text:
    The People of the State of Illinois for use of School District 43, Appellant, v. John W. Roy, Appellee.
    1. Schools and school districts—when township treasurer not liable for failure to furnish correct statement of financial condition of schools. In an action by the People for the use of a school district, to recover of the defendant, who was township treasurer, the amount which the district lost from the distributive school fund for the year, where plaintiff claimed that the defendant assumed the duty of making a statement of the condition of the schools in a part of the district in question, and that in the report the names of 308 children under twenty-one years of age were omitted from the report and that through such omission the school lost its per capita share of said fund, section 36 of chapter 122, Hurd’s Rev. St. (J. & A. 10057), providing that trustees of schools of each township should prepare, or cause to be prepared, by* the township treasurer or other person, and forwarded to the county superintendent, a statement exhibiting the condition of the schools, etc., considered, and held that under such section it was not the duty of the treasurer to prepare any such statement unless he was directed or requested so to do by the trustees, and therefore he was not liable under section 264 of said chapter (J. & A. H 10302) for failing to perform a duty required of him, although he voluntarily furnished an incorrect statement.
    2. Process, § 35

      —when personal service is necessary. Where the statute provides no way in which a notice or instrument may be served, personal service is required, and notice by mail is not sufficient.
    3. Evidence, § 23

      —when insufficient to create presumption as to mailing of document. Testimony of a witness that it seemed to him that he had sent a certain document by mail, held not even definite enough to create a presumption that the witness mailed the document, and if it were to be assumed upon such testimony that such document was mailed, and then that it was received, a presumption upon a presumption would thus be created.
    4. Pleading, § 285

      -—when refusal to grant leave to file additional count at close of testimony is not error. The refusal to grant leave to file an additional count at the close of the testimony in a case, held not error, where such count was not materially different from the one upon which the case was tried and where no reason was shown why the count was not filed earlier.
    Appeal from the Circuit Court of Union county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.
    James Lingle, for appellant.
    Barr & Feirich, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

This action was instituted by appellant to recover $471.64 from appellee, and it is charged that appellee assumed the duties of making a statement of the condition of the schools in that part of School District 43 lying and being within Township 12, Range 1 West, and that in the report made by him to the school superintendent that the names of 308 children under the age of twenty-one years, consisting of 152 boys and 156 girls, were omitted from this report, and that by such omission the school district lost its per capita share of the distributive school fund for the year.

It appears from the evidence that between May 20th and May 31st of the year 1915, J. L. Nusbaum was em-' ployed by appellant to take the census for School District 43, and that in the taking of such census- a separation was made of the children under twenty-one years of age in said district located in Township 12—2. and those located in Township 12—1, and that he turned the work over to Thomas J. Glasscock, who was clerk of the school board of said district 43, but Thomas Glasscock is not certain that he delivered or mailed this report to the appellee; appellee denies that he ever received the report from Glasscock. At the conclusion of all the evidence the court directed a verdict for the defendant, the appellee here.

It is insisted by counsel for appellant that the court erred in directing a verdict for the appellee, and this is the principal contention of appellant in this case. Counsel for appellant cites three sections of the statute which he relies upon as giving appellant the right to recover.

' The first section cited is section 14 of chapter 122 of Hurd’s Revised Statutes (J. & A. ¶ 10035), which provides: “Upon the receipt of the amount due the county from the State school fund, the county superintendent shall apportion the same, together with other funds held for distribution, to the townships and parts of townships in his county in which schools have been maintained as provided by law, according to the number of persons under 21 years of age returned to him,, and, shall pay the distributive share belonging to each township and fractional township to the respective township treasurers, or other authorized persons, annually, ” etc.

The next section quoted is 36 of the same chapter (J. & A. ft ¶ 10057), which provides: “The trustees of schools of each township in this State shall prepare, or cause to be prepared, by the township treasurer, the directors of the several districts, or other person, and forward to the county superintendent of the county in which the township lies, on or before the 15th day of July, annually, and at such other times as may be required by the county superintendent of schools. or by the superintendent of public instruction, a statement exhibiting the condition of the schools in their respective townships for the preceding year, commencing on July 1st and ending June 30th, which statement shall be in the form, and shall contain the information required by the superintendent of public instruction. Any township from which such report is not received in the manner and time required by law, shall forfeit its portion of the distributing fund for the next ensuing year.”

The other section referred to provides: County superintendents, trustees of schools, township treasurers and directors, or either of them, or any other officer having charge of the school funds or property, shall be pecuniarily responsible for all losses sustained by any county or township fund, by reason of any failure upon his or their part to perform the duties required of him or them by the provisions of this act, or by any rule or regulation authorized to be made by the provisions of this act, and each and every one of the officers aforesaid shall be liable for any such loss sustained as aforesaid, and the amount of such loss may be recovered in a civil action brought in any court having jurisdiction thereof, at the suit of the People of the State of Illinois for the use of the county, township or fund injured,” etc. [J. & A. ¶ 10302.]

The case was tried by counsel for appellant and appellee upon the theory that the statement of the condition of the schools in their respective townships as set forth in section 36, above, required the treasurer to furnish the names of the pupils under twenty-one years of age to the school superintendent. It will be observed that section 36 provides that: ‘ Trustees of schools of each township in this State shall prepare, or cause to be prepared, by the township treasurer, the directors of the several districts, or other person, and forward to the county superintendent of the county in which the township lies, on or before the 15th day of July, annually,” etc., a statement exhibiting “the condition of the schools.”

There is nothing in this record that shows any action whatever upon the part of the trustees of schools authorizing a preparation of this statement, but it does appear that the statement was prepared under the direction of the clerk of the school board of appellant. It nowhere appears that the appellee was directed or required by the trustees of schools to prepare such statement, or to forward it to the school superintendent. We have examined the statute with reference to the duties of the treasurer, and nowhere find, and none has been pointed out to us, wherein the statute requires the treasurer to prepare and deliver this statement to the school superintendent unless he is required or requested so to do by an order of the trustees. Section 264, above referred to, creates a liability upon the officer where he fails to perform a duty required of him by the provisions of this act, or by any rule or regulation authorized thereby. It is charged in the declaration that the appellee assumed to make this report, and that by reason of having assumed to make the report that he became liable. The report made by him was, so far as disclosed by this record, purely a voluntary matter, and unless the trustees had authorized or directed him to prepare such report, we are unable to see that his failure to forward to the school superintendent the number of school children under twenty-one years of age in the district would make him liable for such failure. Section 12 of the same chapter (J. & A. ¶ 10033) provides: “In all cases in which the trustees of schools of any township shall fail to prepare and forward, or cause to be prepared and forwarded to the county superintendent, the information required of them by this act, it shall be the duty of the county superintendent to employ a competent person to take the enumeration and furnish such information, as far as practicable, ’ ’ and then provides that the person so making the enumeration shall be paid out of the funds therein specified. The township treasurer was not required himself to take enumeration of the pupils under twenty-one years of age. Even if it was his duty, when furnished with a list of the children under twenty-one years of age, to forward such to the county superintendent, we do not believe that this record discloses that he was so furnished with such list, and, if not furnished with such list, then no right of action would accrue against appellee for failing to deliver a list of such children to the school supérintendent.

It appears from the testimony that appellant, by Glasscock the clerk of its board, employed Nusbaum to take this census, which he says he did, , and delivered it to Glasscock. Glasscock does not claim that he delivered the census so taken to the appellee, but says in his testimony upon his examination in chief: “Well, as I think back over the matter it seems to me I reported to both treasurers the number of pupils in their townships. ’’ And again he says: “Well it is a matter that has passed out of my mind entirely; when looking back over it and thinking back over it, it seems that I sent the report by mail”; and upon cross-examination he is asked: “Do you now have a definite recollection you did mail him this, as to whether or not you have any definite recollection about it?” Answer, “No, I could not state it that way.”

The statute does not provide the manner in which this report shall be delivered or forwarded to the superintendent of schools, and it has been held in many cases with reference to notices and other legal instruments that where the statute provides no way in which such notice or instrument may be served, that personal service is required and notice by mail not sufficient. Haj v. American Bottle Co., 261 Ill. 362. Waiving this, however, the mailing óf the instrument creates only a presumption of delivery, and is only prima facie evidence thereof. Equitable Life Assur. Soc. of U. S. v. Frommhold, 75 Ill. App. 43. In order to create even a presumption there must be some certainty about the facts upon which this presumption is based. “No inference of fact or of law is reliable drawn from promises which are uncertain. ” Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625. Facts upon which an inference may legitimately rest must be established by direct evidence as if they were the very facts in issue. 16 Cyc. 1051.

