text:
    Sarah Ellen Pyle, Appellee, v. William Thomas Murphy, Appellant. Mary Edith Hill, Appellee, v. William Thomas Murphy, Appellant. Mary Edith Hill, Appellee, v. Margaret Abbey Midgley, Appellant. Sarah Ellen Pyle, Appellee, v. Margaret Abbey Midgley, Appellant.
    1. Wills—unequal distribution. Where there is no evidence of undue influence an unequal distribution of property does not itself destroy the validity of the will.
    2. Wills—insertion of clause after execution. A will is not destroyed by the insertion of a clause after its execution.
    3. Wills—presumption as to change. It is presumed that marks made upon a will are those of the testator when it was in his possession up to the time of his death.
    4. Wills—question of fact. It is a question of fact for the jury as to whether a testator made marks upon a will with the intention of canceling it.
    5. Wills—intent to cancel. Marks made upon a will by the testator have the effect of canceling it when made with that intent.
    6. Compromise and settlement—consideration, when invalid. Where a claimant in the settlement of a controversy obtains a compromise by fraud, duress, or where no legal right ever existed, or where the matters sought to be compromised are of a criminal or unlawful character, then the consideration is unlawful and cannot be enforced.
    7. Compromise and settlement—of a doubtful right. The compromise of a doubtful right where there is neither actual nor constructive fraud and the parties act in good faith is sufficient consideration to support a promise.
    8. Compromise and settlement — consideration, when valid. Where a controversy that may be determined at law is compromised and settled in good faith and without fraud or oppression, such settlement constitutes a good consideration for the promise to pay money or other valuable thing.
    9. Evidence—as to ground for contesting a will. In an action to enforce a settlement made in good faith between legatees who disputed the validity of a will it is proper to exclude evidence offered by defendants tending to show that no valid ground existed that would authorize a contest.
    10. Compromise and settlement—where dispute among legatees is compromised. Where legatees claim the right to contest a will on account of unequal distribution, its mutilated condition, and undue influence over the testator in its execution, and a settlement is reached with other legatees in good faith, the latter cannot question the consideration after the year in which to file a contest has elapsed.
    Appeal from the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    R. D. W. Holder and Schaefer & Kruger, for appellants.
    Barthel, Farmer & Klingel, fpr appellees.
   Mr. Presiding Justice McBride

delivered the opinion of the court.

The above entitled causes were consolidated and tried as one case by the Circuit Court, without a jury. Judgment was rendered against the defendant in each of the cases, from which judgment the defendants respectively appeal and it was agreed that the appeals in said causes shall be consolidated in the Appellate Court and treated as one cause, and that the Appellate Court should enter separate judgments in each of said causes.

The declaration was substantially the same in each case, and avers that David Murphy, now deceased, in and by his last will and testament, gave to William Thomas Murphy the sum of $10,000; to Margaret Abbey Midgley the sum of $2,500; Mary Edith Hill the sum of $2,500; Sarah Ellen Pyle the sum of $2,500; and it was pretended by the defendant that in and by said last will and testament one Amos M. Midgley was devised the sum of $7,500. That the provisions of said will were by the several plaintiffs considered inequitable ; that said will had been mutilated and marked, the provision for the said Amos M. Midgley crossed out, cancelled and annulled and on April 26, 1909, and before said will was probated, the plaintiffs proposed to contest the validity thereof and that the said William Thomas Murphy and Margaret Abbey Midgley in consideration that the several plaintiffs would not contest the validity of said will then and there entered into a written agreement as follows:

“Whereas on the 26th day of March, A. D. 1909, David Murphy departed this life testate and in his will did devise to the parties hereto as follows:
To William Thomas Murphy, ten thousand dollars.
To Margaret Abbey Midgley, twenty-five hundred dollars.
To Mary Edith Hill, twenty-five hundred dollars.
To Sarah Ellen Pyle, twenty-five hundred dollars. And, whereas, said devises are not in equal amounts; now therefore in order to avoid any dissatisfáction among us and to avoid any litigation in a contest of the last will and testament of the said David Murphy, deceased, and in the interest of friendship and good will towards each other, the said Margaret Abbey Midgley hereby agrees to pay to her two sisters Mary Edith Hill and Sarah Ellen Pyle in equal shares whatever amount she may receive as her share of said estate under said will; and the said Mary Edith Hill and the said Sarah Ellen Pyle agree to accept the same in full satisfaction, settlement and compromise of any other right or interest they might have in any way in the said estate; and the said William Thomas Murphy agrees to pay to said Mary Edith Hill and Sarah Ellen Pyle the same amount as is paid them by the said Margaret Abbey Midgley as her share of said estate, and the said Mary Edith Hill and Sarah Ellen Pyle each agree to accept the same from him in the same manner as from the said Margaret Abbey Midgley.”

The declaration then avers that said will was not contested but was admitted to probate, the executor named proceeded to administer upon the estate and filed final settlement and made distribution of said estate according to the provisions of said will. That Margaret Abbey Midgley received from the estate of David Murphy $2,348.71, and that the said William Thomas Murphy received his portion of said estate, as provided for by said will and that thereby the said William Thomas Murphy became liable to pay the plaintiff the sum of $1,074.35 on to-wit March 11,1912, according to the tenor and effect of said agreement.

To each of these declarations the defendants filed a plea of general issue, and it was stipulated that under this plea any proper evidence tending to prove want of consideration could be introduced. The causes were tried by the Circuit Court by consent and without the intervention of a jury and judgment rendered for each of the plaintiffs.

