad through appellee’s land, obtaining from appellee a deed for a right of way to a strip 250 feet wide, which amounted to 6 acres, and left the appellee owning about 74 acres, of which appellee says 10 acres were on the west side of. the railroad, and the remainder of the farm (64 acres), with the improvements, was upon the east side of the railroad. The railroad extends through appellee’s farm upon a curve, as appellant says, of one degree, twenty minutes. At the time of the building of the railroad through this bottom, the appellant erected an embankment extending all the way through appellee’s land of from the height of 14 to 17 feet, and the width at the base is about 75 feet, and the length of the embankment through appellee’s land is 1,062 feet. In constructing the road no crossing was left upon appellee’s land, but there were two under-head crossings, as they are called by witnesses, left near the land, one of which was on adjoining land owned by McDonald and the other on land owned by Sheppel. These crossings have been used by appellee ever since the construction of the road, in obtaining access to his land lying on the west of the railroad, and he says, in speaking of getting frofn his land on the east to that on the west, “I have been getting to it all these years, but I had trouble. ’ ’ It appears that the amount of land owned by the appellee upon the west side of the railroad is 10 acres, of which 5 and a fraction acres are in cultivation and the rest of it is low, swampy, timberland, and some of the witnesses describe it as brushy. Appellee claims that at times when the river is up he is unable to get from his land on the east to that on the west because of the high water, and that he has lost two or three crops by reason of the high water and his inability to get to the land on the west. It appears from the testimony that this tract of land on the west of the railroad is of the value of from $60 to $100 per acre, and that which is in cultivation has a rental value of $5 per acre. It also appears from the evidence that to construct an overhead crossing at the place desired would cost about $1,100 and to construct an underhead crossing would cost from $2,500 to $3,000. It further appears that to construct an overhead crossing on this curve through appellee’s land, or at the place desired, would be dangerous to persons passing over the crossing and those operating and riding upon the trains. Four passenger trains and a great number of freight trains pass daily over this railroad.

