text:
    John Tulo, Appellee, v. O’Gara Coal Company, Appellant.
    1. Mines and minerals, § 74

      —proximate cause of injury. " Evidence held sufficient as tending to show that the negligence of the mine manager in directing cars to be run on certain tracks in the mine may have been the proximate cause of injury to servant and to raise a question for the jury.
    2. Mines and minerals, § 148

      —when variance not fatal. Where declaration alleges that before receiving his injury plaintiff was at a certain place in the mine, at the direction of defendant and the evidence shows he was there at his own volition, held not fatal.
    . 3. Mines and minerals, § 192

      —when instructions may ignore Question of assumed risk and fellow-servant rule. In an action for injuries resulting from the negligent orders of mine manager, question of assumed risk or fellow-servant rule held not to arise so as to be required to be incorporated in an instruction.
    4. Master and servant, g 337

      —when servant does not assume risk. A servant does not assume risks which are not ordinarily connected with the service and which are due to the failure of the master to exercise reasonable care and prudence.
    5. Master and servant, g 816

      —when instruction as to due care of servant in escaping from danger proper. An instruction advising the jury that if plaintiff, by reason of the negligent acts of the defendant, became frightened and ran away from a place of safety he would not thereby be precluded from recovering, if he is otherwise entitled to recover, held prope'r.
    6. Master and servant, g 816

      —when instruction defining ordinary care sufficient. Language used in an instruction defining ordinary care, “that plaintiff was acting as an ordinary prudent person would have acted under the same circumstances,” held a fair definition.
    7. Evidence, § 272

      —when plat of mine not admissible. A plat showing distance of the dead line from the bottom of the shaft in a mine held not admissible where no witness testified to the measurements and it was not shown that the plat was correct.
    8. Appeal and error, g 438

      —when objections for variance not saved. Variance between declaration and proof cannot be taken advantage of on appeal when trial court’s attention was not called to it
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed June 10, 1913.
    Rehearing denied October 28, 1913.

      M. S. Whitley, for appellant; Mastín & Sherlock, of counsel.
    Ronalds & Dodd and Choisser, Choisser & Kane, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment obtained by plaintiff in the court below for eleven hundred dollars.

Appellant was the owner of a coal mine in Saline County, Illinois, known as No. 8, and was operating the same at the time that the plaintiff was injured, which occurred in its mine on about the 20th day of December, 1909. On the south of the main shaft is an entry of the width, of about fourteen feet and it is through this entry that the coal is loaded onto the cages and the men enter the cages from the south side of the shaft for the purpose of being hoisted to the top. There are some switches in this entry extending off to the south, in addition to the main track over which coal is sometimes brought to the mine. On the south side of this shaft at the distance of from fifteen to thirty feet a line is drawn over the top of this entry and marked “dead line” and is designated as the point at which men must stop and wait as they come in from the workings of the mine to be hoisted out. There is some evidence tending to show that this dead line was fixed by the defendant and other evidence tends to show that it was used by custom. On the afternoon in question at about 4:20 o’clock the plaintiff came from his work, and as the evidence shows stopped just south of this dead line and remained there until after the whistle blew at 4:30. In the meantime a large number of men had gathered, probably one hundred or more, and were standing in line, four deep, waiting for the shaft to quit hoisting coal and to take them to the top. The plaintiff was one of the foremost men of the column. In the meantime and while the men were assembled at this place waiting for the whistle to blow, and, as some of them say, about the time the whistle did blow the mine manager, George Barrowman, passed by the men congregated at this point and went further south to where some coal was being brought in by an electric motor. One of the witnesses testifies that when the mine manager went out to where the cars of coal were brought in and they had started to put them on the south and drop in the side “as we always did,” that Barrowman said.: “Pull them down and put them on the east and sling them in from there;” other witnesses say that, “In dropping them in from the south we have just enough speed to get them in.” Other witnesses say that there were twelve or fourteen cars in the trip; that they backed them on the east and got them upon a hill and that Barrowman said to sling them in as they had to have the track to get some props in the mine, and that it was after the whistle had blown; that the cars were brought down and slung in and they went in pretty fast, at the rate of about twenty miles an hour. Sprags were used but they broke as fast as they were put into the wheels. Cars were at other times brought in in this way but it was during the time at which the men were at work in the mine and then the cars were “chained down.” There were some cars loaded with coal standing close to the mine and as this trip of cars came running in so rapidly some one shouted “look out” and the men, including the plaintiff, became frightened and scattered seeking places of safety. The plaintiff heard the cars coming down the track and, as he says, became frightened and started to run to the pump. The trip of cars bumped against the cars that were standing at the mine and knocked them off the track and as plaintiff ran he was caught between one of these cars and a prop and was injured.

The evidence tends to show that at the time the mine manager directed this trip of cars to be “slnng in” on the track that he knew the track had such a grade as to cause the cars to run rapidly towards the place where the men were assembled, unless they were in some manner restrained, and he at that time knew where the men were standing.

Omitting the formal parts, the declaration alleges that the defendant had directed the plaintiff and others of its employes to stand and remain in that part of the said passageway near to the bottom of said shaft after their day’s work was completed- while waiting to be hoisted out of the mine; that it had been the custom and practice for some time prior for. the employes in said mine to gather in said passageway and there wait to be hoisted out, which said custom was known to the defendant; that on said day while plaintiff was waiting in said passageway, near the bottom of the shaft, to be hoisted, and while in the exercise of due care and caution for his own safety he was then and there injured in the manner following; said defendant, while the plaintiff and a number of other employes in said mine on said day were then and there waiting in said passageway to be hoisted out of said mine, which fact was then and there known to the defendant, or could have been known by the defendant by the exercise of reasonable care on its part, negligently, carelessly and recklessly caused a trip of loaded cars to be hauled by said electric motor power to the said incline at a rapid rate of speed along the track in said passageway while said plaintiff and other employes were then and there waiting as aforesaid, and said cars then and there ran upon and against other cars that were then and there standing on said track at and near the point where the plaintiff was then and there standing and caused certain of said cars to be derailed and thrown from said track, which cars being, derailed then and there ran upon and against the plaintiff and injured him. The cause was tried before a jury and it was determined by such jury that the defendant was guilty of. the negligence charged in the declaration; that the plaintiff was in the exercise of due care for his own safety and accordingly gave a verdict in favor of the plaintiff, upon which the court rendered judgment.

It is insisted by counsel for appellant that the court erred in its rulings upon the admissibility of evidence, the giving and refusing of instructions and the rendering of judgment herein, and we will consider the errors assigned and argued in the manner presented.

It is first insisted that there is such a variance between the declaration and the proof as to preclude a recovery; and one of the matters in which counsel claim there is a variance is that it is charged in the declaration that he was at the place before receiving his injury at the direction and order of the defendant and that the evidence shows he was there of his own volition. It does not seem to us that there is such variance here, if any, as to constitute reversible error, but if there was a variance the appellant is in no position to take advantage of it as it did not in any manner call the attention of the trial court to such variance. No motion of this character has been pointed out to us as having been made on the trial as to this or any other variance. “A motion to instruct the jury to find for the defendant on the ground of a variance between the pleadings and the evidence is not sufficient to raise the question of variance, unless the defendant, by its motion, indicates specifically in what the variance consists, so as to enable the court to pass upon it intelligently, and also to enable the plaintiff to so amend his declaration as to make it conform to the evidence.” Illinois Cent. R. Co. v. Behrens, 208 Ill. 20.

It is next contended that the court should have directed a verdict for the defendant for the reason that all the risk was assumed by the plaintiff and that there was no act of the defendant which when considered in the light of the evidence could have been the proximate cause of the injury. The negligence here charged, and we think the evidence tends to prove, was the order of the defendant’s mine manager to throw this trip of cars on to a track that had a down grade, towards the place where the plaintiff and other men stood, and caused this trip of cars to run towards them in a very rapid and dangerous manner. If it is true, as the evidence tends to prove, that the mine manager knowing that these men were assembled at the place where they were, and where they had a right to be, and that the track had a decline towards these men, caused the motorman to throw this trip of cars on to this track in such a manner that it would run very rapidly towards these men and the plaintiff, such an order under such circumstances would tend to show recklessness and negligence upon the part of the mine manager and would not be such an incident as would ordinarily be connected with the service of the plaintiff. This order was not and could not be known to the plaintiff, and we do not understand that the servant assumes the risk of the negligent acts of the master that are unknown to such servant. “A.servant does not assume risks, which are not ordinarily connected with the service, and which are due to a failure of the master to exercise reasonable care and prudence.” Himrod Coal Co. v. Clark, 197 Ill. 518.