The will was offered in evidence. By the first provision it was directed that the testator’s debts and funeral expenses be paid. The second provision gave to his wife $3,000 and other property. The third provision gave to his son, William Thomas Murphy, the sum of $10,000 in money. The fourth provision gave to Amos M. Midgley the sum of $7,500 in money; the fifth provision gave to Margaret Abbey Midgley the sum of $2,500; the sixth provision gave to Mary Edith Hill $2,500; the seventh provision gave to Sarah Ellen Pyle the sum of $2,500; and the eighth provision provided for an equal distribution of the amount due the deceased from his sister’s estate. The ninth gave the residue of the estate to his son William Thomas Murphy and grandson Amos Midgley in equal shares and appointed William Thomas Murphy executor without bond. After the making of said agreement the will was admitted to probate. The final settlement of the estate, after the payment of claims, shows a total amount of $20,095.70 for distribution in said estate exclusive of the amount received from the sister of the deceased. This reduced the bequests mentioned in the will and gave to William Thomas Murphy $8,038.28; Amos Midgley $6,028.71; Margaret Abbey Midgley $2,009.57; Mary Edith Hill $2,009.57; Sarah Ellen Pyle, $2,009.57.

The will was typewritten and the fourth clause thereof was erased by pencil lines being drawn back and forth over the provision of this item and in the same manner there was erased in the latter part of section nine, the words “My grandson Amos M. Midgley in equal shares.” The will was kept in a box with other papers owned by the deceased and was not under lock and key. At the time of the execution of the will, the deceased, David Murphy, went alone to the office of L. D. Turner, an attorney, who prepared the will, and no one was in the office at the time it was written. The deceased was about seventy-five years old at the time of his death and the will was prepared a short time prior thereto. On Sunday afternoon after the death of David Murphy, the plaintiffs and defendants met for the purpose of hearing the will read. William Thomas Murphy brought out the will and it was read by Mr. Turner, and at that time it was discovered that these pencil scratches were upon the will. The question of unequal provisions of the will was at that time discussed and Mrs. Midgley .stated she was sorry the property was not divided equally and they would try and make it right, which seems to be all that was said about it at that time. On the morning of the day set for probating the will the parties met at the office of Mr. Turner and the question of contesting the will by the plaintiffs was then threatened by them and discussed, and as claimed by the plaintiffs they were about to leave the office for the purpose of entering suit to contest the will when they were called back by the defendants and the foregoing agreement entered into, which was very beneficial to the son of Margaret Abbey Midgley who undoubtedly would have been deprived of the legacy of $7,500 if the will had not been sustained and probated.

As plaintiffs claim (and not denied by the defendants) there was no notice given by the defendants of their intention not to comply with the terms of this agreement until after the expiration of one year from the date of the probate of the will. It is claimed by the plaintiffs that they had at that time been informed that undue influence had been exerted upon the testator to procure the making of the will and that they in good faith threatened and intended to contest the will.

It is contended by counsel for appellants, first—that there was no good and valuable consideration upon behalf of the appellants for the execution and delivery of the contract sued upon in each of these causes; and, second—that as a matter of law the will of David Mur-' phy, deceased, was not reasonably subject to contest and not of doubtful validity. It is insisted by counsel for appellants that they were entitled to show upon the trial of these suits in the Circuit Court that there was nothing surrounding the mailing of this will, the condition of the testator or other infirmities to render the will of doubtful validity, and such conditions being shown, the making of the contract in question was without consideration and • the promises to pay therein specified void.

Authorities are cited showing that an unequal distribution of property would not itself destroy the validity of the will without some evidence of undue influence, and that the insertion of a clause in the will after its execution without proper attestation would not destroy the will; which seems to be the true rule. The will in this case, however, seems to have been in the possession and under the control of the testator up to the time of his death, and the presumption, as we think, would be that the marks made upon the will would have been those of the testator, and it would be in all probability a question of fact to be determined by a jury whether or not those marks were made with the intent of cancelling the will, and if he made such marks with such intent the effect of it under our statute would be to cancel the instrument. Marshall v. Coleman, 187 Ill. 579.

In this case, however, it appears from the evidence that there was much dissatisfaction over the terms of the will and that the plaintiffs in good faith believed that the will was not the genuine will of their father, and were determined to contest it and this controversy resulted in the making of the agreement offered in evidence. We think the real qustion here is, when does the settlement of a controversy constitute a good consideration for the obligation incurred in the making of such settlement? It is strenuously insisted by counsel for appellants that, “if, however, the party making the claim has no right at all then there is no consideration for the compromises. ’ ’ If this proposition is confined to a legal right without reference to an investigation of the facts for the purpose of determining whether such right exists or not, then counsel is quite correct, but if the result is to depend upon what the facts in the particular case develop and no fraud or bad faith is shown to exist, then we think the position assumed is not a correct statement of the law as laid down by the more recent principles announced by our own Supreme Court. If a claimant in the settlement of a controversy obtains a compromise by fraud, duress or where no legal right ever existed for lack or incapacity of the party to sue, or otherwise, or where the matters sought to be compromised are of a criminal or unlawful character, then the consideration for any such compromise, whether the proof of such facts were for or against the claimant, would be unlawful and could not be enforced.