The evidence of Glasscock as to the mailing of this report is very indefinite and uncertain, and is not definite enough to even create a presumption that he mailed it; it is simply a conclusion that he came to himself, and he says he has no recollection of the transaction. If we were to assume that Glasscock mailed this report to the county superintendent from his statements and then presumed that the report was received by the appellee, it would, in our judgment, be of that uncertain and indefinite character which the law denounces as creating a presumption upon a presumption which cannot be done. Condon v. Schoenfeld, 214 Ill. 226.

It is insisted that the trial court had to weigh the testimony of appellee and Glasscock in order to determine whether or not the report was received by appellee. We do not believe that such is the case, as we think from the statements made by Glasscock that the court could not say the report was mailed by him, and in the letter written by appellee to the State superintendent, in which this matter was referred to and invoked here by appellant as corroborative, the appellee expressly stated that the? report had not been delivered to him.

It is also urged that the court erred in refusing to permit appellant to file an additional count at the close of its testimony. The count, as presented, was not materially different from the one upon which the case was tried except that it undertook to prescribe negligence to the appellee in the performance of his duty without showing by this count that the duty devolved upon appellee, and in addition to this there was no reason shown why the additional count was not filed prior to the commencement of the trial, and under such circumstance it was a matter of discretion with the court as to whether or not he should be permitted to file it. City of Chicago v. Cook, 204 Ill. 374.

We are of the opinion that the court did not err in directing a verdict for the appellee under the facts and circumstances as shown by the evidence in this case, and the judgment of the lower court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice McBride

license: Public Domain

text:
    Henrietta Dannenberg, Appellee, v. George Rahn, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Trespass, § 52

      —when instruction erroneous as not in conformity with issue. In an action of trespass, where the declaration charged that the defendant with force and arms, etc., assaulted plaintiff by driving his automobile against a buggy in which plaintiff was riding, causing her to be thrown, and defendant complained of the giving of an instruction based upon the theory of negligence, held that as such instruction was not based upon the issue of trespass with force and arms raised by the declaration, but upon the issue of negligence, the giving of it was error.
    2. Negligence, § 208*—when instruction directing verdict is erroneous. An instruction based upon negligence, which directs a verdict is erroneous if it omits the element of due care on the part of the plaintiff.
    3. Trespass, § 52*—when instruction erroneous as assuming facts. Iñ a trespass case where the testimony upon the question whether or not there was a collision was contradictory, held that an instruction assuming that there was a collision was erroneous.
    Appeal from the Circuit Court of Randolph county; the Hon. J. P. Gillham, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed June 18, 1917.
    Statement of the Case.
    Action by Henrietta Dannenberg, plaintiff, against George Bahn, defendant, to recover for injuries due to. a collision of defendant’s automobile with the buggy in which plaintiff was riding. From a judgment for plaintiff for $700, defendant appeals.
    William M. Schuwerk and William H. Schuwerk, for appellant.
    A. C. Bollinger and H. Clay Horner, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    Gus P. Emmerich, Appellee, v. Joliet Oil Tractor Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales—when question for jury whether purchaser waited reasonable length of time for seller to malee machine worle before beginning suit. In an action to recover the part paid on a certain machine and the amount of notes given for the remainder, where it was charged that the machine failed to meet the guaranty, and where it appeared that before beginning suit the defendant was notified of the failure of the machine to work, and, upon an agent being sent immediately to fix it, such agent could not operate it, and, after waiting about twelve days for the making of repairs, plaintiff instituted the action, and the testimony as to whether the machine would work or not was contradictory, held that it was a question for the jury whether plaintiff waited a reasonable length of time for defendant to make the machine work.
    2. Instructions, § 82

      —when instruction not open to objection that it intimates to jury weight to be given testimony. Where, to avoid a continuance on the ground of absence of a witness, it was admitted that the witness would testify as stated in the affidavit, and where the giving of an instruction was complained of, which told the jury that said affidavit was not admitted as true by plaintiff but that it might be contradicted, and that plaintiff was entitled to introduce evidence to contradict such statement if he had such testimony, held that such instruction was not open to the objection that it intimated to the jury what weight should be given to the testimony of the absent witness.

      Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bernbeuter, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.
    Statement of the Case.
    Action by G-us P. Emmerich, plaintiff, against Joliet Oil Tractor Company, defendant, to recover a part payment in cash made on the purchase price of a tractor, and the value of notes given the defendant. From a judgment for plaintiff for $865, the sale price, defendant appeals.
    Turner & Holder, for appellant.
    James O. Miller, for appellee.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

3. Sales, § 432*—when title to machine is in seller. In an action to recover the money paid on a machine and the amount of notes for the remainder, where the machine failed to Comply with a guaranty, and it was contended that if the judgment for plaintiff were permitted to stand he would have both the machine and the money, and where it appeared that¡ the contract provided that unless payment was made in cash the title should remain in the defendant until the cash was paid, held that if the plaintiff was permitted to retain his judgment he could not under any circumstances claim title to the property.

4. Sales, § 148*—when timely notice of failure of machine to work is waived. In an action to recover the part paid on a machine and the amount of notes given for the remainder, where plaintiff claimed that the machine failed to comply with a guaranty, and defendant contended that as the contract provided that, if the machine failed to work, notice should be given within three days, and a notice was not given until after five days from the day of the arrival of the machine, plaintiff was not entitled to recover, held that the point was untenable, as when the notice was given the defendant sent his agent to adjust the machine, which constituted a waiver.

5. Evidence, § 223*—what constitutes hearsay. A report given to an employer by his agent sent to adjust a machine which failed to work constitutes hearsay testimony.

6. Sales, § 354*—when return of machine is not prerequisite Ho beginning of action to recover price paid. Where a contract for purchase of a machine provides that, upon its failure to work, the seller is to take it back, the purchaser is not required to return it as a prerequisite to beginning an action to recover the price paid, where there was a breach of guaranty.

7. Trial, § 232 —when permitting jury to take incorrect copy of instrument to jury room is not error. An objection that the copy of a contract instead of the original was permitted to be taken to the jury room, held without merit, as no objection was made, and because the contracts were identical except as to the arrangement of signatures.


text:
    Charles M. Weber, Appellee, v. City Water Company of East St. Louis & Granite City, Appellant.
    1. Ferries—when evidence is sufficient to show operation of ferryboat. Evidence that a water company, which owned part of an island in a river on which its plant was located, used a cable ferryboat, which was used by the persons owning the rest of the land on the island, in transferring coal and other things across to its waterworks, and paid two-thirds of the expense incurred in the operation of the boat, held sufficient to show that such company was actually engaged in the operation of the boat.
    2. Negligence, § 24

      —what duty owed to servants of independent contractor. The owner of premises is under the same obligation to use reasonable care for the protection of servants of an independent contractor who are invited upon the premises as he would of servants employed by himself to do the work.
    3. Negligence, § 26*—when owner is not liable for injury to servant of independent contractor. While a servant of an independent contractor who is employed by the owner of premises is not a mere licensee upon premises of the owner and the owner is bound to exercise reasonable care for his safety while upon the premises, yet where there is a dangerous condition existing which is known to the owner of the premises and not to the servant, a liability will attach, but if the unsafe condition is known to the servant, the owner is not liable.
    ■ 4. Febbies, § 9*—when employee of independent contractor assumes rislc of traveling with team on ferryboat. An employee of an independent contractor, who has a contract with a water company operating a cable ferryboat from the mainland to an island in a river to convey coal to the plant on such island, and knows that the boat is operated without railings on the ends, assumes the risk incident to traveling over in the boat in the manner in which it is operated, and consequently cannot recover against the water company, for the loss of his team used in hauling coal, due to its becoming frightened at the operation of the cable and rushing over one end into the river and being drowned.
    Appeal from' the City Court of Granite City; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed with finding of facts.
    Opinion filed June 18, 1917.

