text:
    E. T. Rainey, Appellant, v. American Express Company, Appellee.
    Appeals and errors—when competency of evidence not subject to review. If evidence was admitted in the trial court without objection, no question on review can be raised as to its competency.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Franklin county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    James P. Mooneyham, for appellant.
    W. F. Spiller, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellant brought suit against appellee before a police magistrate, claiming damages to the amount of $55.01 on account of improper care given to and delay in the delivery of six barrels of dressed poultry, shipped by express by appellant, to Chicago. In the Circuit Court, to which the case was appealed, there was a jury trial, resulting in a verdict in favor of appellee, and a judgment against appellant for costs.

From the proofs it appeared that appellant was engaged in the business of buying and shipping poultry at Eldorado, Illinois. On the morning of Monday, November 25, 1906, he caused to be dressed a quantity of ducks, geese and turkeys, which on the following day were packed in barrels and delivered to appellee, at about 6 o’clock p. m. It was expected they would go out- over the Big Four Railroad, which carried express for appellee, upon a train due to leave Eldorado at 7:05 p. m. and arrive in Chicago the next day at about 7:30 a. m., so it could go upon the.market of that day, the day before Thanksgiving, which lasted from 8 a. m. until 12 o ’clock noon. The railroad train which was to carry the express, however, was late and did not leave Eldorado until 11:13 p. m. and the poultry did not reach the consignee until 2 o’clock the next afternoon, and when examined was found to be heated, sour and slippery. Although the general market was closed for the day, a sale of the poultry was effected, but at a somewhat lower price than it would have brought had it been received on time and in good condition.

The only points relied upon by appellant to reverse the judgment, brought to our attention by his briefs and argument, are, that the court erred in permitting improper evidence to be admitted on the part of appellee and that the verdict was not sustained by the proofs.

The evidence which appellant claims was improperly admitted, was a receipt given by the American Express Company, appellee, to appellant for the shipment of the poultry in question. Appellant made no objection whatever to the admission of this receipt when it was offered in evidence by appellee, nor is there anything in the record to show directly that he ever raised the question of its admissibility in the court below. Under such circumstances, he cannot here question the right of the court below to admit the receipt.

Upon the evidence the principal insistence was that the shipment of poultry became heated • and thereby damaged by being placed in a steam heated car. There is nothing in the evidence however to show that this poultry was in fact placed in a steam heated car and appellee claims that the damaged condition of the poultry was due to the fact that it was held so long a time by appellant in Eldorado before it. was shipped.

While there was some evidence in the record tending to show a slight difference between the morning and afternoon market on the day in question for prime stock, that is poultry in good condition, the evidence failed to show what difference, if any, there was in the price brought by damaged stock in the morning and in the afternoon.

The questions of fact appear from the record to have been fairly submitted to the jury and as there was sufficient evidence to sustain their verdict, it should not be disturbed.

The judgment of the court below will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    William J. Reichert et al., Plaintiffs in Error, v. Missouri & Illinois Goal Company, Defendant in Error.
    Landeokd and tenant—when relation not established. Held, that the trial court was justified in holding that the proof failed to show the relation of landlord and tenant existed between the parties to this suit at the time the action was commenced and that therefore no recovery could be had.

      Forcible detainer. Error to the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Dill & Pfingsten, L. D. Turner and L. D. Turner, Jr., for plaintiffs in error.
    L. P. Crigler, J. E. McMurdo and N. C. Lyrla, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit in forcible detainer, brought by plaintiffs in error to recover from defendant in error the possession of the coal under certain premises, in St. Clair county, Illinois, which it was alleged defendant in error was unlawfully withholding from plaintiffs in error. The cause was instituted before a justice of the peace, and on appeal to the Circuit Court was tried without a jury.

Plaintiffs in error offered in evidence the declaration and judgment in a certain causé, brought to the September term, 1903, of the St. Clair Circuit Court, which were admitted in evidence, subject to the objection of defendant in error.

The declaration was in the name of William J. Reichert, as plaintiff, and the defendant in error here, as defendant, and alleged that for certain rents, Joseph Reichert, leased to Crittenden McKinley and William S. Scott, their heirs, administrators, executors and assigns, the right to take the coal under certain lands, the same being the premises in controversy in this suit; that the defendant therein became the successor by proper assignment of said lease to the right of said McKinley and Scott; that Joseph Reichert was deceased and that the plaintiff was his successor as heir and by proper assignment of the parties interested in the lease; that the defendant had mined twenty-four million bushels of coal, amounting in the aggregate to the value of $30,000, for which it had not paid, to the damage of plaintiff of $15,000 for rent and royalty, a copy of the lease being attached to the declaration. An amended declaration was also admitted in evidence, subject to the objection of the defendant, which was the same as the original declaration, except that Charles Becker was joined as plaintiff with William J. Reichert, and it was stated that those two were appointed by the heirs of Joseph Reichert as successors in trust, to perform the duties set out in an instrument in writing, therein described, wherein certain persons, since deceased, had been appointed trustees by the heirs at law of Joseph Reichert, deceased, to collect the rent and royalties named in said lease. An additional count was subsequently filed stating that since the year 1897, the defendant in error had mined the coal in an improper manner and had failed to make the mine produce what ought to have been produced.

Plaintiff in error also introduced a judgment in said cause in favor of the said William J. Reichert for $1500, from which judgment an appeal was prayed to this court. They next introduced a notice from plaintiffs in error, demanding the payment of rent and stating that unless same was made by July 1, 1908, the lease of the premises in question would be terminated, and made proof of the service of said notice. Proof was also made that the sum of $1441.34 was still due and unpaid upon said judgment. This was all the evidence introduced by plaintiffs in error or in the case, as defendant in error introduced none on its behalf. The court below found the issues for the defendant and entered judgment against the plaintiffs for costs. No propositions of law were presented to the court and the question presented to us by counsel is, did the evidence introduced show proof of the existence of the relation of landlord and tenant between plaintiffs in error and defendant in error. Even if it could be conceded that the proceedings, files and records in the former case, which were introduced in evidence here, showed the relation of landlord and tenant existed between the parties to that suit, yet defendant in error insists that it does not appear from the proofs that the parties in that suit were the same as the parties to this.

. The proofs show that suit was brought in the name of William J. Eeichert, that afterwards the name of Charles Becker was added but that the judgment was in favor of said William J. Eeichert alone. It is said by counsel for plaintiffs in error that this judgment was corrected and modified in this court, to which that case was appealed, so as to appear to have been granted in favor of William J. Reichert and Charles Becker (M. & I. Coal Co. v. Reichert et al., 133 Ill. App. 123). But that judgment as modified was not introduced in evidence, plaintiffs in error contenting themselves with introducing the judgment in the court below, alone. Even if that judgment as modified had been introduced in evidence, however, and was before us, it is only claimed that it would show a judgment in favor of William J. Eeichert and Charles Becker and not in favor of William J. Eeichert and Charles Becker, trustees, who are the parties plaintiff in this suit. The court below was therefore justified in holding that the proof failed to show that the relation of landlord and tenant existed between the parties to this suit at the time the action was commenced.

Another fatal objection to the right of the plaintiffs in error to recover is that the proofs also failed to show that defendant in error was in possession of the premises in question at the time of the commencement of the suit. The judgment of the court below is therefore affirmed.

Affirmed.


text:
    John U. Metzger, Appellee, v. Highland Brewing Company, Appellant.

      Contracts—what riot varying hy parol. The rule which precludes the varying of a written contract by parol is not violated if a separate independent oral contract is established.

      Assumpsit. Appeal from the Circuit Court of Fayette county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    John A. Bingham, for appellant.
    Albert & Matheny, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee owned a store and hotel building in Vandalia, Illinois. On the ground floor were three large rooms, the first being subdivided into an office, dining room and kitchen and the other two rented for store rooms. On January 22, 1904, he made a five year written lease to appellant of the middle room, on the ground floor at a rental of $40 a month. The lease contained the following, among other .provisions:

“The said first party (appellee) is to furnish necessary electric light fixtures in and for said room and to furnish necessary radiators in said room, to heat the same * * * and the said second party (appellant) agrees to furnish the light and water and heat, or steam for heat, to be used in said room.”

At the time or shortly before the written lease was signed by the parties, appellee claims that he made a contract with the secretary of appellant, with whom the negotiations for the leasing were also conducted, to furnish heat for the room. It was agreed that a reasonable price should be paid, but the exact amount was not determined upon. The building was arranged for steam heating, the heating plant being under the room leased to appellant and three steam pipes used in heating the hotel rooms above, as well as the flue, running up through the room. Appellee also put radiators in the room, connecting them with the steam pipes. It was arranged by him, that the person who ran the hotel should operate the heating plant for the entire building. Appellant took possession of the rooms and sublet them to Janett Brothers for saloon purposes. F'or the first two winters the Janetts set-led for the heat with the two landlords, who successively ran the hotel, paying for one-third of the coal used. The third year, still another party, Suhren, took charge of the hotel. Some difficulty arose between him and the Janetts, which resulted in his closing the door between the hotel and the saloon and in a notice from them, that they did not want the heat any longer. For the next two winters, neither appellee nor the tenants in charge of the hotel, received anything for heating the room from appellant or its tenants.