We are not able to see why the giving of the order, that the evidence tends to show was given in this case, could not be the proximate cause of this injury, as one of the witnesses says they were about to place the trip of cars in on the side when they were directed by the manager to sling them in in the manner in which they were thrown in, and had it not been for the order of the master we think the strong probabilities are that the accident would not have happened. At all events, we think the evidence tended to show that the negligence of the master may have been the proximate cause of the injury, and under such circumstances it is the province of the jury to determine whether said negligent acts were or were not the proximate cause. “It was for them (the jury)' to say whether the re-suit that happened was an ordinary and natural re-suit that might have been reasonably foreseen, considering all the circumstances of the case.” American Exp. Co. v. Risley, 179 Ill. 299.

It is next complained that the court erred in refusing to admit áppellant’s plat that it offered in evidence. One of the matters in dispute was the distance of the dead line from the shaft. It was claimed that the plat offered in evidence was drawn to a scale and the distances were marked upon this plat in feet, and the distance from the shaft to the dead line was marked thereon thirty feet, but no witness testified to any measurements from which this plat was made, nothing to show that the distances as shown upon the plat were correct, and we do not think the court erred in refusing to admit the plat in evidence.

The fourth and last error assigned is as to the giving and refusing of instructions. Appellant criticises the first instruction given on behalf of appellee, that it does not give the defendant the benefit of assumed risk and the fellow-servant rule. As we understand this case, the question of assumed risk or fellow-servant does not arise and we can see no reason why that should be especially incorporated in an instruction. As to the other criticism upon this instruction we do not believe that the instruction is vicious on account of assuming the facts claimed. We think the instruction requires the allegations to be proved.

The criticism upon the second instruction is not well taken. No one could be misled by the language there used in defining ordinary care, “that plaintiff was acting as an ordinary prudent person would have acted under the same circumstances.” The person here referred to illustrates the class and is a fair definition of what is required to constitute due care and caution.

As to the criticism upon the third of appellee’s instructions, it is claimed by counsel for appellant that because the plaintiff by reason of having become frightened ran away from a place of safety that he could not recover. This instruction, as we understand it, advises the jury that if the plaintiff by reason of the negligent acts of the defendant became frightened and ran away from a place of safety that he would not thereby be precluded from recovering, if he is otherwise entitled to recover. We think this is a correct proposition of law and well sustained by the authorities. It is said by Mr. Thompson that where, “One without his own fault is through the negligence of another put in such apparent danger as to cause him terror, loss of self-possession and bewilderment, and, as a natural result thereof, he, in attempting to escape, puts himself in a more dangerous position, he is not, as a matter of law chargeable with contributory negligence that will prevent him from recovering damages for the injury.” Thompson’s Commentaries, vol. 1, sec. 195. And this language was quoted approvingly in the case of Chicago & A. R. Co. v. Corson, 198 Ill. 102.

This also disposes of the criticism made upon appellee’s ninth instruction and of appellant’s first, second, sixth, seventh and eighth refused instructions, and we think the court committed no error in refusing them as they were all of the purport that if the plaintiff was injured in consequence of leaving a safe place and going to a more dangerous place that he could not recover, ignoring entirely the question of his being frightened, and, as we believe, do not state correct propositions of law.

It appears to us from a careful reading of this record that no such errors were committed as to require a reversal of this case and the judgment of the Circuit Court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice McBride

license: Public Domain

text:
    Lidgerwood Manufacturing Company, Appellee, v. S. R. H. Robinson & Son Contracting Company, Appellant.
    1. Sales, § 65

      —contract of sale construed. Language of a written contract of sale together with evidence of the intention of the parties when made, held to show that seller undertook to furnish certain excavating machines and not merely to furnish parts of the machine specified without reference to their fitness or adaptability to the work which they were manufactured to perform, and without reference as to their being capable of being fitted together so as to form a complete machine.
    2. Sales, § 326

      —when parol evidence admissible. In an action to recover for certain excavating machines sold by plaintiff to defendant under a written contract, evidence offered by defendant to show that before the contract was entered into, plaintiff advised defendant of the purpose for which he was purchasing the machines and that plaintiff exhibited photographs showing a completed machine ready for work, held improperly refused.
    3. Sales, § 326

      —what evidence admissible in action for price. In an action to recover the purchase price of certain excavating machines, consisting of different parts, refusal of court to admit evidence that the parts would not fit together because of improper construction of some of the parts, that it was necessary to make changes, and that such changes were made with the approval of plaintiff, and that defendant sustained damages by reason of making the changes held error.
    4. Sales, § 244

      —when express warranty will not exclude an implied warranty. The fact that a seller expressly warrants a machine to be made of best steel will not exclude an implied warranty that the machine is properly manufactured and will do the work it was designed to do, if such warranty would otherwise be implied.

      5. Sales, § 251

      —when a warranty of manufactured goods implied. Where a manufacturer undertakes to manufacture and supply goods to a customer, there is an implied contract that the goods so manufactured are made in a workmanlike manner and reasonably adapted to the purpose for which made.
    6. Contracts, § 183

      —when parol evidence admissible to show intention. Evidence of the surroundings and circumstances under which a contract was entered into is admissible to determine the design and intention of the parties.
    Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded.
    Opinion filed June 10, 1913.

      Warnock, Williamson & Burroughs, for appellant; Edgar R. Bombauer, of counsel.
    Terry & Gueltig and Baker & Holder, for appellee; L. W. Holder, of counsel.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

By direction of the court the jury returned a verdict for the plaintiff in the amount of $29,864.52, upon which judgment was rendered and the defendant prosecutes this appeal.

On about May 5, 1910, appellant purchased from-appellee three Lidgerwood-Crawford Bucket Excavators for which it was to pay a total of $37,500. The appellee was engaged in the business of manufacturing such excavators and had offices in Chicago and New York. On about the day last above mentioned one S. B. H. Bobinson, president of appellant, went to Chicago for the purpose of purchasing some excavators and there met the representative of appellee.

The evidence tends to show that the representative of appellee at that time exhibited to Mr. Bobinson some machines that were partially completed, of the character that was afterwards sold to appellant, but the machines purchased by appellant were, in the main, yet to be constructed. After looking through the shop and conversing with the representative with reference to this matter the appellee submitted to appellant the following proposition:

“Proposal From Lidgerwood Manufacturing Company.
Excavator Department.
Chicago, III., May 25,1910.
S. R. H. Robinson & Son Contracting Co.,
915 Chemical Building,
St. Louis, Missouri.

Gentlemen:—We propose to furnish you and deliver f. o. b. cars, Chicago, Illinois, the machinery described in specification hereto attached, and made a part of this proposal.

The price of said machinery delivered as above, and subject to conditions hereinafter stated, is twenty thousand dollars ($20,000).

Terms of payment to be as follows: One-half cash and three (3) notes of equal amounts at sixty (60) ninety (90) and one hundred and twenty (120) days for balance, on presentation of bill of lading.

This proposition is for immediate acceptance, but, although accepted, does not constitute a contract until approved by an officer of the Lidgerwood Manufacturing Company, and is subject to change or withdrawal until so approved.

We assume no liability for damages on account of delays, nor can we make an allowance for repairs or alterations, unless same are made with our written consent or approval. In the event of the breakage of any part by reason of a defect in the material existing at the time we furnished it, we will replace same, or repair it, without charge, providing such breakage develops under normal and proper use within thirty days after the starting thereof; but it is agreed that no liability shall attach to us on account of damages or delays caused by such defective material.

It is expressly agreed that there are no promises, agreements or understandings outside of this contract, and that no agent or salesman has any authority to obligate the Lidgerwood Manufacturing Company by any terms, stipulations or conditions not herein expressed.

This contract is contingent upon strikes, fires, accident or other delays unavoidable or beyond our reasonable control.

Respectfully submitted,
Lidgerwood Manufacturiug Co.,
Per G. N. Crawford, Mgr. Excavator Dpmt.
Accepted: 5/25,1910.
S. B. H. Eobinson & Son Con. Co.
By S. R. H. Robinson, President.
Approved: May 27th, 1910.
W. L. Pierce, Secy. & Gen. Mgr.”

Specifications attached to above contract and part of plaintiff’s Exhibit A:

The specifications referred to in the proposal and made a part of it are twenty-six in number, and, as we read, most of them describe the different parts of the machines, giving the description of the parts, construction, material to be used in each of the different parts, and is headed “Specifications,” attached to the above contract and a part of “Exhibit ‘B,’ ‘LidgerwoodCrawford Scraper Bucket Excavator. Patented. Specifications—Class ‘B’ ‘F,’ ” and then proceeds to give the number of excavators, also general construction of the excavators and the materials to be used in the manufacturing of the same, followed by a description of the different parts composing the machines and in a general way their manner of construction, etc.