The principal contention of the appellant is that the court erred, under the evidence and circumstances shown in this case, in directing this crossing to be constructed. The statute under which it is sought to compel the construction of this crossing provides: “Farm crossings shall be constructed by such corporation when and where the same may become necessary, for the use of the proprietors of the lands adjoining such railroad.” [J. & A. 8811.] It is contended by counsel for appellant that in determining when and where a crossing is necessary that the court should take into consideration all of the existing con- . ditions, that is, the benefit to the persons seeking the crossing, the disadvantage, if any, to the corporation, together with the expense and other attending circumstances, and that the word “necessary” is equivalent to “reasonably convenient.” Chalcraft v. Louisville, E. & St. L. R. Co., 113 Ill; 88. The writ of mandamus is not a writ of right. “Courts, in the exercise of wise judicial discretion, may, in view of the consequences attendant upon the issuing of a writ of mandamus, refuse the writ though the petitioner has a clear legal right for which mandamus is an appropriate remedy.” People v. Board Sup’rs Adams Co., 185 Ill. 293. Again the Supreme Court said: “It must be remembered that the writ of mandamus is not a writ of right, demandable by the State acting through its law officers, but its issue is discretionary with the court, acting upon existing facts, and viewing the whole case with due regard to the consequences of its action.” People v. Ketchum, 72 Ill. 215. The undisputed testimony in this case is that to erect an overhead crossing, so as to connect these two farms, considering the curve and the height of the embankment, would be absolutely dangerous to public travel and to persons crossing the railroad, the reason given being that owing to the curve in the track persons coming upon the crossing could not observe the train until it was within a short distance of them, and that the engineer would not be able to see such persons. This was testified to by two of appellant’s witnesses and not denied by any one, and we are not able to say that such testimony is not a true representation of the conditions that would exist if an overhead crossing was constructed. Our Supreme Court has said: “Moreover, the rule is general that where a conflict arises between a mere private convenience on the one side and the public welfare on the other, and one must give way, the former must yield to the latter. The public welfare demands as high a degree of safety in the transportation of persons and property by railroad as is reasonably attainable in view of the character and exigencies of that mode of transportation, and anything, therefore, which tends to directly and materially jinperil the safety of such transportation is so far inconsistent with the public welfare, and ought not to be allowed for the mere sake of a private convenience.” Chalcraft v. Louisville, E. & St. L. R. Co., supra. The fact of the increased danger to the traveling public, as shown by this evidence, demands, in our judgment, a refusal by the court to construct an overhead crossing at this place. The benefits to be derived by appellee from such crossing are very meager compared with the hazards to public travel. It is said by counsel for appellee and shown by the evidence that an underhead crossing could be constructed that would not in any manner be dangerous or at all interfere with the public travel, and we think this is fully shown by the testimony, but it appears that to construct a crossing of this character would cost about $•2,500. Appellee had only a fraction over 5 acres of land in cultivation upon the west side of the railroad that he was seeking access to and there were only 10 acres of land upon that side of the railroad, the remainder or greater portion of it was swampy and timbered, and some of the witnesses called it brushy, and the land in cultivation has, and has had, a rental value of $5 per acre, which would yield to the appellee a profit of about $25 a year. It also appears that he has been able since 1902 to raise crops upon this 5-acre tract and gather them, except for about 3 years, when, he says, the high water and his inability to get to them caused the damage to his crops. It is by no means clear from this testimony that the crops could have been saved even if a crossing had been there, as this is all bottom land, as we gather from the record, and subject at times to overflow. It is true that the testimony discloses that appellee has been able to raise crops upon this tract since 1902, which he admits, but says it has given him trouble to reach the land. There are two underhead crossings, one of which is called the McDonald and the other the Sheppel crossing, through which he has been able most of the time to reach his land and cultivate the same. To construct either an overhead or underhead crossing would be very expensive to appellant and far more injurious to appellant than, in our judgment, the benefits that appellee could derive therefrom, and these are matters that must be taken into consideration in determining whether or not, under all the circumstances, the writ should issue. “In giving construction to the statute, it is quite evident it could not have been intended the interests of the landowner or occupant are alone to be consulted, for the question also affects the interests of the railroad company and the public. It would not be reasonable to suppose that it was contemplated that a railroad company should be compelled to erect and maintain a crossing at a point where the expenses of so doing would be very greatly in excess of all benefits that could result therefrom to the landowner or occupant.” Chalcraft v. Louisville, E. & St. L. R. Co., supra. In 1902 the appellee sold this right of way to the appellant and it then constructed this embankment, which he could not help but see and know was being done, and if he had desired, or thought he was entitled to, under the arrangement by which the right of way was procured, a crossing, he should then have made his wishes known to the railroad company, when an underhead crossing could have been constructed at much less expense than at present. It is presumed that at the time of the purchase of the property allowance was made and paid for the inconveniences that might arise, and while this is not conclusive, it is an element that may be considered. Chicago & I. R. Co. v. Hopkins, 90 Ill. 316. There has not been much, if any, change in the conditions existing there, except that appellant deepened and widened a ditch upon its right of way upon the complaint and at the request of appellee, and for the purpose of the better drainage of appellee’s land, as testified to and not denied by appellee. So far as this record discloses, appellee still has the right to pass to his land upon the west side through the McDonald or Sheppel crossings, as heretofore. It is said by-counsel for appellee that this is a right given him under the statute, and that he is entitled to the enforcement of it according to the terms of the statute, and, as we understand the argument, ignores the question entirely of conditions, xpense, or any other element that enters into it, and reference is made to the case of Ohio & M. Ry. Co. v. People, 121 Ill. 483. The question involved in that case, however, was entirely different from the one here, as there it appeared that, the railroad company was willing to build the fence, but desired to harass the landowner by building it off of the line and preventing him from connecting his fence therewith. The Supreme Court said the railroad company could not do that, but we see nothing in that decision that militates against the conclusion above reached. He also refers to the case of Shea v. Cleveland, C., C. & St. L. R. Co., 250 Ill. 97, as laying down the doctrine of absolutely requiring the construction of a farm crossing where the lands are divided by a railroad. It will be observed that in that case there was no question of hazard to public travel, no question of expense, as the crossing only cost $67.40, and there was in that case the element of reaching a station upon an electric railroad, none of which elements are involved in the consideration of this case. We do not think that either of the cases referred to are conclusive of the matters at issue in this case.

