text:
    William Richards, Defendant in Error, v. Charles Adams, Plaintiff in Error.

      Verdicts—when not disturbed as against the evidence. A verdict "will not be set aside on review as against the evidence where not clearly and manifestly against its weight.
    Action in case for personal injuries, Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    A. M. Fitzgerald, for plaintiff in error; Roy M. Seeley, Timothy McGrath and Gillespie & Fitzgerald, of counsel.
    John C. Snigg and John P. Snigg, for defendant in error.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by defendant in error, by his next friend, against Charles Adams, plaintiff in error, to recover damages for an injury inflicted upon defendant in error by a gunshot fired by plaintiff in error while a member of the police force of the city of Springfield, in an attempt to arrest defendant in error. Trial helow resulted in a judgment against plaintiff in error for $800, and it is to reverse that judgment that this appeal is prosecuted.

The record discloses that during the night of May 20, 1909, information was received by the police department of the city of Springfield from the sheriff of Morgan county, Illinois, that five prisoners had broken jail, that they were under indictment in Morgán county for felonies, and the police department of the city of Springfield was requested by the sheriff of Morgan county to assist in apprehending these fugitives'. Shortly after the jail delivery in Morgan county, a train on the Wabash Bailroad left Jacksonville for Springfield ; it was a through train and made no stops between Jacksonville and Springfield. Upon receipt of the information in Springfield, Sutton, the night sergeant, proceeded to the yards of the Wahash Bailroad in the south part of the city, there met plaintiff in error, Adams, and one Morgan, another police officer of the city of Springfield. The night sergeant requested Morgan and Adams to meet the Wabash train then expected from Jacksonville, to make a search of the train, and arrest all suspicious characters found. A train of about thirty cars soon approached and at a junction near Tenth and Eighth streets the train stopped. Search was made by Patrolman Morgan and defendant Adams of the box cars; after this search they separated; Morgan proceeded to the rear of the train and Adams boarded the train near the front end. After he had proceeded on top of the cars a short distance lie saw defendant in error Bichards and a companion, Bauth, walking towards the engine at the side of the train. Adams immediately called to them to stop and started to get off the train. His command to stop was unheeded; defendant in error and his companion started on a run towards the rear of the train. After reaching the ground, plaintiff in error fired a number of shots, as he says, into the air in an endeavor to cause defendant in error and his companion to stop; while they were still running from him he fired the fifth and last shot in his revolver, as he says, into the ground. If the shot was fired into the ground, the bullet deflected and struck Adams in the small of the back; he was then a considerable distance in front of plaintiff in error. Defendant in error stumbled and fell; plaintiff in error paid no attention to him but continued after his companion who proceeded to the rear end of the train where the other patrolman Morgan had gone. Morgan finally captured Bauth, the companion of defendant in error; they then proceeded to the point where defendant in error had fallen, but he had disappeared; he had recovered sufficiently to proceed to the home of his sister in the eastern part of Springfield, where he was intending to go when first accosted by plaintiff in error. Hpon reaching his sister’s home Dr. Walters was called, defendant in error was taken to the hospital where he was attended by Dr. Walters for about three weeks; the bullet was not removed from his body.

The right of recovery in this case is based upon charges of negligence on the part of the police officer Adams in using more force, than was necessary to make an arrest and that there was no reasonable cause to believe t-hat defendant in error was guilty of committing a felony. The defense made by plaintiff in error is that being a regularly commissioned police officer of the city of Springfield, from the information which he had received, there was reasonable ground for guspecting that defendant in error was guilty of having committed a felony, that hy reason thereof he was justified in attempting to make .the arrest without a warrant and that he used no more force than was reasonably necessary in making the arrest. There are no questions of law raised upon this record, it being conceded by defendant in error that if a felony had been committed and plaintiff in error had reasonably sufficient grounds for the belief that defendant in error was guilty of having committed a felony then plaintiff in error was justified in attempting to make the arrest. It is also conceded by defendant in error that if these conditions existed and the arrest was made with the use of no more force than was reasonably necessary to accomplish it, then there is no liability on the part of plaintiff in error. These questions raised were questions of fact, and it was the duty of the jury to determine them from all of the evidence in the case; by their verdict they have found these facts contrary to the contention of plaintiff in error.

Plaintiff in error did not know that either defendant in error or his companion had been upon that train, he merely suspected it from their being there at that time. Defendant in error explains the running of himself and companion by saying that they did not know plaintiff in error was an officer, that he alighted from the train near them and commanded them to stop, that they were in a lonely part of Springfield, had just returned from a long trip in the west in search of work, that they became frightened and ran from plaintiff in error.

Upon the question of the use of more force than was reasonably necessary it is contended by defendant in error that the plaintiff in error knew that his co-officer, Patrolman Morgan, was at or near the rear end of the train, the place towards which defendant in error and his companion were running, and it was Morgan who finally captured Bauth, the companion of defendant in error, and that plaintiff in error should have known or had reason to believe that Morgan would apprehend the parties when they arrived at the rear end of the train, and there was no necessity for using his gun.

A majority of the court hold that the .evidence warrants and sustains the finding of the jury and that it should not be disturbed.

It is insisted by plaintiff in error that the court erred in modifying instructions offered by him. After a careful examination of these instructions we find the modifications were proper, and that no error was made therein by the trial court.

There being no reversible error in this record, judgment below is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Philbrick

license: Public Domain

text:
    Commissioners of Highways of Oakwood Township, Vermilion County, Appellees, v. Drainage Commissioners of Union Drainage District No. 1, Appellants.
    1. Roads and bridges-—power of commissioners to institute suit. Commissioner of highways are authorized to institute suit to prevent irreparable injury to or permit obstruction of the highways under their supervision and control without procuring authority so to do from the town at the annual town meeting.
    2. Roads and bridges-—who proper plaintiffs in action by highway commissioners. It is not the town, but the commissioners, who are the proper plaintiffs in an action to prevent injury to or obstruction of highways.
    3. Injunctions—when lie against drainage commissioners. Injunction lies to restrain drainage commissioners from the permanent obstruction or impairment of a public highway.
    4. Injunctions—when granting of mandatory, erroneous. It is error to grant a mandatory injunction upon an original bill based on facts and conditions which did not exist at the time of the filing of the bill. A prayer for a mandatory injunction likewise is essential to its proper granting.
    Bill for injunction. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed in part and affirmed in part.
    Opinion filed May 26, 1911.
    J. L. Ray, for appellants.

      Swallow & Swallow and Rearick & Meeks, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

Union Drainage District No. 1, town of Ogden, Champaign county, town of Oakwood, Vermilion county, was organized for the purpose of draining farm lands within these townships. The drainage commissioners laid out and contracted for certain work. This work required the enlarging of certain ditches across the highways of the town of Oakwood, Vermilion county. The prosecution and completion of this work required that the bridges then constructed across these ditches should be removed, and the work contemplated and contracted for so enlarged the ditches that at various places the bridges which were formerly in use became useless and the work required the building of new bridges across these ditches upon the public highways. The defendants, the drainage commissioners, insist that it was no part of their duty to rebuild or replace these bridges, that when they constructed their ditches across the public highway in the town of Oakwood it was the duty of the highway commissioners to rebuild these bridges where necessary, or to replace the old ones.

The bill filed by complainants charges the enlarging of the ditches and the necessity for building new bridges and that the defendants, the drainage commissioners, openly declared that it was not their duty and that they would not replace any of these bridges. Defendants admit that the allegations in the bill are true so far as their intentions to tear down and remove these bridges and the declarations of their intention not to replace them. The bill was filed for the purpose of restraining the removal of the bridges until due compensation had been made to the commissioners of highways sufficient to replace or rebuild whatever bridges were só removed by the drainage commissioners. ISTo temporary injunction was sued out or granted, but the bill proceeded to a final hearing without a. temporary injunction. By the time the final hearing was had, some of the bridges had been removed and the chancellor held that it was the duty of the drainage commissioners to replace these bridges and granted a mandatory writ of injunction commanding them to replace the bridges so removed and that the removal of other bridges be restrained until due compensation be made therefor, and it is to reverse that decree that this appeal is prosecuted.

It is insisted by the defendants that the suit is, improperly brought in the name of the highway commissioners, and that before any suit could be brought it was necessary that the suit should have been authorized by the legal voters of the town of Oalcwood at their annual meeting. The commissioners of highways of the town of Oalcwood are given supervision and control over the public highways of the town; it is their duty to care for, repair and see that they are properly maintained for the use of the public, and it is not necessary before action may be brought by them for the purpose of preventing irreparable injury to or permanent obstruction of the highways that they should secure authority to so do from the town at the annual town meeting. The suit is not brought and could not be brought in the name of the township. Complainants are authorized to sue and be sued as commissioners of highways of the town of Oalcwood and, when necessary, it becomes their duty to properly protect the highways by resort to legal proceedings. Defendants also insist that these ditches were natural watercourses across the highways and it was the duty of the highway commissioners to provide bridges and to keep and maintain them across the natural watercourses crossing highways. The record discloses that these ditches are not natural watercourses but are artificial drains, constructed by the drainage commissioners; that they were originally constructed prior to the organization of the drainage district, but that the drainage district has acquired jurisdiction over them. The work on the ditches done and contracted for by the drainage commissioners is for the benefit of the district, and it is their duty to so construct them as not to permanently injure or impair the public use of the highways, and the chancellor correctly found that the work contemplated and contracted for by these commissioners was a permanent obstruction and impairment of the use of the public highways, and where such conditions arise and permanent obstruction or impairment of the public highway is threatened or attempted, a court of equity has jurisdiction and will interfere to prevent same. Smith v. McDowell, 148 Ill. 51; Roloson v. Barnett, 243 Ill. 130; Nelson v. Randolph, 222 Ill. 531; Craig v. People, 47 Ill. 487.