The only parts of these specifications which we deem it necessary to quote are as follows: “Number of excavators—2. ’.’

“Construction—Excavators to be of the revolving derrick type equipped with turntable 16 ft. diameter, revolving on 12 20-inch chilled iron wheels. Turntable to be operated by the Crawford Back and Pinion Swinging Device.”

“In General—We furnish the machine complete as shown in blueprint submitted, except rails and timbers for constructing the track.”
“Erector—If desired, we will send you a competent man to superintend the erection and starting of excavators. This man to be in your employ and paid by you at the rate of $7.00 per day and his traveling and living expenses from the day of his leaving Chicago until his return. Also all transportation expenses from and back to Chicago on his tools. Settlement to be made with this man direct by you. ’ ’
The contract and specifications for the third excavator and marked as “Class ‘C’ ” is substantially the same as the one with reference to the two excavators marked as “Class ‘B,’ ‘F.’ ”

The evidence further shows that appellee furnished the machines in question part from the Chicago factory and part from the New York factory, and that when such parts of the machines as were manufactured at the Chicago factory were completed they were set up by appellee to see that they fitted together and were then knocked down and delivered on board the cars at Chicago and New York and shipped to the appellant at Lakeview. The machines were received by appellant at Lakeview in Madison county, Illinois, where they were to be used in the construction of a diversion canal for Cahokia creek. At about that timé appellee sent an expert to put the machines together and to start the excavators to work. Appellant sought to show that when the machinery arrived and the expert undertook to put it together that the parts would not fit one in the other and that they were not able to make the machines work because of the improper construction of some of the parts connected with and forming a part of the different excavators; and to further show that appellant, with the knowledge and approval of appellee, incurred several thousand dollars expense, in addition to the expense that would have been required had the machinery been properly constructed; this the court refused."

Appellant also offered to show that later on and at the time appellee sought to secure a settlement for the machines, that a controversy arose as to appellant’s damages growing out of appellee’s failure to furnish, machinery as provided; that another and a different agreement was then entered into whereby appellant paid to appellee $5,000 in cash and executed and delivered to it the notes offered in evidence for the balanee of the purchase price, excepting the sum of $12,-500, which was left open pending further negotiations with reference to the matter, and that the said $5,000 payment was made and said notes executed upon the representation and promises of the agents of appellee that it would immediately make such excavators satisfactory to appellant and fit to do the work for which they were purchased. This testimony was also objected to and the objection sustained by the court.

There were several counts in the declaration, some of them upon the notes above specified, and also the common counts. Upon the trial of the case the appellant offered in evidence the notes, as stated by counsel, not for the purpose of recovering upon them, but for the purpose of showing that they had not been in any manner disposed of. After the exclusion of the evidence by the court it then directed the verdict rendered, basing the amount of the judgment upon the original contracts.

Counsel for appellant contends: First, that the said contracts provide for a sale and delivery of three Lidgerwood-Crawford Scraper Bucket excavators, two of class “B” “F” and one of class “ C, ” or, in other words, such machinery and parts ready to be fitted together which when assembled would make complete excavators and fit for the purpose for which they were manufactured, and that the court erred in holding that the contracts above set forth provided that appellee’s undertaking was simply to furnish the particular parts or pieces mentioned in the specifications without reference as to whether or not when fitted together they constituted an excavator, or, in other words, that the appellant purchased the parts and not a machine.

The evidence discloses that appellant was desirous of purchasing an excavator and went to Chicago and called upon appellee for that purpose; that appellee exhibited to him blueprints of the several parts of the machine and also exhibited to him some of the machines that were partially erected, and that at the conclusion of their examination appellee made the proposition which was offered in evidence and that appellant accepted this proposition.

Appellant offered to show that before it entered into the contract it advised the appellee of the purpose for which it was purchasing these machines, in other words, that it wanted the machines to excavate a diversion canal and that appellant also offered to prove that appellee exhibited to its agents, at the same time, a photograph showing a completed machine ready for work, and it was stated by counsel, at the time that it was offered, not for the purpose of changing the terms of the contract but for the purpose of putting the court in the position occupied by the parties at the time the agreement was entered into; but the court refused this testimony and we think this refusal was error. It did not tend to vary the terms of the contract. There is no doubt about the proposition that parol evidence cannot be offered for the purpose of in any manner changing or varying the terms of a written contract, but as the design and intention of the parties in the making of the contract must be determined we think there is no doubt that the surroundings and circumstances under which the contract was entered into is proper. Thomas v. Wiggers, 41 Ill. 470. In the case of Robinson v. Stow, 39 Ill. 572, it is said, where the construction of a written contract was before the court that: “The intention of the parties, it is true, must govern; but the experience of human affairs teaches courts that this intention is not to be sought merely in the apparent meaning of the language used, but this language may be enlarged or limited by reference to the circumstances surrounding the parties and the objects they evidently had in view. It often happens that a particular clause in an instrument is made to bear a meaning quite inconsistent with the natural import of the terms used by reference to the entire language and general scope of the contract. ‘The judges,’ says Lord Hale, ‘ought to he curious and subtle to invent reasons and means to make acts effectual according to the just intent of the parties;' they will not, therefore, cavil about the propriety of words, when the intent of the parties appears, but will rather apply the words to fulfill the intent than destroy the intent by reason of the insufficiency of the words.” We are, however, convinced from the reading of the contracts and the testimony of witnesses for appellee that the undertaking of appellee in this case was to furnish machines, when set up and ready for work, that were adapted to the work of excavating the earth. The very first clause of the exhibit containing the specifications is “Lidgerwood-Crawford Scraper Bucket excavator,” and referring, as we think, to the machine. The next sentence is, “Number of excavators, two,” showing that the appellee, as we think, was undertaking to furnish to appellant two machines or two excavators and not the parts of two excavators. The next clause gives a general statement of the construction of the excavators and is as follows: “Construction—Excavators to be of the revolving derrick type, equipped with turntable 16 ft. in diameter, revolving on 12 20-inch chilled iron wheels. Turntable to be operated by the Crawford Back and Pinion Swinging Device,” which seems to us to be a general description of the machine. Then follows the material for constructing and description of the engine and other parts, but these we understand to be in the nature of specifications of the different parts which, when put together, constitute the whole or a complete machine. In one of the specifications we find the following language: “In General —We furnish the machine complete as shown in blueprint . submitted, except, rails and timbers for constructing the track.” This certainly does not mean that they furnish simply the different parts as shown by the blueprints, but it certainly means that the machine is to be furnished as a complete machine. In the next item it says: “Erector—If desired, we will send you a competent man to superintend the erection and starting of excavators,” which certainly shows that they had in their mind at that time that whatever appellant was purchasing was to he a machine capable of starting in the work of excavation. Besides the price was not fixed to the several parts of the machine, but it was fixed for the whole; and to say that appellee would be permitted to comply with his contract, where the evident purpose was to purchase an excavator, by furnishing parts of the machine specified without reference to their fitness or adaptability to the work which they were manufactured to perform, and without reference as to their being capable of being fitted together so as to form a complete machine, would, in our judgment, be monstrous and would work a great hardship and would enable people engaged in the manufacture of machines, by simply specifying the parts, to impose upon a public unacquainted with the several parts of a machine but who knew of it only as it was adapted, when taken as a whole, to the work it performed. We think the court erred in giving the construction to this contract that it did.

It follows from what we have above stated that the court also erred in not permitting appellant to show that the machinery furnished could not be fitted together and that it was necessary to make changes in such machinery, that such changes were made with the approval of appellee and to show such damages as appellant had sustained by reason of making the required changes as appellee approved.

It is again contended by appellant that notwithstanding the language used in this contract there was an implied warranty that the machines were reasonably adapted to the purposes for which they were manufactured. It is true, as contended by counsel for appellee, that no implied warranty could be read into this contract or taken in connection with it that would contradict or vary the expressed terms and conditions of the contract, but we are unable to see that there is anything in this contract that would prevent an implied warranty to the effect that the machinery furnished was manufactured in a workmanlike manner and that the machine was reasonably adapted to the purpose for which it was manufactured; and we believe that this is permissible. The rule laid down by the authorities seems to be that where a manufacturer undertakes to manufacture and supply goods to a customer that there is an implied contract, at least that the goods so manufactured are made in a workmanlike manner and reasonably adapted to the purpose for which made. Benjamin on Sales, vol. 2, pp. 843-865. Cyc. vol. 35, p. 401.

