author: Mb. Presiding Justice McBride

text:
    Christina Schuerger, Appellee, v. The City Water Company of East St. Louis and Granite City, Appellant.
    1. Waters and water courses, § 45

      —when water company liable for injuries resulting from defective meter box. In an action for personal injuries sustained by plaintiff resulting from a defective covering over a water meter box located in a sidewalk and belonging to defendant, a City Water Company, a verdict for plain tiff held sustained by the evidence.

      2. Damages, § 208

      —when instruction does not submit question of law. Instruction directing the jury in estimating damages to take into consideration the elements of damages that “are within the allegations of the declaration,” held not to submit questions of law.
    3. Damages, § 211

      —when instruction as to effect of injury on ability to perform duties not vicious. Instruction directing the jury to assess damages for the effect that the “said injury has had and will have upon her ability to perform her usual duties,” held not vicious for failing to specify the duties referred to.
    4. Damages, § 193

      —when instruction as to failure of plaintiff to exhibit injury improper. In an action for personal injuries, defendant is not entitled to an instruction that failure of plaintiff to exhibit her injury to the jury should be taken as a circumstance against her.
    5. Damages, § 193

      —when instruction not improper. An instruction authorizing the jury “to fix such damages, if any, from a preponderance of the evidence, guided by his experience in the everyday affairs of life,” held not improper.
    6. Damages, § 122

      —when verdict for injury to leg not excessive. Verdict for one thousand dollars for injuries to leg, which developed into a running sore which continued from the time of the injury up to the time of the trial, preventing plaintiff from attending to her usual duties as housekeeper, the injury also causing her to suffer much pain at times, held not excessive. "
    7. Damages, § 168

      —exhibition of injuries. Plaintiff in an action for personal injuries is not required to submit to a physical examination of his or her injuries.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    M. Millard, for appellant; J. L. Flanigen, of counsel.
    D. J. Sullivan, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number,

   Mb. Presiding Justice McBride

delivered the opinion of the court.

The plaintiff recovered a judgment against the defendant in the City Court of East St. Louis, Illinois, for one thousand dollars, to reverse which defendant prosecutes this appeal.

It appears from the evidence, in this case, that at some time prior to May, 1911, the appellant, with the consent of the city of Bast St. Louis, placed a meter box for the purpcie of measuring- water along the north side of Henrietta street and between Columbia place and Sixteenth street. The meter box is about three feet deep, fifteen inches in diameter, with a top about flush with the surface of the sidewalk. The meter is circular in form, rests upon the bottom of the meter box and extends about half way to the top, is from six to eight inches in diameter and leaves a space of about six inches between the meter and the box. The top of the meter box is covered by a circular rim into which is fitted an iron lid. The evidence tended to show that the iron lid was too small for the rim and so much so that when a person stepped upon one side of the lid it would tip, and had been in this condition from May, 1911, until the time of plaintiff’s injury. There was a fence extending along the north side of and close to this sidewalk. The meter was so constructed that it extended in on the sidewalk the distance of about sixteen inches. On September 24, 1911, appellee was returning home from a friend’s house at about the hour of nine o’clock at night, in company with Mrs. Hager, Elmer and Emma Schuerger; she was traveling west along the north side of this sidewalk, stepped on the lid of this meter box when the lid tipped and caused her left foot and leg to fall into the meter box, her foot going down between the meter and the box; it bruised her leg, caused a sore upon the left leg, and as she fell astride the lid it bruised her right thigh; the bruise upon her left leg developed into a running sore which continued up to the time of the trial. She was confined to her bed for two or three weeks and claims to have been a continual sufferer and unable to perform her usual work since receiving the injury. There were no lights on the street at this place and the plaintiff claims that she was not aware of the presence of the meter box, although she had passed along this street frequently. The declaration, which is- not abstracted, appears to be in the usual form and charges that the meter above described was by the defendant negligently permitted to be in a loose, unfastened, defective condition and had been for a long time prior to the injury, which was known to the defendant, or should have been by the exercise of ordinary care, and that the plaintiff on September 24, 1911, while passing along the sidewalk using due care for her own safety, stepped upon the said covering of said meter box which, by reason of its loose, unfastened and defective condition, tipped and threw the plaintiff into the meter box and injured her.

The first contention of the appellant is that the plaintiff was not in the exercise of due care for her own safety at the time of and prior to the injury; and the second contention is that the defendant was not guilty of negligence. It appears from the evidence that at the time the plaintiff was injured she was passing along the north side of Henrietta street walking near the fence, but upon the sidewalk, and that she stepped upon the lid of this meter box when it tipped and caused her left leg to drop into the meter box. That she did not know of the presence of the meter box or its condition.

The evidence further tends to prove that the lid of this meter box was smaller than the rim; that it was located in the traveled part of the sidewalk. That when you pressed upon one side of the lid it would tip and that it had been in this condition from May, 1911, until the time of plaintiff’s injury. While it also appears from the testimony of the defendant that a few days prior to this time, when the reading of the meter was taken by its agent, that the box appeared to be in proper condition and safe, there was evidence that tended to support plaintiff’s contention that she was in the exercise of due care, and her contention that defendant had been negligent in permitting this lid to remain in a defective condition for several months, under such circumstances was for the jury to say whether or not the defendant was negligent and the plaintiff was in the exercise of due care for her own safety, and we think the jury was fully warranted in reaching the conclusion that it did.

It is next contended that the damages awarded to the plaintiff were excessive. It appears from the evidence that the plaintiff’s left leg was so badly injured that it developed into a running sore and continued in this condition from the time of the injury up to the time of the trial; that she was confined to her bed for two weeks, that she had not, since her injury, been able to attend to her usual duties as housekeeper, suffered much pain, especially at times, and that she still had this running sore to contend with. While it may be true that the jury was liberal in awarding her damages, yet under the law they are the proper judges of the amount of damages to be awarded and unless this court can say that the jury has been influenced by passion or prejudice or some other improper agency calculated to induce an excessive verdict then this court has no right to disturb the verdict upon that account. We are unable to say that under the testimony of the plaintiff and her physician as to her condition and suffering that the verdict is excessive.

It is next contended that the court erred in giving plaintiff’s first instruction, which, among other things, authorizes the jury “to fix such damages, if any, from a preponderance of the evidence, guided by his experience in the everyday affairs of life.” This instruction was approved substantially in the case of North Chicago St. Ry. Co. v. Fitzgibbons, 180 Ill. 466, and other cases.

It is next contended that plaintiff’s third instruction is vicious because it directed the jury to assess damages for the effect that the “said injury has had and will have upon her ability to perform her usual duties, ’ ’ without stating what duties would entitle her to damages. The evidence discloses what her usual duties were and the jury could have no difficulty in applying this instruction to the evidence. The further criticism that this instruction submitted questions of law to the jury because it stated that they were not determining the damages “to take into consideration the elements of damages that are within the allegations of the declaration.” We do not think that this instruction submits questions of law to the jury' and the criticism is without merit.

Appellant also contends that the court erred in modifying its ninth, sixteenth, seventeenth, eighteenth and twentieth instructions, in that it struck out the words “and the verdict must be returned for the defendant,” in the sixteenth instruction and similar words in each of the other instructions. The jury were told by this sixteenth instruction that if the conditions existed as set forth in the instruction that “plaintiff cannot recover, ’ ’ and similar expressions are contained in some of the other instructions criticised, enough so that the jury could not possibly have been misled as to the duty devolving upon it if no liability existed upon the part of the defendant, and that if the facts were such as to relieve the defendant of liability that the plaintiff could not recover.

The refusal to give defendant’s fourteenth instruction which is, “The jury are instructed that the plaintiff had the right to exhibit her sore to the jury, if she has any sore on her leg, for the purpose of showing its chara'cter and present condition, and if she has failed to do so that is a circumstance the jury may take into consideration in making up a verdict,” is complained of as error. We do not think there was any error in the refusal of this instruction as it would be, to say the least of it, very misleading and would probably cause the jury to infer that it was her duty to exhibit her leg to the jury; this is not the law.. It is well settled by a long line of decisions that a plaintiff in an action of this kind is not required to submit to a physical examination of his or her injuries. City of Chicago v. McNally, 227 Ill. 14; Peoria, D. & E. Ry. Co. v. Rice, 144 Ill. 227. If she is not required under the law to exhibit her leg to the jury, then the defendant certainly would not be entitled to an instruction that would tend to show a failure to exhibit her limb should be taken as a circumstance against her. The court did not err in the refusal of this instruction.