It is claimed by appellee, that the room received sufficient heat to keep it comfortable from the steam pipes and flue running through it, and there was also some proof tending to show that the radiators were at times in use or at least thoroughly heated by the steam. At any rate the room was heated to such an extent in the way mentioned, that no other means of heating it were put in or used. Appellee agreed with the landlord of the hotel that if the saloon men did not pay the heat, he would deduct it from the rent of the hotel, which he did. In June, 1907, the Janetts having sold out, and they and appellant having refused to pay for the heat of the room for the two preceding winters, this suit was brought, which resulted in a judgment in favor of appellee for $60.

Appellant insists that this suit was based upon a lease in writing and under seal; that appellee could not properly introduce oral evidence to prove any arrangement concerning payment to be made for the heat before the signing of the lease, and that the court erred in admitting such evidence.

It is an accepted rule of law that parol evidence cannot be heard to vary or contradict the terms of a written contract and it is equally well settled that Where parties reduce their contract to writing, the law presumes that the whole terms and conditions of the agreement are fully incorporated in and become a part of the written instrument.” Conwell v. S. & N. W. R. R. Co., 81 Ill. 232.

But these rules apply only to such matters as properly come within the scope of the written instrument. In this instrument, provision was made, by which appellee should furnish the necessary radiators to heat the room and appellant should furnish the heat or steam for heat, to be used in the room. No provision was made as to how or from whom appellant was to obtain this heat or steam for heat, and it was at liberty to contract with whomsoever it desired in that regard. While it could have contracted with another person to furnish the heat it elected to contract with appellee for the same, but when it did so, such contract was an independent contract and no more connected with the written contract, than if it had' made the agreement with a third party. Appellee, therefore, had a right to introduce oral evidence concerning the terms of this independent contract, and" the court did not err in refusing to exclude it.

While the case was rather a close one upon the facts, yet, as there was evidence tending to show that the contract for furnishing heat was made, as claimed by appellee, that appellant’s tenants had the use of the heat for the two seasons for which they refused to pay, and as the amount found by the jury was a reasonable one, we are not at liberty, if we were so disposed, to disturb1 their verdict.

Appellant claims that the first instruction given for appellee was erroneous “because it assumes appellee furnished the steam for heat and that Yarborough (his tenant) was appellee’s agent therefor.” An inspection of the instruction shows that it does not assume that appellee furnished the steam for the heat. Yarborough’s name was not mentioned in the instruction, but one of the questions submitted to the jury was “whether plaintiff or his agents did furnish the heat to keep the room warm.” The evidence in the case plainly showed that appellee made arrangements with the tenants of his hotel to furnish the heat, and as they were agents for that purpose, the instruction was not subject to the objection made.

Appellant complains that instructions 7, 8 and 9' offered by it, which told the jury they should find for the defendant, unless they found from a preponderance of the evidence that the defendant promised to" pay for the heat, were modified by the court, by adding the words “or accepted and used the heat.” We are of opinion that the modification was, under the circumstances shown to exist in this case, entirely proper and that appellant could not avoid the payment of the debt, if it or its tenant accepted and used the heat in question.

The complaint that the court erred in refusing to give certain instructions, offered by appellant, is without substantial merit in our view of the case as above expressed.

The judgment of the Circuit Court is affirmed’.

Affirmed.


author: Mr. Presiding Justice, Higbee

text:
    Albert Crisfield, Appellee, v. New Staunton Coal Company, Appellant.
    Master and Servant—when defense of fellow-servants will not Mr recovery. Eeld, under the evidence in this case, that the defense of fellow-servants would not operate to defeat a recovery.

      Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Wise, McNulty & Keefe, for appellant.
    C. H. Burton, for appellee.
   Mr. Presiding Justice, Higbee

delivered the opinion of the court.

Appellee brought suit to recover damages for severe personal injuries, received by bim while in the employ of appellant in its mine.

There were two counts in the declaration, the first charging that appellee was employed to run an electric motor in appellant’s mine, hauling cars along certain tracks therein; that appellant carelessly and negligently permitted a certain vicious mule to be loose in the mine; that while appellee with due care for his own safety, was driving and operating said motor, said vicious mule ran down the entry towards appellee, jumped into the motor and injured him. The second, that appellant knew, or by the exercise of due diligence could have known the mule to be vicious and dangerous to the men employed in the mine, when it was loose therein; that the mule was loose without the knowledge or fault of appellee and came running down the entry and viciously jumped into the motor and injured appellee.

There was a plea of not guilty and the trial resulted in a verdict and judgment in favor of appellee for $5000.

Appellant complains that the verdict is against the weight of the evidence, also that the trial court erred in its rulings in regard to the evidence and in instructing the jury.

The proofs show that on October 19, 1907, appellee was employed ip appellant’s mine, it being his duty to run an electric motor, engaged in hauling coal cars. The motor was propelled by an electric current, carried on a wire running along the entry near the track. Oars were hauled by mules from the different rooms, where the coal was mined, to partings or -sidetracks, and it was appellee’s business to get these loaded cars at the several partings, haul them by the motor to the bottom of the shaft and return empty cars to the partings where they would be taken back to the working places by the mules. The mules in the mines were driven without lines, although there were lines on the harness, and they were taught to stand and wait at the partings for miners to start them. Among others there was a grey mule, called Raleigh, which when loose would run and kick and run over any one in his way. Olne witness testified that if the mule saw the cable when he was loose, he would be just crazy and run out towards the bottom and kick and men had to get out of his way many times. He got away from his driver on more than one occasion and when loose would not let the driver catch him. Thomas Moss, the mine manager of appellant, was notified that the mule was dangerous and warned that it would injure some one if permitted to be loose in the mine. This notice was given to Moss by several miners and by appellee himself, a week or so before the injury. On the morning of the day named, the boss driver told Ramsey, another driver, to take Raleigh and another mule, named Brigham, to the third south entry. Ramsey, who had never handled Raleigh before, started the mules, walking along behind them. Shortly after he started the mules began to run, and the lines being tied up on the harness, he had no means of stopping them. He soon lost track of them and not finding them in several entries where he went, returned to his own work. The mules left to themselves, went to a parting on the north side of the mine, called the first north parting, and were standing there, when another driver, Bertinola, came up with a load. As he got near he shouted to the mule he was driving, which had the effect of starting Raleigh and his companion. They started down the entry and one of them coming in contact with the trolley wire, they commenced to run. As appellee was turning from the main east into the first north entry, riding on the front end of the motor, which was "barely moving and was equipped with an electric headlight, throwing a light twenty-five feet in advance, the mule Raleigh coming down the entry at a rapid gait, jumped .on the motor, which was only some two feet high, striking appellee with his front feet, and as it appeared, fell upon him. Appellee’s skull was fractured and he was in other respects most painfully injured. He was unconscious for several weeks, spent a large amount of money for physicians’ services and is permanently injured in a number of ways.

Appellant insists that the proximate causes of the injury were the acts of the driver Ramsey in permitting the mule Raleigh to get away from him and go to the wrong parting, and of the driver Bertinola in negligently driving the mule away from the parting and making no attempt to stop him; and that the two drivers were fellow-servants of appellee. Even if it were admitted that the acts of the two drivers were negligent and contributed to bring about the injury, which is contested by appellee, such acts could not affect appellee’s right of recovery in this action. The injury could not have occurred had not appellant permitted the dangerous mule Raleigh to remain in its mine. The vicious habits and dangerous character of the' animal were known to appellant and the mine manager warned that if permitted to remain he would injure some one, but in spite of warnings the mule was not only permitted to remain in the mine but no steps were taken to secure him by the use of lines or otherwise, so that he could not break away from his driver. It was a natural and likely consequence of the retention of the mule in the mine without providing means to control him that some person would be injured. The fact, if it were shown to be a fact, that the negligence of fellow-servants contributed with that of the appellant to causing the injury, should not prevent a recovery if appellee was otherwise entitled thereto. Klofski v. R. R. Supply Co., 235 Ill. 146; Kennedy v. Swift & Co., 234 id. 606; Pullman Palace Car Co. v. Laack, 143 id. 242. It follows from what we have said, that in our opinion the facts elicited upon the trial of the case, warranted a verdict in favor of appellee.

It is objected by appellant that the court permitted appellee to prove the mine manager was notified of what the mule was accustomed to do when loose in the mine, on the ground that the questions did not cover the conditions surrounding the accident, and that it would be immaterial as to what the mule might have done at other times, unless the conditions were similar to those surrounding the occasion in question. This objection is not well taken, as it was proper to prove under the declaration the general vicious and dangerous character of the mule, when loose in the mine, and that appellant’s manager had been notified of the same, as tending to show that appellant was guilty of negligence in retaining the mule in the mine.

Complaint is also made by appellant that it was not permitted to show that one of its own witnesses had made a statement out of court which differed from that made by him in court, concerning the question whether one of the mules started by Bertinola came in contact with the live wire, the court holding that it could not be permitted to impeach its own witness. The fact to which the interrogatory was directed, was not of great importance, the matter was to a large extent within the discretion of the court and appellant made proof by another witness, which is not contested, that one of the mules hit the live wire.