In speaking of an implied warranty that had been read into the written contract, the Appellate Court of the Second District in the case of Graham v. Eiszner, 28 Ill. App. 275, says: “While appellant was not permitted to add an express warranty to the written contract by parol, she had the full benefit of an implied warranty. Whether the cooperage was as good as the implied warranty was the real question in the case. The implied warranty required the barrels to be reasonably fit and proper to hold sour mash whisky. ’ ’ We think the correct rule upon this question is stated by Williston on Sales, 322: “If expressed warranties in a contract are in their nature inconsistent with the warranties which would have been implied had none been expressed, it would indeed be violating the intention of the parties to imply warranties but the principle should extend no further. An expressed warranty is generally executed for the protection of the buyer not to limit the liability of the seller. The fact that the seller expressly warrants a machine to be made of the best steel ought not exclude an implied warranty that the machine is properly manufactured and will do the work such machines are designed to do, if such warranties ivould otherwise be implied. Excellent authorities support this view. Though a contract is in writing and no warranty expressed, one may be implied; for the implied warranty is not based on a supposed agreement of the parties but is an obligation imposed by law.” And this seems to be in harmony with the decisions of our own courts, so far as we have been able to find this question passed upon. And this doctrine seems to have been sustained in the case of Elgin Jewelry Co. v. Estes & Dozier, 122 Ga. 807; Ideal Heating Co. v. Kramer, 127 Iowa 137, and many other cases to which we have been referred, and some of which we have examined. It is said, however, by counsel for appellee that this doctrine is squarely in conflict with the principle laid down in the case of Fuchs & Lang Mfg. Co. v. Kittredge & Co., 242 Ill. 97, in which they say: “Where a known, described and definite article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described and definite article be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. In the contract for the sale of an article under its patent or other trade name there is an undertaking that the article delivered shall be of the kind ordered but not that it shall be fit for any particular purpose. If the buyer gets what he bargained for, there is no implied warranty though it does not answer his purpose.” We do not believe that this opinion is in conflict with the case referred to. There the article was ordered and supplied according to the order but here it was not, and that is the very question under consideration, was the article supplied as ordered? It is contended upon the one hand that the article ordered was parts of a machine, upon the other that an excavator was ordered, and under our view as heretofore expressed appellee was bound to furnish the machine as ordered, which the evidence proffered by appellant shows it did not do.

Again it is claimed by counsel for appellant that after this indebtedness became due, according to the terms of the original contract, and appellee sought a settlement, that a new contract was entered into by which appellant agreed’ for a consideration to complete the machine and make it perform the work for which it was intended and purchased. It appears to us that appellant, whatever his rights were, was in good faith, contending that the machine purchased by it had not been furnished according to contract and that appellant had been damaged. If such a condition existed then the parties had a right to settle this controversy, readjust their rights, in consideration that appellee would make the machines satisfactory and fit to do the work for which they were purchased and pay the expenses incurred. If the appellant paid the $5,000 sought to be shown, and executed the notes in question, and further obligated itself to pay other moneys, then it seems to us that appellant should have had the right to have shown this fact and that the Court erred in refusing to permit appellant to show a new agreement entered into in settlement of this controversy.

We are of the opinion that the court erred in directing a verdict for the plaintiff and in the several holdings above referred to, and the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Thompson

text:
    Isabell Snodgrass, Administratrix, Appellee, v. Chicago-Sandoval Coal Company, Appellant.
    Mines and Minerals, § 179

      —when recovery for death of employe not sustained, by the evidence. In an action for death of a shot firer while employed in defendant’s mine, alleged to have resulted from his being overcome by bad air, evidence held insufficient to support a verdict for plaintiff on the theory that death resulted from being overcome before he could escape from the room after lighting the fuse.

      Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed June 10, 1913.
    W. F. Bundy and Noleman & Smith, for appellant.
    Charles Holt and Walter S. Louden, for appellee.

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action on the case at common law brought by appellee, Isabell Snodgrass, as administratrix of the estate of Robert W. Snodgrass, her deceased husband, against the Chicago-Sandoval Coal Company, appellant, to recover damages on account of the death of her intestate while he was working as a shot firer in appellant’s mine.

The issue presented to the jury was formed on one common law count which charged that it was the duty of the defendant to see that its mine, especially room 17 off of the third southwest entry, was properly ventilated or furnished with sufficient amount of fresh air for the use of the men working in such room; that said Robert W. Snodgrass, on the 10th of February, 1911, was employed by defendant in said mine as a shot firer and it became and was his duty to fire shots or charges placed by other workmen in said room 17 and in other rooms in said mine, and that in pursuance of his duty and employment, and while in the exercise of due care for his own safety, deceased, on said date, went into said room 17 for the purpose of lighting said shots; that the ventilation in said room was insufficient; that there was insufficient circulation of air therein for his use and to maintain life; that on entering said room, before he had sufficient time to light and fire the shots therein, he was overcome because of insufficient air and ventilation in said room and was caused to fall and become unconscious therein after lighting the said shots; that by reason of the negligence of the defendant to properly ventilate said room at said time, plaintiff’s intestate was unable to escape from said room in time to avoid the force of explosion resulting from lighting the said shots and by reason thereof the said Snodgrass was killed.

The said trial resulted in a verdict for the plaintiff for three thousand dollars and the court rendered judgment on the verdict.

If appears from the evidence that the plaintiff’s intestate was killed on February 10, 1911, while working-in room 17 off of the third south entry off of the main west entry in appellant’s mine number 2 at Sandoval, Illinois. He was found dead by his son, Fred Snodgrass, who was also a shot firer, between five and six o’clock in the afternoon, about thirty feet from the face of the room. He was lying on his left side with his left arm torn off and under him and an injury on the left side of his head. It further appears that the deceased was about fifty-nine years old at the time of his death and had been working as shot firer for several years and had been a coal miner for a great many years before he became shot firer.

From the evidence it appears that he was familiar with all the work of mining coal, including shot firing. The evidence shows that the deceased was alone in the room at the time of the accident.

Numerous errors are assigned on this record by appellant, but the one most relied upon is the refusal of the trial court to give to the jury the peremptory instruction directing the jury to return a verdict in favor of the defendant. By this motion the sufficiency of the evidence to support the evidence and judgment is raised.

Some of the witnesses for the plaintiff testified to the bad conditions of the air in the mine and especially in that locality of the mine where room No. 17 was located; that the ventilation was poor and insufficient, There was some evidence that some of the usual and probable effects of bad air or lack of ventilation were stupor, nausea and headache, and that bad air will cause lights to go out. It appears from the evidence that the atmospheric conditions of room No. 17, into which deceased went for the purpose of firing the shots prepared by the miners who were working in that room, was bad. The evidence shows there were two shots ready to be fired. When the body of the deceased was found both shots had been fired; that the customary and only safe method in practical mining is for the shot firer to fire one shot at a time; that in preparing the shots the miner drills a hole six or eight feet deep and one and one-half to two inches in diameter, in which he places the powder and tamps it in, leaving a fuse about eight inches long extending from the hole, which is lighted by the shot firer. On lighting the fuse the shot firer at once leaves the room and does not return until after the explosion. His personal safety requires this. It would be contrary to the usual custom to light both fuses at the same time.

Appellée contends and the declaration charges that the failure of deceased to escape safely from the room was due to the presence of vitiated air.

Appellant’s counsel in attempting to account for the accident say, the reasonable inference to be drawn from the evidence is that deceased lighted a fuse and after leaving the room returned before it had exploded and so encountered the force of the delayed explosion.

Appellee answers back that the' deceased went into the room to fire the shots and before he had time to fire them he was overcome with bad air and became unconscious and fell, and while in that condition received the force of the explosion and was so killed.

The real difficulty that we meet as to each of the explanations contended for is that we find no evidence to sustain either theory.

Unless the court can assume without proof that deceased was so overcqme by bad air and fell and that he was so overcome after the first shot was fired and while he was attempting to light the fuse of the second shot, the judgment cannot stand. Did he fire one shot and then retire and after its discharge re-enter the room and light the fuse ? Did he light both at the same time? Did the second fuse ignite too slowly and did deceased in attempting to investigate meet with the delayed explosion? Or did the fuse operate too quickly and catch him before he could retire? We might multiply queries as to just how and when the explosion was brought about, but so far as the record discloses we find no answer. We have simply the evidence of the two exploded shots, some bad air (but no evidence that anyone had been overcome on account of it) and the mangled body of deceased lying about thirty feet from the face of the coal where the shots were located.