Many cases have been cited by counsel for appeb lants and appellees in behalf of the position assumed by them respectively, and we think that the most of them are in harmony with the doctrine above announced. In many of the cases cited and relied upon by counsel for appellants it will be found that fraud, want of good faith, duress, want of capacity or right to sue, illegality of the matters compromised enter into and form the basis, in whole or in part, of the consideration for the promises sought to be enforced, and was held to be insufficient to support a consideration. The case of Mulholland v. Bartlett, 74 Ill. 58, presents with as great force the doctrine contended for by appellants as any case to which we have been referred, but upon a careful reading of this case it will be observed that the illegality of the contract was based upon the fact that the obligor was at that time among strangers and threatened by a mercantile house of high standing, and to relieve himself from embarrassment he executed the writing in question, and the court also says in that case: “It seems to us quite clear here was no compromise of a doubtful claim, but a wrongful assertion of a claim, which appellant, when the instrument was executed, had strong reasons for believing had no valid existence as against the appellee. Circumstances very much affect cases. Appellee was among strangers, threatened by a mercantile house of high standing, who, to relieve himself from the embarrassment of his position, executed this writing, there being at the time no ground whatever in law or equity to charge him with this debt;” and while the language of a portion of this opinion is very strong in support of appellant’s contention, yet when the circumstances surrounding the transaction are considered we do not believe that this authority should control in the decision of the case at bar.

The case of Heaps v. Dunham, 95 Ill. 583, referred to by counsel for appellant and appellee, fully recognizes the right to sue upon a promise made in compromising a claim where the obligee had the right to bring the action, even though the facts did not justify such action and distinguishes this from a case where no right of action at all existed. Heaps gave cash and notes amounting together to $1,050 in compromise of two threatened suits, one for bastardy and the other for seduction; he afterwards brought suit to enjoin the sale and collection of the notes. The court held that while there was great doubt as to the girl’s pregnancy, Heaps was concluded by his settlement as to that question, and the notes given in settlement of the bastardy charge were not enjoined but were held valid. The court, however, further held that as the girl was a minor, cause for seduction against Heaps belonged to her parent and not to her and that she could neither bring nor compromise such action, therefore that portion of the notes representing the compromise of the action for seduction was without consideration. We think the true rule is, that where there is a controversy between parties that may be determined at law, and such parties compromise and settle such controversy in good faith and without fraud or oppression, that such setlement constitutes a good consideration for the promise to pay money or other valuable thing, and this doctrine is well sustained by many decisions of our Supreme and Appellate Courts.

“Where a claim is asserted by one party against another, if the party making the claim honestly supposes that he has a good cause of action, compromise and satisfaction of the right asserted is a sufficient consideration to uphold a contract fairly entered into, even if, in fact, his claim could not have been enforced, either in whole or in part, at law or in equity. ‘The compromise of a doubtful right, where there is neither actual nor constructive fraud and the parties act in good faith, is sufficient consideration to support a promise. ’ ” Walker v. Shepard, 210 Ill. 112; McKinley v. Watkins, 13 Ill. 140; Honeyman v. Jarvis, 79 Ill. 318; Adams v. Crown Coal & Tow Co., 198 Ill. 445.

It is not claimed in this case that there was any fraud, want of good faith or oppression in the settlement reached, and this being true we think the settlement of the contest and of a family difference without reference to the merits of the controversy would constitute a good consideration. The appellees, to say the least of it, claimed some rights by reason of the unequal distribution, the mutilated condition, and as they say, the undue influence over the testator in the execution of the will. The appellants by the making of the settlement conceded that appellees had some rights that should be respected, and that there were, to say the least of it, possibly some infirmities about the will because of its erasures, unequal distribution or otherwise and for that reason were willing to make a settlement and end the controversy, and whether such matters in fact existed or not we think, it immaterial; the appellants were of age, sound in mind and knew all of the conditions and surroundings of the making .and caring for the will as well as any one and they should, not, after permitting the year in which to file a contest of the will to elapse, be permitted to say no cause existed for the contesting of the will.

From the conclusions above reached, it follows that the court properly excluded the evidence offered by appellants tending to show that no valid ground existed that would authorize a contest of the will or that could have resulted beneficially to the plaintiffs in such contest; and the holding of the court upon the propositions of law submitted by counsel for appellants were in accordance with the conclusions here reached, and proper.

It is also insisted that the action against William Thomas Murphy was prematurely brought.' It was determined by the trial court that the spirit and meaning of this agreement was, that William Thomas Murphy should be liable for the same amount that the settlement of the estate proved to be due and owing to Margaret Abbey Midgley and we have no* reason to find fault with the conclusion reached by the Circuit Court upon this question, and the judgment in each of the above entitled causes is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice McBride

license: Public Domain

text:
    George A. Weaver, Appellant, v. Enrico v. Gaskins, Appellee.
    1. Brokers—recovery of commission. Whether plaintiff was engaged to negotiate the sale of a property, subject to, or free from leases presents a question of fact for the jury.
    2. Appeals and ebeobs—verdict, when conclusive. Unless the Appellate Court finds from the record that a verdict is so manifestly against the weight of the evidence as to require a reversal, the verdict is conclusive.
    Appeal from the Circuit Court of Bond county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Cicero J. Lindly and C. E. Davidson, for appellant.
    C. E. Hoiles and Albert & Matheny, for appellee.
   Mr. Presiding Justice McBride

delivered the opinion of the court.

This was a suit in assumpsit brought by appellant against appellee to recover commissions on a sale of real estate. Judgment was rendered against the plaintiff for costs and he prosecutes his appeal.