      Barthel, Farmer & Klingel and F. A. Garesche, for appellant.
    T. M. Webb, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The appellee obtained a. judgment against the appellant for the amount of $357.50, for the loss of a span of mules, which judgment it is sought by this appeal to reverse.

It appears from the record in this case that the Niedringhaus trustees and the appellant are the owners of an island known as Gabaret Island, consisting of about 1,840 acres, which island is formed by a slough coming out from the Mississippi River and extending around and back again into the river, and the slough is on the east, or Granite City, side of the island, and the Mississippi River on the west. The slough varies in width from one hundred to two hundred feet and is of the depth of twenty feet in places. This island is cultivated and used by the Niedringhaus trustees, except the forty acres belonging to appellant, and its waterworks are located upon the forty-acre tract and is operated by appellant. Appellant and the Niedringhaus trustees used and operated a boat of the length of about sixty feet and the width of about forty feet with aprons of the length of about eight feet extending out at each end. There is a railing or guard upon the sides of the boat but none at the ends where the aprons are. The boat is operated by means of a cable and is used by all persons having business to transact upon this island, principally for the benefit of the Niedringhaus trustees and the appellant. Much of the coal used by appellant in operating its waterworks is transferred to its plant by means of this boat. It further appears from the evidence that a man by the name of Gowdy had a contract with appellant to deliver coal to its plant upon this island and that Gowdy had employed appellee to do the hauling of the coal and that on January 4, 1916, appellee hauled a load of coal to appellant’s plant, going over to the island upon the boat above described. That he passed over about three or four o’clock in the afternoon and returned near six. That upon his return he drove his wagon at about the middle of the boat, being about fifteen or twenty feet from each end. The manager of the boat and appellee started the boat by means of a cable and were engaged at this work when appellee’s mules became scared. There was some noise from the pulley upon the cable which frightened the mules and caused them to run off of the boat at the end and fall in the stream and were drowned. It further appears that appellee had used this team many times in hauling and passed over tms slough in this boat but the team had never before become scared at the operation of the boat. Appellee says that he had passed over on this boat with the team seventy or eighty times and that his team was gentle, and further states that at this time he knew there were no railings on the platform or aprons, and knew it on previous occasions.

The declaration charges that appellants negligently and carelessly maintained and used said boat without railings or other guards to prevent teams and wagons from falling therefrom. That on account of such negligence the appellee was injured in his property as above stated.

To the declaration the defendant filed the general issue and also a special plea denying that it was possessed of and operating the drawbridge or ferry charged in the declaration. It is insisted by counsel for appellant that it was not engaged in the operating of this drawbridge or boat, but that it was operated by the Niedringhaus trustees. The evidence shows that appellant used this boat in transferring coal and other things across to its waterworks located upon this island, and that it paid two-thirds of the expense incurred in the operation of this boat, so that the jury were warranted in finding that the appellant was actually engaged in the operation of the boat.

It is next insisted by counsel for appellant that no liability could attach to it for this injury because it was not engaged in conducting the ferry for hire or reward and that it was merely a gratuitous bailee, and cites the case of Self v. Dunn, 42 Ga. 528, and other cases in support of this position. We do not believe that the rights of the parties in this casé, under the rulings of the courts of Illinois, are to be determined upon the principles governing the relations of bailor and bailee but that it is controlled, and the rights of the parties herein are to be measured, by the principle that appellant was engaged in the transaction of business upon this island and that it invited thereto such persons as were necessary or proper for the transaction of its business, and that appellee had been employed by a contractor of appellant to deliver its coal to the plant and that the appellee while engaged in the delivery of this coal was entitled to the protection of one who had been invited upon the premises to transact business. It is said by Thompson on Negligence, vol. 1, sec. 979: “It is not necessary to suggest that where a proprietor engages an independent contractor to do work upon his premises, the contractor, while executing the work, will be there in pursuance of the invitation of the proprietor, and the proprietor will, under the principles discussed in this chapter, be under the duty of exercising ordinary or reasonable care, to the end of promoting his safety. In almost every such case there is the further implication that-if the contractor brings third persons, his own employees, his partners or assistants, to assist him in executing the contract, such persons are presumably upon the premises by the invitation of the owners, and he owes to them the same measure of care, to the end of promoting their safety, that he owes to the contractor himself.” As we understand the law, the owner of the premises is under the same obligation to use reasonable care for the protection of those-who are thus invited upon the premises as he would of servants employed by himself to do the work. The complaint in this case is not on account of a particular act of negligence done at the time of the injury that caused the harm, but is on account of the faulty construction of the boat that was being used by the appellee in the, transaction of its business, and the manner of conducting the business. As we understand the law, the operator of a plant may conduct the business of that plant in his own way even though it may have been conducted in a less hazardous way, or that better and safer facilities may have been used in the transaction of the business, and if at common law the servant knew the mode and instruments used by the operator in the transaction of the business and undertook to work thereat with the modes adopted by the master, and knowing the modes used by him, that he then assumed the risk of the work in hand. Bailee on Master and Servant, page 145; and this author in commenting upon this subject, upon the same page says: “Therefore it has come to be well settled that the master may conduct his business in his own way although another method might be less hazardous, and the servant takes the risk of the mdre hazardous method as well if he knows the danger attending the business in the manner in which it is carried on. Hence if the servant knowing the hazards of his employment as the business is conducted is injured while employed in such business he cannot maintain an action against the employer because he may be able to show there was a safer mode in which the business might have been carried on, and had it been carried on in that manner he might not have been injured. ’ ’ Counsel for appellee, in their argument assert: “The servant or employee of an independent contractor who is employed or under contract by a company is not a mere licensee, but the company is bound to exercise reasonable care for his safety while upon the premises.” This doctrine, however, is subject to this qualification, that if there was a dangerous condition existing which was known to the owner of the premises and not known to the persons invited thereon to transact business or perform work that then a liability would attach, but if the unsafe condition is known to such person then the owner would not be liable. It is said in the case of Calvert v. Springfield Elec. Light & Power Co., 231 Ill. page 293: “The law'is well settled that an owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist without timely notice to the public or to those who .are likely to act upon such invitation, and if there are hidden dangers upon the premises he must use ordinary care to give persons rightfully upon the premises warning thereof, and that the owner owes such duty to an independent contractor or his servants while working upon his premises”; together with the many authorities referred to by the Supreme Court in this connection. The case of Calvert v. Springfield Elec. Light & Power Co., supra, was one in which the Supreme Court says: “Some weeks before the workmen of Drake commenced to remove said stacks, one of the stacks had fallen and broken an irregular hole, from two to five feet in diameter, through the boards and tar paper on the sloping surface of the roof. This hole was plainly visible to the workmen, although the evidence tended to show that immediately adjoining the hole, while the tar paper remained intact, the boards underneath were splintered and broken, which condition was visible to persons in the building but not to persons upon the roof. The evidence also tended to show tnar appellee’s intestate, while engaged in removing one of said stacks, stepped upon the roof near said hole and broke through the tar paper and fell to the floor of the building and was killed.” And later on, in the same opinion, the Supreme Court says: “The evidence shows that the hole in the sloping roof was visible to the workmen upon the roof, and if it appeared from the evidence that the deceased fell through the hole in the roof we should not hesitate to hold that there could be no recovery on account of the assumption of the risk by appellee’s intestate.” The facts in this case show that the appellee had driven this team from seventy to eighty times upon this boat in hauling coal to appellant’s plant, and his evidence also shows: “I knew that there'were no railings on this platform or aprons. I saw that when I drove on and I knew it on previous occasions.” We think it very apparent from this record that the appellee did know that this boat was being operated without guardrails to these aprons, and that he could not help but know that had his team at any time become frightened that there was nothing to prevent it from jumping off into the stream, and nothing to prevent the happening of just what did occur in this case, and having this knowledge of the condition in which the boat was, we are of the opinion that he assumed the risks incident to traveling over in the boat in the condition in which appellant was operating. Vandeveer v. Anderson Bros., 143 Ill. App. 65; Elgin, J. & E. Ry. Co. v. Myers, 226 Ill. 358. The appellant was transacting business upon this island and invited appellee md others to transact business with it, and held out to them, as a means of transacting the business and a means of gaining access to their place of business, the boat as it was equipped and had been used there for many years, and during all this time no accident had ever happened and no team had ever become scared and run off of the boat. If persons did not desire to transact business with appellant under such conditions they were under no obligations to do so.