A careful examination of the evidence fails to show which of the many possible theories that might account for the death of deceased was the true one. It would require too great an assumption and too much speculation and theorization on the part of this court to say the plaintiff has sustained his declaration by the proof.

The record is too barren of facts showing just how the accident did happen and there are too many ways it might have happened for us to adopt appellee’s theory as to the manner deceased met his death.

The case will for the reasons indicated be reversed and remanded.

Reversed and remanded.

Mr. Presiding Justice McBride having tried the case in the court below, took no part in this decision.


author: Per Curiam.

text:
    The Egyptian Packing Company, Appellant, v. The Olney Gas Company, Appellee.
    1. Corporations, § 331

      —duty not to discriminate in service. It is the duty of a public service corporation to furnish its commodity or service without arbitrary discriminations.
    2. Gas, § 8

      —duty not to discriminate. The business of a gas company furnishing gas to domestic consumers and manufacturers is one impressed with a public interest, and it must serve all who apply upon equal terms and at reasonable rates.
    3. Gas, § 8

      —when duty to supply is within corporate duties. The undertaking of a gas company to supply a manufacturer with gas for its boilers without detriment or inconvenience to the company’s domestic consumers is within its common law duties.
    4. Injunction, § 72

      —when shutting off water will he enjoined. Injunction will lie to restrain persons engaged in a public service from shutting off water in violation of its contract where it would result in great injury to the consumer, and the injunction will not be denied because the ultimate effect of it would be to compel the company to comply with its contract.
    5. Estoppel, § 53

      —when gas company cannot repudiate direction to buy coal. A gas company not obligated by contract to furnish coal to supply boilers where there is an insufficient supply of gas, voluntarily directed the owner of the boilers to purchase coal at its expense and the owner did so in reliance upon such direction, held, that the company is estopped from repudiating its liability for the sum paid for coal.
    6. Injunction, § 177

      —when hill against gas company is sufficient. The averments of a bill for an injunction by a manufacturer that a gas company contracted to supply gas for boilers, that by reason of an insufficient supply complainant was directed to purchase coal at defendant’s expense and deducted the sum so paid from the contract charge, that it was ready to pay the balance due, that defendant threatened to cut off the supply on the false assumption of nonpayment of its bill, and that serious injury would result therefrom, justify enjoining defendant from shutting off such supply of gas as it must give, and the bill is not demurrable.
    Appeal from the Circuit Court of Richland county; the Hon. William H. Green, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded with directions.
    Opinion filed June 10, 1913.

      John Lynch, for appellant.
    John A. MacNeil, for appellee.

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

   Per Curiam.

Upon rehearing of this case the court adopts this modified opinion in lieu of the opinion filed herein on June 27, 1912.

The chancellor in this case sustained a general demurrer to the bill of appellant and entered a decree dismissing it with costs.

It was averred in the bill that appellant and appellee entered into a written agreement, the material provisions of which were, that appellee would supply appellant with natural gas for the sum of $4,000 per year based on appellant’s boiler capacity of four hundred and fifty horsepower so long as appellee should have sufficient gas in its mains at OIney to satisfactorily furnish said supply without detriment or inconvenience to their domestic consumers and to discontinue the supply whenever the supplying of such gas should become unprofitable or entail a loss to the appellee. Subsequently to the making of this agreement the parties by a supplemental agreement added to it further provisions, whereby appellant was given the privilege to use gas under any additional boilers that might be installed in appellant’s plant at the rate of $2,000 additional to the sum above mentioned for each additional one hundred and fifty horsepower boiler installed; that such additional consumption should be in conformity with the provisions of the original contract (above set forth) and that said original contract should be in no wise varied, abridged or abrogated, but continued in full force and effect without change, except it was provided that the right to discontinue the supply of gas when it should become unprofitable or entail a loss as provided in the original contract should not be exercised as long as present conditions of supply and service do not substantially change or entail material additional expense. Other provisions of the agreement are not set forth as they are not material to the questions presented here.

It was further charged that appellee had an ample supply of gas to furnish to the citizens of OIney and to all manufacturing plants hut that since the making of said contract it had made numerous other contracts for furnishing gas and to meet such additional contracts had made no provision for additional pipe line to meet such new contracts and then claimed it could not furnish all the gas required by appellant; that appellee asserted it was then laying an additional eight-inch main from its wells and when completed it would be able to supply all the gas needed to meet its contracts ; that the cost of other kinds of fuel was so great that to be required to use it would endanger the operation of appellant’s business, and the use of gas for fuel was essential to the successful operation of its business.

It was further charged that upon entering into said contract appellant had gone to great expense to equip its boilers for the use of gas and to install equipment of the kind suggested and approved by appellee; that appellee represented the supply of gas was good for fifteen or twenty years; that since the contract was entered into appellant had expended $30,000 in exten-. sions of its plant based upon and in reliance upon such representations. That in August and September, 1911, appellee failed and refused to. furnish a sufficient supply of gas and voluntarily agreed to pay for the coal necessary to supply the deficiency in the gas furnished; that afterwards appellee gave notice it would not pay for coal after September 20, 1911; that there would be due appellee pursuant to the contract for August and September, 1911, the sum of $950, less the sum of $748.85 paid by appellant for coal used and so agreed to be furnished, leaving a balance due appellee on October 1, 1911, of $201.15; that on October 4, appellant tendered to appellee said balance which was refused and appellee gave notice that if payment was not made promptly it would be compelled to discontinue the supply of gas on account of nonpayment of bill rendered and now due. Appellant further charged it was ready and willing to pay its monthly bills upon settlement, and it deposited with the clerk the sum of $201.15 claimed by appellant to be due October 1, 1911, and . avers that it stands ready the first day of each succeeding month to pay the amount then due.

Appellant prayed an accounting between the parties and an injunction restraining appellee from diminishing or interfering with the supply of gas to appellant.

We are unable to find any provision in the original or supplemental agreements set forth that would require appellee to furnish any more gas than it could furnish without detriment or inconvenience to its domestic consumers. This was the original agreement, and it was expressly stated in the supplemental agreement that the original contract should continue in force except it was changed so that appellee could not refuse to supply gas if it became unprofitable.

The averment in the bill that when the supplemental agreement was made appellee represented that the supply of gas was good for fifteen or twenty years and that appellant expended $30,000 in- extensions of its plant based on such representations did not change the terms of the agreements. Appellee did not undertake or promise to furnish the additional gas in consideration that appellant would install more boilers, and its alleged representations amounted to nothing more than an expression of opinion that there would be a sufficient supply of gas. Even if this contract under seal could be altered by parol, there was no promise to furnish such additional supply of gas.

Under the agreement there was no obligation on the part of appellee to furnish coal to supply the boilers arising from the insufficient supply of gas, but having (as charged) voluntarily directed appellant to purchase coal at its expense and appellant having done, so in reliance upon such direction, appellee is estopped from repudiating the sum of $748.85 paid by appellant for such coal. Where one has been induced to act or to refrain from acting upon the representations of another so that he will be substantially injured if the other party be allowed to repudiate his acts, the doctrine of estoppel applies. Herman’s Law of Estoppel, 426.

Deducting the sum paid for coal, appellant, according to the averments of the bill, offered to pay the balance due which was refused by appellee with a notice it would discontinue the supply of gas on account of nonpayment of its bill rendered. It is the duty of a public serví 'e corporation to furnish its commodity or service without arbitrary discriminations. The business of appellee is one impressed with a public interest and it must serve.all who apply upon equal terms and at reasonable rates. Wagner v. City of Rock Island, 146 Ill. 139.

The undertaking of appellee to supply appellant with gas without detriment or inconvenience to appellee’s domestic consumers was at least within its common law duties. It appears from the allegations of the bill that appellant was not in arrears and that appellee had threatened that if payment of the bill rendered by it was not promptly made appellant’s supply of-gas would be entirely discontinued on account of such nonpayment. We do not believe that appellee would be justified in wholly shutting off appellant’s use of the gas on account of its failure to comply with such illegal demand. We think the appellant is entitled to relief under the allegations and general prayer for relief contained in the bill. The remedy by injunction will lie to restrain persons engaged in a public service from shutting off water in violation of its contract where it would result in great injury to the consumer, and the injunction will not be denied because the ultimate effect of it would be to compel the Company to comply with its contract. Horsky v. Helena Consol. Water Co., 13 Mont. 229; McEntee v. Kingston Water Co., 165 N. Y. 27; Gordon & Ferguson v. Doran, 100 Minn., 343, 8 L. R. A. (N. S.) 1049; Sedalia Brewing Co. v. Sedalia Water Works Co., 34 Mo. App. 49.