The declaration consists of two special counts and the common counts; the special counts each allege, in substance, a contract upon the part of appellee to pay the appellant $500 for services rendered as a real estate broker.

The errors complained of by counsel are, the court’s admission of testimony as shown in the record; but no particular testimony introduced is pointed out by counsel in their brief as having been erroneously admitted, and upon an examination of the abstract" we are not able to perceive any error in this respect. It is also said that the court erred in refusing plaintiff’s instructions and in giving others for the defendant. The instructions, however, are not contained in the abstract and this question is not argued and cannot be considered by this court. The only error assigned and argued is that the court erred in overruling plaintiff’s motion for a new trial.

The evidence in this case discloses that the appellee was the owner of certain real estate in Greenville that was occupied by E. E. Wise, W. D. Donnell and John Adams under leases made to .them respectively by the appellee for a period of ten years, which had not yet expired, and contained a clause for a renewal of such leases; and contained the further clause^ “In case the said party of the first part wishes to sell or convey the premises herein listed during the period of this lease, or any renewal of the same, that he shall give said party of the second part the first opportunity or privilege of purchasing the same at the price for which he, the said party of the first part, can actually sell said premises.” The appellant in a conversation with Mr. Bradford, a banker at Greenville, ascertained that he wished to buy this property and would give $8,000 for it. Appellant who was a real estate broker then called upon the appellee and told him that he could sell this property and that he believed he could get $8,000 for it, and claims that appellee told him that if he would sell the property or procure a purchaser for the property for $8,000 he would give him a commission of $500. This is denied by appellee and appellee says that he told the appellant if he would sell this property subject to the leases above mentioned for $8,000 that he would give him $500 but denies offering to sell the property at all except subject to the leases. When it came to the knowledge of Bradford that appellee would not make a deed, except subject to the leases, he refused to buy the property and said he would not buy it except he obtained a clear title to it. A few months after this appellee sold the property in question to the respective tenants under the option contained in the leases and obtained from them a total of about $8,000 for the property, but appellee and the tenants all deny that the appellant had anything to do with or in any manner induced the sale of this property.

We thiiik the controlling question in this case is, what was the contract between appellant and appellee? If appellee agreed to give appellant $500 to sell this property without reference to the leases or without being subject to the leases, and appellant procured a purchaser ready, willing and able to buy, then appellee would under the law be liable. This contract, however, is squarely denied by appellee and it is claimed by him that the only authority given appellant to sell the real estate was to sell it subject to these leases; a sale was not made and could not be made in this manner and the only way Bradford would buy it would be to purchase it with the leases cancelled. There is some slight evidence in this record that tends to corroborate both appellant and appellee but it is so slight that we think the whole question rests upon the contract as made between appellant and appellee, to which there were no witnesses, and resulted practically in a question of veracity between appellant and appellee and was purely and properly a question to be determined-by the jury. The jury saw the witnesses upon the stand, observed their demeanor and conduct and was better calculated to determine who was telling the truth about this matter than any one else. Under the law the verdict of the jury in cases of this kind is conclusive of the rights of the parties, unless the Appellate Court can say from the record that such verdict was manifestly against the weight of the evidence and we are not able to say from this record that such verdict is so manifestly against the weight as to require a reversal of the case. The only question submitted upon this appeal being one of fact it is the opinion of this court that the judgment of the lower court should be affirmed, and such judgment is affirmed.

Judgment affirmed.


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    Florence Bowler Cash, Appellee, v. Elgin T. Cash, Appellant.
    (Three Cases Consolidated).
    1. Husband and wife—separate maintenance. Defendant, the husband of a nervous woman, neglected her, stayed out late at night, and was guilty of conduct tending to intensify such nervous condition, and finally left her. Held, that a decree finding him to be living separate and apart from her without her fault would be affirmed.
    2. Husband and wife—rule as to alimony. The ordinary rule is to allow a wife for temporary alimony about one fifth of the joint income, but the amount varies from a sum sufficient for her actual necessities to a third or even a half of the husband’s income.
    3. Husband and wife—alimony excessive. Where the total net value of property owned by defendant in proceedings for separate maintenance is seven thousand dollars, and his average income is eighteen hundred dollars per year, an allowance of one hundred and twenty dollars per month is excessive.
    4. ’ Husband and wife—amount of solicitor’s fees to 6e determined, from evidence. In determining an allowance for solicitor’s fees in proceedings for separate maintenance, the court should consider professional opinions as to the value of the services rendered and ascertain the customary charges.
    5. Husband and wife—solicitor’s fees. Allowance of solicitor’s fees for a wife in proceedings for separate maintenance cannot be sustained where no evidence is preserved showing what services were performed nor the value thereof.
    6. Husband and wife—alimony lien on real estate. A lien may be decreed upon real estate to secure the payment of alimony, but methods may be provided in such decree by which the lien can be released in case of sale.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed March 10, 1913.
    D. J. Sullivan, for appellant.
    Kramer, Kramer & Campbell, for appellee.
   Mr. Presiding Justice McBride

delivered the opinion of the court.

The above entitled causes grow out of the same subject-matter and were tried upon the same evidence and facts, were argued as one case in this court and suggested by counsel that they be disposed of in one opinion. This court, after having considered the matters involved, has decided to dispose of all three of the cases in one opinion.