Appellant’s refused instruction No. 11 is based upon the theory that there was evidence tending to show that, while the mule in question was standing at a parting, a driver came along and without any right and outside of his employment, hit the mule and caused it to swerve and come in contact with an electric motor, whereby the mule was frightened and started to run away, when in fact there was no evidence tending to prove that any driver hit either the mule Ealeigh or his companion, while they were standing at the parting. The other instructions refused for appellant, appear to us to be equally subject to- criticism. Appellee through no fault of his received painful and permanent injuries in appellant’s mine. The damages recovered are not claimed by appellant to be excessive. There was ample evidence to sustain the charges of the declaration and the trial was free from any substantial error. Under such conditions the judgment of the court below should and will be affirmed.

Affirmed.


text:
    Mary Lich, Appellant, v. John Werling, Executor, Appellee.
    1. Wills—how construed. While it is true that a testator is presumed to use the words in which he expresses himself in their strict and primary acceptation and ordinary sense, yet it is also true that in ascertaining the intention of the testator effect must be given to all the language used, if it can be done, and likewise the court will look at the state of the property devised in endeavoring to ascertain from the language used the testator’s intention.
    2. Wills—“money” and “cash money” construed. The word “money” as used in a will in reference to the residue of the personal property after the payment of legacies and debts, has often been held to include promissory notes. Held, in this case, that the words “cash money” included money loaned and evidenced by notes and mortgages.
    Objections to executor’s report. Appeal from the Circuit Court of Monroe county; the Hon. B. R. Burroughs, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.

      Charles Morrisoh, Joshua Wilsou and Wm. E. Erd, for appellant.
    Joseph W. Rickert, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This appeal is prosecuted from an order of the Circuit Court of Monroe county, overruling exceptions to the final report of appellee, as executor of the last will and testament of Catherine Spellmeier, deceased, the cause having been heard in that court on appeal from the County Court.

The following facts are disclosed by the record: Catherine Spellmeier, an aged German, and mother of the parties directly interested in this suit, died at her home in Monroe county, August 1, 1906, leaving a last will and testament, by which she appointed John Werling executor. The will was duly probated and appellee qualified and acted as executor. At the time of her death, the testatrix owned a small amount of household goods and a cider-press, worth in all probably about $35, had $40 in cash, and money loaned to the amount of $3590.74, represented by promissory notes and nearly all secured by mortgages. Her will which bears date January 17, 1902, after directing the payment of her just debts and funeral expenses, provided :

“Second, I give to my daughter Mary Werling, all my real estate, also all other personal property except cash money, which shall be divided as follows:

“Third. I give to my daughter Katie Mueller, nee Werling, three hundred dollars.

“Fourth. I give to my granddaughter Louisa Stumpf, nee Blittersdorph, three hundred dollars.

“Fifth. I give to my granddaughter Mary Wallhaus fifty dollars.

“Sixth. I give to my church fifty dollars.

“After the above amounts is paid all the rest of my cash money shall be equally divided between my son John Werling and my son Fred W. Werling and my daughter Mary Werling and my daughter Christina Bickelhaupt, nee Werling, each one to receive share and share alike.”

The Mary Werling named in the will is now Mary Lich, the appellant herein. After the death of the testatrix, appellant filed a claim against the estate for $1508.48, a portion of which was for money furnished for repair work on the home place, but by far the larger part for services rendered the testatrix while appellant was keeping house for her. A controversy arose between appellant on the one hand and the others interested in the estate on the other, concerning the amount to be allowed appellant upon her claim and the amount she was entitled to receive under the will. On December 8, 1906, several months after the death of the testatrix, appellant with her counsel, Mr. Wilson, and the other parties interested in the estate with their counsel, Mr. Bickert, met at the office of the latter, where the differences between the parties were discussed. As a result of the meeting, appellant’s claim was settled for the sum of $683.23, $500 of which was for services rendered by her to the testatrix and $183.23 for the repair work. At the same time the executor paid all the special legacies provided for in the will, amounting to $700, and out of the balance of the fund on hand, paid the sum of $400 each to the four residuary legatees named in the will, including appellant.

It is claimed by appellee that at the time of the said meeting, a full settlement was made between appellant and. the other parties in interest, by which, after the payment of all claims against the estate, including hers, the special legacies and the costs of administration, the balance of the estate represented by the money loaned was to be divided equally among the four residuary legatees. On the other hand appellant claims that only her claim against the estate for services rendered the testatrix and repairs to the home place were settled, but that no settlement was made or agreement arrived at as to the amount she was to receive from the estate under the will. On the same day appellant gave three written receipts to appellee, as executor, one for “all the personal property, except cash money, left to me by the second clause of last will of my mother Catherine Spellmeier, deceased,” another for $683.23 in full of her claim and still another for $400 “for part payment of my heirship under last will of my mother, Catherine Spellmeier, deceased.” She also appears to have known of the fact that the executor on the same day paid the special legacies provided for by the will and that he paid the sum of $400 to each of the other three residuary legatees, for which each of them gave a receipt very similar in terms to that given by appellant when she received the like amount. Appellee also produced witnesses who were present on the day named and who swore to facts tending to show that settlement in full of all matters in controversy was on that day made.

Appellant sought to meet these facts by the testimony of a witness who swore that nothing was settled at Bickert’s office, while he was there, but it does not appear whether he was there or not during the time the settlement is finally claimed to have been made; also by the testimony of her attorney, Joshua Wilson, who stated that at the time in question she asked him if it would hurt her rights under the will if she accepted the offer made to her on her bill against the estate; that he told her it would not and she then said, “All right, I will accept it.” This conversation, however, appears to have taken place outside of the room where the conference was being held and presumably the others did not hear it. The attorney also swore that nothing was settled at Bickert’s office, excepting appellant’s claim. If appellant was claiming then, as she does now, the proceeds of all the notes owned "by the testatrix at the time of her death, upon the theory that the “cash money” referred to in the will, included only the $40 which the testatrix had at the time of her death, it is hard to understand why appellant and her attorney, at the time in question, permitted the executor to pay all the specific legacies, provided for in the will and to pay each of the residuary legatees $400 apiece, she taking a like share, when under her claim as now made she was entitled to the whole estate, after the payment of debts and expenses of administration. The facts warrant the belief that a settlement of all differences was made between the parties in interest and we are of opinion that, as there was a controversy concerning the share of the estate appellant was entitled to under the will, and as to her claim for services and repairs, the disposal of the whole matter in the manner in which it was done, was a sufficient consideration for the settlement. Apart from the question of settlement, the controversy was in the court below and is here as to the meaning of the words “cash money” used in the will.

"While it is true that a testator is presumed to use the words in which he expresses himself in their strict and primary acceptation and ordinary sense, yet it is a familiar rule of construction that in ascertaining the intention of the testator, effect must be given to all the language used if it can be done, and it is a further well-recognized rule that in the construction of a will, the court will look at the state of the property devised, in endeavoring to ascertain from the language used, the testator’s intention. Fisher v. Fair bank, 188 Ill. 187.

The word “money” as used in a will in reference to the residue of the personal estate, after the payment of legacies and debts, has been often held to include promissory notes.

In the case of Decker v. Decker, 121 Ill. 341, the will provided “if there is any money remaining after my death, it shall be equally divided between Bosina Decker and Homer Decker.” At the death of the testator there was only a few hundred dollars in actual money, while there were between seven and eight thousand dollars loaned money, and it was held that the bequest of money remaining, should be held to include the money loaned. In the opinion in that case it is said, “We think the use of the expression ‘money remaining’ instead of ‘personal estate remaining’ or some like expression is sufficiently accounted for by the fact that the great bulk of the personal property consisted, as is commonly said, of loaned money. This was true both at the time of making his will and at the time of his death. It was in this peculiar sense he doubtless used the word ‘money’ as it covered, appropriately enough, all ■ of Ms personal estate, except a few insignificant chattels.” Substantially the same thing can be rightly said of the facts in this case. At the time the will was made in 1902, the property of the testatrix consisted of a small farm worth as near as can be ascertained from the evidence, about a thousand dollars, her household property and the cider-press above mentioned, worth some $35, notes and mortgages aggregating the sum of $3350 and possibly from one to two hundred dollars in money. The will was drawn by a neighbor, evidently inexperienced in that work, who had .to talk to her through an interpreter. He testified that she said at the time “she had enough money to pay all that was in the will and that if there was any money left Mary was to share the same as the others, John, Fred and Christina.”

It therefore appears that the testatrix must have referred to her money loaned as well as actual money on hand, if there was any of the latter, by the term “cash money,” as the actual money on hand, if any, was very insignificant in amount and wholly insufficient to pay even the specific legacies of $700. At the time' of her death she had sold her home farm, the proceeds of which had been partially used by her, but the money she had loaned amounted to $3590.74, while there was only $40 in cash on hand.