At the time of the filing of the bill the bridges had not been removed or the work contemplated performed, and the bill does not contain a prayer for a mandatory injunction. The bridges were removed after the filing of the bill and no temporary injunction having been granted, although the bill contained a general prayer for relief, the conditions existing at the time of the filing of the bill were not sufficient to warrant the court in decreeing a mandatory injunction for the restoration of the bridges destroyed or removed pendente lite. This could only have been properly granted upon the filing of a supplemental bill. While a mandatory injunction is rarely granted, and then only for the purpose of carrying out the decree of the court, it has been used for the purpose of compelling the restoration of certain rights where the court by its decree has prevented the continuation of certain conditions which will deprive a party of his right to have certain conditions existing before that time continued. 181 Ill. 378. In Earl v. De Hart, 12 N. J. Eq. 280, a mandatory injunction was granted to enjoin and restrain defendants from permitting the channel of a watercourse to remain filled up and obstructed, and the court found that the complainant was entitled to have the obstruction removed. In Corning v. T. I. & N. F., 40 N. T. 191, a mandatory injunction was granted, compelling the restoration of running water to its natural channel.

A mandatory injunction will properly issue for the purpose of compelling restoration of an easement or use of the public in a public highway to its natural condition for use and travel; but it was error in this case to grant a mandatory injunction upon the original hill .upon facts and conditions which did not exist at the time of the filing of the bill. The complainants should have filed a supplemental bill, setting up the conditions occurring after the filing of the original hill, making a specific prayer for a mandatory injunction.

It being the duty of the drainage commissioners to rebuild bridges on the public highways where artificial drains are constructed across the same and defendants herein having publicly and openly avowed that they would not do this and it was no part of their duty, the court did not err in directing that they should make due and just compensation for the damages required to be caused by the performance of the work which the drainage commissioners contemplated and had contracted for.

There being no error in the decree except that portion granting a mandatory injunction, the decree rendered by the chancellor will be modified by the elimination of that portion granting the mandatory injunction compelling the drainage commissioners to restore the bridges, and in all other respects the decree will be affirmed.

Reversed in part and affirmed in part.


text:
    Emeline Bacon et al., Appellees, v. The Peoria & Eastern Railway Company, Appellant.
    1. Pasties—when joint action of damages may be maintained. An action to recover damages for the destruction of an elevator building may be maintained jointly by the owner of the fee and the owner of a life estate in the land on which the elevator building is erected.
    2. Railroads—what proof not essential to recover damages resulting from destruction by fire communicated by passing engine. Actual possession by the plaintiff owners need not be proven in order to sustain a recovery; possession by a tenant is sufficient.
    3. Evidence—when ownership of railroad sufficiently established. In an action for damages for loss occasioned by the destruction of property by fire communicated by a passing engine, held, that the marking of the cars, etc., was sufficient prima facie evidence of ownership.
    Action in case. Appeal from the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    George B. Gillespie, for appellant; L. J. Hackney, Gillespie & Fitzgerald and Prettymae, Velde & Prettyman, of counsel.
    W. R. Currar and William A. Potts, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

Defendant, Peoria & Eastern Railway Co., owned a line of railroad between Peoria, Illinois, and Indianapolis, Indiana. On the south of a stub switch in the village of Lily in the county of Tazewell was located an elevator; on the afternoon of May 19, 1905, this elevator was burned. This action is brought by plaintiffs against defendant to recover for the loss of the elevator, alleging that its loss occurred by reason of negligence on the part of defendant in the use and operation of a certain train which passed this elevator at about one o’clock in the afternoon of May 19, 1905. The negligence alleged consists in not having the engine of this train equipped with the latest and most approved appliances for arresting and preventing the escape of fire and sparks; also that the engine was not in charge of a competent and skillful engineer and fireman, and that the engine was not properly and skillfully handled by the engineer and fireman in charge, and by reason thereof fire escaped and caused the burning of the elevator. The train was going east; the wind was blowing from the north; the fire was noticed in the cupalo of the elevator twenty to twenty-five minutes after this train had passed, and it is conceded by defendant that the evidence is sufficient to warrant the finding that the fire was caused by sparks escaping from the engine of this train, but it is insisted by defendant that it is not liable for the reason that the engine was equipped with the latest and most approved machinery and appliances for arresting the escape of fire and sparks; that the engine was handled by competent and skillful employees, and that it was handled by them in a skillful and proper manner. Defendant also contends that the declaration alleging'the ownership of the elevator is not proven; that the evidence fails to show negligence hy the defendant; that the railroad was operated hy a lessee; that there is no proof of the allegations of joint ownership,, and that the court erred in the admission and rejection of evidence and in giving and refusing of instructions.

The declaration in the various counts alleges ownership of the farm land adjoining the right of way of this railroad, extending on either side, and that the elevator is located upon the land described in the various counts of the declaration.

Upon the question of the proof of ownership, it is proven that the land was owned by one Edward H. Bacon in his lifetime; that by his will he devised a life estate to his widow, one of the plaintiffs, with the remainder in fee to his son, the other plaintiff, but it is insisted by defendant that this does not show such ownership as will warrant a recovery in a joint action and that there is variance between the allegations and the proof. Mrs. Bacon, surviving widow, owns a life estate; at the expiration of her estate the property then becomes absolute in the devisee, Edward H. Bacon.

This action is to recover damage to both plaintiffs by the loss of the elevator, and the proof that the son owned the fee, subject to the life estate of the mother, is sufficient to entitle them to maintain a joint action, and there is no variance between the allegations and the proof; the judgment being for the entire loss, whatever division may be made of the judgment hy plaintiffs does not concern the defendant. The evidence discloses that the elevator at the time of the loss was in the possession of a tenant under lease and it is insisted by reason thereof that the allegations of possession on the part of the plaintiffs is not proven; it is not necessary that the proof should show actual possession by plaintiffs in error; the property was in their possession although occupied by a tenant, the possession of the tenant being that of a landlord.

The evidence offered by defendant to which objections were sustained by the court, and the evidence to which objections were made by defendant and overruled by the court, consisted in the offer by defendant of a so-called or pretended condemnation proceeding by a railroad described therein as the D. U. B. & P. Railroad. The condemnation was had under a statute then in force relating to condemnation of property at that time. The court sustained objections to the offer of this condemnation proceeding and properly so for the reason that there was no attempt and no offer made to show that the defendant herein was the successor to the rights of that railroad in the condemnation proceedings; also because there was not sufficient showing of notice of that condemnation proceeding to obtain jurisdiction of Edward H. Bacon or Sarah Bacon as parties thereto. The evidence admitted by the court over objections of defendant consisted of certain tax receipts offered by plaintiffs showing the payment of taxes for the last twenty-five years or more. Defendant insists that there was no proof that the party signing these receipts was a tax collector or that the taxes were paid by the parties named in the receipts. While this may have been the rule of evidence in common law the statute now provides that these receipts shall be admissible as evidence and be prima facie evidence that the taxes were paid by the parties therein named. Stacey v. Randall, 17 Ill. 466; section 163, page 103, Rev. Statutes, 1874; Walcott v. Gibbs, 97 Ill. 118.

Upon the contention that there is no proof that defendant was owner of this railroad or that it was operated by the C. C. C. & St. L. (Big Eour) as lessee, the fact of the agents being employed by the Big Eour Railroad and that the stationery and literature used in the operation of the railroad described the property as being the property of the P. & E. and the Big Eour as lessee and that the cars of the road were variously marked so as to indicate ownership, was sufficient prima facie proof to establish these facts, and there is no attempt on the part of defendants to contradict any of those facts.

It is insisted that Instruction Humber 1 given on behalf of plaintiffs is erroneous, in that it is an abstract proposition of law and has no application to the facts in this case? that it assumes that the plaintiffs were owners of the premises.

The evidence establishes the fact that plaintiffs were the owners of this property and there is no evidence in the record that contradicts in any manner their ownership or right therein, and under this condition of the record the assumption of ownership in the instruction, even if the contention of'defendant is correct, in no manner harms defendant. Defendant criticises given instructions Humber 4, 5, 7, 8, and 9, given on behalf of plaintiffs;' we are satisfied, upon examination of these instructions, that they are not subject to the criticism made.

Upon the question of the engine being equipped with the latest and most approved pattern and design of machinery for preventing and arresting the escape of fire, the evidence of defendant is in accord with this contention, but upon the question as to whether or not the engine was handled and operated in a skillful, careful, and proper manner by servants in charge was a question for the jury upon conflicting evidence regarding this contention, and we are satisfied that the jury was warranted in finding as it did that the engine was not carefully and skillfully handled. It is insisted, however, that there is no evidence contradicting the evidence of defendant that the engine was handled with due care. The evidence adduced by plaintiff upon this question showed that the engine was being heavily fired, that dense clouds of black smoke were escaping and that in this smoke was seen a considerable number of live sparks. With this evidence in the record it cannot be said there is no evidence contradicting the evidence offered by defendant upon this question.