The original case, Term No. 30, was a suit filed by appellee for separate maintenance, alleging that appellant and appellee were husband and wife, and that the appellee as such wife was living separate and apart from her husband, the appellant, without her fault and asking that appellant might he compelled to make a proper and suitable provision for her separate maintenance and support. A decree was rendered for the appellee in this cause finding the allegations of her bill to he true and that she was entitled to separate maintenance from the appellant. The decree also provided that the appellant pay to appellee $75 as solicitor’s fees, which was immediately paid in open court, and that the appellant pay to the appellee $120 per month, and the further sum of $50 as solicitor’s fees. The appellant prosecuted an appeal from this decree and thereafter the appellee filed suit designated by Term No. 31, asking an order for a sufficient amount to enable her to pay solicitor’s fees and other expenses attending the appeal, upon which application the Circuit Court, on May 27, 1912, made a further order requiring the appellant to pay to appellee the sum of $100 for suit money and solicitor’s fees for such appeal, and the further sum of $120 per month during the pendency of such appeal; but it was further provided that if the appeal should be determined at the March Term of the Appellate Court that then full credit shall be given for the additional $120 per month upon the original allowance. From this decree the appellant also prosecuted an appeal. Thereafter the appellee filed a further application to the Circuit Court asking a further sum for solicitor’s fees and suit money to defend such appeal, which is above designated as Term No. 32, and on July 29, 1912, a further order was entered in said court requiring appellant to pay to appellee the further sum of $100 for solicitor’s fees and expenses in defending the appeal last referred to, and the further sum of $100 per month until the final determination of said appeal but that all money paid under this order, except the sum of $100 for solicitor’s fees should be credited upon the amount awarded upon the original decree, and from this order the appellant also prosecuted an appeal.

The first and second errors assigned by counsel for appellant, for the reversal of these cases, present the question of the right of the Circuit Court to grant the decree of separate maintenance rendered herein.

While the evidence in this case discloses that the appellee was at times very nervous, bordering on to hysteria and at such times by reason of such nervousness or jealousy, or both, annoyed and nagged at the appellant unnecessarily causing him to lose his rest, said unpleasant things to him and was doubtless indiscreet in her persistent inquiry as to his whereabouts when out late at night, and probably without conclusive evidence as to his association with other women, at times, unjustly accused him of such association and was guilty of much imprudent conduct; yet it also appears from this record that the appellant was indifferent and Cold towards his wife, constantly indulged in staying out late at night and when asked to explain why out so late refused to give her any satisfaction whatever; refused at times, without any apparent reason, to .take his wife automobile riding when she especially requested him so to do and at the same time was on several occasions seen riding with other women and whether the occasions of such rides were proper or improper it was calculated to intensify the nervous condition of his wife. It appears to us that instead of endeavoring to allay tlie jealous and nervous condition of his wife, which he must have known existed, he neglected her and did such things as he certainly knew were calculated to make her condition worse, and at last under a pretense of going away temporarily, left her and then wrote her a letter from Kansas City stating to her that their lives have led in different directions and that he would regret to go through his entire life with the ever existing unpleasant feeling that has been prevalent for so long; and further suggesting to her that she would be better off with herself free and hoped that the future would give them more pleasant things than they had enjoyed in the past, and concluded the letter by suggesting that he would make her an allowance. From this letter it is clear to our minds that he had concluded not to live with his wife any longer and that he sought to get rid of her in the easiest manner possible.

We are not able to say from this record that the trial court who heard the evidence, saw the witnesses upon the stand, was more able to perceive the motives and conduct of the parties and other witnesses, was not warranted in finding that the appellee was living-separate and apart from the appellant, without hér fault, and we are not disposed to disturb this decree on that account.

The third objection urged is that the allowance made to the appellee is excessive.

For the purpose of showing the property of which the appellant was possessed, and his earnings, the appellee placed appellant upon the witness stand and seems to rely largely upon his testimony as to such property and income. As we read this record the appellant owned a place called Park Place Lots, worth about $1,000; a fifty foot lot in Weiman place worth $1,600, with a mortgage of $500; two lots in Altenberg’s Addition worth about $3,000 with a $1,500 mortgage thereon; a piece of property in the Claremont Addition worth $5,000 with a' mortgage for $3,600 thereon, and a lot in the McKinley Place worth $400; and that he also owns a one-fourth interest in 140 acres of ground, the reasonable value of which, as we believe the preponderance of the evidence shows, is from $125 to $150 per acre, but this land is subject to a mortgage of $10,000 and Mr. Cash’s net interest in this land would be of the value of about $2,000; making the total net value of property owned by him of about $7,000.

It is further disclosed by this record that the appellant is connected with the firm of A. T. Cash & Company, engaged in the commission business of buying and selling stock at East St. Louis. That the amount of business transacted by this Company is quite extensive and that during the years 1907 and 1908, Mr. Cash realized some $8,000 or $9,000; $3,000 of which was lost in wheat deal and the remainder of it was from time to time drawn upon and used by appellant in living and otherwise.