After a careful examination of this record and the the instructions, we are not able to say that any substantial error has been committed in the trial of the case and the judgment of the lower court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice McBride

license: Public Domain

text:
    W. C. Davis, Jr., Appellant, v. E. R. Hincke and Mary Hincke, Appellees.
    1. Frauds, statutes of, § 27

      —when statute making a loan of personal property fraudulent to creditors inapplicable. R. S. c. 59, § 7, J. & A. If 5873, providing that pretended loans of goods and chattels shall he fraudulent as to creditors, where allowed to remain in possession of borrower for five years, etc., held not to apply where money is intrusted to an agent to loan, and the agent without consulting the principal takes out the loan in his own name.
    2. Creditors’ suits, § 56

      —when evidence insufficient to establish ownership of notes in judgment debtor. On creditor’s bill to discover property owned by judgment debtor, evidence held not to establish that notes in the hands of his mother belonged to the judgment debtor.
    3. Creditors’ suits, § 9

      —when excess of collateral securities may be reached on creditor’s bill. On creditor’s bill to discover property of judgment debtor, where the debtor has pledged collateral security of a greater value than the indebtedness secured, the excess may be reached.
    4. Appeal, and error, § 971

      —questions precluded by failure to vintroduce evidence in trial court. On appeal from a decree dismissing a creditor’s bill, appellant cannot urge that collaterals pledged by debtor were of a greater value than the indebtedness secured, where he introduced no evidence on the trial showing such fact.
    Appeal from the Circuit Court of Perry county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Sprigg & Gilster and Whitnel & Browning, for appellant.
    B. W. Pope, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Upon the hearing of the evidence the Circuit Court dismissed complainant’s bill for want of equity and he prosecutes this appeal.

Complainant filed a bill to the November Term, 1911, of the Circuit Court of Perry county alleging that he obtained a judgment, and purchased of the First National Bank other judgments, against E. B. Hincke, totaling $4,657; that executions were issued upon said judgments and returned, no property found, and complainant files this his creditor’s bill for the purpose of discovering property owned by E. B. Hincke and charges that he believes that the defendant E. B. Hincke has an interest in real estate, moneys, stocks, bonds and notes that are in the hands of Mary Hincke and are concealed so that the complainant cannot subject such property to the payment of its judgments; that the defendant E. B. Hincke has made a pretended sale, assignment, conveyance, gift, evidenced by bailments or delivery by other secret devices or contrivance, divers bonds, stocks, promissory notes and other personal property due from other persons, to the said Mary Hincke with intent to hinder and delay your orator in the collection of his judgments. The bill then charges specifically that one W. S. Wilson is indebted to E. B. Hincke in the amount of $22,000, evidenced by two promissory notes of $10,000 each, and one promissory note for $2,000, and that said notes were secured by stock of the First National Bank of Pinekneyville and the Carterville State Bank of Carterville, and of the Bessemer Washed Coal Company owned by the said W. S. Wilson, and that the said Mary Hincke now has possession of both said notes and said security, and charges that said notes and security should be applied to the satisfaction of complainant’s judgments and asks that the defendants be required to make answer to said bill and to set forth and discover the situation, amount and value of the property, stock, bonds and other evidence of indebtedness due or to become due to the said E. R. Hincke and held in trust for him by Mary Hincke; and that Mary Hincke be required to set forth whether or not there has been conveyed to her any property or effects of the said E. R. Hincke in which the said E. R. Hincke by any agreement, private understanding, trust or confidence has therein any equity of redemption, right or interest whatsoever, and as to whether or not she is in any manner indebted to the said E. R. Hincke.

The answer of E. R. Hincke denies that he has any interest in the notes of W. S. Wilson, and the securities accompanying the same, but avers that these notes were given for money loaned to W. S. Wilson and that the money loaned to the said W. S. Wilson was the money of Mary Hincke. That in about the year 1901 Mary Hincke became possessed of a considerable amount of personal property and that as she was very old, her son, the defendant E. R. Hincke, undertook the management of the property and loaning of the money for her and that he did, from time to time, loan to W. S. Wilson money to the amount of $22,000; that at the time the notes were taken they were made pay- . able to E. R. Hincke but that he was only acting as the agent of Mary Hincke in the loaning of said money and that afterwards the notes were renewed and made payable to Mary Hincke. The defendant further answering sets forth all of the property owned by him being household and kitchen furniture; four hundred and seventy-five shares of the capital stock of the Bessemer Washed Coal Company, face value $24,500; eighteen shares of stock in the First National Bank of Percy, Illinois, forty-nine shares of stock in the First National Bank at Pinckneyville, Illinois; twenty shares of stock in the Carterville State & Savings Bank; ten shares in the Pinckneyville Light & Power Company; nineteen shares in the Nesbit Mercantile Company; thirty-five shares in Cripple Creek Investment Company, and then avers that all of said stock has been put up by him as collateral security and for the purpose of securing one note to William Stevenson for $3,000; one note to J. S. Lewis for $8,300; three notes to Mary Hincke, one for $1,000, one for $4,000 and one for $5,800, and that he now has on hand the sum of $155, and a credit from the Nesbit Mercantile Company for $90, and denies having any other property or any interest whatsoever in any other property.

The separate answer of Mary Hincke denies any actual knowledge of said judgments and denies that she has in her possession and control any stocks, bonds, notes or any other evidence of indebtedness belonging to E. B. Hincke or any other moneys or securities in which he has an interest, and adopts the answer of E. B. Hincke, and avers specifically that she is the owner of the said Wilson indebtedness, and denies that E. B. Hincke has any interest whatever therein, and avers that she is of the age of seventy-six years and that for many years last past said E. B. Hincke has transacted her business for her. To these answers the complainant filed a general replication.

It appears from the evidence in this case that prior to 1901, the husband of Mary Hincke died and left her an estate valued at from one hundred to one hundred and fifty thousand dollars, of which considerable of it was money, and that Mary Hincke procured her son, E. B. Hincke, as agent, to loan this money. That E. B. Hincke loaned W. S. Wilson, from time to time, between 1901 and 1909, various sums of money totaling $22,000. That the money loaned to Wilson was the property of Mary Hincke and that E. B. Hincke had no interest therein but the notes were taken in the name of E. B. Hincke, and on about April 1, 1909, these notes were renewed and taken in the name of Mary Hincke. It further appears from the evidence that as payments were made upon this loan, and others, they were deposited in the bank to the credit of Mary Hincke and certificates of deposit were taken from time to time in the name of E. B. Hincke, which is shown by this record to be owned in fact by Mary Hincke; that these certificates of deposit were issued between April 25, 1905 and April 25, 1909, and made payable to E. B. Hincke. It cannot be determined from this record how much of this money was loaned to Wilson prior to 1905. Wilson says that about April 1, 1909, he owed E. B._ Hincke $22,000, evidenced by notes but does not know how long that indebtedness had been running. That there were a number of the notes that ran from 1905 on and says some of them may have been further back than that. The testimony of E. B. Hincke is that he loaned the money from time to timé from 1901 to 1909. There were three of the old notes offered in evidence that had been renewed, one for $2,000 bearing date of April 1, 1905, and two notes of $10,000 each bearing date of April 1, 1908, and these notes it appears were all renewed on April 1,1909, and made payable to Mary Hincke. It also appears from the evidence that E. B. Hincke had borrowed money from his mother and that in 1909, having realized that he was unable to meet his indebtedness, he caused the Wilson notes and the certificates of deposit and other matters that he had been handling for his mother to be placed in her name and at the same time transferred to her valuable securities as collateral to secure moneys that he had borrowed from her. It appears from the sworn answers of the defendants and from the evidence in this record that Mary Hincke was in fact the owner of this $22,000 that was loaned to Wilson and of the several certificates of deposit that were transferred to her, and no attempt was made upon the part of complainants to dispute this fact. Counsel for appellant, however, insist that as the loans made and certificates of deposit were taken in the name of E. R. Hincke and held hy him, as claimed, for five years or more, that this was such a fraud as to estop the defendant Mary Hincke from claiming this property as her own, and reliance is placed upon section 7, c. 59 of Hurd’s Revised Statutes, (J. & A. ¶ 5873), which is as follows: “Where any loan of goods and chattels shall be pretended to have been made to any person, with whom, or those claiming under him, possession shall have remained for the space of five years, without demand made and pursued by due process of law, on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of an use or property by way of condition, reservation, remainder or otherwise, in goods or chattels, the possession whereof shall have remained in another as aforesaid, the same shall be taken, as to creditors and purchasers of the person aforesaid, so remaining in possession, to be fraudulent, and that the absolute property is with the possession, unless such loan, reservation or limitation of use or property were declared by will or deed in writing proved and recorded as aforesaid.”