There being no reversible error in this record, the judgment is affirmed.

Motion to re-tax costs of additional abstract to appellant is denied,

Affirmed.


text:
    Benjamin Buckman, Appellee, v. John N. Watts, Appellant.

      Fences—act of 1874 construed. The act of 1889 in regard to division fences was an amendment of the act of 1874 and became a part of the act of 1874 the same as though originally incorporated therein, and the notice provision of the act of 1874 became applicable to the mandatory portion engrafted by the 1889 act.
    Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Rehearing denied June 19, 1911.
    Stevens & Bradford and C. F. Mortimer, for appellant.
    Hamilton & Catron, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Benjamin Buckman was owner of 40 acres of land; adjoining his land on the north, east and south, was the land of John IT. Watts. Upon the north and east lines were division fences of growing hedge. The hedge on the north line between their lands had been permitted to grow without trimming for fifteen to twenty years, and on the east line for twenty-five or thirty years. By agreement between Buck-man and Watts, the west half of the hedge between them on the north was allotted to Buckman as his portion of the division fence, and the east half to Watts; the north half of the hedge on the east line between them was allotted to Watts as his portion of the division, the south half to Buck-man. In the year 1905 between January 1 and May 19, Buckman trimmed or cut down the hedge upon his part of this division fence. After Buckman had done this he served Watts with the following notice:

“To John FT. Watts-—I hereby give you ten (10) days notice to cut and trim your hedge fences on the south, east and north line of the northwest quarter of the southeast quarter of section twenty-four (24) township sixteen (16) north, range seven (7) west gf the third Principal Meridian, in the county of Sangamon and State of Illinois, as provided by an act of the Legislature of said State, entitled ‘An Act to revise the law in relation to fences,’ approved March 21, 1874, in force July 1, 1874; and in case you fail or refuse to comply with the provisions of said act, I shall cut and trim said hedges and hold you liable for the costs and damages of such cutting and trimming. Benj. Buckman.”

Watts did not comply with this notice and on August 3, Buckman proceeded to trim the hedge and now seeks to recover the cost thereof according to section 3, chapter 54, Hurd’s Revised Statutes, 1905.:

“When two or more persons shall have lands adjoining, each of them shall make and maintain a just proportion of the division fence between them, and if said fence shall bo a hedge fence, then the owner or owners of such hedge fence shall, during the year after such hedge has attained the ago of seven years, cut back or trim such hedge fence to a height not to exceed four feet, and shall at least once in every two years thereafter, cut back or trim such hedge fence to the height of five feet: Provided, that the provisions of this section shall not apply to any hedge fence protecting either an orchard or building or wind-break, not to exceed thirty rods. If the owner or owners of such hedge fence shall fail or refuse to comply with the provisions of this act, on or before the fifteenth day of June in the year that said hedge should be cut or trimmed, any one of the owners of such division fence having complied with the provisions of this act may give the owner or owners, or their agents, of any such uncut or untrimmed hedge, ten days notice, in writing to cut or trim such hedge. And should the owner or owners, or their agents so notified fail or refuse to comply with said act it shall be lawful for the person giving said notice to cut or trim or cause to be cut or trimmed, in accordance with law, and the cost and damage of cutting or trimming such hedge may be recovered off of the owner or owners of such hedge before a justice of the peace or any court of competent jurisdiction.”

Watts in defense insists that no-sufficient notice was given; also that prior to the year 1905 both parties having permitted the hedge to grow without trimming and Buckman having trimmed his during the fore part of the year 1905, that Watts, under the statute, had until June 15 of that year in which to trim his hedge before he could be in default and that service of notice on Watts prior to June 15 is not authorized and was of no effect; also that the hedge was trimmed by Buclcman to a height of less than 4 feet and that by reason thereof Watts was damaged, and that he desired to maintain the north 30 rods of the east line hedge as a wind-break and was damaged by reason of the destruction of the windbreak and claims the right to recoup such damages under the plea of general issue.

Upon the trial, the jury returned a verdict for the plaintiff upon which judgment was rendered for $17.08, from which this appeal is prosecuted.

It is insisted by appellant that the act of 1874 relating to fences contained no provision regarding division fences, that the provisions of the law relating to division fences was not passed until 1889 and is therefore no part of the act of 1874, and as the notice refers to the statute of 1874 it cannot be considered as a notice under the law of 1889. The act of 1889 was an amendment to the act of 1874 and then became a part of the act of 1874 the same as though originally incorporated therein. Black on Interpretation of Laws, sec. 131; Village of Melrose Park v. Dunnebecke, 210 Ill. 422— 432.

Upon the question of the right to recoup damages under the general issue, the trial court properly admitted the evidence of defendant upon this question and this evidence went to the jury for their determination and under the pleadings and the evidence the question of the measure of such damage was submitted to the jury and determined by them by their verdict.

The questions of fact involved in this case as to whether the hedge was a division fence, and whether the various portions had been allotted to plaintiff and defendant to be maintained by them, and whether plaintiff cut or trimmed his portion of the fence, and whether or not there was a failure on the part of defendant to trim or cut his portion as required by the statute, and whether defendant desired to keep and maintain the north 30 rods of the east line as a windbreak and had given plaintiff notice thereof, and whether plaintiff trimmed defendant’s portion of the hedge to a height of -less than 4 feet and if so whether any damage was occasioned thereby, were all questions of fact for the determination of the jury upon the consideration of all the evidence in the case and the jury by its verdict determined these issues in favor of the plaintiff, and unless their verdict is clearly and manifestly against the weight of the evidence it should not be disturbed by this court.

Upon the contention of defendant that the trimming of the hedge by plaintiff in the fore part of 1905 did not require him to trim his hedge prior to the 15th day of June that year, we do not so construe this statute. The statute provides that every owner shall during the year after such hedge has attained the age of seven years cut back or trim said hedge, etc., and the plaintiff having trimmed or cut his hedge prior to May 19, 1905, the statute then authorized him to serve notice upon defendant to trim his hedge, as required by statute, on or before the 15th day of June, and this statute required defendant to so trim his hedge on or before that time and if he failed or refused to do so then the plaintiff who had complied with the statute was authorized under the notice served upon defendant to trim the defendant’s hedge under the provisions of the statute any time thereafter at the expense of the defendant. Plaintiff made no attempt to trim the hedge of the defendant until the 3d day of August, ' and defendant having been in default in failing and refusing to comply with the provisions of the statute by the 15th day of June, the statute authorized the plaintiff to trim the defendant’s hedge in accordance with the provisions thereof and defendant is liable for the expense thereof.

We are of the opinion that the evidence fully warranted the jury in returning the verdict which they did. The judgment is affirmed,

Affirmed.


text:
    Elsie V. Caldwell, Executrix, Appellant, v. Frank C. McGee, Appellee.
    1. Conveyances—presumption of error in description. Where a party conveys land which he does not own but does own land in the same section, the presumption is that he intended to convey the land he did own.
    2. Mortgages—when deed not construed as constructive. Held, that the evidence in this case was not sufficient to establish that a deed absolute on its face was designed as a mortgage.
    Bill in chancery. Appeal from the Circuit Court of Hancock county; the Hon. Robert J. Grier, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Flack & Lawyer and Scofield & Califf, for appellant.
    O’Harra, O’Harra & Wood, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellant’s intestate, Thomas J. Caldwell, during his lifetime had numerous business transactions with Frank C. McGee, appellee. On March 29,1905, Frank O. McGee made and executed to Thomas. J. Caldwell his certain warranty-deed by which he conveyed to said Caldwell the north half of the southeast quarter of section 12, township 12 north, range 8 west of the 4th P. M., Hancock county. The deed was duly acknowledged and delivered, and the consideration expressed therein was $6,000.

On May 23, 1905, the following agreement was executed by Frank C. McGee :

“Articles of agreement made and entered into this 23rd day of May A. D. 1905, between Thomas J. Caldwell and Elsie Caldwell, his wife, of the first part, and Frank C. McGee of Elveston of the second part witnesseth:
That the said party of the first part for and in consideration of the sum of one dollar in hand paid, the receipt of which is hereby acknowledged, does hereby give to the said party of the second part an option to purchase the following described real estate to wit: The north one-half of the southeast quarter of section number (12) in township (4) north, range (8) west of the fourth principal meridian containing (85) acres in Hancock county, Illinois, for the sum of six thousand dollars ($6,000.00), which said option is absolutely irrevocable. The said party of the first part further agrees that if the said option is accepted by the said party of the second part and the money paid as above provided, he will convey by proper deed, or deeds of conveyance, the said above described premises to the said party of the second part free from all encumbrances.
The covenants and agreements herein shall be binding upon the said party of the first part, his heirs, executors, grantors or assigns.
The party of the second part is hereby given possession of said described premises. The said party of the second part agrees to pay as rent therefor the sum of three hundred dollars ($300.00) per annum and the taxes, payable on the 23rd day of May in each year during the continuance of this option.
In case party of the second part shall fail to pay said rent as provided the said failure to pay shall work as a forfeiture of the said option above given to the party of the second party, and no other condition or cause shall work as a forfeiture thereof.
It is further agreed by the party of the second part that if this option should prove to be taxable he will either pay it off or pay the additional tax.
It is further agreed that said option shall extend to May 23rd, A. D. 1920, and upon the full payment of the said sum above provided for the said deed shall be executed.
Frank O. McGee. Seal.”