As said in Decker v. Decker, supra, “the great hulk of the personal property consisted, as is commonly said, of loaned money.” The cash money was insufficient by quite a considerable amount to pay the debts and costs of administration. While the words “cash money” are somewhat more definite than the word “money” alone, yet it appears clear to us from the context of the will and the circumstances surrounding the testatrix at the time it was made, that she intended to include in those words her money loaned and evidenced by her notes and mortgage. This view of the case was rightfully taken by the court below. For this reason and also for the further reason that appellant appears to have made a valid settlement of all her claims against the estate, with the other parties interested, the judgment of the court below will be affirmed.

■Affirmed.


author: Mr. Presidibg Justice Higbbe

text:
    James E. Finucane, Appellee, v. Chicago & Eastern Illinois Railroad Company et al., Appellants.

      Rjjxkoads—when obligation to fence, etc., to be determined as a question of fact. Held, under the evidence, that it was a question of fact to be determined by the jury as to whether or not the railroad company, defendant, was under an obligation to erect and maintain fences or cattle-guards at the place where the accident in question occurred; it bein'g contended by such company that the part of the track where the accident occurred was within the limits of its depot grounds and needed for station and depot purposes, etc., and that, therefore, under the law which does not require tracks so situated to be protected, it was not necessary that fences or cattle-guards be maintained.
    Action in case. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Jud'ge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.

      Clemens & Slater, H. T. Dick and Debisob & Spieler, for appellants; W. W. Barr, of counsel.
    William H. Warder and W. A. Schwartz, for appellee ; J. S. Kebdall, of counsel.
   Mr. Presidibg Justice Higbbe

delivered the opinion of the court.

At about two o’clock on the morning of December 25, 1907, a train of the Illinois Central Railroad Company, running south on the tracks of the Chicago & Eastern Illinois Railroad, ran into a drove of horses and mules at Fayville, Illinois, belonging to appellee, killing some and injuring others. Appellee brought suit against both railroad companies, charging in one count of his declaration a failure to erect and maintain fences, and in the second*, a failure to provide suitable cattle-guards to keep stock off the track at a road crossing, where the stock in question .went upon the track near the station at Fayville. There was a plea of the general issue, a verdict for $4600 damages and $400 attorneys’ fees. Motion for a new trial having been overruled, judgment was entered against the defendant railroad companies for $5000, from which both of them have appealed.

The village of Santa Fe was platted about 1859 and when the Chicago & Eastern Illinois Railroad Company ran its track through it, some seven or eight years ago, the name was changed to Fayville. The railroad track at this point which will be here treated as running north and south, is nearly parallel with the Mississippi river. The village, which was unincorporated, contained houses sufficient to shelter fifteen or twenty families, a depot and a postoffice. The station is a flag,station, no agent being maintained. By an arrangement with the Chicago & Eastern Illinois Railroad Company, the Illinois Central Railroad Company also used the tracks for certain of its trains. Little attention appears to have been paid to the platted streets and alleys. There is a railroad depot on the east side of the track and some three hundred feet north of it, west of the track, is the postoffice. Just west of the postoffice is a boat landing on the river bank, connected with the depot by a wagon road which appears, from the plat in evidence, to pass.for the most part over platted, lots instead of streets. Some 300 feet north of the postoffice there is a switch and from this switch a side track runs north along the east side of the main track for nearly a mile. The depot, post-office, boat landing, switch and about 100 feet of the south end of the side track are in the plat of the village. About 1600 feet north of this switch another switch track leads off in a southerly direction on the east side of the other tracks, and along this is located a blacksmith shop, coal bins, scales and a power house used by a powder plant located about half a mile northeast of there. The long side track is used for passing trains., switching and sometimes for storage, while freight is unloaded from the side track and switch track near the power house. Appellee, a railroad contractor, working upon a new road near by, had 30 or 40 horses and mules in a corral along a wagon road leading to Olive Branch, south of Fayville. On the night in question, the horses and mules got out of the corral and traveled along the highway to the railroad at the crossing near the depot. They then traveled north on the track or right of way as far as the power house, where they turned and started back south again. When they were on the track between the switch at the south end of the side track and the post-office, they were struck by an Illinois Central train, coming from the north, and as a result 14 mules were killed and 6 crippled. Three horses were also so badly crippled they had to be killed.

There was no cattle-guard at the street crossing south of the depot, nor between that point and the power house. Nor was there any fence on the river side of the railroad. On the east side of the railroad between said points, there was some 600 feet of fencing but it was badly out of repair and was located north of the point where the animals were injured.

Appellants claim that the part of the track where the accident occurred was in the limits of its depot grounds and needed for a station and depot purposes, and therefore it was not necessary that it should be fenced or protected by cattle-guards. Also that cattle-guards between the station and the switch, would have hindered the railroad companies in carrying on their business and endangered the lives and limbs of their employes.

Appellee on the other hand insists that no freight was loaded or unloaded and no business of the railroad companies with the public or with any patron was done between the station and the power house, and that, therefore, the track between the postoffice and the power house should have been protected by fences and cattle-guards.

The statute requires railroads to erect and maintain fences on both sides of its road, except at the crossings of public roads and highways, and within such portion of cities and incorporated towns and villages as are or may be hereafter laid out and platted into lots and blocks, etc., and to maintain cattle-guards at all road crossings. There is nothing in the statute, which excuses the company from maintaining fences along that portion of its track which runs through unincorporated towns and villages, but where a railroad company has established a depot and transacts business with the public, it has been held by the courts of this State that it is not bound to fence such portions of its track as are necessary for the convenience of the public in transacting its business with the company. C. M. & St. F. R. R. Co. v. Dumser, 109 Ill. 402 ; C. B. & Q. R. R. Co. v. Hans, 111 Ill. 114.

In our opinion, the question whether cattle-guards and fences connected therewith, should have been placed at the point where the injury occurred, is, under the holding of our courts, a question of fact and not of law.

It is true in I. C. R. R. Co. v. Davidson, 225 Ill. 618, cited by appellants, the court held, that the maintenance of cattle-guards and wing-fences at the crossing in question, was a question of law but that was at a place directly within the statute and of course must be controlled by the statutory law covering it. But in locations such as we have under consideration here, the question as to whether or not the railroad company is bound to fence and maintain cattle-guards, depends upon facts and circumstances of the case, and whether these facts and circumstances exist are questions for the jury. T. St. L. & K. C. R. R. Co. v. Thompson, 48 Ill. App. 36; C. C. C. & St. L. Ry. Co. v. Green, 65 Ill. App. 414.

In Wabash R. R. Co. v. Howard, 57 Ill. App. 66, where an accident occurred at a small unincorporated village, it was said by the court: “The doctrine announced in the Hans case was that the railroad company is not required to fence such parts of its depot grounds as are required to be open for the convenience of the public in the use of the road; but we do not understand that the mere convenience of the company is a sufficient reason for not fencing. . . Where a side track is much used for switching purposes, it might be dangerous to employes to have cattle-guards intervening and this might perhaps furnish an excuse for extending the open space, as to which no opinion need be now expressed, but the mere convenience of the company would not Tie sufficient.” In that case the question of the proper use and convenience of the depot grounds, tracks and switch as between the company and the public, was recognized as a question of fact for the jury. While the question whether the place in controversy, where the injuries to the stock occurred, was such as required it to be left open, for the convenience and transaction of business between the public and the company, and whether the erection of cattle-guards to protect it would have been dangerous to the employes of the company in the necessary discharge of their duties, were close questions, yet these questions of fact were submitted to the jury under proper instructions and the facts are such that we do not feel at liberty to disturb the verdict.

Appellants claim that the court erred in the admission of evidence on behalf of appellee. A witness, in answer to the question “What kind of a night was it?” was permitted to answer, “It was a light, moonlight night,” and the same line of investigation was permitted with other witnesses for appellee. The complaint is that, as there was no charge in the declaration of negligent operation of the engine, such evidence could only have been offered to show that the employes of appellant should have discovered the animals on the track and prevented the injury. While the court below might well have sustained the objection to this line of interrogatories, yet we do not think its admission of sufficient importance to warrant the reversal of the judgment, in view of the fact that the court directly instructed the jury at the instance of the defendants, that there could be no recovery in the case, “for any carelessness or negligent running or handling of the train. ’ ’

Appellants further object that a witness for appellee was permitted to testify that he found blood on the rails and ties. We think this evidence was entirely proper, as tending to determine the place where the animals were killed, which was an important question of proof. Other objections are made to the admission of testimony for appellee, but upon consideration of the same, we do not think they are of material importance.

Appellants also claim that the damages are excessive, but evidence was introduced by appellee which itemized the damages as to each animal killed or injured, the total of which was slightly more than the amount of the verdict. Appellants introduced no evidence upon this subject, so that the jury could not have reasonably done otherwise than find as they did, as to the amount of damages.

Criticism is made of that portion of the first instruction given for appellee which states, “it is made by said statutes the duty of such railroad company to construct and maintain cattle-guards at all road crossings, suitable and sufficient to prevent such horses and other stock from getting on such railroads.” Appellant’s criticism of this instruction is that it should have confined the duty to maintain a cattle-guard to the public crossing, south of the depot. The whole instruction, however, was general in its form, purporting to state a portion of the statute in reference to the maintenance of fences and cattle-guards, which it did correctly, and no sufficient reason appears to us why it should be held to .be in any manner objectionable. Other objections to instructions are of mmor importance, and do not appear to us to be well founded.