The ninth proposition submitted by the appellant to the court should have been “held,” and the court erred in not so doing. We are of the opinion that, when the expense of erecting either an overhead or underhead crossing, the dangers to public travel, the small benefits that could accrue to the appellee if the crossing was erected, the further fact that he is able to cultivate his land, although it is somewhat inconvenient, are all considered together, it would be an abuse of the judicial discretion vested in the courts to award a writ of mandamus under such circumstances and conditions, and that the court erred in awarding the writ in this case.

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

Reversed and remanded.


text:
    John Hiller, Sr., Administrator, Appellee, v. Mt. Olive & Staunton Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 5, 1918.
    Rehearing denied June 22, 1918.
    Statement of the Case.
    Action by John Hiller, Sr., administrator of the estate of Frederick Hiller, deceased, plaintiff, against Mt. Olive & Staunton Coal Company, defendant, to recover damages for the death of plaintiff’s intestate, killed while employed in defendant’s mine, alleged to have been caused through his coming in contact with a crossbar. From a judgment for plaintiff, defendant appeals.
    A, M. Fitzgerald and Keefe, Hadley & Baxter, for appellant.
    D. J. Sullivan, 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.

1. Mines and minerals, § 176 — when verdict for death of mine laborer struck by crossbar in roof while riding on car is not against weight of evidence. In an action to recover for the death of a mine employee, alleged to have been caused by his head striking a crossbar supporting the roof as he was driving a loaded box in the performance of his duties, where the evidence shows that the point at which the accident occurred was dark and that the crossbar could not be observed except by the aid of the cap light of deceased, which gave little light, and could not be seen until right on it; that there was nothing to advise of the approach to this point and that the roof up to the point was level and there formed an abrupt set-off; that the deceased and others were in the habit of riding sideways on the boxes; that the seat was 3 feet from the crossbar; that a bruise was found on the side of his head; that hair the color of his was on the crossbar, and there is evidence tending to show that-he had been struck very near the crossbar, it cannot be said that a verdict for plaintiff was against the weight of the evidence.

2. Mines and minerals, § 182* — when question for jury whether mine is safe for employee riding on car. In an action to recover for the death of a mine employee, alleged to have been caused by his head striking a crossbar supporting the roof, it cannot be said as a matter of law that the place was reasonably safe where it appears that at that point the roof, which was level up to there, became abruptly 6 inches lower, that the point was dark, the nearest light being 90 feet away, and that the roof was only 3 feet above the seat on which deceased and other drivers were accustomed to ride, but the question whether such place was reasonably safe is for the jury.


text:
    Continental Portland Cement Company, Appellant, v. John W. Koch et al., Appellees.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Witnesses, § 290

       — when party not bound by conclusions of witness. A party is not bound by the conclusions of adverse parties who are called as witnesses in its behalf.
    2. Fe.atjduuent conveyances, § 58* — when husband has right to make gift of corporate stock to wife. If a husband is not indebted at the time he makes a transfer of corporate stock to his wife, or has ample property to pay what little indebtedness exists, he has a right to make a gift of such stock unless the gift is made in anticipation of committing a fraud upon creditors.

      Appeal from the Circuit Court of Madison county; the Hon. J. F. Gielham, Judge, presiding. Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed April 5, 1918.
    Statement of the Case.
    Bill by Continental Portland Cement Company, complainant, against John W. Koch, George E. Foster, Henrietta M. E. Koch, Marie C. Joesting, Alton Savings Bank and Citizens National Bank, defendants, to set aside an alleged transfer of real estate and of shares of stock in a certain company alleged to have been made by John W. Koch to his wife in fraud of creditors. From a judgment for defendants, complainant appeals.
    W. P. Early, for appellant.
    Levi Davis, for appellees John W. and Henrietta M. E. Koch.

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

   Mr. Justice McBride

delivered the opinion of the court.

3. Fraudulent conveyances, § 58* — what creditors may avoid transfer of corporate stock by husband to wife. Only creditors having claims when a fraud is committed by a husband in making a transfer of stock to his wife can avoid the conveyance, unless it be shown that the conveyance was made in anticipation of incurring debts, to avoid the payment of which the conveyance was made.