These papers were found by appellant among the papers of Thomas J. Caldwell after his death. The bill prays that the deed executed by McGee to Caldwell on March 29, 1905, shall be declared to be a mortgage, executed to secure Caldwell the payment of $6,000, which it is alleged was then due and owing to him from Frank C. McGee, and that the agreement signed by McGee of date May 23 was executed for the purpose of permitting him to redeem this land from the deed of March 29. The bill also alleges that the $300 provided to be paid as rent was, in fact, the interest on the $6,000 expressed as the consideration in deed and alleges failure to pay rent as per said option and a forfeiture by reason thereof.

Frank C. McGee never owned the north half of the southeast quarter of said section 12, but did prior to and on March 29, 1905, own the north half of the northeast quarter of said section 12. The bill alleges that a mutual mistake in the description of the land in the deed and article of agreement or option was made, and prays that both be córreeted and reformed so as to describe the north half of the northeast quarter of said section 12, being the land which McGee then owned, and prays that the deed with the description so corrected may then be foreclosed as a mortgage.

The answer filed by appellee denies all of the allegations of the bill which are material to a recovery.

Among the papers of appellant’s decedent were also the following letters:

“March 2-3, 1904.
T. J. Caldwell, Macomb, Ills.
Dear Uncle:—Your letter of some former date received and contents noted. Would of answered sooner but Clara and Mildred have been sick for the last two weeks. They arc better now; the doctor was here every day for quite awhile. I was up every night. I got purty well wore out.-
Uncle you asked if I had mortgaged any of my land. Mo I havn’t and dont expect to, I can get all the money I want to run my business without it.
Uncle, if you want to loan One Hundred Dollars an acre on my 85 acres for ten years at four per cent and let me pay you what you-have on the other land we might make a deal. Well Uncle any time you think I am dishonest and you want to record your deed let me know and I will try and pay you.
Hopeing this find you and Aunt well I will quit for this time As ever
Your Nephew,
Frank O. McGee.”
“Elveston, Nov. 28, 1904.
T. J. Caldwell, Macomb, Ills.
Dear Uncle & Aunt: Your letter of some former date received and was glad to hear you was all well—every body is as well as common so far as I know. I have been having lots to do since I was at your house and havent' been away from home mutch.
Well Uncle you said you had some money you wanted to loan. I can use fifteen hundred or two thousand Dollars. You spoke of letting me have some more on the land you have of mine when I was there. What ever amount you care to send me I can use any time you want to send it. I think I could sell all of my land for a hundred dollars an acre any time I would say I would take it. I have got a good farm and I guess I will just keep it as long as I live.
Uncle I have been thinking of burning coal this winter; what will you take for your base burner or do you want to sell it ? Is it in good shape ?
Hopeing this will find you all well,
I remain Your nephew,
E. C. McGee.”

These documents, together with certain conversations had by Frank C. McGee with appellant herein and one or two other witnesses, constitute the evidence in this cause. Appellee offered no evidence. The chancellor denied the relief prayed, found the issues for the defendant and dismissed the bill for want of equity.

Upon the question of there being a mutual mistake in the description of the land contained in the deed and the article of agreement, called the option, the evidence is so clear and convincing that there can be no question that the description in the deed is erroneous, and that the error was made by mutual mistake of both parties. The fact that Frank O. McGee never did own the land described in the deed and article of agreement, together with the fact that in his letters written to Oaldwell in his lifetime he refers to his land in the following language in one letter: “You spoke of letting me have more on the land you have of mine when I was there,” and in the other letter uses this language: “Well. Uncle, any time you think I am dishonest and you want to record your deed let me know and I will try and pay you,” can only mean, and the only conclusion that can properly he arrived at from the use of this language, is that Caldwell held a deed to certain lands conveyed to him by McGee. Where a party conveys land which he does not own but does own other land in the same section the presumption is that he intended to convey the land he did own. In Dougherty v. Purdy, 18 Ill. 206, the court holds that where grantor was shown to own the undivided half of the lot described, which is west of the 4th P. M., the law presumes that he intended to convey it rather than the lot lying east of the 4th P. M. to which it did not appear that he had any title.

The contention that appellee was indebted to Caldwell and that the deed was made to secure such indebtedness and that the agreement should be construed with the deed and be held to be a condition of defeasance in the deed, presents a more difficult question to determine. Upon this contention the burden is upon appellant to establish these facts by proper proof and we are unable to find in this record any evidence showing any specific indebtedness from McGee to Caldwell other than might be conjectured from the fact of the execution of the deed, the article of agreement and the two letters written by McGee. The conversations had between appellant and McGee are not sufficient to prove the existence of an indebtedness from McGee to Caldwell or a promise to pay any specific indebtedness. Heaton v. Gaines, 198 Ill. 479; Greig v. Russell et al., 115 Ill. 483.

Upon the question, however, of having the deed declared to be a mortgage and the article of agreement held a condition of defeasance to be attached to the deed and a part thereof and that appellee was indebted to appellant, and that the deed was made to secure this indebtedness, and that appellant should be permitted to foreclose the deed as a mortgage, from a careful examination of the evidence we are satisfied that the evidence fails to disclose that the deed and article of agreement should be treated as contemporaneous acts and construed together; neither is there sufficient evidence to show that the deed was intended as a mortgage or that it was given to secure any sum of money to Caldwell, or to show that McGee was indebted to Caldwell and if it be conceded there was proof of some indebtedness there is no proof of any specific amount that would justify a court in directing the repayment of any particular sum to appellant by appellee.

The fact of the execution of the deed and of the contract to resell by McGee with the circumstance that they were found together after the death of Caldwell is not sufficient to establish the papers a mortgage. Caraway v. Sly, 222 Ill. 203.

The bill is filed upon the theory that the deed was given to secure $6,000. The prayer for relief is that the deed although absolute on its face be declared to be a mortgage; that as a mortgage, it be reformed so as to describe the ½ N. E. ¼ section 12, and that it may then be foreclosed for failure on the part of defendant to comply with the provisions of the contract of May 23, 1905.

The bill having been filed and the cause tried below solely on the theory that defendant was indebted to Caldwell and these papers were the evidence of such indebtedness and the proof having failed to so show these facts, the chancellor properly held that the deed could not be held to be a mortgage, and the decree is affirmed.

Affirmed.


text:
    Allen E. Ford, Appellee, v. George Y. Perkins et al., Appellants.
    1. Brokers and factors—when real estate agent entitled to commissions. The fact that the broker is engaged to carry on negotiations for exchange with a particular party designated by the principal, precludes such principal in an action for commissions from asserting that the party negotiated with was not able to carry out the trade.
    2. Evidence—when admission of secondary, will not reverse. The admission of secondary evidence will not reverse where it is apparent that no harm was done.

      Appeal from the Circuit Court of Edgar county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Shepherd & Trogdow and H. S. Tanner, for appellants.
    Frank T. O’Hair, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This action is brought by appellee to recover a commission from appellants for services rendered in obtaining a party who, it is alleged, was ready, willing, and able to execute a contract for the exchange of property according to the following proposition, given by appellants to appellee who was a real estate broker:

“Paris, Illinois, Feb. 8, 1909.
We make the following proposition to L. F. Hickey of Danville, Illinois. We will give our 800 acre plantation located in Washington county, Mississippi, and all personal property now on place (with the exception of hay) and $25,000.00 in cash for Mr. Hickey’s apartment building, residence in rear of apartment buildings, one business block, and four 8 room residences with four lots in the rear. In this exchange we are to assume mortgage of $10,700 now on Hickey’s property and Hickey is to assume mortgage of $8,000 now on plantation.
This proposition remains in force for a sufficient time to enable L. F. Hickey to investigate plantation.
Perkins & Wynn, By J. W. Wynn.”

The proposition was given to Ford, appellee, in order that he might negotiate the trade with Hickey. After receiving this proposition appellee sent it to Hickey at Poplar Bluffs, Mo., for the purpose of securing a trade of these properties.

After the proposition was submitted and before Hickey had investigated the property appellants had leased the plantation in Mississippi and placed considerable more personal property on the plantation than was there when the trade proposition was made. When Hickey visited the plantation he found the tenant in possession; after returning he replied to the proposition made by appellants as follows:

“Poplar Bluffs, Mo., March 9, 1909.
Geo. Y. Perkins, Paris, Ill.
As per your original proposition, I accept. I keep possession of my property and rents until February nineteen and ten. You keep possession of plantation and rents to nineteen and ten. Answer and will meet you at my house and close deal fifteenth.
L. F. Hickey.”