The judgment of the court below will be affirmed.

Affirmed.

Mr. Justice Duncan having tried this case in the court below, .took no part in the consideration or decision of the same in this court.


text:
    William U. Halbert, Administrator, Appellant, v. Wabash Railroad Company, Appellee.
    1. Railroads—when not required to ring deil. The statutory duty of a railroad company to ring a bell or sound a whistle upon approaching a highway is not intended for the benefit of those who are not traveling upon such highway; the railroad company owes such duty only to persons approaching and about to pass over the highway crossing.
    2. Pleading—when declaration does not state cause of action. A declaration in an action on the case against a railroad company for injuries suffered while upon the tracks Of such railroad company, does not state a cause of action if it fails to show the violation by such railroad company of any duty due to such person and if it likewise fails to show that such .person so injured was rightfully upon such tracks.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. Chabi.es T. Moobe, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Joseph Wheless and Louis Klingel, for appellant.
    Kramer, Kramer & Campbell, for appellee; J. L. Minnis, of counsel.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

In this case the court below sustained a general and special demurrer to the declaration, and appellant who filed the same, having elected to stand by it, judgment was rendered against him in bar of the action and for costs.

The question presented to us is whether the declaration stated a good cause of action. Each of the four counts of the declaration, stated that appellee, the Wabash Railroad Company, on October 22,1906, and for a long time prior thereto, in the city of Venice, in Madison county, Illinois, owned, used and operated a certain railroad extending through said city of Venice and a part of said county; that a part of said railroad lay within a tract of land reserved and used by appellee and several other railroad companies as “railroad yards,” where a number of main and switch tracks were laid and operated by said companies, including appellee; that appellee’s servants were then and there engaged in driving a locomotive engine and train of freight cars, through said railroad yards in said city, towards a point where the tracks crossed a public street, called Broadway; that Domenico Zito, appellant’s intestate, was then and there employed as a servant of the Cleveland, Cincinnati, Chicago and St. Louis Railroad Company otherwise known as the “Big Four” Railroad, the tracks of which, in the city of Venice, lay near to and parallel with the appellee’s tracks; that Zito was employed as a laborer on the tracks of said Big Four railroad in said railroad yards; that the employes of each said railroad companies, working in said yards, commonly and ordinarily passed back and forth therein, over and across the tracks of the several railroads, with the knowledge and permission of said several companies, including appellee ; that while said - Zito with all due care and diligence was then and there walking across the tracks of appellee, within said yards and near the said crossing over the said public highway, he was struck by appellee’s said locomotive engine and train with such force and violence, that he was crushed and killed.

The negligence set out in the -first count is that the servants of appellee, carelessly and improperly drove and managed said locomotive and train; in the second, the failure of appellee’s servants in charge of said locomotive engine, to ring the bell or sound the whistle in approaching the crossing; in the third that the train was being run at a higher rate of speed than permitted by the city ordinance of Venice; and in the fourth, the failure of appellee’s guard or watchman to lower the gate or bars at said Broadway crossing upon the approach of the train. There was no charge of wilfulness or wantonness on the part of appellee in any of the counts.

As regards the charge in the second count, it has been held that the statutory duty of a railroad to ring the bell or sound the whistle, upon approaching a highway, is not intended to be for the benefit of those who are not traveling upon such highway and that the railroad company owes such duty only to persons approaching and about to pass over the highway crossing. Williams v. C. & A. R. R. Co., 135 Ill. 491; L. E. & St. L. R. R. Co. v. Lee, 47 Ill. App. 384.

It clearly appeared from each count of the declaration that Zito was not upon the public highway but was upon appellee’s track in the railway yards and it is therefore manifest that he did not belong to the class of persons for whose benefit railroad companies are required to give such signals.

It is equally plain that the operation of bars or gates at a public crossing is intended for the protection of those who are intending to pass over the railroad track at such crossing and not for the protection of persons walking on or near the track at other places. For these reasons the demurrer was properly sustained as to counts 2 and 4.

There is another objection that applies equally to all the counts which is the charge that Zito was the servant of the Big Four Eailroad Company, but that he was injured while he was, with due care and diligence, walking across the tracks of defendant, within the railroad yards and near said public crossing.

It is true that it is further said that the employes of each of the railroad companies working in the yards commonly and ordinarily passed hack and forth over and across the tracks of the several railroads therein, with the knowledge and permission of the several companies. But no reason whatever is alleged why Zito was upon appellee’s track at the time he was injured. Whether he was there in pursuit of his duties as a laborer for the Big Four Eailroad Company, or was going to and from his work or was there for some other purpose of his own not connected with his duties, does not appear. The most that could be said concerning his claimed right to be upon appellee’s track, is that he was a mere licensee. Under such circumstances the only duty owed him by appellee, was to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he was discovered to be in peril, if he was so discovered. I. C. R. R. Co. v. Eicher, 202 Ill. 556; Thompson v. C. C. C. & St. L. R. R. Co., 226 Ill. 542:

As none of the counts of the declaration in this case charged wantonness or wilfulness on the part of the employes of the appellee, or a failure on their part to use reasonable care to avoid injuring Zito after he was discovered to be in peril, they are all fatally defective and the demurrer to them was properly sustained. The judgment of the court below will be affirmed.

Affirmed.


text:
    Samuel A. Pinkley, Appellee, v. Chicago & Eastern Illinois Railroad Company, Appellant.
    Master and servant—what risk not assumed. Held, under the evidence, that the plaintiff in this case did not, as a matter of law, assume the risk of injuries which might be suffered by him while engaged in handling timbers which had been treated for preservative purposes with a preparation consisting largely of coal tar and creosote.
    Action in case for personal injuries. Appeal from the Circuit Court of Fayette county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Brown & Burnside, for appellant.
    B. W. Henry and Albert & Matheny, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment for $600- obtained by appellee against appellant, on account of injuries received by him while engaged in handling timbers used for piling, which had been treated, for preservative purposes, with a preparation consisting largely of coal tar and creosote.

The declaration charged that appellee was a servant of appellant in the latter’s railroad yards at St. Elmo, Illinois; that on August 6, 1907, appellant placed in said yards, a carload of green yellow pine piling, all newly and freshly treated with creosote; that the foreman carelessly, negligently and recklessly directed appellee to take hold of said piling with his hands and cant hooks, to assist in unloading the same; that appellee had never had any experience in handling green timbers freshly treated with creosote, and did not know there was danger of being poisoned and diseased therefrom; that appellant knew or in the exercise of ordinary care should have known there was great danger of injury, poison, sickness, soreness, etc., resulting from handling such piling, so treated with creosote; that while appellee, in the exercise of due care for his own safety, was handling said piling, with his hands and cant hooks, he became poisoned, diseased, etc.

As was shown by the proofs, appellant had a supply yard at St. Elmo, where large quantities of ties, piling, sewer-pipe and other materials used by it, were received and afterwards distributed over its lines. Appellee, a man 52 years of age, was employed by appellant on June 3,1907, and set to work as one of the crew in said yard. Large quantities of piling, railroad timbers and sewer pipe before being shipped to the yard were treated with a preparation of coal tar and creosote to keep them from decaying. The preparation had some of the properties of carbolic acid. When applied to the skin it would burn, sting and frequently blister, causing the skin to peel off. The eyes of those working with timbers treated with it, are caused to smart and when breathed freely, it acts as an irritant. These properties of the preparation were somewhat known by the crew who had suffered thereby, to some extent and it was a matter of frequent remark among them, that ''’black jack,” as it was called by them, was “hot stuff” to handle. While appellee was at work in the yards, some ten loads of timber and sewer pipes so treated, were handled, but he assisted with only three or four of them. In doing this work, his hands, arms and face were slightly burned and made to smart, but he did not receive any serious injuries. On August 6 aforesaid, a large carload of green piling freshly treated with creosote, came into the yards. The day was hot and the preparation was dripping from the timbers and the car, and would exude when hooks were stuck in the timbers. It was the nature of the preparation to come to the surface of timbers treated with it more freely in hot weather. The foreman took several men, including appellee, to the car to unload it and bringing a can of vaseline, said “Boys you had better put this on your faces, it is green timber and freshly treated. ’ ’ The men applied the vaseline and proceeded under the directions of the foreman, to unload the timbers. Along in the afternoon, appellee experienced a burning sensation, which as he said “hurt like fire.” That night he could not rest and was much worse. The next morning he went back to work and when told there was another carload of piling-to unload, refused to take part in the work, saying “I am ruined- enough from it,” gave up his job and another man was put in his place. Appellee was severely burned about the mouth, lips, nostrils and arms and was under a physician’s care for several months. His injuries appear to have resulted in a sort of eczema of a very painful nature, which at the time of the trial seemed to be a permanent affliction. Others engaged in unloading the car on that day were also- badly blistered and burned but were not permanently injured.

It is claimed by appellant that the danger incident to the unloading of the creosoted timbers, was one of the ordinary risks of the work which appellee was employed to do; that such danger was open, patent and known to him and that when he undertook the work assigned Mm, he assumed the risk of any injury which might be incurred.