4. Fraudulent conveyances, § 58* — when deemed that transfer of stock by husband to wife was not in anticipation of indebtedness. It must be deemed that the transfer of corporate stock by a husband to his wife at a time when he owed very little indebtedness was not in anticipation of indebtedness incurred only as surety for a corporation in which he was a stockholder, and two years after such transfer.


text:
    Anton Noth, Appellee, v. The Fidelity Mutual Life Insurance Company of Philadelphia, Pennsylvania, Appellant.
    1. Contracts, § 190

       — when contract should be construed independently of other papers. Where papers are executed at different times from the making of a contract and are not directly connected with it, and no ambiguity exists in the contract, it is to be construed independently of such writings and will not be allowed to affect the terms or validity of the contract.
    2. Insurance — when certificate of loan should be construed with policy in determining amount due on policy. Where, upon the change of an insurance company from the assessment plan to the level premium plan, the policy of a member which had run 10 years was exchanged for a 20-year level premium policy and credit given for 10 years thereon, and it was claimed that a certificate for loan which was attached to the application was executed at the same time as the application, and the amount of such purported loan was the amount of the reserve liability charged against insured, without which charge the policy could not have been lawfully issued, and which loan was to be deducted upon payment of the policy, the certificate of loan should be construed in connection with the policy in determining the amount due on the policy at maturity, even though the certificate and application were not executed on the same day, especially where the entire transaction was not closed until delivery of the policy and payment of the premium.
    3. Fraud, § 20

      - — when statement of insurance agent constitutes mere expression of opinion. The statement of an insurance agent to a policyholder in the company at the time of a change of a policy of the assessment kind to the level premium kind, that the old policy, being an assessment policy, was not worth anything, is a mere expression of opinion and not fraud vitiating the new contract of insurance.
    4. Contracts, § 263*- — rescission of contract in part. A party will not be permitted to affirm a contract in part and rescind as to the residue.
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 5, 1918.
    Rehearing denied June 22, 1918.
    Jones, Hocker, Sullivan & Angert and Warnock, Williamson & Burroughs, for appellant; George H. Wilson, of counsel.
    Burton & Burton and Anderson, Gilbert & Hayden, 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.

The appellee recovered a judgment in the trial court for $1,954.43, which appellant claims is not sustained by the evidence and is contrary to the law in the case.

It appears from this record that on about the 10th day of September, 1897, The Fidelity Mutual Life Insurance Association of Philadelphia issued to appellee a certain policy of insurance for the sum of $2,000, payable upon his death to his wife, Anna Noth. The insurance company at that time was what is known as an assessment company and the policy issued was an assessment policy. Subsequently the Fidelity Mutual Life Association changed its method of doing business from that of an assessment company to that of a level premium, or old-line company so called, and the name of the company was changed to the Fidelity Mutual Life Insurance Company. On or about July 20, 1906, and after appellee had held the policy first issued to him for nearly 10 years, during which time he had made all the payments necessary to keep the said policy in force, an agent of the appellant proposed to appellee to change his policy from that of an assessment under the old company to that of an old-line policy under the new company. The evidence with reference to what occurred at the time of the change of policies is very meager and indefinite but it does appear from the testimony of the appellee that the agent said to him: “Your first policy is due and you are not dead, you are alive. We can give you nothing. We can fix you another policy, this old policy ten years and another policy ten years and make a paid up policy on that, that is the only way.” And appellee then says that upon this representation he surrendered the old policy and took out the new policy and agreed to pay an annual premium upon the new policy of $138.62.