After Hickey’s counter proposition was received, abstracts of title were exchanged, several telegrams were sent and received, and the parties met at Danville, March 15th, to consider the trade. The negotiations, however, failed to bring about a trade and the parties separated. On March 16, without further negotiations, Hickey sent the following telegram to appellants: “I hereby accept your original proposition of February 8, am ready to execute papers at once.” In reply to this telegram appellants sent the following letter:

“Paris, Ill., Mr. 17, 1909.
L. F. Hickey, Danville, Illinois.
Your dispatch at hand and will say that contents are not entirely clear. When we left you Monday you told us very emphatically that you would not accept our first proposition without we took care of Mr. Holaday and got him off the place and we came home with that understanding and upon thorough consideration of the subject we have concluded that it would not be fair to him to oust him at this, time of the year, and, as you do not give us any assurance that you will take care of him, or that you will take over any of the property that we have put on the place since that time, we feel that, so far as we are concerned, the deal is entirely off.
Please send us the papers and plat by express at our expense.
Yours truly,
Perkins & Wynn,
Per Ge. Y. Perkins.”

Appellants insist that the reply made by Hickey to their offer for a trade of properties, coupled with conditions, was a rejection of their offer; that after that time, they never renewed their offer, and at the time Hickey sent his telegram of March 15 no proposition was open for acceptance. Appellants also contend that there is no proof in the record showing Hickey to have been ready, willing, and able to consummate the trade.

Appellee, on the contrary, contends that the proposition was not withdrawn until the letter of March 17, after its aceeptanee by Hickey, and although counter propositions were made, which appellants rejected, negotiations were continued by appellants on the original proposition, which was accepted by Hickey before its withdrawal, and that by reason thereof, appellee is entitled to recover the commission sued for.

Upon the contention that the original proposition which appellants submitted in writing to appellee for presentation to Hickey was not accepted, but that Hickey came back with a counter proposition which amounted to a rejection of appellants’ proposition, the fact that before Hickey had had a reasonable time in which to examine the plantation appellants placed a tenant upon these premises, also placed certain personal property thereon and entered into a contract with tenant for the occupancy of the premises, so changed the conditions that Hickey replied with his conditional acceptance and after the receipt of the counter proposition by appellants, conceding that it was a rejection of appellants’ proposition, negotiations did not cease, but were continued for some time thereafter and appellants did not treat the counter proposition as rejection but continued through appellee in the negotiations with Hickey for an exchange of the properties as originally proposed, and after several attempts to effect an exchange and without a withdrawal of the proposition made by appellants, negotiations upon their original proposition were continued after Hickey had submitted his counter proposition and appellee having succeeded in inducing Hickey to accept the original proposition, the mere fact that a counter proposition was made and that other negotiations were entered into regarding these properties, is immaterial as affecting the rights of appellee. Hickey accepted the proposition originally made and this he was induced to do through the efforts of appellee; this completed his services and entitled him to a commission.

On the contention that there is no showing that Hickey was able to carry out the proposition and make the exchange of lands, the negotiations with Hickey were begun by appellants before Ford’s services were enlisted in the transaction. Hickey was selected by appellants as one with whom they desired to make a trade, and having selected their party and requested appellee to further negotiate with him to effect a trade which they desired, they cannot, as against appellee in an action to recover his commission, rely upon the defense that Hickey was not able to make the exchange.

It is insisted that the trial court erred in refusing to give to the jury instructions Hos. 1, 2, 3, and 4, as asked by appellants. Upon an examination of these instructions, we find they do not state the correct principles of law, and there was no error in refusing them. It is also insisted that the trial court erred in admitting as evidence the copy of the telegram sent by appellee to appellants on March 16th. While -the correct rule is that the telegram filed with the telegraph company is the original telegram and is the best evidence, appellants admit they received a copy of the telegram which was delivered to the telegraph company, and a copy of which was admitted in evidence, and the error of the trial court in admitting-the copy caused no harm to appellants and was not such an error as requires a reversal of the judgment.

The judgment below is affirmed.

Affirmed.


text:
    Cornelius Fugate, Appellee, v. L. C. Orndorff et al., Appellants.

      Injunctions—propriety of to maintain status quo. An injunction is properly granted and properly continued in force where to refuse to grant it or to dissolve it would result in a denial of all relief in the action as a result of which it is granted.
    Bill for injunction. Appeal from the Circuit Court of Coles county; the Hon E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    James W. & Edward C. Craig, for appellants; Voigt & Brookings, of counsel.
    Andrew L. Chezem and H. A. NeaL, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

The appeal in this case is prosecuted from an interlocutory order of the circuit court of Coles county overruling a motion to dissolve a temporary injunction issued in this cause. The hill is brought by appellee against the commissioners of highways to restrain them from cutting down and destroying a hedge fence alleged to be the property of complainant, which defendants contend is located within the boundaries of the highway. The temporary injunction restrained defendants from interfering with the hedge until further order of the court. Defendants filed their answers denying all of the allegations of this bill which are material to a recovery, and present issues of fact upon the averments in the bill of complaint. A motion to dissolve the injunction was heard upon affidavits submitted, and after hearing the motion and considering the proof offered, the motion to dissolve the temporary injunction was denied. This appeal is prosecuted from the interlocutory order denying the motion to dissolve the temporary injunction. This cause is not in this court for determination on the merits; the facts in dispute have not been determined by the trial court, and the only question involved by this appeal is whether or not the trial court erred in denying the motion to dissolve the temporary injunction. The hill and answer present issues which should be determined only upon hearing. The answers in no way deny that the highway commissioners intended to and would have, if not restrained by this in junetion-, removed and destroyed this hedge as alleged in the bill of complaint, and without the benefit of the temporary injunction to restrain them from so doing, pending a hearing upon the issues of fact involved, the complainant, if successful, would derive no benefits upon the final hearing, and the only manner in which he can maintain his rights, if the allegations in his bill are true, is by continuing the injunction in force until a final hearing upon the merits. For the trial court to have dissolved the injunction upon the motion would have deprived appellee of all rights claimed in the bill. The cause should be heard upon its merits and the temporary injunction maintained until a final disposition of the cause.

The trial court did not err in entering an interlocutory order denying the motion to dissolve the temporary injunction and its order in that regard is affirmed.

Affirmed.


text:
    Frances M. Wight, Administratrix, Appellant, v. Allison H. Worden, Appellee.
    1. Evidence—burden of proof to establish declaration. In an action by an administrator to recover possession of notes etc. as the property of the estate, the burden is upon him to establish the allegations of his declaration.
    2. Gums—when presumption of undue influence arises. If a fiduciary relation existed between the donor and donee the presumption is that the gift was brought about by undue influence.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the November term, 1909.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Antoinette Funk and Bracken, Young & Peirce, for appellant.
    Stone, Oglevee & Franklin, for appellee,
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellant as administratrix of the estate of Esther C. Wheelock, deceased, against appellee for the recovery of the possession and proceeds of certain notes alleged to have been withheld by appellee from said estate and which were the property of the estate.

Trial below resulted in the direction of a verdict by the court in favor of appellee and a judgment against appellant for costs.

Esther C. Wheelock, the deceased, was the surviving widow of Francis A. Wheelock. The deceased after the death of her husband made her home in various parts of the country, part of the time at McLean, Illinois, part of the time in Massachusetts, and part of the time in Texas. She had considerable property and kept a large portion of this loaned out upon real estate security.

She never had any children and left surviving her, her brothers and sisters and their representatives. Appellee is a nephew of the deceased, of whom she was very fond, by reason of his close attention and interest taken in her and her affairs. He was the only son of a deceased sister and was treated by the deceased, Mrs. Wheelock, in most respects as her own child. For a considerable time after the death of her husband, her business affairs were managed by Frank W. Aldrich.

Appellee lived in San Antonio, Texas. During the years 1906, ‘07, and ‘08, the deceased spent her winters at his home. For 'some reason she did not like the interference of some of her relatives manifested concerning the management and control of her property and she finally determined to take from Frank W. Aldrich the control and management of that portion held by him, and, by reason of the employment of appellee by H. P. Drought & Co., of San Antonio, transferred her business to that company.

The declaration avers that the notes in question were the property of the estate and that appellant, as administratrix, is entitled to the possession and proceeds of the same. The burden of proof was upon appellant to prove the allegation of her declaration and maintain by the preponderance of the evidence her right to the possession of these notes or the proceeds thereof before she could recover a judgment against appellee.

Upon the last visit of deceased to the home of appellee at San Antonio she endorsed these notes in blank by writing her name thereon. At the time of the death of deceased, the notes were actually in the possession of H. P. Drought & Co., but were kept where appellee had access to the same at any time he saw fit. After the death of Mrs. Wheelock appellee wrote upon the notes, over her blank endorsement, the assignment to him and claims the right to hold them against her estate as a gift to him during her lifetime. It is conceded by appellee and the proof shows that up to the time of the endorsement of these notes by deceased they were the property of deceased over which she had absolute control, also that a confidential relationship existed between deceased and appellee.