The averments of appellant’s bill that it was willing and ready to pay the balance of the amount due for gas furnished and to be furnished, that appellee had threatened to cut off the supply on the false assumption of the nonpayment of its bill by appellant, and that serious injury would result therefrom, would, if true, entitle appellant to an injunction restraining appellee from shutting off such supply of gas as it was entitled under the law to receive, and it was error to sustain the demurrer.

The cause is reversed and remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    Anna Morton, Appellee, v. Fora Robinson, Administrator, Appellant.
    Appeal and error, § 1789

      —when reversal made in compliance with directions of Supreme Court. Where the Supreme Court determined it was error for the Appellate Court to reverse and remand a case with directions and remanded the case to such court with certain general directions, the Appellate Court readopted its former opinion but reversed without remanding and made a finding of facts.
    Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed with finding of facts.
    Opinion filed June 10, 1913.

      Certiorari denied by Supreme Court (making opinion final).

      Kagy & Vandervort and Albert & Matheny, for appellant.
    Noleman & Smith and Charles H. Holt, for appellee. f

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

   Per Curiam.

This case was before us on a former occasion, and at the March term, 1912, an opinion was filed, reversing the judgment and remanding the cause, with certain directions to the trial court. (169 Ill. App. 294.) The record of this court was taken to the Supreme Court for further review, by writ of certiorari. (256 Ill. 629.) That court upon consideration of the case, held that it was reversible error for this court to remand the cause with directions and made the following order:

“The judgment of the Appellate Court will be reversed and the cause will be remanded to that court, with directions to enter a judgment reversing and remanding, reversing without remanding or affirming the judgment of the Circuit Court, and if the cause is reversed without remanding, that there be incorporated in the judgment of the Appellate Court, a finding of the ultimate facts, as provided by section 120 of the Practice Act.” (J. & A. ¶ 8657.)

The cause was later redocketed in this court and re-argued by attorneys for the respective parties. Upon further consideration of the cause, we have arrived at the same conclusion, as to the merits of the case, as that announced in our former opinion, and that opinion is readopted, but the cause will be reversed without remanding and we make the following finding of the ultimate facts to be incorporated in the judgment of the court:

We find that the note executed by J. S. Morton, appellant’s intestate, to appellee, Anna Morton, was a mere gift without consideration to support it and that it was intended by the maker to operate as a testamentary disposition of a portion of his estate.

Reversed with finding of facts.


text:
    James F. Starr and August J. Struif, copartners, Appellees, v. Stanard-Tilton Milling Company, Appellant.
    1. Adjoining landowners, § 1

      —when reservation of lateral support not implied in deed. Where the owner of a building and land sells the unimproved land adjoining the building and conveys it by deed without any reservation, there is no implied reservation of lateral support to the building in favor of the grantor.
    2. Adjoining landowners, § 1

      —when negligence in constructing building is for jury. Where in an action by an owner of a building against an adjoining owner for erecting a building that in settling disturbed the lateral support of plaintiff’s building, causing damage to the same, there is evidence of negligence in placing an elevator of great weight upon a mattress foundation, that defendant knew its building would be liable to sink hut expected the sinking to be uniform, which was not the result, and that reasonable prudence would have caused the foundation to be placed upon piling, the question of negligence in construction is. for the jury.

      3. Master and servant, § 854

      —when employer liable for worlc of independent contractor. Where a building is injured by. an adjoining landowner disturbing the lateral support in erecting a building, and the plans and specifications, though prepared by an independent contractor, were adopted by the landowner, and the contractor was compelled to use them in erecting the building, if the negligence causing injury is not in the workmanship or the materials furnished by the contractor hut in the plans and specifications, and the injury resulted directly from the acts called for or rendered necessary by the contract and not from collateral acts, the employer of the contractor is liable.
    4. Master and servant, § 866

      —when reputation of independent contractor may not be shown. In an action by the owner of a building for damages sustained by the erection of a building by an adjoining landowner evidence is inadmissible that defendant investigated the standing, experience and reputation of its independent contractor who erected the building.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Levi Davis and William P. Boynton, for appellant.
    J. V. E. Marsh, for appellees.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The plaintiff obtained a judgment against the defendant for one thousand eight hundred and eighteen dollars to reverse which the defendant prosecutes this appeal.

The appellees were the owners of several lots located on the north side of Second street in the city of Alton, and had been since December 26,1900, and were possessed of a building thereon which extended up to the east line of said lot 24. Appellant applied to appellees and obtained an option upon lot 24, less twenty-two inches off of the east side thereof, to be used by appellant in the building of an elevator, and on June 7, 1909, appellees conveyed the said lot 24, reserving twenty-two inches off of the east side thereof, to the appellant for a consideration of twenty-five hundred dollars. After the purchase of said lot appellant procured plans and specifications for the erection of an elevator upon said lot from Heine Chimney Company; such elevator to have a storage capacity of one hundred thousand bushels of grain, and was to have four circular storage bins, having an internal diameter of 20 ft. 6 in., and a clear height above concrete foundation of 99 ft. When the Heine Chimney Company submitted the plans and specifications to appellant for acceptance the appellant made the following acceptance thereof: “We hereby accept your proposition of June 11th for the erection of a grain storage elevator at our plant in Alton, Illinois, with the understanding that you are to test the ground and if piling is found to be necessary that you are to report to us the cost of driving the necessary piles, and we are then to have the optional right of either paying this extra or of cancelling the contract. ’ ’ The contract itself provided that all labor, material, scaffolding, excavating, etc., necessary for the erection and equipment complete for the grain storage elevator, including bins, were to be made by the Heine Chimney Company. Upon the execution of this contract by appellant the said Heine Chimney Company proceeded to excavate the ground and build the elevator according to the contract, plans and specifications theretofore executed by appellant. In the excavation the foundation soil was of a creek bottom character and carrying with it mud and fine sand, and as the building was located near the river, the water when the river was up would percolate through the sand and mud and cause the earth to be of a jelly-like substance. Tests were made by the contractors for the purpose of ascertaining the character of foundation necessary to support the weight, and dug down about eight to ten feet and deeper than the wall of appellee’s building located immediately west, and up to the line of lot 24. It further appears from the evidence that the foundation was made of reinforced concrete, commonly called a mattress foundation, having a concrete slab covering the whole of the ground, with crossed walls and banded together with steel bands so that the building would settle uniformly. The building when completed and filled with wheat would weigh approximately eighteen million pounds. The building was completed by the Heine Chimney Company according to the terms and provisions of the contract, and after its completion the building sunk the distance of about twelve inches or more and in sinking it dipped to the front and leaned to the west about eighteen inches, and in this process of sinking and dipping it is claimed that the soil under appellee’s building was disturbed which caused their building to be injured.

The declaration consists of two counts, the first of which alleges that by selling and conveying lot 24, except twenty-two inches off of the east side thereof, on June 7, 1909, that with the severing and conveying of said portion of lot 24, while appellees’ building was standing on the balance of said tract, the plaintiff became entitled to the right of lateral support for the balance of said tract and the said building, and that the defendant had no right in any manner to interfere with said lateral support for said building but that defendant did in violation of plaintiff’s rights wrongfully cause an excavation to be made deeper than the foundation of plaintiff’s building and erected thereon at a great height a narrow building of great weight, and that said building after being erected sank to the depth of, to wit, two feet, and in such sinking destroyed the walls of plaintiff’s building.

The second count alleges that the ground at the bottom of the excavation was soft and muddy in character to a considerable depth below the bottom of the excavation, and that the defendant negligently, carelessly and wrongfully caused to be erected upon said soft and muddy ground the said elevator, and knowing the character of the ground and that the said elevator would' necessarily settle and injure plaintiff’s building. To this declaration the defendant filed a plea of general issue.

While appellant has assigned several errors, they may all be included in the following proposition: First, that under the facts in this case no duty devolved upon appellant to furnish lateral support. for appellees ’ building; second, that there was no negligence in the construction of the building and if there was such negligence it could not be imputed to appellant for the reason that the building was planned and constructed by an independent contractor; third, that the court erred in excluding evidence offered by the plaintiff as to the reputation of the independent contractor, and also erred in some of the instructions.