We are of the opinion that the appellee knew the mode used for gaining access to this island, knew the unsafe condition of the boat, if it was unsafe, and knowing these facts used the boat repeatedly and was willing to use the boat upon this occasion, and in attempting to do so we believe that he assumed the risk of so using and that he is not entitled to recover, and the judgment of the lower court is reversed. ,

Judgment reversed with finding of facts.

Finding of facts to be incorporated in the judgment of this court. We find that the accident which caused the loss of appellee’s mules resulted from a danger the risk of which was assumed by. appellee, under the law and facts in this case.


text:
    Maggie Barnes, Administratrix, Appellee, v. Illinois Fuel Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Workmen’s Compensation Act, § 2

      —when evidence sufficient to show election ~by employer not to come under. In an action to recover for the death of a miner as the result of being struck by a falling rock in a mine, where the defendant contended that it was not liable because it was operating under the Workmen’s Compensation Act, where it appeared that the defendant had filed a notice electing not to come under the act, and plaintiff filed a certified copy of such notice, and the defendant claimed that because the evidence failed to show that notice of such election was not posted in the mine, or notice given to the deceased, plaintiff had failed to make out a case, held that the objection was not well taken.
    2. Death, § 21*—when injury is proximate cause of. In an action to recover for the death of a miner, as the result of being struck by a falling rock in a mine, where it appeared that prior to his death the deceased was a healthy man capable of working every day, that by the falling of the rock upon him his breast was bruised, his leg broken above the thigh and he sustained other injuries; that he was taken home and put to bed and his limb set, and that in about five days he was attacked with pneumonia which lasted about two weeks and left him with a weak heart, and after three months the splint was removed from the limb, but he was never able to get around without assistance, and never became strong again, and that, when "examined a few days before his death, his condition was below par and he was weak and in a very low state of vitality, and that shortly’ after this examination he died suddenly while sitting on his cot; and where the defendant contended that plaintiff failed to show that death was caused by the injury, held that the jury were warranted in finding that the consequences resulting in the death of the decedent followed in an unbrokeh sequence from the wrong to the injury, and without any intervening efficient cause to aggravate or change the cause.

      Appeal from the Circuit Court of Randolph county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.
    Statement of the Case.
    Action by Maggie Barnes, administratrix of the estate of Thomas Barnes, deceased, plaintiff, against Illinois Fuel Company, defendant, to recover for the death of said Thomas Barnes, an employee in defendant’s mine. From a judgment for plaintiff for $1,500, defendant appeals.
    R. J. Goddard and H. Clay Horner, for appellant.
    A. E. Crisler, for appellee.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

3. Negligence, § 196*—when question of proximate cause of injury is for jury. The question of the proximate cause of an injury is one largely to be determined by the jury, and unless the evidence is such that all reasonable persons would concur in saying that it was not the result of the injury, then it remains a question of fact and does not become a question of law.

4. Negligence, § 49 —when negligent act is proximate cause of injury. In order to make a negligent act the proximate cause of an injury, it is not necessary that the particular injury and the particular manner of its occurrence could reasonably have been foreseen.


text:
    George F. Towler, Appellee, v. Mt. Carmel Trust & Savings Bank, Appellant.
    1. Principal and surety, § 17

      —when payment of interest is sufficient consideration for extension of time releasing surety. Payment of legal interest on a debt, in advance, is a sufficient consideration to support an agreement for an extension of the time of payment thereof, and such payment of interest is of itself sufficient prima facie evidence of an agreement to extend the time of payment, and works the discharge of the surety.
    2. Pledges, § 24*—what constitutes release of collateral. In an action against a bank to recover the amount of a certificate of deposit payable to the order of plaintiff, where there was controversy as to whether such certificate was deposited as collateral for the note of other parties, and where plaintiff contended that in any event the extension of the note without notice to him operated as a release of the collateral, held that assuming that the certificate was left as collateral security for the note, the extension of such note for a definite period for a valuable consideration operated as a release of the collateral.
    3. Bills and notes—when person not signing note is not liable as principal. In an action against a bank to recover the amount of a certificate of deposit which the defendant claimed was deposited as collateral security for a note given by others, where plaintiff contended that by an extension of such note the collateral was released, and the defendant contended that under the Negotiable Instruments Act of 1907 plaintiff became liable as a principal, and that therefore he could not be released by reason of the extension of the note, held that the act had no application, as plaintiff did not sign the note either as principal or surety.
    4. Pledges, § 24

      —when owner of certificate of deposit is not bound by agreement in note that extension of time of payment shall not release signers. In an action against a bank to recover the amount of a certificate of deposit which the defendant claimed was deposited as collateral security for a note given by others, where defendant contended that because the note contained an agreement by all signers that no extensions of the time of payment of the principal by the receipt of interest, or otherwise, should release either of them, the collateral was not released by such extension, held, that plaintiff, not having signed the note either as principal or surety, was not bound by such agreement.

      5. Pledges, § 44

      —when evidence is sufficient to show that certificate of deposit was not pledged as collateral to note. In an action against a bank to recover the amount of a certificate of deposit, evidence held sufficient to show that such certificate was not pledged as collateral to a note signed by other parties and held by defendant.
    Appeal" from the Circuit Court of Wabash county; the Hon. Julius C. Keen, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed."
    Opinion filed June 18, 1917.
    M. H. Mundy, P. J. Kolb and M. J. White, for appellant.
    Howard P. French and Roscoe U. Barker, for appellee.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment against appellant in the Circuit Court of Wabash county for $986.14, and it is sought by this appeal to reverse such judgment.

It appears from the record in “this case that on and prior to March 11, 1914, George F. Silas and Larkin Towler were engaged as partners in the dry-goods business at Mt. Carmel, Illinois; and that at and prior to that date the partnership was indebted to appellant for money borrowed in the amount of $1,500, for which appellant held the note of the firm of Towler Bros, and signed individually by the three brothers and by Blanche Towler, wife of Silas Towler, and it is also secured by Blanche Towler having deposited as collateral security to said note a certificate of stock of the face value of $1,000 of the City National Bank of Shawneetown, Illinois.

It further appears that George F. Towler became dissatisfied and desired to sell his interest in said business to his brother Silas Towler, and the testimony of appellant and its witnesses tends to show that for the purpose of enabling Silas Towler to purchase George F. Towler’s interest in said store, and for the purpose of releasing George F. Towler from the $1,500 note above referred to, that it was agreed by George to sell his interest in said business to Silas for $957.42, with the understanding that George was to be released from the partnership note of $1,500.

Appellant’s testimony further tends to show that an agreement was entered into between Silas, George and the appellant that the appellant would loan to Silas the $957.42 to be paid to George and would release George from the payment of the $1,500 note, and take a new note therefor upon condition that George would deposit the $957.42 with appellant, taking a certificate of deposit therefor and leaving the same with appellant as security for the said note. It was further understood that said note was to be secured by the signature of the wife of Silas. The note was given, as claimed by appellant, and the money was placed in a certificate of deposit payable to George Towler and left with the bank as collateral security for this note, and the certificate was placed by appellant in an envelope and marked as collateral for this note. It is further claimed that the note has not been paid, and that appellant has a right to retain the same under said agreement.

The appellee upon his part denies that the.certificate of deposit was left with appellant as collateral security for the note above mentioned, and denies that he had any arrangement whatever with appellant and Silas Towler with reference to leaving such certificate with appellant as security for said note. It further appears from thé testimony of the witnesses for appellee that after the said note of $957.42 matured, that Silas Towler paid the appellant the interest thereon in advance, and secured an extension of time for a definite period for the payment of this note, and that this was repeated upon several occasions thereafter, and claimed that by reason thereof the collateral, even if given as such, was released.