These conditions being established by evidence and by admissions of appellee, the presumption of law is that the gift was brought about by undue influence, and the burden is upon appellee to overcome this presumption by evidence showing the gift originated with deceased and was her free and voluntary act. Gilmore v. Lee, 237 Ill. 402. Appellee assumed this burden and contends that the evidence produced by him fully established these facts, that by reason thereof the trial court did not err in directing a verdict, and insists that the judgment should be affirmed. The question raised by this record is the action of the trial court in directing a verdict. The rule is firmly established that whenever it is necessary to weigh the evidence and determine upon which side the preponderance is it is error for the trial court to direct a verdict. The proof on behalf of appellant with the admissions by appellee entitled appellant to a verdict upon the trial unless the conditions established were overcome by proof that the gift originated with the deceased and was her free and voluntary act, In order tg determine this question it became necessary for the trial court to determine from the evidence whether the condition shown to exist by the proof of appellant was overcome; this question could only have been determined by the trial court after considering the weight of the evidence and determining upon which side was the preponderance. In determining that question on this appeal, we cannot now go into the merits of this controversy and determine the rights of the parties, but this court is required to assume the position of the trial court, and for this reason we do not deem it advisable to discuss or comment upon the weight of the evidence or attempt to determine the question as to whether appellee’s evidence was sufficient to entitle him to a verdict below. Whenever it is necessary for the trial court to weigh the evidence in determining an issue it is error to direct a verdict.

The trial court should have submitted the cause to the jury, and for its failure to do so, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Elizabeth Dunnigan, Plaintiff in Error, v. J. A. Ellis et al., Defendants in Error.
    1. Dram-shops—what evidence inadmissible to defeat award of acMial damages. Testimony as to instructions given to bar-keepers not to sell to deceased is incompetent to preclude recovery of actual, but is proper as bearing upon exemplary, damages.
    2. Dram-shops—what proof not essential to recovery. In order to recover in an action for death under the Dram-Shop Act, it is not essential that the plaintiff should establish that intoxication was the sole cause of the death and that no other cause intervened.
    3. Trial—when arguments of counsel improper. It is improper to permit counsel, in an action under the Dram-Shop Act, to state to the jury that such action was being prosecuted by a law and order league.
    4. Evidence—irrelevant and prejudicial incompetent. Evidence not relevant to the issue and which is calculated to prejudice the jury is incompetent and should be rejected,

      Error to the Circuit Court of Adams county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    F. M. Guinn and Cyril W. Armstrong, for plaintiff in error.
    John E. Wall and Lyman McCarl, for defendants in error; John J. Swenie, of counsel.
   Mr. Justice Philbrick

delivered the opinion of the court.

'This is an action brought by plaintiff in error against defendants in error to recover for the death of her husband, under the dram-shop act. Trial below resulted in a verdict for defendants and judgment against plaintiff for costs and in bar of action.

The record discloses that the husband of plaintiff in error died at a hotel conducted by defendant, J. A. Ellis; in connection with the hotel was a bar room, also conducted by Ellis. The bar room was located upon premises in which defendant, Annie Rogers, owned a life estate. She is made defendant under the statute creating a lien upon property in which liquor is sold where the sales are made by and with the consent of the owner of the property. She is made a party defendant to create a lien on her interest in the premises. On the night of November 4, 1907, A. J. Dunnigan, for whose death this action is brought, arrived in the city of Quincy and took up his quarters at the St. James Hotel, conducted by defendant Ellis; he occupied a room in this hotel at the time of his death which occurred between seven and eight o’clock on the night of November 7. During all of the time that he remained at the hotel he was a frequent visitor at the bar room and was, during that time, habitually intoxicated. He procured at least a part of the liquors which either in whole or in part caused his intoxication, at this bar. Plaintiff in error insists upon reversal of the judgment, urging that the verdict is clearly and manifestly against the weight of the evidence, that the court erred in admitting improper evidence on behalf of defendants in error, and erred in the instructions given to the jury on behalf of defendants.

The evidence complained of, as having been wrongfully and prejudicially admitted by the court over the objections of the plaintiff in error, was concerning statements made by defendant Ellis to his barkeepers with reference to selling or permitting deceased to obtain liquor at his bar. The rule of law is well established that evidence of this character is not admissible to defeat recovery of actual damages, but that it may be admitted upon the question of exemplary or punitive damages, but it is never admissible for the purpose of defeating actual damages.

It is also insisted that the court erred in pérmitting defendants to prove certain statements made by deceased to the effect that defendant Ellis would not permit his bartenders to sell or give deceased any liquor. These statements, if admissible for any purpose, could only be in mitigation of punitive or vindictive damages; they were not admissible for the purpose of showing that no sales had been made to the deceased. Where evidence is properly admissible for any purpose it cannot be rejected but it should be limited, by proper instructions, to the purpose for which it is admissible.

Certain witnesses put upon the stand by counsel for plaintiff did not testify as counsel for plaintiff in error expected they would. Plaintiff’s counsel informed the court that they were surprised at the character of the testimony of these witnesses, and counsel attempted to inquire of these witneses whether they had made different statements to counsel when questioned in regard to their knowledge of the facts involved in the controversy before going on the witness stand, but the court refused to permit counsel to examine these witnesses regarding previous contradictory statements made to counsel. The rule of evidence is well established that where counsel are surprised at the evidence of the witnesses placed upon the stand by them they have the right to ask a witness, for the purpose of refreshing his memory and endeavoring to obtain the truth, whether or not the witness had not made other and different statements to counsel when examined concerning his knowledge of the question involved; to refuse to permit this examination was error. People v. Lukoszus, 242 Ill. 102.

It is also insisted by plaintiff in error that the remarks of counsel made to the jury concerning the prosecution of this suit by the Law and Order League of the city of Quincy were improper as tending to prejudice the minds of the jury. While we cannot say that the remarks of counsel were so prejudicial to the plaintiff in error in this cause as to require a reversal, the remarks of counsel were improper and the court should have sustained the objection.

The court, over objections of plaintiff in error, permitted defendants to show that deceased on the day before he died was at the Hotel Hewcomb and requested that he be furnished with a room and a female nurse, and in this manner attempted to prejudice the minds of the jury. This evidence was improper and should not have been permitted; it had no bearing whatever upon the issues involved in this cause.

The averments in the declaration charge the sale or gift of intoxicating liquors to deceased and that by reason of the intoxication produced thereby plaintiff was injured in her means of support.

WEile it was necessary for plaintiff to prove the allegations in her declaration that the intoxication of deceased was produced in whole or in part by reason of intoxicating liquors sold or given to her husband by defendant Ellis or his servants and also to establish that the intoxication caused or was instrumental in causing the condition which resulted in the death of her husband, it was not necessary that she establish that intoxication was the sole cause of the death and that no other cause intervened as the instructions given on behalf of defendant informed the jury.

It was only necessary that she establish by the evidence that the sales were made as charged in her declaration that intoxication either in whole or in part was produced thereby and that the intoxication superinduced or assisted in bringing on the condition which caused his death; and it was a question of fact to be determined by the jury whether such facts were proven by the evidence.

The opinion of this court filed at this present term in Whiteside v. O’Connors et al., ante, p. 108, fully sets forth the requirements necessary to be established in cases of this character and clearly distinguishes between actions brought by reason of injuries caused by an intoxicated person and those brought for injuries resulting from the intoxication.

The instructions given on behalf of defendant which required plaintiff to show that the intoxication was the proximate cause of the death and that no other cause intervened were erroneous as were the instructions which told the jury that the proof of certain facts set out in these instructions was not sufficient to authorize a recovery.

Complaint is made of numerous other instructions several of which were inaccurate and misleading. We do not deem it necessary to set them out in full as the error will doubtless be corrected in another trial.

It is insisted that the court erred in refusing instructions asked on behalf of the plaintiff, which are designated refused instructions number 1, 3, 5 and 6. It was not error to refuse number 1; it does not contain a correct statement of the law; number 4, 5, and 6 were proper instructions, however, and should have been given to the jury.

Defendants have assigned cross errors regarding the admission of expert testimony on the part of plaintiff in error. These errors are not well assigned. The witness qualified and was competent to testify as an expert, and it was for the jury to determine the weight to be given to his testimony.

The trial court should have set aside the verdict and granted the motion for a new trial.

The judgment below is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Smith

text:
    Leonard Seed Company, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    Gen. No. 15,491.
    1. Common carriers—what evidence essential to recover for failure to deliver perishable merchandise in as good condition as when received. In such an action predicated upon delay in transporting, there must be proof of condition at the time both of receipt and of delivery.
    2. Common carriers—presumption as to condition of merchandise at the time of delivery. In the absence of proof of condition of merchandise at the time of delivery to the carrier the presumption is that when it was delivered at destination such merchandise was in the same condition as when received by the carrier.
    3. Common carriers—how proof of delay in transporting must be established. Delay in transporting merchandise must be established by testimony showing that the time consumed in carriage was in excess of that which should have been taken under the conditions which prevailed upon the road of the carrier to whom the merchandise was entrusted. Evidence as to the time required to transport merchandise between the same points-upon a different road is incompetent. .
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with a finding of fact.
    Opinion filed May 16, 1911.

      Glennon, Cary, Walker & Howe, for appellant.
    Ferguson & Goodnow, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This is an action on a contract brought by the Leonard Seed Company, appellee, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, appellant, to recover damages for the failure of the appellant to carry a certain shipment of onions or onion sets from Shelbyville, Indiana, to Chicago, Illinois, and failure to deliver the same at Chicago, Illinois, in as good condition as when received at Shelbyville, Indiana, on account of unreasonable delay. The declaration consists of one special count and the common counts.