Viewing the case as we do we think it is to be determined by the first and second propositions. It is claimed by appellees that inasmuch as its building was standing upon a portion of the ground at the time of the sale wherein the appellant purchased the unimproved land, that he received it charged with the duty of supporting not only the soil of appellees’ lot but also the house thereon and that it was immaterial whether the appellant was guilty of negligence or not in the erection of its elevator, if it disturbed the building of appellees the liability would be incurred by appellant for the damage done to appellees ’ building, regardless of the question of negligence. Counsel for appellees have in their brief referred to several authorities, some of which in express terms sustain his contention ; notably, the case of Stevenson v. Wallace, 27 Grat. (Ya.) 88; and the case of Tunstall v. Christian, 80 Va. 5. While these authorities seem to sustain appellees’ position, we do not believe that the doctrine announced therein is sound, or can be the law of this State under the' decisions of our courts with reference to the effect of contracts. Upon examining Washburn upon Easements, and other recognized authorities, we' find the question of implied grant and reservation of this right in case of such sales discussed, and the authorities appear to hold that while an implied grant for lateral support of the building under such circumstances may arise in favor of the grantee, under such circumstances that no such implied grant or reservation can arise in favor of the grantor, as. it would be in direct impairment of his express grant; that if the grantor desired to make any reservation whatever it should have been contained in his deed. It is said in Beeves on Beal Property (special subject) page 175: “The purchaser may have the benefit of all fair implications and intendments; and so the severance of an entire tract may impliedly confer upon him an easement if it be reasonably necessary to the enjoyment of his property. But, say these latter cases, the general rule is that the vendor cannot have the benefit of any such presumption to the impairment of that which he has expressly granted, and when he is to have the easement over land that he has absolutely conveyed he must be able to establish it by express contract or reservation. ’ ’ The same author in section 139, says: ‘‘ And the other principle, which has caused a wide distinction to be made in this connection between implied grants and implied reservations or easements is that a grant is to be construed most strongly against the grantor and in favor of the grantee.” We cannot accede to the doctrine that notwithstanding the grantor makes conveyance for a valuable consideration to the grantee of a part of his close without reservation, that he could justly or lawfully say that notwithstanding reservations were not made yet the grantee must accept the land for which he is paid full price, with unmentioned and probably unknown burdens in favor of the grantor. It is claimed by counsel for appellees that this has been determined by our Supreme Court in the case of City of Quincy v. Jones, 76 Ill. 241, where the court says: “Where a common owner of the soil originally held both parcels, that on which the plaintiff’s house was built, and that which the defendant subsequently excavated, it is held the defendant is charged with the duty of supporting, not merely the soil, but the house of plaintiff’s parcel. Harris v. Ryding, 5 M. and W. 71; McGuire v. Grant, 1 Dutcher, 356. Likewise, where the buildings are ancient, or those which have been erected on ancient foundations, and which, by prescription, are entitled to the special privilege of being exempted from the spirit of reform, the owner is .said to be entitled to full protection against the consequence of any new excavation. * * * No claim is made that the present case falls within the first exception, but it is argued that it is within the last, and this brings us to the second question in the order of the argument.” It will be observed that the question now under consideration was not before the court in the case of City of Quincy v. Jones, supra, and the court there only undertook to tell what other courts had held with reference to that question as well as the question of prescription; and Judge Scholfield in treating that case says, in effect, that he does not give any consideration to the question of the right of lateral support by implied reservation but proceeds to demonstrate that no snch right exists by prescription, as claimed, for the support of which proposition he had already referred to authorities, the same as in support of the former proposition. So we say that this case cannot be considered as determining the question of the implied reservation of lateral support in favor of the grantor in the deed.

The second proposition and the one relating to the liability of the defendant for negligence in the construction and building of this elevator so'that it was liable to sink and destroy plaintiffs’ wall, was, we think, a question of fact properly determinable by the jury who tried the case. There was evidence tending to show negligence upon the part of the appellant in placing an elevator of the character of this one with its weight and the weight it would be required to support upon a foundation of the kind used, and that appellant had reason to believe that it was liable to sink but that he expected the sinking of the building to be uniform, which was not the result; that reasonable prudence for the safety of Ms neighbor’s wall as well as Ms own building would have caused him to have placed the foundation upon piling.

It is said by counsel for appellant that even if there was negligence in the construction of the building that it was not built by appellant but was planned and built by the Heine CMmney Company, independent contractors, and that if negligence existed appellant is not liable. It is true that the evidence discloses the plans and specifications were prepared by the Heine CMmney Company, an independent contractor, and the evidence shows that such company was skilled in business of this character, the plans and specifications under wMch the bmlding was erected, while not made by it, were the plans and specifications of appellant, executed by it, and the Heine CMmney Company were compelled under the contract with appellant to erect the building according to these plans and specifications, and if the negligence causing the injury is not in the workmanship, or the materials to be furnished by the contractors, but in the plans and specifications of the work then the owner is liable. Lancaster v. Connecticut Mutual Life Ins. Co., 92 Mo. 460. In this case there was the application under the law of an adjoining landowner to erect his building so as not to negligently destroy the walls of appellees’ building, and we do not understand that where the law imposes upon one an obligation that he can escape liability for the performance of that duty by securing it to be performed by an independent contractor. If the injury results directly from the acts called for or rendered necessary by the contract and not acts which are merely collateral to the contract, the employer is liable as if he had himself performed such acts. Am. & Eng. Ency. of Law, vol. 16, p. 196. We think the correct doctrine is laid down in the case of Robbins v. City of Chicago, (4 Wall.) 71 U. S. 657, where it. is said: “Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, rule is that the employer is not liable; but where the the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party.” And the same doctrine is announced in the case of Thomas v. Harrington, 72 N. H. 45, 65 L. R. A. 748, and many other cáses there referred to. We do not believe that the doctrine of independent contractor here invoked will excuse the appellant from the negligent acts complained of; that a liability exists where the adjacent soil is not removed with reasonable skill and care there can be no doubt. It is said in the case of the City of Quincy v. Jones, supra: “It is required of the owner of the soil, having the right to excavate notwithstanding there are buildings upon the adjacent soil, that he shall exercise the right With reasonable skill and care, in view of the character of the buildings and the nature of the soil, so as to avoid doing unnecessary injury to the buildings. Foley v. Wyeth, 2 Allen, 131; and whether reasonable skill and care have been exercised, in view of all the circumstances in a given case, is a question of fact for the jury.”

It is next complained that the court erred in refusing to permit appellant to prove that its superintendent made investigation as to the standing of the Heine .Chimney Company and their experience and reputation for the construction of such buildings. This gentleman, Mr. Corbett, was asked to tell what investigation he had made as to the buildings constructed by this company, which was objected to and objection sustained. We do not believe that the court erred in this matter as we think it is immaterial as to their reputation or as to their having constructed buildings at Terre Haute, Milwaukee or any other place. If this work was negligently done their reputation would not excuse appellant from the negligent plans adopted by him for the construction of this building. It appears, however, from the evidence that when the structural engineer was upon the witness stand he was asked by counsel for appellant, and permitted to tell of the experience that the Heine Chimney Company had had in the construction of buildings of this character, and did detail to some length its experience in these matters. We do not see any serious error in this.

The next contention is that the court erred in refusing first, fifth, sixth and seventh of appellant’s refused instructions. These instructions were properly refused as they are along the lines discussed in this opinion, advising the jury that if the negligence was the work of an independent contractor that this would excuse the defendant, and for the reasons above suggested we think the court did not err in refusing them.

Complaint is also made of the court’s refusal to submit certain special interrogatories offered by appellant for submission to the jury. We have examined these interrogatories and do not believe that the first three were material for the reasons heretofore stated, and the last two only call for evidential facts, and while we think there would be no error in the submission of the last two, that the refusal thereof is not reversible error.

Under the law the jury are authorized to determine whether or not the defendant was guilty of the negligence charged and we can see no reason for disturbing its verdict, and we do not believe that the court committed any reversible errors in the trial of the case and the judgment of the lower court is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice McBride,

text:
    Josephine M. Hosto, Appellant, v. Charles W. Hosto, Appellee.
    1. Husband and wife, § 264

      —when decree refusing separate maintenance sustained.. Decree refusing separate maintenance held not against the weight of the evidence where complainant’s testimony of husband’s alleged misconduct and neglect was disputed and not sufficiently corroborated, and there was evidence that the wife was unduly jealous.
    2. Husband and wife, § 262

      —burden of proof in separate maintenance proceeding. In. an action for separate maintenance, the wife must prove such conduct upon the part of the husband as would justify the court in concluding that she was living separate and apart from him without her fault.
    3. Husband and wife, § 246

      —what essential to allowance of solicitor’s fees in separate maintenance proceeding. Final decree allowing a certain amount as solicitor’s fees in the prosecution of the suit, held erroneous where no evidence was heard as to what the services rendered were worth nor what the usual and customary fee for such services was in the court.
    4. Appeal and error, § 1396

      —when chancellor’s findings will not be disturbed. In chancery cases, where the evidence is confiicting and heard in open court, the error in finding as to fact should be clear and palpable to authorize a reversal.
    5. Appeal and error, § 726

      —when evidence to support an allowance for solicitor’s fees must he preserved. Evidence to sustain an allowance of solicitor’s fees in a separate maintenance proceeding must be preserved in the record.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed in part and reversed and remanded in part.
    Opinion filed October 9, 1913.
    C. H. Burton and Williamson, Burroughs & Ryder, for appellant.
    E. B. Glass and E. G. Hill, for appellee.