The declaration consists of several special counts appropriate to the form of action based upon the certificate of deposit that Was made payable to the order of Gr. F. Towler twelve months after date on the return of this certificate properly indorsed, together with interest thereon. To this declaration the appellant filed the general issue, and also filed two special pleas, the first of which set up an agreement entered into by appellee with the appellant that if appellant would release him from all liability on the $1,500 note above referred to, and would loan Silas Towler the sum of $957.42 to enable him to purchase the interest of George F. Towler, that he, the plaintiff, would leave the certificate with appellant as security for the said note of Silas Towler, and avers that the note was executed by Silas Towler and Blanche, his wife, and that the certificate of deposit was issued to George F. Towler and turned over to appellant as collateral security for said note, and then avers that the note has not been paid and that the certificate of deposit has from that date to the present time, and still is, held by appellant. That by the second special plea it is averred that appellee placed the said certificate of deposit in the hand of appellant as collateral security to secure the payment of the above mentioned note of Silas Towler and his wife for the amount of $957.42, and then avers that the note has not been paid. Plaintiff joined issue upon the plea of general issue, and to the first special plea replied, denying having made any agreement with the defendant, as set forth in said plea; and to the second, by denying that he agreed that the said certificate of deposit might be retained by the defendant as in said plea alleged; and third, by averring that after the time of leaving of said certificate of deposit as collateral security as set forth in said plea that said certificate of deposit was released by the defendant. A further replication was filed alleging that the said certificate of deposit has been by the defendant released from being liable as security for the payment of said note; and to these replications proper rejoinders were filed.

The real issues made by these pleadings are: First, did the appellee leave the certificate of deposit with the appellant as collateral security for the payment of the note of Silas and Blanche Towler? Second, if the certificate of deposit was left with appellant as collateral security, has the appellant, by its conduct, released such security?

In the argument presented by counsel for appellant, he first considers the question as to whether or not the extension of the note, as stated under the circumstances of the case, operated as a release of the certificate of deposit as a pledge, or as collateral security for the payment of the note.

It will be observed that the evidence upon both of the questions submitted for consideration was quite conflicting. If the testimony introduced by appellant was accepted by the jury as a true statement of the facts, then it would appear that the certificate of deposit was left as collateral security for the note in question, and counsel for appellant claims that if it was so left as security, that an extension of the time of payment of the $957.42 note of Silas Towler and wife, from time to time as disclosed by the evidence, would not operate as a release of the collateral security for the reason that the note was made for the accommodation of George F. Towler, and that he was thereby under the Negotiable Instruments Act and not entitled to notice of any extension or renewal of the note which was secured by the certificate of deposit as collateral. Assuming that the certificate of deposit was left with appellant as collateral security, then there can be no question that the extension of the principal note for a definite period of time for a valuable consideration operated as a release of the collateral security.

“The payment of legal interest on a debt in advance is a sufficient consideration to support an agreement for an extension of the time of payment thereof, and such payment of interest by the principal is of itself sufficient prima facie evidence of an agreement to extend the time of payment and works the discharge of the surety.” English v. London, 181 Ill. 619, and the authorities therein cited.

Indeed, counsel for appellant do' not question this doctrine, but assert that under the Negotiable Instruments Act passed by the Legislature in 1907, that appellee by his contract as testified to by appellant became as a principal, and that his duties and obligations were those of the principal, and that he would not be released by reason of such extension without notice. He also insists that there was a clause in the note that provided as follows: “It is agreed by all signers of this note that no extension of payment to the principal by the receipt of interest, or otherwise, shall release us, or either of us, from the obligation of payment, and that as to the holder thereof all signers are principals”; but we do not believe that this statement in the note or the Negotiable Instruments Act has any binding force upon the appellee so as to make him liable as such principal for the reason that he did not sign the note in any way, either as principal or as surety. It is quite clear that the clause contained in the note could not be binding upon him, and the statute invoked is not binding, for section 17 (J. & A. ¶ 7657) thereof provides: “No person is liable on an instrument whose, signature does not appear thereon, except as herein otherwise expressly provided,” and we find nothing in the statute referred to in this section that does expressly provide that one who has placed a collateral with a note assumes the obligations of a principal. Even if the certificate of deposit was held as collateral security and no contract is made to bind the owner of such collateral to any greater extent, we do not see how any law could be enacted binding the party beyond his contract, but we have examined the act and find nothing in it to create such liability.

It also appears from this record that this case was tried by the court upon the theory that if the loan in question was made to Silas Towler for the. benefit of the plaintiff, that the plaintiff would not be released by any extension of the note by the payment of the interest, and appellant’s fifth instruction given by the court was to this effect; the court also modified appellee’s fourth instruction to conform to this idea, and the jury under these instructions necessarily found that no such an agreement was entered into.

The next question is, was the certificate of deposit left with appellant as collateral security for the note? The testimony of appellant tended to show that it was, and the. testimony of appellee was contradictory of appellant’s testimony and tended to show that it was not left with appellant as collateral security. There were some circumstances that tended to corroborate appellant, and others that tended to corroborate appellee, but this was after all purely a question of fact to be determined by the jury as to whether or not the certificate of deposit was placed with appellant as collateral security. The jury have found by its verdict that the appellant had no right to retain this certificate of deposit, and we know of no reason why its findings should be disturbed.

Appellant also claims that the court erred in its instructions to the jury in that it cast the burden upon the defendant, when it was incumbent upon the plaintiff to prove by a preponderance of the evidence that the release had been effected. We do not so read these instructions. Instruction 5 given for the defendant plainly tells the jury that under the pleadings it devolves upon the plaintiff to prove by a preponderance of the evidence that the certificate of deposit in controversy was released as security for the note which it was deposited to secure. Complaint is made of appellee’s fifth instruction in that it cast the burden of proof entirely upon the defendant. This was a general instruction with reference to notes or certificates of deposit, but the jury could not have been misled by it, as appellant’s fifth and other instructions were specific with reference to this particular case, and specifically advised the jury that the burden of proof in this case was upon the plaintiff.

We cannot say from this record that the verdict of the jury was manifestly against the weight of the evidence, or that the court committed any error prejudicial to appellant, and seeing no reason for disturbing the findings of the jury and the judgment of the court, the judgment of the lower court is affirmed.

Affirmed.


text:
    Lora Austin, Appellee, v. Nell Bass and James C. Harris, Appellants.
    1. Intoxicating liquobs, § 249

      —when refusal of instruction on nonliability of landlord and intoxicated tenant for death of intoxicated person at hand of tenant is erroneous. In an action under the Dramshop Act against the tenant and the owner of premises to recover for the death of plaintiff’s husband where such death occurred as the result of a shot fired by such tenant while intoxicated, and deceased also appeared to have been intoxicated, but there was controversy as to whether his intoxication was caused by the drinking of liquor sold to him hy such tenant, held that the refusal of an instruction offered “by the defendants, telling the jury that if they believed that the deceased was killed hy said tenant while she was intoxicated, and that because of her said intoxication alone she shot and killed the deceased, they should find the defendants not guilty, was error. '
    2. Intoxicating liquobs—when landlord and tenant not liable for death of intoxicated person at hand of intoxicated tenant. In an action against the tenant and the owner of premises to recover under the Draipshop Act, where the death of plaintiff’s husband was caused by a shot fired by the tenant, and both the tenant and the deceased drank liquor sold to the deceased, and also liquor sold by the tenant to a person other than the deceased, held that the sale or sales made by the tenant to the deceased could not be regarded as creating a liability, where the act complained of was caused by the intoxication of the tenant; but that a different question would arise if it should appear that the intoxication of the deceased was the cause of his death, and not direct and wilful act of the tenant.
    3. Intoxicating liquobs, § 250*—when instructions on allowance of exemplary damages in action under Dramshop Act are erroneous. In an action by a wife under the Dramshop Act to recover for loss of means of support due to death of plaintiff’s husband, instructions relating to the allowance of exemplary damages, which failed to advise the jury under what circumstances such damages could be allowed, held improper, as, in order to recover such damages, it must be shown that the sale was made under aggravating circumstances on the part of the seller.
    4. Intoxicating liquobs, § 249*—when instruction in action by