It further appears from the evidence that the appellee was of the age of 50 years at the time he received his first policy and of the age of 60 years at the time of receiving the second policy. At the time he made application for the second policy he also signed a certificate of loan for $972, which by the said certificate it was agreed that the said loan with interest should be deducted from the amount due upon the policy at the time of its payment. The policy received was upon the 20-year premium plan with assessments based upon the 20-year rate, but appellee was given credit so that his assessments were to be only ten in number, or one-half that usually given upon such policies to the assured. The certificate of loan was attached to the application and in fact was upon the same sheet but there was a perforation between the application and the certificate of loan so that they could be separated, and when they were sent in to the home office they were in fact separated for the purpose of placing them in their appropriate files. Upon receipt of the application and certificate of loan the policy here sued upon was issued which provided for certain accumulations and distribution of profits, and provided for what they called a guaranteed addition, that is, that every year there would be an addition to the face of the policy. The policy also provided that at the expiration of the term, which would be June 10, 1916, for three options: First. The withdrawal of a guaranteed cash value of $1,554, together with profits apportioned hereto; or, second, the conversion of the entire cash value into a life annuity; or, third, the withdrawal of profits in cash and the continuation of the policy. The appellee elected to withdraw the cash value of the policy and accumulations and so notified the appellant. Upon receipt of this notice appellant made a statement of the amount due after deducting the loan above referred to, which the appellee refused to accept, and brought this suit to recover the cash value and profits, without reference to the loan. The policy also contained a provision that upon a settlement any indebtedness owing by the appellee should be deducted from the amount due under the policy.

It is insisted by counsel for appellant that as the certificate for a loan of $972 was executed at the same time of the application and forwarded to the company it constituted a part of the consideration for the issuing of a 20-year term policy at the age of 50 years to appellee, who was then of the age of 60 years, and caused it to mature in 10 years and carried with it the guaranteed addition of a 20-year term policy at an annual premium of $138.62, when the same policy for a 10-year period at the age of 60 years, which he had attained, would have required the payment of an annual premium of $272.37.

It is claimed by appellee, however, that as the application and certificate of loan were not executed at the time the policy was issued, and the certificate of loan was not specifically mentioned in the policy when it was issued, that it was in fact no part of the contract, and that the policy should be construed without reference to this certificate of loan, and -this, in our judgment, is the crucial question in this case. It is true that where papers are executed at different times from the making of the contract and are not directly connected with the contract, and no ambiguity exists, in said contract, that it is to be construed independently of such writings and such will not be allowed to affect the terms or validity of the contract. Schneider v. Turner, 130 Ill. 28; Telluride Power Transmission Co. v. Crane Co., 208 Ill. 218. After a careful examination of this record we do not believe that the rule invoked by appellee has the effect of depriving appellant of the benefit of having the certificate of loan construed in connection with the policy issued. It is true they were not executed on the same day in point of time, but they all constituted parts of one transaction that was not closed until the delivery of the policy and the payment of the premium. The undisputed testimony is that the amount represented by this loan certificate was the reserve liability charged against the appellant upon that policy by the insurance department, and without this reserve, either in cash or in form of a note, such policy could not have been lawfully issued, and this loan had to be taken into consideration in determining whether or not the policy could issue. It is said by appellee that the certificate is not in any manner connected with the policy. We do not so understand the evidence in this case. In addition to the fact of the reduction in the annual premium that appellee was required to pay by reason of giving Mm a 20-year payment policy, it appears from the policy itself that any indebtedness that he was owing the company should be deducted upon se'ttlement, and this certificate identifies the indebtedness referred to and should by all reasonable rules be taken into consideration in determining the amount due. It also appears from the testimony of Charles Gr. Hodge, secretary of appellant, which is not disputed, that: “This policy was sent to Tony Noth with a copy of that certificate of loan attached”; so that it appears that the policy, copy of application and copy of certificate were all delivered to appellee as one instrument at the time this contract was closed and should, in our opirnon, be construed as one contract or transaction. In commenting upon such matters as may be taken into consideration, the Supreme Court has said that the application, note and receipt given by the assured may be taken into consideration in the construction of the contract for an insurance policy. Winnesheik Ins. Co. v. Holzgrafe, 53 Ill. 516. The Supreme Court of the United States in passing upon this question said: “We do not see how it can make any difference where the conditions are expressed, — whether in the policy, in the note or in the receipt given for the premium, or whether on the face of the latter or :on its back. The agreements of parties may be expressed in many papers, and if the connection of the papers is not apparent it may be shown by parol. * * * The receipt expressed the conditions upon wMch the note was received, — unmistakably expressed them. The receipt of the premium was expressed to be ‘ subject to the terms of the contract and the conditions on the back’ of the receipt. And the assured was directed to read the notice upon the back of the receipt. The notice was as follows: ‘If note be given for the payment of the premium hereon or any part thereof, and same is not paid at maturity, the said policy shall cease and determine.’ It is not contended that it was not competent for the company to make the condition. It is asserted that it did not become a part of the contract upon which the minds of the parties met, — that the minds of the parties only met upon the application, the policy and the note. We cannot assent to this view. The payment of the premium was a very essential thing, and the manner of its payment, whether in cash or by note, and provision for the payment of the note and the effect of its nonpayment, were also essential things, and necessarily must have been of mutual concern to the parties and upon which their minds must be considered as having met. * * * All of the papers, therefore, embodied the agreement of the parties. In Knickerbocker Life Ins. Co. v. Norton, 96 U. S. 234, 24 L. Ed. 689, the agreement was considered as ‘embodied in the policy and the indorsements thereon, as well as in the notes and the receipt given therefor.’” Iowa Life Ins. Co. v. Lewis, 187 U. S. 335. As the appellee had not paid any part of the first 10 years’ premium and necessarily no part of the reserve, it would be a discrimination against other policyholders to permit him to receive the same benefits from ten payments as they obtained from twenty. James v. Franklin Life Ins. Co., 180 Ill. App. 632; Lawton v. Fidelity Mut. Life Ins. Co., decided by the Ohio Court of Appeals June 7, 1916 (not yet reported).