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

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

   Mr. Presiding Justice McBride,

delivered the opinion of the court.

On November 21, 1910, the appellant filed a bill in the Circuit Court of Madison county, alleging that she was married to appellee on October 5, 1897, and that they lived together as husband and wife until November 19, 1910, when she was compelled with her children, Eleanor Hosto ten years old and Wilbur Hosto seven years old, to abandon the appellee and seek a home with her friends and acquaintances; in this bill she alleges that the defendant had in divers ways been guilty of cruelty and had become infatuated with one Emma Miller and that his affections for the appellant were alienated; that he frequently quarreled with appellant and used towards her abusive and threatening language and had at times offered to strike her. To this bill the defendant filed an answer denying the several allegations made by the appellant. The cause was heard by the chancellor and several witnesses were produced and examined in open court. The evidence is quite voluminous, covering several hundred pages of record and over two hundred pages of abstract, but after a careful consideration of this evideuce we cannot say that the weight of the evidence was manifestly against the finding of the chancellor. It is true that appellant testified that on two or more occasions the appellee threatened to assault her and that he at one time pulled her hair; that on other occasions he cursed and abused her and told her that he had more affection for the Miller woman than he had for her, and that he wanted her to leave; that he also charged her with infidelity with divers men and that he had lost his affection for her because of the fact that she had permitted herself to bear children, but all of this is denied by the appellee in positive terms and in many of the statements made by appellant she is wholly uncorroborated. The evidence with reference to his affection for Mrs. Miller consists principally in his having met Mrs. Miller at the residence of Walter Binkle, a brother of the appellant; that he went there for the purpose of assisting Mrs. Miller in the sale of a piano, from which sale when completed the appellant was to receive some of the commission. That appellee and Mrs. Miller remained at the home of Binkle over night, the appellee and Binkle occupying one room and Mrs. Miller and Mrs. Binkle occupying another room. It is claimed that while they were in the hall passing to their respective rooms that appellee took hold of Mrs. Miller and Mrs. Binkle, pressed them to each other and said “look at these women fight,” thereupon Walter Binkle said, “Come on kids lets go to bed” and they each retired to their respective rooms. Another instance was that one day while appellee, E. E. Miller and a man by the name of Schwartz were engaged in cutting hay for Mr. Miller, the husband of Emma Miller, that Mrs. Miller brought the dinner out to them and that after eating dinner appellee and Mrs. Miller lay down under the wagon with their faces close to each other, in the presence of her husband; that another time, while on the road in their respective buggies they stopped and talked to each other for some time, and some other circumstances were given that are of less importance but all of these matters are denied by the appellee or explained so that they have the appearance of meetings either concerning business matters or neighborly chats; at least we cannot say that the chancellor erred in finding that there was nothing to convince him that any undue intimacy existed in the relation of these parties. The evidence tends to show that appellant became very jealous of Mrs. Miller and that as soon as this was discovered the appellee and Mrs. Miller both refrained from having any conversation whatever one with the other, even over the telephone.

It is also true that appellant testified that appellee told her that he thought more of Mrs. Miller than he did of her and it further developed upon the trial that just after a school election in which Mrs. Miller had been assisting appellant in securing the election of appellee as director, that while riding home that evening appellee said, as it is claimed, to some of appellant’s relatives that he thought more of Mrs. Miller than of his own family, or that in substance. This, however, is all denied by appellee. The alleged assault by appellee with a chair, as explained by him, shows that he simply raised the chair for the purpose of preventing appellant from further assaulting him. The several charges of abusive language are denied by appellee, and in fact, every serious charge made by appellant is denied by him. In his testimony he claims that the difficulty grew out of the fact that she failed to receive any commissions from Mrs. Miller, as had been promised and this enraged her against Mrs. Miller, she was also angered by appellee’s refusal to deed her some Texas land that he was purchasing. It is true that during the last two or three years of their married life appellant and appellee have apparently had considerable strife but they both appear to be possessed of plenty of temper and not with very much disposition to bear with each other’s faults or forgive the shortcomings of each other, and we think the chancellor was fully warranted in finding that they were both more or less to blame for the condition in which they now find themselves.

The chancellor heard the testimony of all of the witnesses, saw their conduct and bearing while upon the stand and was much better calculated to determine from this who was telling the truth about these several matters than we can from the printed record. It has been repeatedly held by the higher courts of this state that where the chancellor hears the testimony of the witnesses in open court, sees them upon the stand, that his judgment of their credibility is entitled to the same weight as the judgment of the jury upon the credibility of witnesses, and that a court of review has no right to disturb his findings unless it can be said that such finding is manifestly against the weight of the evidence. “In chancery cases, where the evidence is conflicting and heard in open court, the error in finding as to fact should be clear and palpable to authorize a reversal.” Elmstedt v. Nicholson, 186 Ill. 580. While we recognize the rule that the appellant would not necessarily be required to prove such conduct upon the part of the husband as would entitle her to a divorce, yet she must prove such conduct or neglect upon the part of her husband as would justify the court in concluding that she was living separate and apart from him without her fault. We are not able to say that the decree refusing appellee separate maintenance was so manifestly wrong as to warrant a reversal and as to such part of the decree it will be affirmed.

A cross-error has been assigned by appellee alleging that the court erred in its final decree, approved April 15, 1912, in requiring the appellee to pay to the appellant three hundred dollars as solicitor’s fees incurred in the prosecution of this case. It appears from the record that on February 14, 1911, appellant filed a petition for temporary alimony to pay the necessary expenses that would arise in the trial of this suit; that an answer was filed to this petition and that on March 3, 1911, an order was entered directing that appellee pay complainant one hundred dollars attorney’s fees and twenty dollars per month as temporary alimony. That on July 15, 1912, and at the time a final decree was rendered in this cause it was ordered by the court upon application of complainant that the defendant pay to the complainant the sum of three hundred dollars as and'for solicitor’s fees incurred in the prosecution of this suit. No application is set out in the record and no evidence was heard as to what the services rendered or to be rendered were worth, or what the usual and customary fee for such services was in that court. So far as we are able to ascertain from this record this application was for the services that had been rendered in the trial in the Circuit Court and not for the prosecution of an appeal to this court. It is said in the case of Anderson v. Steger, 173 Ill. 119: “The provision of the statute is to enable the wife to maintain the suit, and it contemplates that the provision shall be made in advance. The performances of services by a solicitor where such provision is not made creates no liability against the husband. The wife cannot bind her husband to pay the expenses of prosecuting an action for separate maintenance or divorce against him, and her solicitor cannot maintain an action at law for such services. If, under the guise of a temporary allowance to enable the wife to maintain her suit, a solicitor has a right to recover for services rendered for which no allowance has been made, there would be no difference whatever between that right and the right to maintain an action at law. The only difference would be in the court, and the right would be a right to collect from.the husband the value of services rendered for the wife. The statute does not go to the extent of compelling the husband to pay such expenses as she has seen fit to incur. The statute gives no warrant for a solicitor performing services upon the credit of the husband, in anticipation of an allowance, further than necessary to present the question to the court.” A difference is made by' the court in the case last above cited in allowing solicitor’s fees where the complainant has been successful, and where they have not been successful. Even if a solicitor’s fee could be allowed under such circumstances it would be necessary before a court would be authorized to make the allowance to present testimony showing the value of such services. Metheny v. Bohn, 164 Ill. 495; Goodwillie v. Millimann, 56 Ill. 523. “The rule that the evidence to sustain an allowance of this character must be preserved in the record has been repeatedly stated by this court.” Hunter v. Hunter, 121 Ill. App. 388.

We think the court erred in allowing the solicitor’s fee in the manner it did, as appears from the record of this case, and that part of the decree requiring the defendant to pay the complainant three hundred dollars as solicitor’s fee incurred by her in the prosecution of this case was erroneous and as to such should be reversed" and remanded.

The decree is affirmed in part and reversed and remanded in part.

Affirmed in part and reversed and remanded in part.