It seems to us from the reading of this statute that it is contemplated that a loan of the property must be made by the owner to bring it within the provisions of this section. That there must have been a borrowing of the particular property to begin with and that if the particular property was allowed to remain in the hands of the borrower for five years then in law it became the property of the borrower, so far as his creditors were concerned. While this statute might refer to the loaning of and security, such as notes or stock or something of that character that had identity and could be held by the borrower as the identical property, or even exchanged for other property, yet we do not understand that it could have reference to money loaned, as the very moment that the money was loaned it would become a credit to the lender and a debt of the borrower, unless it was money placed in a bag or in some manner contained so as to preserve its identity, and we do not believe that the loaning as shown by this evidence comes within the provision of that statute, even if it is held to be a loan, but the undisputed evidence shows that it was not a loan but was simply money intrusted to an agent to loan and that he without consulting the principal, took the loans in his own name and in the end was only a restoration of the property to the principal.

It further appears from the evidence in this case, so far as we are able to determine from this record, that the principal part of the loans made to Wilson was after April, 1905, and that they were restored to the principal on April 1, 1909. It is true it appears that the loans were made from time to time from 1901, until 1909, and Wilson says he thinks some of them were made prior to 1905, but the only notes offered in evidence showing the dates of such loans were notes bearing date after April 1, 1905, and it was for the complainant to show the length of time these notes were in possession of E. B. Hincke, to bring him within the provisions of this statute. The certificates of deposit which are also claimed to come within the provisions of this statute all appear to have been made in the name of E. B. Hincke between July 28, 1905, and July 14, 1908, and it does not appear that these certificates of deposit were held by E. B. Hincke for a period of five years.

It is further contended by counsel for appellant that regardless of this statute the evidence established the ownership of the Wilson notes of $22,000 to be in E. E. Hincke and that they were placed in the hands of Mary Hincke for the purpose of protecting them and preserving them for E. E. Hincke. We cannot agree with counsel in this contention. The evidence shows that Mary Hincke owned a valuable estate and a considerable amount of money, and Wilson in his testimony says: “I did not know that the funds represented by these notes belonged to Mrs. Hincke except what Mr. Hincke told me after he had given me checks time and again signed by Mary Hincke by him, and had given me some checks signed by him. He told me more than once during all the transactions I had with' him that he was handling his mother’s money and I understood that.” And the testimony of E. B. Hincke shows that it was the money belonging to his mother that he loaned to Wilson and there is no testimony whatever to dispute this fact, except the fact that the notes were made payable to B. E. Hincke, and we think it appears- that B. E. Hincke was also indebted to his mother and that under the law he had a right to prefer his mother as a creditor if he chose so to do.

It is again contended by counsel for appellant that the collateral delivered by B. B. Hincke to his mother was of greater value than the indebtedness of him to her. This, however, seems to have occurred to counsel since the trial of the suit as there was no evidence introduced that we are able to find showing the value of the securities or that they are of greater value than the indebtedness. It is true, as claimed by counsel, that if the securities are of greater value than the indebtedness that then appellant would be entitled to have the excess of such securities applied towards the payment of his debts.

We are not able to say from anything that appears in this record that the court erred in dismissing complainant’s bill, and the judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    William U. Halbert, Administrator, Appellee, v. Louisville & Nashville Railroad Company, Appellant.
    (Not to be reported in full).
    Abstract of the Decision.
    1. Death, § 63

      —when damage must be shown. In order that a mother not living with a son may obtain more than merely nominal damages, in an action for damages sustained by her son’s death, it is necessary to show pecuniary interest in the continuance of the life of the deceased.
    2. Death, § 42

      —material averment of damage must be proved In an action for death by wrongful act, an averment in the declaration that the deceased contributed to the support of his mother during his lifetime is material and must he proved by competent testimony.
    3. Evidence, § 224

      —when based on hearsay is improper. Testimony based upon hearsay statements is improper.
    4. Evidence, § 224

      —when hearsay. In an action for wrongful death, testimony of witnesses that deceased stated he was going to send money to his mother is hearsay.
    Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by William U. Halbert, administrator of the estate of John Scadman, deceased, against the Louisville & Nashville Eailroad Company, a corporation, to recover damages for a death caused by wrongful act. From a judgment for plaintiff for two thousand five hundred dollars, defendant appeals.
    J. M. Hammill and C. P. Hammill, for appellant.
    M. V. Joyce and A. P. Garrett, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section numbei.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

5. Evidence, § 224 —when not hearsay. In an action for wrongful death, testimony of a witness that he gave deceased’s mother money that deceased sent her is not hearsay.

6. Death, § 48 —when evidence to show damage is inadmissible. In an action for wrongful death, receipts reciting that money was received from deceased to be remitted to his brother-in-law and that a bank money order was mailed to such person are incompetent for the purpose of showing a payment to deceased’s mother and also as being based on hearsay and where there is no further evidence that the money was paid to the mother of deceased other than to deceased’s declarations that he was going to send money to his mother.


text:
    Cora Rankin Rufty, Appellee, v. Warren Rankin, Jr., Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Bond county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Petition by Cora Rankin Rufty for a citation against Warren Rankin, Jr., to compel Mm, as executor, to inventory certain personalty as the property of the estate of Warren Rankin, Sr. The respondent filed an answer and claimed that a copartnership existed between him and the deceased and that the property was partnership property. Prom an order determining that the property was the sole property of the estate of the decedent, the respondent appeals.
    C. E. Cook and C. E. Hoiles, for appellant.
    Cicero J. Lindly and C. E. Davidson, for appellee.

      Abstract of the Decision.
    1. Appeal and error, § 300

      —when order to executor to inventory property is final. Where, upon the hearing of a petition to compel an executor to inventory certain property as belonging to the estate which the executor claims belonged to a partnership that existed between deceased and himself, the order of the court determines that the property belongs to the estate and orders it to be so inventoried, such order is a final and appealable order.
    2. Partnership, § 48

      —how existence determined. In determining whether a partnership exists, if the agreement is not in writing, the intention of the parties must be ascertained from their language and conduct:
    3. Partnership, § 52

      —evidence sufficient to show existence of. On a petition to require an executor to inventory property that he claimed belonged to a partnership that existed between deceased and himself, petitioner proved admissions by the respondent, made soon after the death, that he had no interest in the property. Respondent testified he held the property under a verbal partnership agreement and many witnesses stated they dealt with deceased as a partner of respondent and that deceased declared a partnership existed. Held, a partnership existed.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number,

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    Rollie Finney, Appellee, v. Harris & Cole Brothers, Appellant.
    (Not to be reported in full).
    Appeal from the Circuit Court of Massac county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Bollie Finney against Harris & Cole Bros, to recover damages for injuries received in operating his employer’s planing machine. From a judginent for plaintiff for four thousand dollars, defendant appeals. A former appeal is reported in 168 Ill. App. 326.
    Abstract of the Decision.
    1. Master and servant, § 760

      —when proximate cause is for the jury. Where an employe feeding hoards through a planing machine is injured by a hoard kicking hack out of a defective appliance and the evidence is conflicting whether the accident was caused by feeding a plank thinner than the gauge the cutters was set for, or by the defect, the question of what was the proximate cause is for the jury.
    2. Master and servant, § 743

      —when assumed rislc is for the jury. Where a foreman feeding hoards through a planing machine is injured by a hoard kicking hack out of a defective appliance, and it appears that he was not the regular operator, did not know of the need of repairs that had been reported to the master, would not see the defect from his position and that his duties were to put in and sharpen the knives, to gauge and to examine the work, to report breaks to the machinist and that on one occasion helped the machinist as a laborer, the question whether he assumed the risk is for the jury.
    C. L. V. Mulkey, for appellant.
    Feed R. Young and H. A. Evans, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    Zeso Christo et al., Appellees, v. Vasil Nicola et al., Appellants.
    1. Pleading, § 89*—what- constitutes a plea. An instrument to constitute a plea must purport to answer the allegations of the declaration, must set forth a proper formal commencement and must have a proper conclusion, either with a verification or to the country.
    2. Pleading, § 321*—what not verified plea. An affidavit by defendants denying liability and that they were partners, not purporting in its commencement to be a plea and not concluding with a verification or to the country, is not a verified plea in bar under the Practice Act, § 54, J. & A. If 8591.
    3. Assumpsit, action of, § 89

      —when recovery sustained on conflicting evidence. Defendants received money from plaintiffs for deposit in their private bank and claimed to have purchased foreign drafts for plaintiffs, to have sold them groceries and that indebtedness existed for rent and on a promissory note. Plaintiffs contended that the deposits had no connection with defendant’s claim, that money was furnished for the drafts, that the running account was paid and that the alleged note was a receipt. Held, a verdict in assumpsit for plaintiffs was not against the weight of the evidence.
    4. Evidence, § 253

      —when translation is inadmissible. A written translation of books of account may be excluded where the books were offered in evidence and were translated from the witness stand by an interpreter.
    5. Instructions, § 94

      —disregard of false testimony. It is not reversible error to give an instruction that if any witness has wilfully testified falsely to any material fact his testimony may be disregarded except in so far as he may be corroborated by other testimony in the case, without also adding corroboration by “facts and circumstances.”
    6. Instructions, § 85

      —when improper on burden of proof. Defendant’s instructions as to effect on burden of proof of a sworn plea denying partnership may be refused where the purported plea is not a plea in fact.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied November 6, 1913.
    C. H. Burton, for appellants.
    Ernest C. Dodge and E. G. Hill, for appellees.