      wife for loss of means of support due to death of intoxicated husband at hand of tenant is erroneous. In an action by a wife under the Dramshop Act against the tenant and the owner of premises, to recover for loss' of means of support due to death of the husband, as the result of a shot fired by the tenant, where it appeared that the deceased and the tenant both drank liquor purchased by a third party, held that an instruction telling the jury that if, after arriving at the premises in question, the deceased was sold or given intoxicating liquor that contributed to his further intoxication, such fact would be no defense, was improper.
    5. Intoxicating liquors—when sale of liquor by tenant to person shot by tenant after drinking part of liquor sold is not producing cause of death. In an action, against the tenant and the owner of premises to recover under the Dramshop Act, where the death of plaintiff’s husband was caused by a shot fired by the tenant, and where both the tenant and the deceased drank liquor sold to the deceased, and also liquor sold by the tenant to a person other than the deceased, and where plaintiff contended that because the deceased gave one of three bottles of beer, which the tenant had sold to him, to said tenant, who drank it, such sale was a producing cause of the death of the deceased, held that after the deceased had purchased the beer from the tenant he had the right to do as he pleased with it, and that if any one was responsible for the act of the deceased in giving the tenant the beer to drink, it was the deceased, who gave it to her.
    Appeal from the City Court of Benton; the Hon. Robert E. Hickman, Judge, presiding. Heard in this court at the March term, 1917.
    Reversed and remanded.
    Opinion filed June 18, 1917.
    D. B. Reid, George B. White and Denison & Spiller, for appellants.
    Fowler & Duty, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The appellee failed to file her brief within the time prescribed by the rules of this court, and the judgment of the court could have been reversed and remanded pro forma, but, upon examining the record, we have determined to consider the case upon its merits.

The cause was submitted to a jury, and after a hearing it returned a verdict for the appellee, upon which a judgment was rendered for the amount of $1,800.

It appears from the record in this case that for some months prior to June 24, 1916, Nell Bass had been residing in a house belonging to James C. Harris, and situated in the western part of Johnston City, Williamson county, Illinois, and that for some time prior to said date she had been engaged in the business of selling intoxicating liquors at her said residence, and that as it appears from the evidence she had many customers who came there and bought and drank liquors, especially beer, very frequently. It also appears that the landlord, James C. Harris, had himself been present at times and saw and knew that drinking was going on in the house; but it further appears that a feeble effort was made by him to cause Nell Bass to be removed from the premises, but the effort made was not effective.

On June 24, 1916, at the hour of about five o’clock p. m., Bob Austin, the husband of appellee, and a man by the name of George Briscoe went to the residence of Nell Bass, and when there Austin ordered three bottles of beer, for which he paid twenty-five or thirty cents. It appears that he drank one of the bottles of beer, gave one to Briscoe, and the other to Nell Bass; that all three sat down to a table and were for some time engaged in the drinking of this beer. It further appears that Austin and Briscoe remained in the house of Nell Bass until "about eight or nine o’clock that evening, and during the whole of the time they were there different persons stated that they saw them drinking beer, some out of bottles, and some out of a bucket. It appears that some time during the evening John Sposta brought a bucket of beer from a saloon down town, and that Nell Bass, Bob Austin and George Briscoe drank out of this bucket of beer. It further appears that during the evening several persons came in to the residence of Nell Bass and purchased bottled beer for which they paid ten cents a bottle, and most of these persons saw Austin and Nell Bass drinking beer either out of bottles or out of this bucket, and two or three of them testified that along late in the evening they became somewhat intoxicated, and as the witnesses described it were “pretty full.”

It further appears from the evidence of Briscoe that he left the place about eight o’clock, and that just before leaving Austin and Nell Bass were engaged in somewhat of a quarrel; that Nell Bass had asked Aus-' tin why it was that he returned her to the grand jury for bootlegging, which he denied; that shortly thereafter she sat down in his lap "with her arm around his neck, at which time Briscoe left the room, and had not gone more than seventy steps until he heard a shot fired and Austin came running out of the house and told Briscoe that he was shot, and fell to the ground. No one saw the shooting, but Nell Bass afterwards stated that she did the shooting, and did it because she was intoxicated.

It further appears from the evidence that the appellant, Nell Bass, was running what the witnesses termed “a bootlegging joint,” and many of them said that that was the reputation of the house.

This suit was instituted by appellee to recover from Nell Bass, the tenant, and James C. Harris, the landlord, on account of the loss of her means of support by reason of the death of her husband caused by the sale of intoxicating liquor by Nellie Bass, the tenant, and permitted by Harris, the landlord, to be sold on his premises.

It is contended by counsel that the appellants are not liable because there is no evidence that shows Nell Bass sold or gave intoxicating liquor to any one who caused the death of appellee’s husband, and that the case made by the appellee does not come within the provisions of the Dramshop Act, sec. 9 (J. & A. ¶ 4609) of which provides that: “Every * * * wife, * * * who shall be injured in person, property or means of support, by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons.” It is insisted by counsel for appellants that even if the death was caused solely by the intoxication of Nell Bass, there could be no liability,' and upon the trial instruction number 8 was presented by them and refused by the court, which is as follows: “The court instructs the jury, that if you believe from the evidence in this case that the defendant, Nell Bass, on the evening or night that plaintiff’s husband, Bobert Austin, was killed, was then and there drunk or intoxicated and that because or on the account of her said intoxication, if any, alone, she shot and killed the plaintiff’s husband, Bobert Austin, then you should find the defendants both not guilty in this case?’

It is clear from the evidence that Nell Bass sold intoxicating liquor to Bob Austin, and if the jury had found that the loss of appellee’s means of support was caused by the intoxication of Austin, then a different question would have been presented, but by the refusal of this instruction, even if such loss of means of support was caused by the intoxication of Nell Bass alone, the jury could have found a verdict for the appellee, and we think the court erred in refusing the instruction.

The precise question now under consideration has never been determined so far as we have been able to ascertain by the Supreme, or any of the Appellate Courts of this State, and as presented in this case is one of first impressions. The Dramshop Act is leveled at persons selling or giving away intoxicating liquors, and as a consequence of such acts has caused a loss in property or means of support to others. In this case • Nell Bass killed Bob Austin and deprived his widow of her means of support, but was such killing caused by the selling or giving away of intoxicating liquors by Nell Bass? While it appears from the evidence that they drank considerable beer during the time that Austin was at Nell Bass's house, it does not appear very clearly what sales were made to Austin except the first beer that they drank, which was shown to have been purchased by Austin for which he paid twenty-five or thirty cents for three bottles of beer, one of which he drank, one was drunk by Briscoe and one by Nell Bass. Nell Bass sold him the three bottles of beer, then he gave one of .these bottles back to her to drink, and it is argued that this sale contributed to the intoxication of Nell Bass and Bob Austin, and was a producing cause for the death of Bob Austin. It seems to us that under the decisions of this court that after Bob Austin had purchased this beer of Nell Bass he had the right to do as he pleased with it, and he chose to give Nell Bass one of the bottles to drink, and that if any one was responsible for this it would be'Bob Austin who gave it to her.

It is said by our Supreme Court in a case where an adult had purchased liquor and given it to a minor who was at the bar and drank with the adult, that such would not be a sale or gift by the dramshop keeper, and in commenting upon this case the Supreme Court said: “It is true in such case he would be letting a minor have liquor, and if that were prohibited he would be amenable therefor, but he would neither be gelling nor giving to a minor, he would simply be selling to an adult. To illustrate: Three men step up to a bar of a saloon, and one of them calls for three glasses of beer. The barkeeper sets them out, and the person calling for them pays for them, each of the three then drinking one of the glasses óf beer. There is here, surely, only a sale to the one calling for the beer, and he, in popular language, is ‘treating’ the other two. Whether he drinks the three glasses himself, or gives one to each of the other two, or to two other persons, cannot concern the barkeeper. It is impossible that by the mere act of one person’s drinking liquor ordered and paid for by another, a liability can be imposed on the vendor, under the section before us, which would not have existed if that person had not drank.” Siegel v. People, 106 Ill. 89. And this case was in the case of City of Decatur v. Schlick, referred to and distinguished, but not in any manner criticised or overruled, but it was said in the Decatur case that as it arose under the Anti-Saloon Territory Act that a different rule applied than that invoked under the Dramshop Law. City of Decatur v. Schlick, 269 Ill. 191.

Suppose that when Austin purchased this beer of Bass he had taken it out in the street or to a neighbor’s house and given it to another person, and such person had after drinking the beer committed a depredation, or suppose that while in the house Austin after purchasing the bottle of beer had given it to a person in the house, and that upon drinking such beer such person became wild and enraged and injured another, could it be said that Ntell Bass was liable to the person so injured on account of that sale when the liquor was given to him by Austin?