It further appears from the testimony in this case that on the day this policy was delivered to appellee it had a value of $887.83 because of the reserve liability, and this was in addition to the value of $2,000 provided for in the face of the policy, and had appellee died at the expiration of the first year his beneficiary would have been entitled to $3,064 and at the end of the nineteenth year (or tenth year of this term) $3,712. Had he chosen to continue his policy instead of demanding a cash settlement his beneficiary would have received much more than was tendered him upon the cash settlement. The payments with the guaranteed additions for each year were stated in the face of the policy that appellee received, and he certainly knew or should have known that in order to obtain the benefits of this guaranteed addition, even at the end of the first year, that he would have had to pay something more than the annual premium of $138.62. We believe that it was not only lawful but fair and just that the loan should be deducted in the settlement.

It is further insisted by counsel for appellee that the certificate of loan was procured by fraud and misrepresentations by the agent, and was without consideration and void. The misrepresentations claimed are that the agent stated to appellee that the old policy being an assessment policy was not worth anything and bases the falsity of this statement that at the time appellee acquired his first policy in the assessment company there Was a surplus of $400,000, and that at this time, 7 years later, must have materially exceeded that sum. It may have increased or may have been decreased, or all or a portion of it may have been applied in the reduction of premiums as provided in the old policy. It is conceded that there is nothing in the record to show what did become of it. The witnesses for appellant state in their testimony that the old policy at the time of the exchange in fact had no value. The facts as disclosed by this record do not in our judgment constitute such fraud and misrepresentations as to vitiate the loan; it was after all but the expression of an opinion by the agent which would not constitute such a fraud as to vitiate the contract. Douglass v. Littler, 58 Ill. 342. There is nothing in this record that excused the appellee from having this certificate of loan read by the agent or some one else, if he did not understand it, but he made no such request of any one. If he had caused it to be read and there had appeared to be something in it that was not in accordance with the agreement, he certainly would have been justified in not signing it. We do not believe that there is any merit in this contention but, if there was, it could not benefit the appellee in this action. In conformity with the views above expressed, making the certificate of loan a part of the contract, the appellee would have to abide by the whole contract as made or institute an action to rescind the whole contract and restore him to his original rights. He could not accept such provisions of the contract as were favorable and reject those unfavorable; he must accept the bitter with the sweet. A party will not be permitted to affirm a contract in part and rescind as to the residue. If he rescinds at all he must do so in toto. Harzfeld v. Converse, 105 Ill. 534.

It follows from what we have determined in this opinion that the court erred in refusing to direct a verdict for the plaintiff for the amount tendered and in modifying appellant’s instructions. The judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.