      See Illinois Notes Digest, Vols. 51 to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Judgment was rendered against the defendants in the court below for $414, and the .defendants prosecute this appeal.

This was an action of assumpsit. The declaration consists of the common counts to which the defendants filed the plea of general issue, and with this plea filed an affidavit of merits. In addition to such plea and affidavit of merits, defendants also filed an affidavit denying the indebtedness claimed by plaintiffs, and denied that they were partners, also that they were neither jointly or severally liable for the money claimed by plaintiffs. There were two of these affidavits, the first of which was signed by John, George, Naum and Christ Nicola and were sworn to on the 30th of March, 1912. The other affidavit of the same purport was subscribed and sworn to by Vasil Nicola on the 18th of April, 1912.

One of the contentions of appellants is that the court erred in refusing appellants’ motion to direct verdict at the close of plaintiffs’ evidence for the reason that plaintiffs had failed to introduce evidence showing the existence of a copartnership between the defendants, and insisting that the paper filed by them was a plea in bar verified by affidavit; that under section 54 of the Practice Act (J. & A. ¶ 8591), providing that in actions of this character proof of the partnership of defendants, “Shall not, in the first instance, be required to entitle the plaintiff to judgment, unless such proof shall be rendered necessary by pleading in abatement, or unless the defendant shall file a plea in bar, denying the partnership, or joint liability, or the execution of the instrument sued upon, verified by affidavit.” We do not regard the instrument filed by defendants as a plea. In passing upon the question as to what may or may not constitute a plea, the courts, so far as we have been able to ascertain, have uniformly held that to constitute a plea it must purport to answer the allegations of the declaration, and shall set forth the formal commencement prescribed by the books for pleas, and that it must necessarily have a proper conclusion, either with a verification or to the country. The instrument contended for here as a plea neither purported in its commencement to be a plea and did not conclude with either a verification or to the country, and we do not believe that it constitutes a plea in bar under this statute. There was, however, evidence introduced by the plaintiff tending to show that these defendants were co-partners and that they transacted business with them as such, and this would warrant the court in refusing defendants’ peremptory instruction; we do not believe it was error to refuse this instruction.

It is next insisted that the verdict of the jury is manifestly against the weight of the evidence; that the evidence fails to show that defendants are indebted to the plaintiffs, but rather that the plaintiffs are indebted to the defendants. There was much conflict in the evidence offered in this case. The plaintiffs claim that when they came to this country they commenced to work for the defendants and that they were acquainted with them prior to coming here; that the defendants were engaged in business and that plaintiffs worked and earned money and all that was not needed by them for their necessary expenses was deposited with the defendants; in other, words, that they constituted the defendants their bankers, and evidence was introduced tending very strongly to show admissions by the defendants that deposits were made from time to time during the years 1907 and 1908 to the amount of about $643; and that it appears from the book issued by the defendants that on about the 19th of April, 1908, plaintiffs drew from defendants $207, which left a clear total, as the witnesses expressed it, of $436, due from the defendants to the plaintiffs. Plaintiffs admit having received after that $22.

As we understand the evidence in this case, it is not seriously disputed that defendants did at one time owe this amount of money, and that the book had been issued to the plaintiffs,- and offered in evidence showing that fact, but it is claimed by the defendants that they purchased foreign drafts for the plaintiffs, at one time for $116.70, at another $78 and another for $195, and that these were paid for out of the money owed by the defendants. This, however, is denied by the plaintiffs and they say that the money that was used in the purchasing of these drafts was given by them to the defendants for that purpose and was not a part of the money that they had deposited with them. Defendants also claim that they had sold plaintiffs groceries and that plaintiffs were indebted to them for rent, and other matters offered in evidence. This was all denied by the plaintiffs. ‘Plaintiffs claimed that all they owed the defendants was paid from time to time and that the amounts deposited with them had no connection whatever with their running account. Defendants also offered in evidence note claimed to have been executed by Zeso Christo. This, however, is denied by Christo and he says he did not give him a note, but that it was a receipt and that the $22 written in that instrument was not for borrowed money. Plaintiffs deny that they a,re in any manner indebted to the defendants. "Whether the defendants were indebted to the plaintiffs or not was purely a question of fact for the jury to determine. The evidence, so far as we can see, was so contradictory as to warrant the jury in finding either way. The jury saw the witnesses, heard their testimony and had a much better opportunity to determine who was telling the truth about this matter than we have. There is nothing in the testimony that will warrant us in saying that the verdict of the jury was manifestly against the weight of the evidence.

■ It is said that the court erred in not permitting a written translation of their books to be put in evidence. It appears that the books were offered in evidence, both for the plaintiffs and the defendants, and that they were translated from the witness stand by an interpreter. No special reason has been given or authorities cited why the court erred in this refusal, and we are not able to say that it was error.

A criticism is made of the instruction given on behalf of the plaintiffs advising the jury that. “If the jury believe from the evidence that any witness has wilfnlly testified falsely to any material fact in the case, then they may disregard the whole or any portion of the testimony of such witness, except in so far as he may be corroborated by other testimony in the case. ’ ’ on the ground that it should also have provided for corroboration by “facts and circumstances.” It is probably true that the instruction would have been more perfect with these words in, but we do not think it was reversible error to give it under the facts in this case.

Complaint is also made of the court’s refusal to give an instruction offered by the defendants reciting that the defendants had filed a sworn plea denying the partnership and alleging that this cast the burden upon the plaintiffs and that if the evidence was evenly balanced or preponderates in favor of the defendants they must find the issues for the defendants. We think the court did properly in refusing this instruction; as we have heretofore stated, we do not regard this as a plea or to be classed as such.

After a careful examination of this record we do not find any such errors in the trial of the case that would warrant us in reversing it. And the issue being principally upon a question of fact, which was for the jury to determine, we are not inclined to interfere with its finding upon this-issue, and the judgment of the Circuit Court is affirmed.

Judgment affirmed.


text:
    George C. Bandy, Appellee, v. Litchfield & Madison Railway Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Courts, § 149

      —when former decision governs. A judgment for a plaintiff in a personal injury action will be reversed where the declaration and evidence are substantially the same as in a similar action by a different party whose judgment was reversed. Schmidt v. Litchfield & Madison Ry. Co., 179 Ill. App. 533, followed.
    2. Appeal and error, § 1491

      —when exclusion of evidence is harmless. Where in an action by a passenger against a railway company it is essential to prove that the motorman was actually guilty of the negligence charged, error in excluding evidence tending to show the carelessness and incompetency of the motorman is harmless where the weight of the evidence shows he was not negligent and such excluded evidence could not have affected the verdict.
    Appeal from, the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by George C. Bandy against the Litchfield & Madison Railway Company, a corporation, to recover damages for injuries sustained from being thrown from a motor car. From a judgment for plaintiff for one thousand five hundred dollars, defendant appeals.
    Warnock, Williamson & Burroughs, for appellant.
    C. H. Burton, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    Joseph Tomasek, Appellant, v. City of Edwardsville, Appellee.
    1. Trial, § 216.

      —how motion for directed verdict is determined. In passing upon a motion to direct a verdict the court cannot weigh the evidence, and can only look to it to see if with every reasonable intendment it tends to support plaintiff’s claim.
    2. Trial, § 195—when improper to direct a verdict. In an action by a landowner against a city for depositing sewerage upon his land, failure to prove a measure of damages will not justify a peremptory instruction where the plaintiff was entitled to some damages, although it may be only nominal damages.
    3. Contracts, § 205

      —when construction is question of fact. Where in the construction of a contract a legal principle is not involved hut simply a determination as to whether facts offered in evidence come within the provision of the contract legally construed, such construction is a question of fact for the jury.
    4. Deeds, § 97