In support of this theory counsel for appellant cite a number of cases covering well-known general principles of law in regard to the assumption of risk, such as Clark v. C. B. & Q. R. R. Co., 92 Ill. 43; Chicago & Northwestern R. R. Co. v. Donahue, 75 id. 106; Camp Point v. Ballou, 71 id. 417; Kath v. E. St. L. Sub. Ry. Co., 232 id. 126.

On the other hand appellee relies upon the doctrine laid down in Offutt v. Columbian Exposition, 175 Ill. 472, which states that “The rule is that where the servant is injured while obeymg the orders of his master to perform work in a dangerous manner, the master is liable, unless the danger is so imminent that a man of ordinary prudence would not incur it.” Citing Ill. Steel Co. v. Schymanowski, 162 Ill. 447; Anderson Pressed Brick Co. v. Sobkowiak, 148 id. 573; West Chicago St. R. R. Co. v. Dwyer, 162 id. 482. See also C. R. I. & P. Ry. Co. v. Rathneau, 225 id. 278.

Appellee also relies upon the doctrine that even though a servant may have knowledge of defects in machinery, appliances or places of working, yet if he is lulled into a sense of security by the words, acts or conduct of his master and thereby continues in the work and is injured by reason of such defects, he may recover unless the danger is well known to him or is so obvious that no prudent man would run the risk. 26 Cyc. of Law & Procedure 1213 and cases cited. Also the doctrine laid down in Union Show Case Co. v. Blindauer, 175 Ill. 325, that mere knowledge of the existence of a defect on the part of an employe, without knowing its dangers, does not amount to an assumption of the risk thereby occasioned.

It was clearly shown that appellee knew the handling of the ereosoted timbers might and probably would cause blisters and bums but it is equally clear that he did not lmow that such work might result in the poisoning of his system and lastmg injuries, such as did occur to him. It may be presumed that had he been fully informed of the danger attending the work, he would as a prudent man, have refused to do it, as is shown by the fact that on the next morning after he had learned how serious the danger was, he refused longer to perform such work and gave up his situation. In other words he knew that some injuries might result to him from performance of the work, but had no knowledge of the real extent of the danger. He was also apparently caused to believe that whatever danger of injury there was, would be obviated or deprived of its serious nature by the supposed preventive furnished by his foreman. On the other hand appellant was dealing with a dangerous agent and that too apparently on a large scale and it was its duty, under the circumstances, to observe care in the use of the preparation employed, commensurate with the danger known, or which by the exercise of ordinary care it could have known to exist.

Whether the real dangers incurred by appellee were so obvious and imminent that no person of ordinary prudence would have performed the work he was ordered by his foreman to do; whether he reasonably held the belief that the work was made safe by the vaseline furnished by the foreman; and whether appellant knew or could have known by the exercise of ordinary care, the extent of the danger to which it subjected appellee,' were, under the circumstances of this case, questions of fact for the jury and the evidence was such that we do not feel authorized to disturb their verdict.

Complaint is made by appellant that the court refused four of its instructions, one of which was as follows:

“You are instructed that when a servant undertakes or performs any dnty which he knows to be dangerous, he assumes the risk incident to the danger, which necessarily arises from the nature of the employment, and if he is injured, on account of the necessarily dangerous character of the work then he cannot recover damages for such injury.”

While this instruction might be proper in some cases, it would have been misleading and therefore improper here. In this case it was not controverted that appellee knew that the work in which he was engaged was to a certain extent dangerous, but it was denied: by him and the circumstances tend to show that he had no knowledge of the extent of the danger, or that the injuries which might be inflicted, would be more than temporary. Further the instruction takes no account of the fact that the appellee was working under the direct management of his foreman who was providing a supposed preventive of the danger and in fact wholly ignores the theory which appellee properly relied upon to sustain his right of action. What is said of this instruction, will apply in effect to appellant’s other refused instructions.

Appellant also complains of the modification of its sixth instruction. This modification was really incomplete and did not contain all that it properly should have, but another instruction of the series was full and complete upon the subject of the amendment and the series of instructions as a whole fully presented the correct theory in that regard, so that the jury could not have been misled.

We are of opinion from the whole record that substantial justice has been done in this cause, and that there are no errors in the trial of sufficient moment to warrant a reversal.

The judgment of the court below will therefore be affirmed.

Affirmed.


text:
    Thomas E. Smith, Appellee, v. Moffat Coal Company, Appellant.
    1. Mines and Miners Act—construed with respect to the opening of cross cuts. The legislature did not intend that entries in a mine might be extended to an indefinite distance without the opening up of new cross cuts as the work advanced, provided no room was turned off at the entry; so to construe this act would be, to an extent at least, to subvert the plain object in view. Cross cuts should be opened at intervals of sixty feet as entries are extended.
    2. Mines and Miners Act-—what evidence competent upon question of notice. Held, that it was competent to show the condition of the air in the entry of a mine at a time some time prior to the accident in suit; such evidence tending to show notice on the part of the operator.
    3. Evidence—when erroneous admission will not reverse. The admission of incompetent evidence which bears solely upon the matter of damages will not reverse where no contention is urged that the damages awarded are excessive
    •Action in case for personal injuries. Appeal from the Circuit Court of Randolph county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Wise, McNulty & Keefe, for appellant; Mastín & Sherlock, of counsel.
    Webb & Webb and Ralph E. Sprigg, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee was injured by an explosion of gas, while working in the coal mine of appellant, near Sparta, Illinois, brought suit and recovered a judgment against appellant for $2000'.

There were six counts in the declaration, upon which the case was tried. The first was based on appellant’s common law liability to furnish appellee with a safe place to work. The second charged appellant with a wilful failure to maintain currents of fresh air throughout the mine, sufficient for the health and safety of the men and animals employed therein, and to keep in circulation in passing a given point, the quantity of air provided for by statute. The third charged that the back south entry at the time of the injury, had been developed more than sixty feet beyond the last cross cut, and that during said development, appellant wilfully failed to open other cross cuts not more than sixty feet apart, between the face of the entry and the last cross cut, connecting therewith, by reason whereof the air current in said entry failed to reach the working face thereof and gas and deleterious matters collected, which became ignited and exploded. Other counts charged the failure of appellant’s mine examiner to properly examine the mine and record the result thereof, as provided for by statute.

Appellant claims that appellee was not entitled to recover under the evidence in the case; that two instructions given for appellee were erroneous, that certain evidence admitted for appellee was improper and that the verdict is excessive.

Two of the entries in appellant’s mine, known as the main south entry and the back south entry, running parallel with each other, had been driven about one-fourth of a mile from the shaft, were separated from each other by a pillar of coal about thirty feet in thickness, and were connected at intervals of about sixty feet by cross cuts. Currents of air were kept circulating by means of fans through these entries, and other parts of the mine, where the men were working. By this means the air was forced down the back south entry and through the last cross cut to the main south entry. As the entries were extended, a new cross cut would be made and the others being closed, the fresh air would be carried close to the face of the entry and gas and other impurities carried out. At the time of the injury, however, which occurred March 4, 1908, the back south entry had been carried about 106 feet beyond the last cross cut, and while a cross cut had been started sixty feet south of the last cross cut in the main south entry, it was not cut through. For several days prior to February 28, 1908, it had been noticed that the air in the back south entry was foggy, smoky and still, and that there was no current of air in that portion of the entry. On the date last named the mine shut down on account of some contention between the miners and appellant, and remained idle until the day of the injury. During the idle days, however, appellee and a miner named Reed were doing timbering in the mine and the fan was kept running. On March 4 the mine examiner went into the mine and discovered a fall of slate in the back south entry about twelve feet from the face. On that day appellee and Reed started to the face of that entry, for the purpose of loading coal in a car, which they pushed in front of them. When near the edge of the fall of slate at a point between sixty and seventy feet south of the last cross cut, an explosion of gas occurred by which appellee was severely injured.

It is the theory of appellant that the gas accumulated in a pocket in the roof after the mine examiner had made his examination that morning and caught fire from the lamp carried by appellee or Reed; while it is contended by appellee, that had the cross cut been open a current of air would have been circulating and the gas removed, thereby preventing the explosion. We are of opinion the proofs plainly sustain- appellee’s cause of action under the second and third counts of his declaration, and as the verdict was a general one, it will be unnecessary for us to discuss questions arising upon the other counts.

Section 19' of the Act in regard to Mines and Miners provides, “Throughout every coal mine, there shall be maintained currents of fresh air, sufficient for the health and safety of all men and animals employed therein, and such ventilation shall be produced by a fan or some other artificial means.” Subdivision (a) prescribes the quantity of air that shall be kept in circulation and further provides, “said currents shall be forced into every working place throughout the mine, so that all parts of the same shall he reasonably free from standing powder smoke and deleterious air of every kind.”

The evidence in this case was such that the jury might reasonably conclude therefrom that appellant had not forced a current of air sufficient to meet the statutory requirements into the working place of appellee. Subdivision (g) of said section provides, ‘ ‘ Cross cuts shall be made not more than 60' feet apart and no room shall be opened in advance of the last open cross cut.”