The special count of the declaration alleges the original delivery of the shipment of onions or onion sets to the defendant railroad on March 16, 1904, for carriage from Chicago to Shelbyville, Indiana. There is no claim in the declaration or under the evidence for any delay or damages in this portion of the carriage. The claim averred in the declaration and attempted to be shown by the evidence is for failure to carry from Shelbyville, Indiana, to Chicago, Illinois, on an order to return the above mentioned shipment after its arrival at Shelbyville. The plaintiffs allegation in this particular is-as follows: “The defendant on the day aforesaid, in the county aforesaid, promised the plaintiff to take care of said goods and chattels and safely carry the same in and by said car or train of cars over the said line of railroad from said Shelbyville, in the State of Indiana, to the city of Chicago, in the County of Cook and State of Illinois, aforesaid, and at the last named place to safely deliver the same to the plaintiff without reasonable delay and within reasonable time after receiving such order directing the return of said onion sets, and although the defendant as such carrier as aforesaid then received the said goods and chattels at the place aforesaid, for the purpose aforesaid, yet not regarding its said promise, it has not taken care of said goods and chattels or safely carried the same from the city of Shelbyville aforesaid to the said city of Chicago, in the County of Cook and State of Illinois, nor as to the last mentioned place delivered the .same to the plaintiff in as good condition as received by them at the city of Shelbyville, in the State of Indiana, on the 21st day of March, A. D. 1904,” etc. '

At the close of plaintiff’s case, the defendant moved the court to direct a verdict for the defendant. The court overruled this motion and the defendant excepted.

And at the conclusion of all the evidence the defendant renewed the motion to direct a verdict, which the court overruled and the defendant excepted.

The plaintiff offered no evidence as to the condition of the onions or onion sets when ordered returned from Shelbyville, and there is none in the record except the evidence of Spolsky, Madden and Wakely, the defendant’s witnesses, that the onion sets were so rotten as to be of no value at Shelbyville, Indiana, when the goods were ordered returned from that place to Chicago.

The only evidence offered by the plaintiff of the condition of the onions or onion sets at any time was that they were in good condition previous to leaving Chicago on March 16th, 1904, on the original shipment to Shelbyville. This evidence is in effect contradicted by the admissions implied in the letter of May 19th, 1904, to Spolslcy that the sets were soft on account of damp weather.

The only evidence as to the amount of damages offered was the difference in the price of the onions at Chicago when sold to'Spolshy on March 11, 1904, and the price at which the onions were sold on the return of the shipment to Chicago on April 1st, 1904. ISTo evidence was offered by the plaintiff as to the value of the onions at Shelbyville at the time that the shipment was ordered returned, the only evidence on that point in the record being that of the defendant’s witnesses that the onions when they arrived at Shelbyville on March 19th, 1904, were worthless.

Under the allegations of the declaration it was incumbent on the plaintiff to show the condition of the shipment at Shelbyville on March 24th, 1904. Plaintiff could not otherwise show that the shipment of onions or onion sets was not delivered in Chicago in as good condition as received by the defendant at Shelbyville on March 21st, 1904. Alfred Smith, who testified on behalf of the plaintiff having seen the onions the last of any of plaintiff’s witnesses, testified that he knew nothing of their condition at Shelbyville. Between the time when the plaintiff’s witnesses last saw the onions or onion sets and the time at which they were ordered returned to Chicago on March 23rd, 1904, five days had elapsed.

The failure of the plaintiff to show the condition of the onions or onion sets at Shelbyville on March 21st or 23rd, 1904, was in our opinion a failure of proof under the allegation of the plaintiff’s declaration that “the defendant did not deliver said goods at Chicago in as good condition as received by them at Shelbyville on March 21st.”

But irrespective of the allegations of the declaration, the burden was on the plaintiff to show delivery to the'defendant at Shelbyville in good condition, and in the absence of proof of condition at Shelbyville, the presumption, is that the defendant delivered the shipment at Chicago in the same condition in which it was received at Shelbyville. In suits against a carrier for damage to a shipment of goods, it is a prerequisite to the shipper’s right to recover that he show that the goods were delivered to the carrier in good condition.

In Elliott on Railroads, (2nd edition), Volume 4, See. 1708, it is said: “It is well established that the plaintiff whose goods are lost or injured during transportation, will have made out a prima facie case of liability against the carrier in whose custody they were at the time of the loss, when he proves that the goods were received by the carrier in good order and that the carrier failed to deliver them according to his undertaking.”

And in Sec. 1725 it is said: “The condition of the property at the time it was delivered to the carrier should he proved in order to establish negligence by showing its damaged condition when delivered.”

For the purposes of this case the time of delivery of the onions or onion sets to the carrier was the time that the order for the return of the shipment was received by the defendant, appellant, at Shelbyville.

In the Encyclopaedia of Law and Procedure, Vol. 6, page 517, it is said: “The plaintiff has, of course, the burden of proving the essential elements of his cause of action as required to be set out in his complaint. If the action is for injury to the goods, the burden is on the plaintiff to show that they were in good condition when delivered to the carrier, that is, that the bad condition complained of resulted while the goods were in the carrier’s possession.”

In' American and English Encyclopaedia of Law (2nd Edition), Vol. 5, page 353, it is said: “The rule as to the burden of proof in an action against a carrier for loss or injury to goods is that the plaintiff is first bound to show affirmatively a receipt of the goods in good condition by the carrier. There is no presumption that the goods were in good order when received by the carrier.”

And on page 534 of the said volume it is said: “If there is no proof on the part of the plaintiff as to the condition of the goods when delivered to the carrier, the presumption is that they were in the same condition when so delivered as when delivered by the carrier to the consignee.”

At page 357 of the same volume it is said: “It has been held that where the carrier delivers goods in a damaged state, the burden is on him to prove that they were in the same state when received by him; but this holding violates the recognized rule that the burden is on the shipper to show delivery in good order to the carrier, and the better doctrine is that the presumption should be that the goods were received by the carrier in the same condition as when they were delivered by it.”

We are of the opinion,- from the evidence in this case, and the authorities, that the plaintiff failed to mahe out its case as averred in the declaration and that the motion of the defendant, appellant here, at the close of the plaintiff’s case, to direct a verdict for the defendant, should have been sustained. C. & A. R. R. Co. v. Benjamin, 68 Ill. 283; M. C. R. R. Co. v. Osmus, 129 Ill. App. 79.

It may he further said, though it is not necessary to a determination of the case as the same is presented on this record, that there was no evidence of delay shown by the plaintiff at the close of its cáse excepting the incompetent evidence of the witness Couffer. Under the plaintiff’s declaration it was incumbent on it to prove unreasonable delay by the defendant in the carriage of the shipment. The only testimony introduced by the plaintiff on this point was that of the witness Couffer, who testified that he was engaged in the freight department of the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, a branch of the Pennsylvania lines, commonly known as the Pan Handle Railroad, and that on Pan ILandle freight shipped from Shelbyville it would take four or five days to reach Chicago. The witness knew of the defendant, appellant, railroad, but knew absolutely nothing of the time it would take under the conditions on the defendant railroad for shipment from Shelbyville to Chicago. This evidence was objected to by counsel for the defendant and a motion to strike the testimony- was made by the defendant and overruled by the court. We think the evidence of this witness was not competent and should have been stricken from the record. A further reason for that is in the fact that the witness testified that all his answers were given on the basis that a shipment was a through shipment and not a local shipment. The shipment in this case was a local shipment. The admission of this evidence in our opinion was reversible error.

At the close of all the evidence the testimony left no doubt that the onions or onion sets were rotten and worthless on their arrival at Shelbyville, Indiana, on March 19th. This was directly testified to by three witnesses for the defendant, the only witnesses in the case who were in a position to know the condition of the onions or onion sets at Shelbyville. We think, therefore, there was not only a failure by the plaintiff to prove a delivery to the defendant of the onions or onion sets at Shelbyville in good condition, which the plaintiff was bound to prove, but the uncontradicted evidence on the part of the defendant shows that the shipment was rotten and worthless and the plaintiff could not recover therefor upon the averments of the declaration.

The proof fails to show delay in the shipment from Shelby-ville, Indiana, to Chicago, or at most only a slight delay, and it fails to show that this slight delay was the proximate cause of the damaged condition of the goods in question. The failure to prove these elements constitutes failure to prove the cause of action.

Tor the reasons given the judgment is reversed with a finding of fact.

Reversed with a finding of fact.


text:
    Mary Owens, Appellee, v. City of Chicago, Appellant.
    Gen. No. 15,497.
    1. Negligence—construction of sidewalk upon incline. Held, that the construction of the particular sidewalk in question in this case was not negligent as a matter of law and that in the absence of evidence showing that the sidewalk constructed according to the plan adopted was actually dangerous no case of negligence was established and that the jury had no right to review the plan of construction adopted and carried out by the city authorities.
    2. Instructions—predicated upon evidence. Instructions should not be given which are not based upon any evidence in the cause.
    Baldwin, J., dissenting.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. A. H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed May 16, 1911.
    Edward J. Brundage and John R. Caverly, for appellant.

      James C. McShane and Richard J. Finn, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This case is an appeal by the City of Chicago from a judgment rendered against it in the Circuit Court of Cook County in favor of Mary Owens, appellee, who sued the City of Chicago, appellant, to recover damages for alleged injuries claimed to result from the negligence of the city respecting one of its sidewalks.