      —when construction is question of fact. Where an owner of land sells to a city a right of way for sewer purposes and the deed provides for the maintenance of a sewer of “sufficient capacity so as to conduct all the ordinary dry weather sewerage coming through said sewer districts,” and afterwards sues the city for depositing sewerage on his land by an overflow, the court may determine what is “ordinary dry weather sewerage;” but it is for the jury to determine whether the sewer was sufficient capacity to carry qfi: or did carry off such sewerage as was usual or might be anticipated in dry weather, and also whether the sewer had been negligently placed and that by reason thereof the sewerage passed out through the joints of the pipes and percolated through the land.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Eaton & Eeck, for appellant.
    William M. P. Smith and Charles E. Gueltig, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The Circuit Court directed a verdict in this case and plaintiff prosecutes this appeal. Plaintiff is the owner of a tract of land lying north of the City of Edwards-ville and between his land and the City of Bdwardsville is another small tract owned by Mr. Eberhardt. For several years the City of Bdwardsville had been discharging its sewerage upon the lands of Eberhardt and from thence it flowed to some extent upon the lands of appellant and in consequence of this appellant sold to the appellee a right of way for sewer purposes over his land and made a deed thereto in October, 1907, for a consideration of three hundred dollars. The clause contained in the deed is as follows: “It is expressly understood that said land shall be used only for sewer right of way purposes and that the sewer shall be of socket tile sewer pipe and placed underneath the ground so that the ground may be cultivated over same, and that when said sewer is constructed said premises are to be placed in as good condition as they were before they were disturbed. It is further expressly understood that the said City of Bdwardsville will conduct an outlet sewer over said premises and connect the same with District No. 3 and Sewer District No. 4 of the City of Bdwardsville, the outlet of which is now located some three hundred feet east of the above described tract of land, and that said sewer shall be constructed of sufficient capacity so as to conduct all the ordinary dry weather sewerage coming through said sewer districts, so that the same will be conducted into the sewer to be constructed on the above premises and over and across the land of said Joseph Tomasek, and to the westerly end of the above described tract of land without any overflow at any point on said above described tract of land east of the northerly terminus thereof. It is further understood and agreed that the consideration above named is also in full payment, satisfaction and release of any and all damages heretofore sustained or claimed by said Joseph Tomasek, by reason of the construction of any sewer district in the City of Bdwardsville or the casting or conducting the outflow thereof over, upon and across the lands or real estate of the said Joseph Tomasek to the date hereof.”

The evidence tends to show that the City of Edwards-ville constructed two sewer drains, one Ño. 3 made of twenty-one inch pipe and No. 4 made of fifteen inch pipe, which unite at a manhole on the Eberhardt land about three hundred feet east of plaintiff’s land. That after the making of said conveyance the City extended a sewer pipe of the size of fifteen inches from this manhole out and across the lands of plaintiff. That the sewer pipe was not of sufficient size to carry the outflow from the manhole and that the sewer pipe was not properly laid and was not laid to the depth specified in the agreement. That the sewer and water coming through the sewer pipes, three and four, above mentioned, could not be carried off by the fifteen inch sewer through plaintiff’s land, and the fall from the City down to the manhole being sufficient the water would be forced up the distance of three or four feet or more above the manhole and would make holes in and about the sewer and would run out over plaintiff’s land, and that owing to the manner in which the- sewer through plaintiff’s land was laid the water and sewerage would percolate through the joints of the sewer and would spread out over plaintiff’s land, thereby tending to injure the crops. That the overflow was worse in wet weather than at other times, but the evidence of some of the witnesses tends to show that even after a rainfall of short duration the water and sewerage would be forced up through this manhole and out between the joints of the sewer pipe and tend to injure plaintiff’s crops.

The evidence also tends to show that the sewer pipe placed through plaintiff’s land was poorly covered in some places, and other places not to exceed four inches of covering' over it, so that plaintiff could not plow over it without great inconvenience.

The plaintiff instituted suit to recover from the City damages for this overflow. The first count of the declaration sets up the deed and then avers that said sewer was not so constructed or placed beneath the ground that the surface might be cultivated and used for farming purposes; that the sewers connecting with and running into the line of sewerage across appellant’s lands were not so constructed as to carry the water and sewerage through the sewer on appellant’s land, but were so negligently and wrongfully constructed and laid that a vast amount of water and sewerage was cast upon the higher land of adjoining owners and thence flowed down and over appellant’s premises, rendering them wet, swampy and unfit for farming purposes. The second count alleges that the sewer constructed through plaintiff’s land was so negligently and improperly constructed by appellee that it was wholly insufficient to carry the vast amount of sewer filth and water sent down and caused to flow through the lines of sewers connecting at the manhole, and that by reason thereof a vast amount of sewer filth and water percolated through and out of the sewer line upon and over appellant’s premises, rendering them wet and swampy. The third count, in addition to the allegations of the first and second counts, alleges that a great amount of sewer filth and water which did not naturally flow in that direction was gathered into said sewer and precipitated upon appellant’s premises and damaged them.

At the conclusion of plaintiff’s evidence the court on motion of the appellee excluded the evidence from the consideration of the jury and directed the jury to find the defendant not guilty, and this is the error complained of by the appellant. It is a well settled rule of this state that upon a motion of this character and in directing a verdict, the court has nothing whatever to do ,with the weighing of the evidence, but can only look to the evidence to see if with every reasonable intendment the evidence tends to support plaintiff’s claim and the submission of this motion ‘‘is equivalent to an admission upon the record of every fact and every conclusion in favor of the opposite party which the evidence conduces to prove, in other words, every fact which the jury might have inferred from it in favor of such opposite party.” Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 140.

There is evidence in this record tending to show that the sewer and water overflowed appellant’s lands during crop time, as well as during the wet seasons; that a rain fall of short duration would cause this to overflow at any time; that the sewer had not been laid in appellant’s land according to the terms of the easement granting it'and that by reason of the negligent construction of the sewer pipe the sewerage, as well as the water, would spread out from the joints of the pipe over appellant’s land, and that the flowing of this water and sewerage over appellant’s land'tended to damage it.

It is claimed by counsel for appellant, and not controverted, that the court in directing the verdict did so upon the ground that the deed for the right of way provided for the maintenance of a sewer of “sufficient capacity so as to conduct all the ordinary dry weather sewerage coming through said sewer districts,” and upon the theory that the court had the right to pass upon the effect of the wording of this contract. That the court has the right to pass upon the legal effect of the language of the contract there can be no doubt, but when it comes to determining as a matter of fact whether the things complained of are within the terms of the written contract, as construed by the court, then this becomes a question of fact for the jury to pass upon and not a question for the court. There was evidence tending to show (perhaps not conclusive) that the sewer was not of sufficient capacity to conduct all the ordinary dry weather sewerage coming through said sewer districts, at least such facts may have been inferred from the evidence by the jury. It may be that the court was authorized to determine that the “ordinary dry weather sewerage” was such sewerage as was usual or common in dry weather, or such as may be reasonably anticipated in dry weather (Words & Phrases, vol. 6, p. 5045); but whether the sewer placed in plaintiff’s land was of sufficient capacity to carry off or did carry off such sewerage as was usual, common or might be reasonably anticipated in dry weather was a question of fact for the jury to determine. It was also a question of fact for the jury to determine whether or not the sewer had been negligently placed in plaintiff’s land and that by reason thereof the sewerage passed out through the joints of the sewer pipes and percolated through plaintiff’s land. Where in the construction of a contract a legal principle is not involved but simply a determination as to whether facts offered in evidence come within the provision of the contract legally construed, it is ,a question of fact and must be submitted to the jury. Ball v. Benjamin, 56 Ill. 106.

It is claimed by counsel for appellee that there could be no recovery here because there was no legal measure of damages proved. Without determining whether the damages proved were the correct measure of damages, it is sufficient to say that such is not the question now under consideration, for if the plaintiff was entitled to any damages, even nominal damages, then he would have a right to recover and it would be improper to withdraw the case from the jury. Without expressing any opinion as to the weight of the evidence offered by plaintiff in this case, we are of the opinion that considering the plaintiff was entitled to the benefit of every fact which the jury might have inferred from the evidence offered, that the evidence should have been submitted to the jury for its determination, and that the court erred in excluding the evidence and directing a verdict in this case, and the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


text:
    Neil Moore, Appellee, v. P. H. Murphy, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 701

      —when evidence insufficient to sustain verdict for injury to operator of tin cutting machine. In an action for the loss of three fingers while operating a tin cutting machine for defendant, a verdict for plaintiff, held, manifestly against the weight of the evidence where it is not clear from the evidence whether the accident happened in the manner claimed by plaintiff and. the plaintiff is contradicted by two entirely disinterested witnesses.

      Appeal from the City Court of Bast St. Louis; the Hon. W. -M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Neil Moore, a minor, by William N. Moore, his next friend, against P. H. Murphy to recover for injuries sustained by plaintiff while operating a tin cutting machine for defendant. From a judgment in favor of plaintiff for two thousand dollars, defendant appeals.
    Errors assigned by counsel were in substance: That the plaintiff assumed the risk; that the injury was occasioned by plaintiff’s own negligence; that the plaintiff operated the machine in direct violation of his instructions; that the judgment is not supported by the evidence; that remarks of plaintiff’s counsel to jury constitute reversible error.
    Wise, Keefe & Wheeler, for appellant.
    Kramer, Kramer & Campbell and C. H. G. Heinfelden, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

2. Master and servant, § 825*—when remarles of counsel prejudicial. Remark by counsel in closing argument to the jury. “We are not asking you to put your hands in Mr. Murphy’s pockets because he is a rich man and owns a big plant out here,” held, prejudicial.