It further appears that in 1911, the appellant’s income from his business was about $1,800; the year before some less and the months of January and February of this year show considerable less. While it appears from this evidence that the appellant’s firm was doing an enormous amount of business, yet it further develops that a great deal of this business was transacted upon a very small profit, as it is shown that car loads of hogs were bought by this firm and paid for at a commission of five dollars per car, so that it seems the profits of the business were rather uncertain and at times small. It appears to us that the evidence in this record discloses that the fair income of this appellant is not to exceed $1,800 per year. It also appears from the testimony of the agent of appellant, who rents the real estate and looks after it, that it takes the whole of the income from the real property to pay repairs, taxes and interest. Some stress is laid upon the fact that the appellant was given notice to produce his books showing the business transactions for some years back, but that such books were not produced and as a reason therefor he stated that at the end of each year for several years last past they made a settlement and then the books that they kept, which were mere memoranda, were destroyed, but also stated that the same things were shown by their bank book, which was produced and inspected by counsel for appellee in the trial of the case. While we think it is not a very business-like way, to destroy books at the close of the year’s transactions, yet as it appears these same items were kept in a bank book we do not feel warranted in going outside of the record under such circumstances in determining the amount that appellant should pay to appellee for separate maintenance. It does not appear from this record that the appellee has any separate income, or that any necessity exists for any unusual expenditures of money by her. It is true there is no inflexible rule by which the amount of alimony allowed can be fixed but it must be determined by the circumstances in each case. It is said, however, by our Supreme Court, in the case of Harding v. Harding, 144 Ill. 599, quoting Bishop with approval that, “ ‘The ordinary rule of temporary alimony is to allow the wife about one-fifth of the joint income, deducting of course the income from the wife’s separate estate in the way already explained. This is regarded as a fair medium, though the proportion will vary, as we have seen, according to circumstances.’ * * * In a large number of reported cases falling under our observation the rule above laid down has been recognized and substantially followed. * * * However, the amount allowed by the courts is by no means uniformly in the proportion indicated by the text-writers. It will be found that it varies from a sum sufficient to meet the actual wants and necessities of the wife in some cases, to a third or even a half of the income of the husband.” We do not believe that the Circuit Court was warranted, from the evidence in this case, in allowing the appellee $120 per month alimony; we think it is excessive. The facts as shown here would not justify alimony exceeding $50 to $75 per month.

The next, contention of appellant is that solicitor’s fees were allowed without any evidence whatever tending to show the reasonable value of such services. It is contended by counsel for appellee that the court had the right to fix the fees which would be determined by the amount of services rendered and the pleadings as it was observed by the court, and several cases have been referred to in which it is mentioned that the court fixed the fees but it does not appear from any of these cases whether the court heard evidence or not. We think the better rule is laid down in the case of Metheny v. Bohn, 164 Ill. 495, no allowance of a solicitor’s fee can be sustained where no evidence showing what services the solicitor performed, or the value thereof, is preserved in the record.

Where large sums are allowed and the rights of litigants affected thereby the evidence should be preserved so as to permit the decree to be reviewed. Goodwillie v. Millimann, 56 Ill. 523. While it is true the judge would not be governed solely by opinions of the attorneys as to the value of such services, as he has some skill and knowledge as to such matters, yet he should no doubt take into consideration the opinion of such witnesses in arriving at his conclusion, and in fixing the fee the court’s attention should be directed as to what is customary for such services. Goodwillie v. Millimann, supra. This case was followed in the case of Glynn v. Glynn, 139 Ill. App. 185, which was a suit for separate maintenance. We think it proper for the Circuit Court upon discovering that an appeal has been prosecuted to allow the appellee a reasonable amount to pay her solicitor, and other expenses attending .such appeal but we regard the' third suit, designated as Term No. 32, as wholly unauthorized and the allowance therein fixed was an unnecessary burden upon the appellant. The court should in this case hear evidence as to the value of the services rendered in the circuit and appellate courts and then make its order allowing a sufficient amount to cover such services and expenses.

Again, it is claimed by counsel that the court erred in making the decree a lien upon the defendant’s real estate because it was encumbered. It may be that a decree made a lien upon the encumbered real estate might result in prejudicing the interests of the appellant in case of a sale, but we can see no way of securing such an allowance as may be made except by making it a lien upon the real estate, but we think the Circuit Court could very properly provide in the decree methods by which in case of a sale of any of such real estate the same could be released from this lien.

We think the court was fully warranted in decreeing that appellee was living separate and apart from the appellant without her fault and that the decree to that -extent should be affirmed, but we think the court erred in allowing the sums mentioned in the decree as alimony, under the evidence contained in this record; and also in allowing the amount for solicitor’s fees without ascertaining what such services would be worth. As to the amount of alimony allowed and solicitor’s fees the decree will be reversed and cause remanded with directions to the Circuit Court to hear further evidence, if desired by either of the parties, upon the question of the property of the appellant, his income or other matters that might pertain to the fixing of the amount to be allowed for appellee’s support and maintenance, and also to hear evidence as to the value of the services rendered and the usual and customary charges for solicitor’s fees in trying such cases, together with the appeal, and the necessary expense incurred by her in the prosecution of such suits.

Decree affirmed in part, reversed in part, and re-ma/nded with directions.


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    Louisa Hook, Appellant, v. W. W. Bunch, Appellee.
    1. Fbactice—directing verdict. On a motion to direct a verdict, the court is without power to weigh the evidence, and in doing so, invades the province of the jury.
    2. Fbactice—directing verdict. A court errs in directing a verdict, where it is bound to assume that a contract in suit was made as testified by plaintiff, and not according to the testimony of the defendant.
    3. Fbactice—directing verdict. Where plaintiff levied upon two pianos, one of which he was shown to have stated to defendant belonged to a piano company, an instruction by the court, finding as a fact that no such statement was made, and directing a verdict for plaintiff, is error.
    4. Compbomisb and settlement—admissions competent. While an offer of compromise is not binding, independent admissions and statements of facts made in connection with such offer, though made in an effort to effect settlement, may be given in evidence against the party making them.
    Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    Edgar P. Holly, for appellant.
    E. W. Eggman and D. R. Webb, for appellee.
   Mr. Presiding Justice McBride

delivered the opinion of the court.