It is • uncontested that appellant had failed to open a cross cut at or within the distance of 60 feet from the last cross cut, and a preponderance of the evidence shows that for some time the air had been in bad condition and was not freely circulating towards the face of the entry; that about two weeks prior thereto, appellee and Reed had asked the mine manager if it was not about time to put in a cross cut and he had said that he would see about it; and that had a cross cut been made at the statutory distance, and a current of air forced through, the deleterious air would have been removed.

Appellant takes the position that while the statute provides that “cross cuts shall be made not more than 60 feet apart,” yet in the same connection it further provides that “no room shall be opened in advance of the last open cross cut;” that the whole sentence must be taken together and when so read shows that the statute has relation to the care and protection of miners in the development of rooms and not in the development of entries; that “there is no statute which requires the mine operator in the development of entries to open a cross cut as soon as the entry is driven 60 feet past the last cross cut; ’ ’ that the charge in the declaration that “defendant wilfully failed to open other cross cuts not more than 60 feet apart, between the face of the entry and the last cross cut, ’ ’ .if proven, would not constitute a violation of the statute. In this case no room had been opened off of the back "south entry beyond the last cross cut and if appellant’s contention as to the law is correct, appellee is not entitled to recover under the third count of the declaration.

The constitution of this State provides that, “It shall be the duty of the General Assembly to pass such laws as may be necessary for the protection of operative miners, by providing for ventilation when the same may be required and the construction of escapement shafts or other such appliances, as may secure safety in all coal mines,” etc. The title of the Act of the General Assembly here.relied upon is, “An act to revise the laws in relation to coal mines and subjects relating thereto, and providing for the health and safety of persons employed therein.”

It is a matter of general knowledge and is also specially proven in this case, that the opening of cross cuts between entries in a mine, develops and directs air currents forced by the fan through the mine and removes deleterious air; that the opening of the same greatly promotes the protection of miners from injuries from bad air, caused by explosion of gases or otherwise. With these matters in view we must assume that the legislature in providing for the opening of cross cuts, intended to protect miners and if it should be held that an entry might be extended to an indefinite distance, without opening up a new cross cut, as the work advanced, provided no room was turned off of the entry, the object of the law would be to a considerable extent subverted.

We are of opinion that the meaning and intent of the law is that cross cuts shall be opened up at intervals of 60 feet as entries are extended, and that the facts in this case entitle appellee to a verdict in his favor upon the third count of the declaration.

Appellant criticises the first instruction given for appellee on the ground that it directs a verdict in favor of appellee in case the jury find at and immediately before Ms injury he was in the exercise of reasonable and ordinary care and caution for Ms own safety. An examination of the instruction however shows that it was intended to be applied only to the question of the care and caution exercised by appellee, before and at the time of his injury, and only sought to tell the jury what they might find from the existence of certain conditions upon that subject, and did not attempt to direct a general verdict.

The other given instruction, challenged by appellant, was the fifth, which is as follows:

“The court instructs the jury as to the third count of plaintiff’s declaration, the statute of Illinois at the time of plaintiff’s injury provided as follows: ‘ Cross cuts shall be made not more than 60 feet apart. ’ ’ ’

This instruction is in the language of the statute and under our interpretation of the law, as above set forth, was wholly proper.

Appellant insists the court erred in permitting a witness for plaintiff to answer the question, “What was the condition of the air in- your entry on February 28th,” the answer being, “The air was bad on the 28th of February, near the worMng place.” The criticism is that the time was too remote to be of any value in determining whether or not appellant failed to supply a proper quantity of air on the day appellee was injured. There was evidence, however, tending to show the existence of bad air in the entry both before and after that date, and the question was proper for the purpose of determining whether or not appellant should in the exercise of ordinary care, have had notice of the conditions which existed. Objection is also made that two physicians, called for plaintiff, who made an examination of him after he had received his injuries, testified as to the condition of his hearing and of the strength of the grip of .his hand, upon the ground that the physicians had to depend for their Miowledge of the same upon appellee’s statement. While the testimony of these witnesses was admitted, the court said in reference to the same, “As to the test of hearing, the statement may be disregarded, as to the other test the jury will take what the doctor discovered through his own efforts, without any statement from plaintiff.” And again, “The jury will regard only such testimony of the doctor as to what he himself observed, and not what the plaintiff told'him.” But even if the admission of this testimony had not been properly guarded by the court, it could not have injured appellant in this case, for the reason that it was solely directed to the question of the damages to be recovered, which in this case, considering the undisputed injuries, were by no means excessive. No reason calling for a reversal of the judgment in this case appears to us and the same will therefore be affirmed.

Affirmed.


text:
    Edward Steckler, Appellee, v. Southern Railway Company, Appellant.

      Instructions—particular phrase held not erroneous. Held, that the use of the phrase “and you should so find” in the instruction complained of, did not constitute such error as required a reversal.
    Action in case. Appeal from the Circuit Court of Wabash county; the Hon. P. A. Pearce, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Green & Bisley and Kramer, Kramer & Campbell, for,appellant; Edward P. Humphrey, of counsel.
    P. J. Kolb, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee brought suit against appellant to recover damages for injuries to his orchard, lying along appellant’s right of way some four miles east of Mt. Carmel, by fire claimed to have been set by engines passing on appellant’s track. Appropriate pleadings were filed and the trial resulted in a verdict and judgment for appellee for $700. <8

Appellant’s contentions are that appellee failed to prove the fire was set out by an engine of appellant, that the verdict and judgment were grossly excessive, and that there was error in the first and third instructions given for appellee.

Appellee’s premises were located on the south side of and adjoining appellant’s right of way. The orchard which was injured consisted of about ten acres. Next to the right of way there were apple and peach trees, covering about two acres of ground, separated from the remainder of the orchard, which was set to pear trees, by a rail fence. The peach and apple orchard had been sown to clover, of which there was a good stand; while in the pear orchard, of which some 6 1-2 acres were burned over, there was a heavy growth of blue grass. Appellant’s railroad passes appellee’s premises on a grade about a mile in length rising towards the east, and the orchard is about a quarter of a mile from its beginning. The fire occurred on September 2, 1908, and on that day a passenger train of appellant passed the orchard in question, going east at about 2 o’clock p. m. and another passenger train going west passed the same point some fifteen minutes later. Two witnesses, who were driving home from Mt. Carmel, heard the train going east when they were about a mile and a half from the orchard and soon after-wards saw smoke in the direction of appellee’s premises. When they arrived there, appellee’s wife came out and asked them to come and help fight the fire which they did. The wind at that time was blowing from the northeast, which was from the direction of the railroad, toward appellee’s buildings. It is undisputed that the right of way of appellant had been mowed a week or two before the fire, and that the weeds and grass which had been cut, had not been removed therefrom. When the two witnesses arrived, the fire had already burned off the weeds and grass on appellant’s right of way and was going through the orchard towards appellee’s buildings. After the fire was put out near the buildings, the witnesses went over to the railroad right of way, where the fire continued to burn towards the west, until it reached a farm crossing. Another witness who arrived at the place when the fire had nearly reached the house1, testified that the wind was from the northeast and that the fire came towards the house from the direction of the railroad.

Appellant’s employes in charge of the trains going east and west, at the time in question, were not witnesses upon the trial, and there was no one who testified directly to seeing sparks or fire come from an engine of appellant and ignite the combustible matter upon the right of way. But in I. C. R. R. Co. v. Bailey, 222 Ill. 480, it was held, the fact that fire was communicated by a railroad engine, might be established by proof of circumstances, giving rise to an inference of that fact, provided such circumstances constituted a preponderance of the evidence. In this case the jury evidently concluded that the preponderance of the evidence justified the inference that the fire in question was set by one of appellant’s engines, and we cannot say that this inference was not warranted by the proof.

The most serious question, as it appears to us, in this case, is the claim of appellant that the verdict and judgment were so grossly excessive, that they should not be permitted to stand. A considerable quantity of evidence was introduced upon this question and the. same is discussed at length and in detail by counsel for the respective parties. We have considered this matter carefully but believe it would be unprofitable to diseuss the same in this opinion, further than to say that appellee introduced witnesses who testified that his damages amounted to from $1700' to $2500 while appellant’s witnesses, on the same subject, placed the damages from $270 to $400. It is difficult for us to determine which witnesses were more nearly correct in their estimates, and we are content to leave that question to the jury and court below, who saw the witnesses and were better enabled to know what credit to give to their testimony.

The objection to the first instruction, given for appellee, is that it is in substance a direction to the jury to find appellant guilty. It appears from an examination of the instruction, however, that it states conditions under which plaintiff would be entitled to recover and instructs the jury that in such case the defendant would be liable for the damages caused and that they should so find. The particular objection is to the words “and you should so find” contained in the im struction. We do not think these words are objectionable when used in the connection in which they oo cur in the instruction. The instruction would indeed bear the same import if those words were left out. The other instruction complained of concerns the measure of damages and appears to us to state the rule of law regarding the same, correctly and in the usual form.

The judgment of the court below will be affirmed.