3. Trial, § 113*—when remarles of counsel improper. Statement of counsel explaining why his first declaration was prepared in the manner it was, held, improper.


text:
    James J. Murphy, Appellee, v. William J. Mulconnery, Appellant.
    1. Exemptions, § 39

      —when officer liable for penalty for levying upon exempt property. To recover against an officer the statutory penalty for wrongful levy upon property exempt from execution, it must clearly appear that the right of action exists in the plaintiff.
    2. Exemptions, § 44

      —when refusal of defendant’s requested instruction in action for penalty is error. In an action against an officer for the statutory penalty for levying on exempt property, defendant’s theory of the case being that plaintiff executed a bill of sale of the property prior to the levy and therefore was not entitled to bring the action, and plaintiff’s theory being that the bill of sale was in effect a mortgage, held, that the question whether the bill of sale was an absolute sale or a mortgage was a question for the jury and that the court’s refusal to give defendant’s requested instruction to the effect that an absolute sale of the property would defeat the right of plaintiff to bring the action was error there being no other instructions given presenting defendant’s theory of the case.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    James G. McHale, W. L. Coley and C. E. Pope, for appellant; R. C. McManus, of counsel.
    Webb & Webb, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Appellee obtained a judgment against appellant in the City Court of East St. Louis, for $792.50, and this appeal is prosecuted by appellant.

On August 4, 1911, appellee executed to N. J. Bresnahan a paper which upon its face was a bill of sale for a stock of groceries and fixtures then owned by appellee, controlled and possessed by him in the city of East St. Louis. This bill of sale contained the usual covenants found in such conveyances. Possession of the goods was not delivered to Bresnahan but appellee continued in the open and exclusive possession thereof and to sell and dispose of them as he had heretofore. Appellee was at that time indebted to Swift & Company and on August 7, 1911, Swift & Company caused an attachment to be issued against the goods and chattels of appellee for the alleged indebtedness of $230.82, and caused the writ of attachment to be levied upon the stock of goods in question. At the time the sheriff served the writs of attachment no notice was given or required of appellee to make a schedule. Swift & Company prosecuted their suit to final judgment and then caused an execution to issue upon the judgment, and also an order of sale under the attachment, which writs were served upon appellee and appellee within the time required by law made and delivered a schedule of all of his personal property, including the stock of goods in question, and it is claimed that the whole of his property was worth less than $400; that the sheriff ignored the schedule and proceeded to sell the property, from the sale of which he realized $396.25.

It is claimed by appellee that the bill of sale executed by him was intended as a mortgage to secure the payment of $250, but that because Bresnahan was in the hospital sick he had not been able to furnish the $250, and that appellee had received nothing upon the property at the time it was levied upon. This suit was brought under the statute allowing a debtor to recover double the value of the property levied upon that was exempt from execution, the appellee claiming that the whole of this property was exempt under the law. The declaration is in the usual form, setting forth the acts of the sheriff, the schedule of the appellee, the seizure of the property by the sheriff and his refusal to have the property appraised, as required by law, the sale, and the damages sustained by appellee by reason thereof, and averred that in consequence thereof a right of action accrued to the plaintiff against the defendant as sheriff for damages in double the value of said property.

It is contended by counsel for appellant in this case that the verdict is contrary to the law and the evidence and that the court erred in the refusal of instructions offered by appellant. This case was tried by counsel for appellant upon the theory that prior to the levy of the writs of attachment herein that the appellee had by the bill of sale above mentioned sold the goods in question to M. J. Bresnahan, and that the title to the goods at that time, and at the time of the commencement of this suit, was in M. J. Bresnahan and that they were not then or now the goods of appellee. Upon the other hand, the case was tried by appellee upon the theory that the bill of sale offered in evidence was only a mortgage, was intended, to be such between him and M. J. Bresnahan, and that it was made to secure the payment of $250 that appellee was to borrow from Bresnahan; that Bresnahan because of his sickness had not been able to pay the money to appellee prior to the time of the levying of the writ of attachment and that the interests of Bresnahan in the goods in question was the interest only of a mortgagee; and that as a mortgagor the title to the property in question was in the appellee and that he had the right to bring this suit.

If it is true, as claimed by appellant, that the title to the goods in question had passed from appellee to Bresnahan, prior to the levying of the attachment, then appellee would have no right to schedule the property and hold it as exempt from execution, and would have no right to bring an action against the officer for damages in double the value of the property on account of having sold property exempt from execution and attachment. Cassell v. Williams, 12 Ill. 387.

Upon the other hand, we believe that appellee had a right to show that the bill of sale offered in evidence was only a mortgage and intended as a pledge to secure the payment of the $250 that he was about to borrow from Bresnahan. Roberts v. Kingsbury, 71 Ill. App. 451; Vaughan v. Thompson, 17 Ill. 78. And whether the instrument in question was a bill of sale or a mortgage was a question of fact for the jury to determine.

Upon this question each of the parties had a right to an instruction upon his theory of the case. Appellant had a right to an instruction that if this was a sale and the title passed that appellee could not recover, and appellee had a right to an instruction that if the bill of sale offered in evidence was in fact a mortgage to secure the payment of the amount of money borrowed that then appellee had the right to claim the exemption and to bring this action against the sheriff for damages for" selling exempt property. The appellant asked for the following instruction: “The- Court instructs the jury that if you believe from the evidence in this case that prior to the time of the levy of the execution in question the plaintiff J. J. Murphy had sold the goods and chattels upon which said executions were levied to M. J. Bresnahan, then as between the parties to said sale it was valid and the plaintiff J. J. Murphy is estopped to claim any right, title or interest in and to said goods and chattels;” but this instruction and other instructions of a kindred character offered by appellant were refused, and the court refused to direct the jury that the sale of this property to Bresnahan would defeat the right of appellee to bring this action. The appellee asked no instruction upon this question defining either his rights in case, if the jury found the instrument offered to be a mortgage or the rights of appellant in case the jury found it to be an absolute sale; so that the jury was uninstructed upon the vital question in the case, and the court, we think, erred in refusing to give appellant the instruction above referred to, or some of the other instructions advising the jury substantially as to appellant’s rights. The statute under which this suit is brought is penal, and before the sheriff could be made liable in double the value of the property then it must appear clearly that a right of action exists in the plaintiff.

We are satisfied from the proceedings contained in this record that the jury was not fully and fairly instructed as to the real issues involved in the case and that a new trial should be awarded, and the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


text:
    Alexander Robertson, Administrator, Appellee, v. The Chicago & Alton Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Granite City; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Alexander Robertson, administrator of the estate of Jerry Watson, deceased, against the Chicago & Alton Bailroad Company to recover damages for the death of deceased caused by being struck by defendant’s train while deceased was driving a team and wagon over a street crossing. From a judgment in favor of plaintiff for six thousand dollars, defendant appeals.
    Abstract of the Decision.
    1. Railroads, § 733

      —when liable for collision at crossings. In an action against a railroad company for injuries causing death of plaintiff’s intestate and alleged to have been caused by defendant’s negligence in running its train so as to run over decedent while he was attempting to drive his team across defendant’s tracks at a street intersection, a verdict for plaintiff, held, sustained by the evidence.
    2. Railroads, § 746

      —when rate of speed question for jury, Whether train was running at a speed greater than permitted by ordinance, held, to be a question for the jury.
    3. Appeal and error, § 1561

      —when refusal of requested instructions harmless. Refusal of requested instructions included in other instructions given cannot be complained of.
    4. Negligence, § 192

      —contributory negligence at railroad crossing as question for jury. In an action to recover for the death of a person killed by collision with a railroad train at a street crossing, where the evidence as to the care exercised by deceased is conflicting, the question is for the jury who may take into consideration in determining it, the ordinance regulating the" rate of speed of trains at the crossing.
    C. E. Pope, for appellant; Silas H. Strawn, of counsel.
    M. R. Sullivan and T. M. Webb, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    L. W. Chatham, Appellee, v. John W. Davis, County Superintendent of Schools, Appellant.
    1. Officers, § 49

      —jurisdiction of court of equity to control official acts. Equity will not interfere by injunction for the purpose of controlling the action of public officers, constituting inferior quasi tribunals, such as' boards of supervisors, commissioners of highways and the like, on matters pertaining to their jurisdiction. Nor will it review and correct errors in the proceedings of such officers, the proper remedy, if any, being at law by writ of certiorari.
    2. Officers, § 49

      —when courts will not interfere with acts of public officer. Wheré an act to be performed by a public officer is of a judicial character which necessarily calls for the exercise of judgment and discretion on the part of the officer, the courts will not interfere with such officer in the performance of this duty.
    3. Injunction, § 98

      —right to enjoin revocation of teacher’s certificate. Bill will not lie to enjoin the county superintendent of schools from revoking a teacher’s certificate. '
    4. Schools and school districts, § 57

      —remedy where county superintendent wrongfully revokes teacher’s certificate. Where the county superintendent of schools undertakes to revoke a teacher’s certificate for a cause not in fact a legal cause, the teacher has a complete remedy at law by certiorari.
    5. Certiorari, § 6

      —propriety of remedy. The common law writ of certiorari may issue to all inferior tribunals and jurisdictions in cases where they exceed their jurisdiction, and in cases where they proceed illegally and there is no appeal or other mode given to review the proceedings.
    Appeal from the Circuit Court of Effingham county; the Hon. Thomas M. Jett, Júdge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 9, 1913.
    W. S. Holmes and G. F. Taylor, for appellant.
    Wright Bros. & Denton and S. F. Gilmore, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

This is an appeal from the decree of the Circuit Court of Effingham county, enjoining the County Superintendent of Schools from revoking a teacher’s certificate.