This was a trial of the right of property which resulted in a verdict and judgment for the plaintiff under the direction of the court, from which judgment the defendant prosecutes this appeal.

The appellant has assigned five errors hut in the view we take of this case it is only necessary to consider the second error, which is, “That the court erred in instructing the jury to return a verdict for the plaintiff.”

The facts in this case are very few and the evidence not of a very conclusive character. The appellee r§h covered a judgment against the Cable Piano Company for $200 before a justice of the peace, caused execution to issue thereon and levied upon two pianos in the possession of appellant. There was some evidence tending to show that the appellee had acted as the agent of the Cable Piano Company at Bast St. Louis in selling and handling its pianos but he denies that he represented them in the year 1911. After the introduction of the formal proof of the execution and notice of the trial of the right of property the appellee testified that he was the owner of the pianos in question and had been since 1905, and rested his case. The appellant then testified that she had a conversation with the appellee in which she says that in the conversation, which occurred between the time of levy of the execution and the trial of this cause in the court, with reference to the ownership of the pianos in question, that the appellee said to her, “I would not make the money off of it anyhow because one of the pianos was his and the other belonged to the Cable Company.” She also testified that in another conversation with reference to a settlement of the case that appellee said, “Well, Mrs. Hook, if you will take fifty dollars I will recommend a settlement;” and that she said, “No, I will never take any fifty dollars from the Company;” he said, “Then we cannot- come to any agreement.” But this latter conversation, upon motion of appellee was excluded from the consideration of the jury. The statement of appellant that appellee said, “I would not make the money off of it anyhow because one of the pianos was his and the other one belonged to the Cable Company” was denied by the appellee. This was substantially all of the testimony offered upon the trial of this case and thereupon the court directed the jury to return a verdict for the plaintiff. It seems to us that if the appellee did say to the appellant that “One of these pianos was his and the other belonged to the Cable Company” that this would certainly prevent him from recovering at least one of the pianos and whether he did make the statement or not was a question for the jury to determine from all of the facts, declarations of the witnesses and circumstances proven in the case; at least giving the testimony of appellant as to the admission of appellee full credit, with all the inferences that might reasonably be drawn from it, one could very reasonably conclude that appellee owned only one of these pianos, and the court in giving this instruction must have found as a fact that the appellee did not make the declaration as testified to by the appellant. The effect of this instruction was to direct the jury to find that both of the pianos were owned by the appellee. It is said by the Supreme Court in the case of Delaware & H. Canal Co. v. Mitchell, 211 Ill. 383: “On the motion to direct a verdict the court was not only bound to assume that a contract was made, but also that it was the contract testified to by the plaintiff and not the one which defendant’s witnesses said he offered to make.” The court is without power to weigh the evidence upon a motion of this character and in doing so invades the province of the jury. Illinois Cent. R. Co. v. Bailey, 222 Ill. 480. We are of the opinion that it was error for the court to direct a verdict in this case.

Some complaint and argument has been made as to the rulings of the court in excluding certain declarations of appellee made in the offer to compromise. While it is true that an offer of compromise itself is not binding but independent admissions or statements of the facts made in connection with such offer of compromise, though made in an effort to make a settlement, may be given in evidence against the party making them. Greenleaf on Evidence, vol. 1, sec. 192; Domm v. Hollenbeck, 142 Ill. App. 442; Thom v. Hess, 51 Ill. App. 274. This, however, can lie corrected by the court upon another trial and such admissions of independent facts admitted as may appear from the evidence to be such.

For the errors above indicated the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.


text:
    James C. Kennedy, Administrator, Appellee, v. Chicago & Carterville Coal Company, Appellant.
    1. Master and servant—injury due to concealed defect. Where usual tests for determining the safety of working conditions in a coal mine are made, and a miner of experience, with as much and as good opportunity to know such conditions as the company’s manager, is injured by a roof falling, due to a concealed defect in the slate, recovery cannot he had.
    2. Master and servant—liability of master. To recover for the negligence of a master, a servant is required to prove that the place of his work was defective and that he did not know of such defect and had not equal means of knowing with the master.
    3. Master and servant—safe methods. The admission of proof that a safer mode could have been adopted for removing a roof of coal in a mine, which had been sounded and appeared solid, by propping it, is error, the question being whether the mode adopted was reasonably safe.
    4. Master and servant—liability of master. It is the duty of a master to use reasonable care to provide his servants with a reasonably safe place to work, and he is liable for the negligent performance of such positive obligation, whether he undertakes its performance personally or through another.
    5. Master and servant—duty of master. Where a servant is placed at a work with which he has no acquaintance, and concerning which he is not informed, the burden is cast upon the master to see that the servant is not exposed to dangers unknown to him.
    6. Master and servant—requisites for master’s liability. In a suit against a master for negligence, it is essential that a negligent order should have been given and that the master knew, or by the exercise of reasonable care might have known, of the danger at the place or in the manner of performance.
    7. Master and servant—accidents. The mere happening of an accident does not necessarily show that a place of work was unsafe or that the master was negligent in ordering a servant to work in a place not reasonably safe.
    8. Master and servant—pleading knowledge of danger. A declaration for negligence against a master need not allege that plaintiff did not have equal means with the defendants of knowing the danger.
    9. Master and servant—verdict against weight of evidence. Verdict for damages for death of a coal miner caused by the falling of a roof, held manifestly against the weight of evidence.