Affirmed.


text:
    Ney Bagby et al., Appellants, v. Court of Honor, Appellee.

      Insueance—what not material to risk as a matter of law. While it is true that no recovery can be had upon a life policy of insurance which is obtained by fraud and misrepresentation on the part of the insured as to the material representations affecting the risk, yet the authorities dg not go to the extent of holding that in g, cgse where statements and answers were made by an applicant for insurance to the representative of the company or association concerning matters of family history, in good faith, believing them to be true, that such answers or statements must in all cases be taken and considered material, as a matter of law.

      Assumpsit. Appeal from thé Circuit Court of Pulaski county; the Hon-.W. N. Butleb, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed and remanded.
    Opinion filed November 13, 1909.
    L. M. Bradley, for appellants.
    George E. Martin and Wahl & Caster, for appellee; Wm. B. BtIsse, of counsel.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellants, who are minors suing by their guardian, seek to recover the amount of a benefit certificate, issued by appellee upon the life of their mother, Georgia Bagby, who died April 6, 1907.

To the declaration of appellants, which set out the certificate in which they were named as beneficiaries, appellee pleaded the general issue and several special pleas, the latter relying upon and setting forth certain alleged false answers made by Georgia Bagby to the questions propounded to her at the time she made her application for membership. Appellee paid into court the amount deceased had paid to it upon the policy, with costs to the time of payment. The verdict and judgment were in favor of appellee and the court ordered the amount deposited with it, covering premiums paid, to be turned over to appellants. At the time of her death Georgia Bagby held a beneficiary certificate, for the sum of $2000, issued by appellee, payable to appellants. This certificate was the reissue of a former one and subject to all the provisions of the original certificate. The original certificate was issued January 20, 1900, when she was 29 years of age. She made written application and was examined by Dr. Hall Whitaker, local examiner at Olmstead, in Pulaski county, Illinois, near which place she lived. The answers to the printed questions were written down by the examining physician and the application signed by the applicant. It contained the provision “that this application and the law of this order, shall form the sole basis of my admission to and membership therein, and of the benefit certificate to be issued me by said Supreme Court of Honor; that any untrue or fraudulent statement or answer made to the district medical examiner, or any concealment of facts, intentional or otherwise in this application # * * shall forfeit the right of myself and that of my beneficiaries to any and all benefits and privileges therein, or arising therefrom.” In her answer concerning her family history, she stated that her father died of pneumonia, when he was 46 years of age, having been sick seven days, and that her mother died of pneumonia at 41 years of age, after a sickness of ten days. In answer to the question “Have either of your parents or any of your paternal or blood relations had consumption,” she answered, “No.” Under the head of “Hints to Medical Examiner” connected with the printed application is the statement: “If petitioner pleads ignorance of family history, the examiner should elicit some approximate idea of the causes of death. Having thus defined the family history as exactly as may be, the examiner has it within his power to decide how far the petitioner may be considered pre-disposed to the diseases of which his relatives died.” Under the head of “Remarks,” the examiner inserted, “Mrs. Bagby doesn’t know anything of her family from the fact she never lived among them since she was small and never heard of them. ’ ’ The examiner in answer to questions on the application to be answered by him, stated that he had made a careful examination of the thorax, that the respiration was full, easy and regular and the murmur clear and distinct over both lungs; that there was no indication of disease of the organs of respiration or their appendages; that there was no habitual cough or expectoration or occasional difficulty in breathing; that the petitioner would probably outlive the estimated expectancy; and that he recommended her for membership. The application and examination were dated June 23, 1900. About seven years later Mrs. Bagby died of what was pronounced to be quick consumption.

It appeared from the evidence that her father died in 1890 after a long illness and her mother in 1892 after an illness of some duration. Mrs. Bagby had been away from home in the west during most of her father’s illness, but was at home both when he and her mother died. The jury in addition to their general verdict in favor of appellee, found, in answer to special interrogatories, that George Brown, the father, and Elizabeth Brown, the mother of the insured, were both afflicted with consumption prior to death; that the illness of each was of long' duration; that each died of consumption and that the insured was at home at the time each of them died.

From the evidence the mother and father of Mrs. Bagby appear to have been in good health until long after her birth and there was evidence tending to show that the father’s decline in health originated from a Imife wound in the left breast, some years before he died.

The evidence relied upon by appellee as to the cause of death of Mrs. Bagby’s father and mother was the testimony of a physician who stated that he was not their attending physician hut that he called on both of them during their illness, either in the place of or in consultation with another physician. As to the father he states, “ The cause of Bud Brown’s death to my best knowledge, was that he had consumption. * * * Well, my judgment would be he died from the disease he had when I saw him last, unless something else developed, and that was consumption.” And as to the mother, “I could not be positive what Mrs. Elizabeth Brown died of. My best judgment, was when I saw her that she would die of consumption. I saw her over a week or ten days, as I remember, I wouldn’t be positive, and I considered her in the last stage.” The evidence is not satisfactory upon the question whether Mrs. Bagby knew positively of what disease her father and mother died, and it is contended by appellants that she might well have supposed they died of pneumonia. The physician above referred to testified that he may have told the mother that the father had “lung trouble,” but he could not say whether Mrs. Bagby, the insured, was in the room or in his presence at that time.

The benefit certificate or policy does not in direct terms make the answers or statements of the insured, in reply to the specific inquiries contained in the application, warranties, and they are not treated as direct warranties by the pleas filed in this case, nor by the briefs and arguments of counsel for the respective parties.

It is claimed, however, by appellee, that such statements and answers are material representations and that the materiality of the same is a question of law for the court and not a question of fact for the jury. The court below adopted appellee’s theory and instructed the jury that such answers and statements were, as matters of law, material to the risk; that if they found the father and mother or either of them died of consumption and that the statement as to the causes of their death made by the insured was relied upon by appellee, “then it makes no difference whether the incorrect statements were made intentionally or in good faith through honest mistake, as a matter of law, in such case said incorrect statement would avoid the certificate here sued on, and the plaintiffs cannot recover. ’ ’

In one instruction the answers made by Mrs. Bagby to the questions propounded to her were set out and the instruction then concludes “and if you further believe from a preponderance of the evidence that the said answers to the said questions, as made in the said application for insurance, were not true, then this would be a false representation as will avoid the certificate of insurance here sued on, whether the untrue answers were made by the said Georgia Bagby, either knowingly or innocently or by mistake or accident, and in such case the plaintiffs cannot recover in this suit, and your verdict should be for the defendant.”

Appellants on the other hand claim that the materiality of the representations made by the insured in her application, was a question of fact for the jury, but the court refused to give their instructions embodying that theory. It is not without value to note that the examiner was authorized in appellee’s instructions to him, in case the petitioner pleaded ignorance of family history, as it is apparent from the written statements made by the examiner Mrs. Bagby did, to elicit some approximate idea of the cause of death, and when such history was so defined, to decide the petitioner’s predisposition to certain diseases; also that the examiner set down the answers to the questions in the petition signed by the petitioner. It was therefore a question whether the answers in the application were the direct answers of the applicant or the approximate idea of the causes of death elicited from the applicant and defined by the local examiner. While it is true that no recovery can be had upon a life policy of insurance which is obtained by fraud and misrepresentation on the part of the insured as to the material representations affecting the risk, yet the authorities do not in our opinion go to the extent of holding that in a case where statements and answers were made by an applicant for insurance to the representative of the company or association, concerning matters of family history, in good faith, believing them to be true, that such answers or statements, must in all cases be taken and considered material, as a matter of law.

This court in Provident Sav. Life Assur. Society v. Cannon, 103 Ill. App. 534, where it was claimed by the Society that false answers had been made by the insured to questions contained in his application, said: “With reference to the answers and statements of the assured above discussed, as well as to those concerning the assured’s usual medical attendant, without reference to either the law or fact of waiver or estoppel to avail as a defense, it devolves upon appellant, not only to prove that such answers and statements, or one of them, are fraudulent or untrue, that applicant knew they were false at the time they were made, and that the fact concealed or the falsehood expressed, was material to the risk; and these questions are all questions of fact for a jury to decide.”

In Mfg., etc., Ins. Co. v. Zeitinger, 168 Ill. 286 (a fire insurance case), it was held, that “When there is no moral fraud, a representation, although false, does not avoid the policy unless such representátion be material, and its materiality is a question upon the evidence for the jury.”

In Globe Mut. life Ins. Assn. v. Wagner, 90 Ill. App. 444, the doctrine laid down in the above case is quoted and relied upon in a life insurance case, and that case was afterwards affirmed by the Supreme Court (188 Ill. 133).

The question here presented differs from that raised in Fraternal Tribunes v. Hanes, 100 Ill. App. 1, as in that case the certificate itself made the statements of the member in his application for membership, and the statements certified by him to the medical examiner, a part of the contract, and by such application, the truthfulness of the statements was warranted; and it was held that a plea which alleged that the applicant had made a false answer concerning the cause of his father’s death, and that he knew it to he false, was a good plea and that if the representation was false there could be no recovery.

We are of opinion that the court erred in giving the instructions for appellee above referred to, and for that reason the judgment will be reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Duncan took no part in the consideration and decision of this cause.