It appears from the record in this case that appellee was a school teacher and had been engaged in the teaching of schools in Effingham from September 1, 1910, to June 1, 1912, and that on April 27, 1912, he had been re-employed by the Board of Education of School District No. 22 in said county for another year, beginning July 1, 1912, and ending July 1, 1913, but it is provided in said agreement that if appellee’s- certificate should be revoked that the contract should terminate. It further appears that prior to the city election in 1911 a difficulty arose between appellee and E. L. Damron, then mayor of Effingham, about some supposed reports that had come to the ears of Damron about what appellee had said with reference to him. That on Sunday night before the city election in 1911 appellee and Damron were engaged in a street quarrel and threatened fight near a place where,, religious services were being conducted and that the meeting was disturbed by the noise, vulgar and profane language used at this time. That on about May 11, 1912, at the hour of eleven o’clock at night, the appellee and said Damron were engaged in a fight on or near to one of the public streets in said city, in which fight the appellee took out his pocket knife and cut Damron in several places about the face and body. The fight caused considerable commotion and disturbance in the neighborhood. It is claimed by Damron and his friends that in the first quarrel that Damron undertook to talk to appellee privately but that appellee flew mad, threw off his coat and began to curse and abuse Damron. This is denied by appellee who says that Damron and two of his companions were attempting to surround him for the purpose, as he thought, of doing him bodily injury and that he simply stepped out in the middle of the street and told them to come out there if they wanted to talk with him. In the fight that occurred on May 12, 1912, Damron and his friends claim that appellee without any provocation whatever assaulted Damron and cut him with a knife and that Damron to protect himself knocked appellee down and undertook to take the knife away from him. It is claimed by appellee and his friends that immediately after he had passed Damron upon the street that Damron called to him and when he stopped Damron came up and knocked him down and was on him beating and choking him and that appellee took out Ms penknife and cut at Damron for the purpose of making him release his grasp upon his throat, and that all he did was in self-defense. After this latter fight the friends of Damron, and some of the members of the board of education that had voted to retain appellee as teacher for another year, came to appellant Davis, then County Superintendent of Schools of Effingham county, and requested him to revoke appellee’s teacher’s certificate. Many of the friends of appellee requested appellant not to revoke the certificate and claimed that appellee was not to blame for the trouble that they had.

Appellee was arrested on account of this latter fight on a charge of assault to murder. Appellee and one of his solicitors, Judge Wright, in the meantime called upon appellant to ascertain from Mm what he was going to do about the revocation of the certificate. Appellant then told them that he would not do anything about it until after the preliminary trial of appellee which he would listen to, and later on told them that he would not take any steps in the matter until after the close of appellee’s school, which would be about June 1st. After the close of school appellant consulted with the State Superintendent of Schools and his attorney as to what he should do with tMs matter, who advised him to give appellee notice and a hearing upon the charges. Thereafter and on June 25, 1912, appellant caused to be delivered to appellee the following communication:

Effingham, Ill., June 25, 1912.
Supt. L. W. Chatham,
Effingham, Ill.
In compliance with the request of you and Judge W. B. Wright, made two weeks prior to the closing of the Effingham schools, and that your contract expires the last of this month (June), I now notify you in regard to my decision. Looking at it for the good of the schools that your actions have been such that you have lost your usefulness in the Effingham schools, and that you are therefore given twenty days to surrender your certificate or appear before me and prove why such action should not be committed.
J. W. Davis, Supt.”

A few days after receiving this notice appellee and his solicitor called upon appellant and asked appellant to make his charges specific and give him a copy of them, and appellant promised that he would do so and would prepare them on July 5, 1912. The specifications were prepared un July 5th, but appellee did not call for them and on the morning of July 6th appellant placed these charges in envelopes, addressed them to appellee and one to his solicitor and had them upon the desk ready for mailing at which time this writ of injunction was served upon appellant restraining him from revoking appellee’s certificate, whereupon appellant abandoned any further efforts in this direction.

The bill filed by appellee in this cause alleges the difficulties that existed between him and Damron, the street quarrel and the street fight, the notice sent by appellant to appellee on June 25, 1912, and denies that appellee was in any manner to blame for the quarrel of 1911 or the fight of 1912 or that he used profane and vulgar language on either of those occasions; alleges that no cause exists for the revocation of his certificate; that he had successfully taught and improved the schools at Effingham; that he is a teacher by profession and if his certificate is revoked it will leave him without employment and will work irreparable injury to Ms reputation as a teacher and render it 'more difficult to secure employment elsewhere. Then charges on information and belief “That said Davis (appellant) intends to revoke his certificate, being inspired to do so by Damron and friends who have insisted without cause appellee has lost his usefulness in the Effingham schools;” and concludes with the prayer for an injunction restraining the appellant from revoking such certificate, and for general relief.

To this bill’appellant filed an answer setting forth that appellee was given a preliminary hearing upon said charge of assault, that appellant heard the evidence in that case; that appellee was bound over on a bond of eight hundred dollars upon a charge of assault to murder; that in April, 1911, he was engaged in a street quarrel on one of the principal streets of Effing-ham, used profane and vulgar language and disturbed a religious meeting; that on May 11, 1912, appellee without any provocation assaulted Damron with a knife and denies that the alleged cutting was in self-defense, and then sets forth the conference between appellee and his solicitor and appellant, as above detailed, and the notice given on June 25,1912, but denies that he was seeking or intended to revoke the certificate without giving the appellee a fair and impartial trial; that he had no bias or prejudice in the matter in any way that he gave the notice for the purpose of giving appellee an opportunity to show why the certificate should not be revoked; that upon a hearing he would decline to revoke it unless the facts and circumstances warranted him in, so doing. Upon the issues as made up, the chancellor heard the evidence and rendered a decree making the injunction perpetual.

As we read the record in this case the first and most important question for us to determine is, Did a court of equity have the right to interfere with the County Superintendent of Schools in the investigation and determination of these charges and to prevent him from revoking this certificate? Section 16 of chapter 122 of Hurd’s Statutes provides: “The County Superintendent shall have power * * * 4th. To revoke the certificate of any teacher for immorality, incompetency or other just cause.” (J. & A. If 10037.)

“Equity will not interfere by injunction for the purpose of controlling the action of public officers, constituting inferior quasi tribunals, such as boards of supervisors, commissioners of highways and the like, on matters properly pertaining to their jurisdiction. Nor will it review and correct errors in the proceedings of such officers, the proper remedy, of any, being at law by writ of certiorari.” High on Injunction, sec. 797.

It is said by our Supreme Court: “Since the case of Sheridan v. Colvin, 78 Ill. 237, if the matter was ever in doubt or the question open, it has been settled in this court that the jurisdiction of courts of chancery is confined to questions arising relative to property rights or civil rights, and that the mere right to office or of the nomination to an office, or the acts of public officers in the discharge of their official duties, cannot he regulated or controlled by the writ of injunction; and in the view we take of the law, any order of a circuit court upon such question would be void for want of jurisdiction in the court over the subject matter.” People v. Rose, 211 Ill. 252. Where the act to be performed by an officer is of a judicial character which necessarily calls for the exercise of judgment and discretion on the part of the officer, the courts will not interfere with such officer in the performance of this duty. Vandorn v. Anderson, 219 Ill. 36. In a case similar to this the Supreme Court of Indiana in deciding upon the right of a school teacher to enjoin the County Superintendent from revoking his license said: “The ' plaintiff having accepted an appointment as a teacher under the school law is bound by all of its provisions, and has barred himself from having the propriety of his dismissal by the local school board reviewed in any tribunal except those especially created by the legislature for the purpose.” Stone v. Fritts, 169 Ind. 361.