Under the decisions of the Supreme Court the selling of liquor is treated as a contract, and it is said that the saloon keeper has the right to sell to whomsoever he chooses or may refuse to sell; in other words, such saloon keeper has the- right to select the persons with whom he will deal. After a careful consideration of the record in this case we are of the opinion that the sale or any sales made by Bass to Austin on that occasion could not be regarded as creating a liability where the act complained of was caused by the intoxication of Nell Bass. If it should appear from the record that the intoxication of Austin was the cause of his death and was not the direct and wilful act of Nell Bass, then a different question would arise. Shugart v. Egan, 83 Ill. 56. ,

It is also complained that the court erred in refusing to give appellant’s first, fifth and sixth'refused instructions because there was no evidence tending to sustain the allegations in those counts as to who it was who killed the deceased. While this may not have been reversible error, it was erroneous as there was no evidence sustaining these counts, as the evidence is clear that the killing was done by Nell Bass.

It is also complained that instructions 3 and 4 should not have been given as they did not advise, the jury under what circumstances exemplary damages were allowed, and we think it is the well-settled law of this State that it must be shown that the sale is made under aggravating circumstances on the part of the seller, or is wantonly or wilfully done. Kellerman v. Arnold, 71 Ill. 632.

We also think that the objection to appellee’s seventh given instruction is well taken as it advises the jury that if, after arriving at the house, the deceased was sold or given intoxicating liquor that contributed to his further or more complete intoxication, that such would be no defense in this case. It appears from the evidence that other beer was brought there, and that the deceased and Nell Bass both drank from the bucket of beer with which Nell Bass had nothing whatever to do, so far as the evidence discloses, with the purchasing, and this instruction should not have ignored such fact. Many other criticisms are made upon the instructions which we do not deem it necessary to consider at the present time as sufficient has already appeared to cause a reversal of this case.

For the reasons above given we are of the opinion that the court erred in the giving of its instructions and in rendering judgment against the appellant, and the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Higbee

text:
    Fairview Fluor-Spar & Lead Company, Appellee, v. American Security & Trust Company, Executor, Appellant.
    1. Boundaries, § 37

      —when striking of pleas is proper. In a statutory proceeding to establish a boundary line "and corners, where the defendant complained of striking of his pleas from the files, held that the proceeding was purely statutory, and that as the statute did not contemplate the filing of pleas, the striking of the pleas in question was not error.
    2. Boundaries, § 37*—when filing of amended petition is discretionary. In a statutory proceeding to establish a boundary line and corners, where the defendant complained of the giving of leave to file an amended petition, held that as the original petition, in substance, contained all the statutory requirements and was therefore sufficient to confer jurisdiction, the filing of an amended petition was discretionary.
    3. Boundaries, § 37*—what is effect of failing to abide by demurrer. By failing to abide by a demurrer to a petition in a proceeding to establish boundaries, a party is precluded from raising objections to the giving of leave to file an amended petition.
    4. Boundaries, § 40*—when allowance of amendment to commissioners’ report is not an abuse of discretion. In a statutory proceeding to establish a boundary line and corners, where the court permitted an amendment to be made to the commissioners’ report stating that although the comer in question had never been marked by stake or monument by the original surveys, it was established by the government surveyors in accordance with the rule established for locating closing corners, which was to locate them midway between the section corners, held that, as the amendment was simply a clearer statement of what the commissioners intended to say in the original report, the allowance of the amendment was no abuse of discretion. '
    5. Boundaries, § 40*—when legality of report of commissioners is not affected by absence of commissioner. In a statutory pro)ceeding to establish a boundary line and corners, where the defendant complained of the absence on one day of one of the members of the commission, held that as such member assisted in locating the corner in question and approved what the others did in his absence, the legality of the report was not affected by such absence.
    6. Officers—what construction given words purporting to give joint authority to three or more persons. Words in a statute purporting to give a joint authority to three or more public officers or other persons are to be construed as giving such authority to a majority of such officers or persons. ,
    7. Boundaries, § 38*—when evidence is sufficient to show establishment of corner. In a statutory proceeding to establish a boundary line and corners, where the defendant contended that the evidence failed to disclose that the corner in question was ever an established corner under the statute, held that government plats showing that the corners were established and marked by the government surveyors, and showing the corners in question, were sufficient to make the corner in dispute an established corner as contemplated by the statute.
    8. Judgment, § 232*—what is not entry of judgment rendered at previous term. In a statutory proceeding to locate a boundary line and corners, where the presiding judge entered the judgment according to the directions of the judge before whom the case was tried, held that this was not the entering of a judgment rendered at a previous term, but the rendering and entering of a judgment which had been taken under advisement by the other judge.
    9. Boundaries, § 45

      —when objection as to disqualification of commissioner is too late. In a statutory proceeding to locate a boundary and corners, where the defendant complained that one of the members was not disinterested, and where it appeared that such member had at one time assisted in surveying the corner in dispute for the defendant, held that the defendant was precluded from making the objection, as he failed to object at the time of the appointment of such member.
    Appeal from the Circuit Court of Hardin county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.
    Charles Durfee and J. E. Denton, for appellant.
    Eliot, Chaplin, Blayney & Bedal, James A. Watson and J. Q. A. Ledbetter, for appellee.

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

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

   Mr. Justice Higbee

delivered the opinion of the court.

On February 22, 1912, appellee, Fairview FluorSpar & Lead Company, a corporation, filed its petition in the Circuit Court of Hardin county, alleging its ownership of certain lands in that county and describing the eastern boundary and corners thereof, and further alleging that such boundary was in dispute and said corners lost; that John B. McLean was the owner of the lands adjoining such boundary and comers on the east and refused to enter into an agreement to establish said line and corners as provided by law, and asking that a commission of surveyors be appointed to make a survey of and permanently establish such boundary line and comers. After the filing of the petition the death of the defendant John B. McLean was suggested and American Security & Trust Company, his executor, was named as defendant and is appellant here. Appellant filed a general and special demurrer to this petition, alleging specially that the boundary line and comers of the lands of respondent to be affected were not described with sufficient legal certainty. This demurrer was overruled. Appellant then filed six pleas and afterwards four additional pleas, denying the allegations in the petition and setting np some new matter. On September 2, 1912, all these pleas upon motion of appellee were stricken from the files upon the ground that no rule of law or practice authorized the filing of pleas in such cases. September 4, 1912, appellee filed an amended petition alleging itself to be the owner of “the southwest quarter of Section thirty-two (32), Township twelve (12) south, Range eight (8) east, in said county of Hardin”; “that the southeast comer thereof is in dispute and the said comer as established and located by the United States Government has been lost and destroyed and is now in dispute”; that appellant was the owner of the land adjoining said comer or adjacent thereto, and refused to enter into an agreement for the appointment of a commission of surveyors to re-establish such corner. Appellant filed a motion to dismiss this amended petition on the grounds it was not an amended petition and that sufficient notice had not been given. An amendment to the amended petition was filed setting forth the giving of notice to appellant of the application for a commission.

Appellant filed two pleas denying the averments of the petition as finally amended. These pleas were also stricken from the files on motion of appellee. At the September term, 1912, the court, over the objections of appellant, appointed W. M. Ball, H. M. Winders and G. H. Brown as a commission of surveyors to establish the comer in question. This commission submitted its report at the March term, 1913. Appellant filed a motion to dismiss the petition for the want of jurisdiction as it was shown by the report that the corner in dispute had never been established by the government. On motion of appellee, leave was granted to amend the report, which was done, and the motion to dismiss overruled. The case was continued from term to term until February 2, 1914, when appellant filed twelve objections to the report and later, on February 8th, also moved to vacate the order appointing the commission on the ground he had been denied the right to controvert the allegations in the amended petition, which motion was overruled. It was agreed that a jury be waived and cause heard by the court. At the November term, 1915, the cause came up for hearing before Judge Charles H. Miller, who heard the evidence and took the case under advisement. At the March term, 1916, Judge Julius C. Kern, the then presiding judge, entered final judgment approving the report of the commission, the judgment reciting: “By direction of said Hon. C. H. Miller, the findings and judgment of said Judge C. H. Miller are, on this the 28th day of March, A. D. 1916, being one of the regular court days of the above-styled term of this court, entered herein by the Presiding Judge of this court at this term, viz.: Hon. J. C. Kern, as follows, to wit:” etc.