The original declaration filed June 10, 1904, consisted of one count which averred in substance that the City of Chicago was, on February 23, 1904, in possession and control of a certain public sidewalk on the east side of Ontario avenue in the City of Chicago, at a point a little north of ¡Ninety-third street, which “was constructed at and upon a sharp slant or incline and without cleats upon the same, or sufficient handrailings at the sides of said walk; that persons were liable to fall in ascending or descending said incline in traveling along and upon said sidewalk, all of which the defendant knew or could have known by the exercise of ordinary care.” It is then averred that plaintiff while walking south upon said sidewalk and upon said slant or incline, and in the exercise of due care for her own safety “as a direct result and in consequence of said sidewalk being constructed and permitted to remain at such a sharp slant or incline and having no cleats upon the same or sufficient handrailings upon the side of said sidewalk, she then and thereby slipped and fell to and upon said sidewalk with such great force and violence” that she sustained certain injuries. To this declaration the defendant pleaded the general issue.

On June 17, 1908, an additional count was filed which avers the negligence to be that the sidewalk in question “was constructed at and upon such a sharp slant or incline and without cleats upon the same that when snow and ice accumulated upon said inclined portion of said sidewalk said walk became specially dangerous, and persons using the same were liable to slip and fall in ascending or descending said inclined portion of the said sidewalk.” The additional count then avers that snow and ice had fallen and accumulated on said inclined portion of the walk and that plaintiff exercising due care for her own safety while walking down the incline as a direct result of the sharp incline without cleats, combining with the accumulation of snow and ice, slipped and fell and sustained various injuries.

To this additional count appellant filed a plea to the statute of limitations and the general issue. The demurrer to the plea of the statute of limitations was sustained, and appellant stood by its plea and went to trial on the plea- of general issue.

The evidence in the record shows that Ontario avenue runs north and south and ¡Ninety-third street intersects it running east and west. The level at .¡Ninety-third street is about eight or nine feet above the ground, and is also higher than the level of Ontario avenue, which is several feet higher than the adjacent ground. Leading south from ¡Ninety-third street was a sound plank sidewalk to the level on Ontario avenue, where it joined a cinder walk. This wooden walk was about six feet wide and had a railing on one side. It was. about thirty-two feet long. The perpendicular distance from the highest to the lowest part of this walk was four and one-half feet, according to the actual measurements shown, though the plaintiff gave it as her estimate that the vertical distance was seven feet. On the day of the accident averred in the declaration this incline was slippery from snow and ice, and plaintiff returning home with her arms full of bundles was descending the incline when she slipped and fell. The radius of the right forearm was fractured and the ulna dislocated.

At the conclusion of the plaintiff’s evidence, and also at the conclusion of all the evidence, the defendant appellant, by appropriate motions and instructions therewith offered, requested the court to direct a verdict for the defendant. This the court refused to do and the defendant excepted. The refusal of the court to direct the jury to find the appellant not guilty is assigned for error,

It will be noted that the declaration does not charge that the sidewalk in question was unsound. It avers that the incline of the sidewalk was too great for safety and that it was constructed without cleats, and was insufficiently provided Avith handrails, so that persons were liable to slip and fall in walking upon it. No other defect is alleged, nor does the evidence attempt to prove any other defect.

In addition to the testimony of the Avitnesses, the record shows photographs of the sidewalk taken from different points of view. From the evidence in the case we are of the opinion that all reasonable minds would not agree that the plan of construction of the sidewalk in question was so palpably dangerous that the city did not exercise any reasonable discretion in adopting the plan upon which it was built; and in our opinion the evidence does not show that the defendant, City of Chicago, failed to use reasonable care in the plan of the construction of the sidewalk; and in our opinion, the sidewalk in question cannot be held as a matter of laAV to be unsafe under ordinary conditions. There is no evidence tending to show that the incline was of such grade or so constructed as to be unsafe. Appellant was not bound to construct its sidewalk so that rendered slippery with snow and ice it would be impossible for one stepping over it to slip and fall. We do not think that the jury has a right to review the discretion of the city authorities in adopting a plan of construction, and that seems to be the only case made by the evidence in the record. Healy v. City of Chicago, 131 Ill. App. 183.

In Urkuhart v. City of Ogdensburg, 91 N. Y. 67, the defect alleged was one in a plan of construction, and at the close of the testimony upon the trial the defendant moved for a non-suit. The motion was denied and the defendant excepted. The same question Avas presented to the court by ah instruction which was refused. Dpon appeal by the defendant, the New York Court of Appeals, at page 71, say: “The court erred in denying the motion for a non-suit and also in refusing to charge as requested.

“The rule is well settled that where power is conferred on public officers, or a municipal corporation, to make improvements such as street sewers, etc., and keep them in repair, the duty to make them is quasi judicial or discretionary involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise this power or an erroneous estimate of the public needs, no civil action can be maintained, but when the discretion has been exercised and the street or improvement made, the duty of keeping it in repair is ministerial and for neglect to perform such duty an action by the party injured will lie.”

As suggested above, the evidence in this case shows, if it shows anything, a negligent plan of construction adopted with respect to the sidewalk in question and does not show any negligence other than that on the part of the city with reference to the sidewalk. A negligent plan of construction, where the court cannot say as a matter of law that such plan of construction was negligent, does not present a case which should be submitted to a jury. City of Chicago v. Bixby, 84 Ill. 82 Teager v. City of Fleminsburg, 109 Ky. 146; Gould v. City of Topeka, 32 Kans. 485.

Error is assigned upon the giving to the jury the following instruction at the instance of the plaintiff: “The court instructs the jury that if you find a preponderance of the evidence under the instructions of the court that at the time of the alleged accident the sidewalk in question was defectively constructed as charged in the declaration, and that such defective condition of said sidewalk contributed to and was the proximate cause of the accident as alleged in the declaration, and that plaintiff while in the exercise of ordinary care for her own safety and welfare was injured thereby and sustained damages, then you should find the defendant guilty.” This instruction is erroneous and misleading because there is no evidence upon which to base it. There is no evidence in the ease that the sidewalk in question was defectively constructed; on the contrary all the evidence shows that it was well constructed.

It is further erroneous because it refers to the declaration pnd does not state the specific facts upon which the jury are authorized, to find the verdict directed. One count in the declaration charged the city with negligence in building a sidewalk not safe under ordinary conditions, and the other charged the city with building a sidewalk which was unsafe under the extraordinary conditions of snow and ice. In City of Chicago v. Richardson, 75 Ill. App. 198, this court held that if the sidewalk is safe under ordinary conditions, the city is not liable because it is rendered slippery by snow and ice. City of Chicago v. McGiven, 78 Ill. 347.

In Healy v. City of Chicago, supra, it was held that the city was not liable for a negligent plan of construction except where the court could say, as a matter of law, that such plan of construction was negligent. The jury, therefore, could not understand from that instruction upon what negligence averred in the declaration they were authorized to find the defendant guilty.

In Krieger v. A. E. & C. R. R. Co., 242 Ill. 544, in passing upon an instruction which required the jury to find for the plaintiff if the plaintiff had proved his case as laid in his declaration, it was held: “The general rule often declared is, that the instructions must in a clear, concise and comprehensive manner inform the jury as to what material facts must he found to recover or to defeat a recovery.” Neither of the counts in the declaration furnished to the jury such a statement of the material facts which they must find in order to justify them in finding for the plaintiff. The instruction was therefore erroneous.

For the reasons given the judgment is reversed and the cause is remanded.

Reversed and remanded.

Mr. Justice Baldwin dissents.


text:
    Frank Krol, Appellee, v. Royal Insurance Company, Limited, Appellant.
    Gen. No. 15,502.

      Insurance—burden to establish existence of, covering property destroyed. It is incumbent upon the plaintiff to show that the defendant company had insured the property destroyed at the parieular place where its destruction took place.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. George A. Dufuy, Judge presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with finding of fact.
    Opinion filed May 16, 1911.
    Frank M. Fairfield, for appellant.
    Johnson & Belasco, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of of the court.

This appeal is prosecuted to reverse a judgment of the Superior Court in favor of appellee, Frank Krol, against appellant, Boyal Insurance Company, for $450 on a policy of insurance alleged to have been issued insuring appellee in the sum of $1,000 against loss by fire on household furniture, etc., contained in house No. 606 South Loomis Street, Chicago.

We have searched the abstract and the record for competent proof of the policy alleged in the additional count of the declaration, and we find no such proof in the evidence offered on behalf of the plaintiff. The evidence shows that while the plaintiff was residing at No. 4556 South Ashland Avenue, Chicago, a policy of insurance was issued to him by the appellant, but this policy was not transferred to No. 606 or 6006 South Loomis Street, when appellee moved there, nor was there a new policy issued to appellee covering property at that number or any other place. According to the evidence the only premises on which any insurance was issued to appellee was No. 4556 South Ashland Avenue. That policy is shown by the defendant’s 'evidence, and covered “household and kitchen furniture, * * * all while contained in above described dwelling.” The evidence on behalf of the plaintiff is most unsatisfactory and contradictory on its face, and does not tend to prove the averments of the declaration. The evidence for the defendant, appellant, makes it clear beyond any reasonable question that the property of appellee was never insured at 606 or 6006 South Loomis Street, where it was destroyed by fire.

The judgment is reversed with a finding of fact.

Reversed with finding of fact.