We do not understand that counsel for appellee seriously contend that the County Superintendent is without power to revoke for immorality or incompetency but insists that this is an effort to revoke appellee’s certificate because appellee “Had lost his usefulness in the Effingham schools.” We do not so understand the reading of this notice that was given on June 25th. The notice says: “That your actions have been such that you have lost your usefulness in the Effingham schools.” The loss of usefulness here, as we understand it, is the effect or result of appellee’s actions; but if appellant was seeking to revoke the certificate of appellee upon the ground suggested, then upon the hearing the appellant would be required to make a record of the charge upon which the revocation was based, and if it was based upon a charge that was not for “immorality,incompetency or other just cause,” then the order made revoking it could be of no avail and could be reviewed and set aside by the Circuit Court upon a writ of certiorari. In a proceeding of this character we believe that the court would require the county superintendent to give a reasonable notice of his intention to act upon the revocation of a certificate, and if the holder of the certificate desired to contest his right to revoke it W would then be the duty of the superintendent to fix upon a time and place for the hearing of it, and in a regular manner dispose of it and make a record thereof so that if he proceeded illegally in the matter his action could be revoked. “The common law writ of certiorari may issue to all inferior tribunals and jurisdictions, in cases where they exceed their jurisdiction, and in cases where they proceed illegally, and there is no appeal or other mode given to directly review their proceedings. Chicago & R. I. R. Co. v. Whipple, 22 Ill. 108; Sanner v. Union Drain Dist., 175 Ill. 583. So that as we understand the law, if the superintendent undertakes to revoke a certificate for “other just causes” that is not in fact a legal cause, then the party injured has a complete remedy at law hy his common law writ of certiorari. It appears from the pleadings and evidence in this case that the real cause that induced appellant to institute this inquiry was the fact that appellee had been engaged in two street quarrels, or fights, with a man by the name of Damron, in one of which he had been charged with cutting with a knife, and upon both occasions with the use of profane and vulgar language upon the streets, and appellant knew at that time that appellee claimed he was not guilty of the use of profane and vulgar language and that he did the fighting and cutting in self-defense. It is said that appellant stated in one of his interviews with appellee, in a conversation with regard to the use of a knife, that “That, in itself, is a crime.” That such is an erroneous view there can be no question and this may have been the thought that caused appellee to fear the result of this hearing and induced the bringing of the injunction. It was the duty of appellee and his solicitors to show, as they readily could do, that such view was an erroneous one under the circumstances stated. The position of counsel that appellant was inspired by improper motives in this matter we do not believe to be well taken, as it clearly appears from his evidence that his desire was to give the appellee a fair and impartial trial and that he would do so if tried before him, and we can see nothing in this record that contradicts this unless it be in the answer prepared by his counsel in which it is apparently undertaken to set up Damron’s view of these fights; that, perhaps, would be excusable upon the ground alone that he was attempting to show that there were two sides to the controversy. We are unable to understand why appellee and his counsel did not wait to receive the specific charges before commencing suit and we think they were premature in instituting this suit without giving the superintendent the opportunity, as he had agreed with them, to specify the particular charges. We have examined the pleadings and evidence in this case with much care, and while we agree with the chancellor that the preponderance of the evidence shows that appellee was acting in self-defense, and not necessarily to be blamed for what he did in the matters, we are, however, of the opinion that the chancellor was without jurisdiction to try this case. That the determination of whether or not this certificate should be revoked was, under the statute and decisions of our courts, of a judicial character to be determined solely by the County Superintendent of Schools, and for that reason the decree of the Circuit Court is reversed and the cause remanded with directions to dissolve the injunction and dismiss the bill.

Reversed and remanded with directions.


text:
    Prosper J. Soucy, Appellant, v. Francis Kirsch and Minnie Kirsch, Appellees.
    (Not to be reported in full.)
    Appeal from the City Court of Bast St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Prosper J. Soucy against Francis Kirsch and Minnie Kirsch to recover on a claim for rent of certain premises held by plaintiff as trustee. From a judgment in favor of defendants, plaintiff appeals.

      Abstract of the Decision.
    Landlord and tenant, § 301*—what does not constitute a release from payment of rent. In an action for rent, a conversation between the defendant and the plaintiff, who subsequent to the letting became a trustee of the premises, held, not to amount to a release of payment of the rent and not valid as a compromise of defendant’s claim for damages for want of repairs, where there was no agreement in the contract of letting requiring the owner to keep the premises in repair.
    Johnson-Johnson and W. L. Coley, for appellant.
    W. J. N. Moyers, for appellees.
   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    Oscar Bletson and Ida Bletson, Appellants, v. The Village of Brooklyn of St. Clair County, Illinois, Appellee.
    Municipal corporations, § 136

      —when chief of police not entitled to occupy rooms in village hall as compensation. Chief of police occupying rooms in a village hall with his family, according to usual custom for seven years, whose compensation is fixed at a certain salary with no provision to occupy the rooms, may be required to yield up possession in a forcible entry and detainer proceeding brought by the village trustees, whether he is legally entitled to the office of chief of police or not.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed October 9, 1913.
    Johnson-Johnson and W. L. Coley, for appellants.
    Martin D. Baker, for appellee.

      Seo Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

This was an action of forcible detainer commenced by appellee against appellant for the possession of three rooms on the first floor of the Villag-e Hall of the Village of Brooklyn, situated on lots 258 and 259, block 25, in the Village of Brooklyn, St. Clair County, Hlinois. Jury was waived and trial had by the Circuit Court of St. Clair County, Illinois, and judgment rendered in favor of the appellee and against the appellants for possession of the property in question, and costs of suit, to reverse which judgment the appellants prosecute this appeal.

It appears from the evidence in this case that on May 3, 1911, the appellant, Oscar Bletson, was appointed chief of police of the Village of Brooklyn and his salary as such chief fixed at sixty dollars per month. That Bletson, with his family, thereafter moved into the rooms above described and have since that time been in the occupancy of them. On March 13, 1912, charges were preferred against Oscar Bletson, chief of police, for conduct unbecoming an officer; a motion was then offered to sustain the charges preferred which the president of the board refused to place before the trustees; thereupon another member of the board presented the motion and it was voted upon by the trustees, and the motion carried. The president immediately reappointed Mr. Bletson, which reappointment was then and there rejected by the Board of Trustees. On May 1st, the board of trustees attempted to appoint one Robert Dorsey as chief of police of said village. This appointment was not made by the president and when the motion was made to appoint Dorsey it was declared by the president out of order and it was then placed before the Board of Trustees by one of the other members. At a meeting of July 3rd, a resolution was adopted by the Board of Trustees directing a notice to be served upon Oscar Bletson and Ida Bletson, his wife, demanding imrnediate possession of the rooms and thereafter the notice was served, and this proceeding of forcible detainer commenced by the direction of the village board and judgment for possession obtained.

It is contended by counsel for appellants in this case that this was an effort upon the part of appellee to try the question of the title of Oscar Bletson to the office of chief of police; that while it was in form a forcible detainer suit that it was in reality a quo warranto proceeding. Evidence was offered showing the proceedings of trustees of the village board, from the appointment of Bletson up to the order of the board demanding possession of the premises in question.

As we view the case, much of this testimony is immaterial. Bletson was appointed chief of police and his salary fixed at sixty dollars per month and this, as it appears by the record, was the sole compensation to be allowed to him for his services as such chief of police. It is true appellant offered to prove that it had been the custom for the past seven years for the chief of police to occupy the rooms in question, but we are unable to see how the fact that the Board of Trustees had permitted these rooms to be occupied by the predecessor of appellants and had permitted him to occupy them from the time of his appointment could be any justification to the appellants to continue in the occupancy of the rooms if appellee desired to repossess itself of them. The rooms belonged to appellee. Appellee had a right to use them for such purposes as the board deemed would be to the best interest of the Village of Brooklyn. It appears from this record no contract had been made with appellants by which they were authorized to occupy the rooms for any particular length of time or that the furnishing of a place to reside was any part of. the compensation to be paid to the chief of police. The salary was fixed at sixty dollars per month and no provision made, as it appears from the record, for appellants to occupy the rooms. There is no complaint that proper notices were not served and, so far as we are able to see, appellants were properly notified to yield up possession of the rooms. The only claim made by appellants is that their right to occupy the rooms depended upon whether or not he was legally entitled to the office of chief of police, and that the justice of peace had no jurisdiction to try a case of this character. We do not think this question is involved at all in this case and we are of the opinion that the appellee was entitled to the possession of the rooms whether appellant, Oscar Bletson was lawfully in office or not. We do not believe that the court erred in the rendition of this judgment, and the judgment is affirmed.

Judgment affirmed.