At the close of the testimony the court on motion of appellee held as a matter of law “that the southeast corner of the southwest quarter of Section thirty-two (32), Township twelve (12), Range eight (8) east, is an established government corner, and one which, if lost or in dispute, the petitioner is entitled to have permanently re-established and located,” and “that the petitioner and respondent, being the owner of all the land adjacent to or adjoining the corner in dispute, are the only necessary parties to this suit.” The argument for appellant is devoted to discussing the sufficiency of the petition; the action of the trial court in overruling his demurrers and striking his pleas and permitting appellee to file the amended petition; the sufficiency of the commission’s report and the amending of the same; the manner in which the commission proceeded to make the survey; the fact that one member of the commission was absent one day; the question whether one member of the commission was disinterested; the claim that the evidence does not disclose that the corner in question was established by the government and the rendering and entering of the judgment by Judge Kern.

The original petition may not have been accurately drawn, but it, in substance, contained, all the statutory requirements and was therefore sufficient to confer jurisdiction. The filing of the amended petition was then a matter within the discretion of the court, and that discretion does not seem to have been abused. In any event, appellant having failed to abide the demurrer to the original petition, and, having filed objections to the commission’s report, is now in no position to raise this question. This is purely a statutory proceeding, and the statute governing it does not appear to contemplate the filing of any pleas. Section 13, ch. 133, Hurd’s Rev. St. 1916 (J. & A. ¶ 11145) provides: “Upon the filing of proper petition and proof of due notice as aforesaid, the said court shall appoint a commission of three surveyors,” and section 14 (J & A. ¶ 11146) of the same chapter reads: “Upon the filing of said report, any person whose interest may be affected by said survey shall be at liberty to enter his objections to said report, and the court shall hear and determine said objections.” The courts of this State have held that in a proceeding of eminent domain it is not proper to file pleas, and if pleas are filed it is proper to strike same from the files on motion. Smith v. Chicago & W. I. R. Co., 105 Ill. 511. The record shows that at the September term, 1914, leave was given appellant to file pleas, which he failed to do. All points raised by the pleas were raised by the objections to the commission’s report or covered by the stipulation filed, and while it appears to us the court might properly have permitted the pleas to remain on file, yet appellant was not in any way harmed by the striking of them from the files and no error was committed by the court in so doing.

The commission’s report as filed contained the following: “This corner having never been established or marked by a stake, by the original surveys, either of the township or range lines, nor the subdivision of the township, it should be established in accordance with the rule established for locating closing comers, which is to locate them midway between the section corners.” The court allowed that part of the report to be amended to read: “Although this comer had never been marked by stake or monument by the original surveys, either of the township or range line, nor the subdivisions of the township, it was established by the government surveyors in accordance with the rule established for locating closing corners, which is to locate them midway between the section corners.” To the making of this amendment appellant earnestly objected. It is evident, however, from a reading of the report and a consideration of the testimony that the amendment is simply a clearer statement of what the commission intended to say by the language of the original report. This amendment was no' abuse of the court’s discretion under the liberal construction given the statute on amendments and jeofails by our courts and, as amended, was sufficient to support the judgment.

From the record it appears the commission proceeded to establish the comer in question in accordance with the manner prescribed by the statute. The location of the southwest comer of Section 82, as established by the government survey, was known and not disputed. From this corner the commission proceeded to locate the southeast comer of the Section as shown by notes on the government plat. The location of the corner in dispute was then simply a matter of locating the point midway between these two section corners. This the commission did, and then verified the same by reference to other points, plats and surveys. Even though some of their acts with reference to the other points, plats and surveys were not strictly such as contemplated by the statute, yet such acts tended to confirm the location of the corner as fixed by them, with reference to the two section corners.

The fact that one member of the commission, Mr. Brown, did not take any part in one day’s work, in no way affects the legality of the report. He did assist in locating the southeast corner of Section 32, the one point necessary to be established in order to fix the location of the corner in question, and approved of what the other members did the day he was absent. The report was signed by all three members of the commission, but had it been signed by only two members thereof it would have been sufficient. Paragraph 9, sec. 1, ch. 131, Hurd’s Rev. St. 1916 (J. & A. ¶ 11102), provides: “Words purporting to give a joint authority to three or more public officers or other persons shall be construed as giving such authority to a majority of such officers or persons.”

Counsel for appellant contend the evidence does not disclose that the southeast comer of the southwest quarter of Section 32 was ever an established comer under the language of the statute. It is true the evidence does not disclose that the government surveyors in making the original survey physically located this particular comer by driving a stake or otherwise. The government plats introduced in evidence do show, however, that the southeast and southwest , corners of this Section were established and marked by the government surveyors, and such plats show the comer in question. This is sufficient to make the corner in dispute an “established” comer as contemplated by the Illinois statute. Section 2396, Revised Statutes of the United States, provides: “All thé corners marked in the surveys returned by the surveyor-general shall be established as the proper comers of sections, or subdivisions of sections, which they were intended to designate; and the corners of half and quarter sections not marked on the surveys shall be placed as nearly as possible equidistant from two corners which stand on the same line.” The quarter section corners of Section 32, after the exterior corners of that section had been established, were as well established comers and as much used in the conveyance of the land, even though not actually marked, as such exterior corners. Nothing appears from the record to support the contention of appellant that Mr. Hall, one of the members of the commission, was not a disinterested party. On the contrary, it does appear that he at one time assisted in making a survey to locate the comer in dispute for appellant, and knowing what was done by him at that time, appellant made no objection to his appointment upon this commission.

It was not error for Judge Kern, the presiding judge, to enter the judgment according to the directions of Judge Miller, before whom the case was tried. This was not the entering of a judgment rendered at a previous term, but was the rendering and entering of the judgment in the case, which had been taken under advisement by Judge Miller. It is provided by our Revised Statutes (chapter 7, sec. 6, subsec. 13, Hurd’s 1916, J. & A. ¶ 305) that judgment shall not be arrested, stayed, reversed, impaired or in any way affected for any informality in entering the same or making up the record thereof. "While the entry as made was somewhat informal, it appears to us that, it is just such informalities as this that the statute is designed to meet. The commission appearing to have proceeded in accordance with the statute, and no material error appearing on the record, the judgment should and will be affirmed.

Affirmed.


text:
    Maggie Bier Wagner et al., Plaintiffs in Error, v. Ben M. Maxey et al., Defendants in Error.

      (Not to be reported in full.)
    Abstract of the Decision.
    1. Equity, § 41

      —when jurisdiction not exercised because. of adequate remedy at law. On a bill seeking to set aside an award of prizes and praying that a new award be made, where it appeared that one of the defendants, as the publisher of a newspaper, had offered prizes to persons obtaining the largest number of subscriptions, and where the bill charged that the award was fraudulent, and where it appeared that the prizes had been delivered and that the most that could be obtained was a money judgment, held that the remedy was at law and not in equity, and that the decree dismissing the bill for want of equity should be affirmed.
    2. Specific performance, § 4*—when not decreed of contract

      relating to personalty. Equity will not decree the specific performance of a contract which relates to personalty, where compensation in damages furnishes a complete and satisfactory remedy.

      Error to the Circuit Court of Clay county; the Hon. James C. McBride, Judge, presiding. Heard in this court at the March term, 1917.
    Affirmed.
    Opinion filed June 18, 1917.
    Statement of the Case.
    Bill by Charles H. Greenwood, Mae Kurr and Maggie Bier Wagner, complainants, against Ben M. Maxey and Charles Austen and others, defendants, to set aside an award of prizes and praying that a new award be made. From a decree dismissing the bill for want of equity, complainants bring error.
    Kagy & Vandervort, for plaintiffs in error.
    James H. Smith and John L. Boyles, for defendants in error.

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

   Mr. Justice Higbee

delivered the opinion of the court.

3. Equity, § 50*—when mil not exercise jurisdiction. Courts of equity do not sit for the purpose of entertaining bills, the only object of which is to secure damages.

McBride, J., having tried this case as chancellor in the court below, took no part upon the hearing here.