      Appeal from the Circuit Court of Williamson county; the Hon. Benjamin W. Pope, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    Rehearing denied May 29, 1913.
    Denison & Spiller, for appellant; Mastin & Sherlock, of counsel.
    Neely, Gallimore, Cook & Potter, for appellee.
   Mr. Presiding Justice McBride

delivered the opinion of the court.

A judgment was obtained in the Circuit Court of Williamson county against the defendant for $3,000, to reverse which this appeal is prosecuted.

On May 7,1911, John Kennedy was killed in the defendant’s mine by the falling of coal' and slate from the roof of the entry which he was engaged at the time in taking down. There was a low place in the roadway in the seventh north entry off the fourth east entry in defendant’s mine, which place was wet and muddy and interfered to some extent with the operation of the motor used in hauling coal. On Saturday, May 6th, John Kennedy had been at work in this entry at this low place and as Flynn, the mine manager, passed through there Kennedy said to him, “I can’t get this road in shape like it ought to be; this mud ought to be cleaned up and this road filled up with ashes.” And Flynn said to him, “Will you want to work tomorrow on it,” and Kennedy said, “Tes;” and Flynn then said, “How many men do you want,” and Kennedy said, “A couple besides myself,” and Flynn said, “All right,” and he then had the ashes taken in there and sent Morris and Proudlock with Kennedy. On the next day they began the work and Corcoran, the assistant mine manager, also came to assist them in this work. After raising the track it became necessary to take down a part of the roof so as to allow the motor to pass through without dragging off the coal and a Mr. Long was called in to assist in this work. There was about ten or twelve inches of coal which extended to a feather edge on the face of the slate roof. When they were ready to remove the coal Corcoran, the assistant mine manager,, as stated by one of plaintiff’s witnesses, examined the roof and found a potted or soft place in the roof and at that time said it did not look like it was going to get good but afterwards he took down this soft place and then said it was all right to go ahead and that after this soft place was taken down the witness says the roof seemed solid and he went to cutting on one side of the entry and Corcoran on the other. He says Corcoran showed them how to do the work by cutting the coal on the side and wedging it down; that from time to time during the progress of the work they sounded the roof and pronounced it solid. The mine manager had measured off the part of this roof that was to be taken down,' which was about thirty feet. Two of the men worked from the east end and two from the west end, working towards each other. About half an hour before the accident Corcoran left the place and the others remained at the work and about five minutes before the accident there was a pop in the roof and the men jumped back and Kennedy then sounded the roof and said it was solid and they proceeded with the work, as before, and had completed the whole of it except about four feet when the fall occurred. There were several tons of the coal and slate fell and caught Kennedy and crushed him to death. Kennedy had been at work for the appellant for about two years and, as appears from the evidence, was a miner of many years experience; had been a mine foreman in some mine in Oklahoma for about five years, and that he had dug coal in Ohio and Alabama; had acted in the capacity of assistant mine manager for the defendant for four or five years, had papers in this state as a mine examiner and was a practical coal miner and competent to perform the duties of assistant mine manager, and to take down top coal and timber entry ways. That during the time he had worked for defendant his general business was track layer but during this time he also" acted as assistant mine manager for four or five weeks; that he had been engaged in opening up places where there was gas to contend with, to create a place for an over cast and had been called upon to do and perform any kind of work in the mine, and was regarded by the mine manager as competent to perform any kind of dangerous work and had from time to time performed for the defendant work of this character.

The several counts of the declaration upon which this case was submitted to the jury allege that the defendant negligently furnished plaintiff’s intestate a dangerous place in which to work and removed him from his regular employment as track layer and put him to work at a different character of work, which was more dangerous than his usual work of track layer. The taking down of the coal, slate and rock from the roof of the entry was dangerous, in this, that the coal, slate and rock in such roof were loose and rotten and apt to fall when struck by picks and bars, which said character of work and the dangerous method of doing it plaintiff’s intestate was not so well acquainted with as defendant. That defendant knew or by the exercise of reasonable care could have known that the place was dangerous and the deceased was not acquainted with the dangers of taking down such coal, slate and rock. That the deceased did not know the dangers of taldng down the same and did not have equal means with the defendant in knowing thereof, nor that such work was more hazardous than his usual employment of track laying, and did not have equal means of knowing thereof; and that in consequence of defendant’s negligence in taking plaintiff’s intestate from his regular employment as track layer and placing him in a more hazardous employment of taking down the coal in the roof of said entry, and while deceased was in the exercise of due care he was killed.

The second count charges the same as the first except that it alleges that on account of a squeeze in the entry that the roof was reasonably apt to fall when struck with picks.

Another c'unt alleges that defendant’s foreman in charge of said work negligently ordered the deceased, together with other men to take said roof down in a dangerous manner; in this, to go under the same and with pick, wedge and sledge and pick, wedge and sledge the same down.

Another count alleges that the defendant by its foreman negligently ordered the deceased, with other men, to take the coal, slate and rock down from the roof in a dangerous manner, that is to say, to go under said roof and begin with picks at the edge or margin of said sag and to take said roof down and come facing each other until said workmen should meet in the middle or center of such low place, and that such method was dangerous and so known to be by the defendant and was not known by deceased, and that he did not have equal means of knowing it.

It is contended by counsel for appellant that before there can be a recovery in a case of this kind the burden is upon the plaintiff to prove by a preponderance of the evidence that the place, appliances, method or thing charged as being defective, is defective, as alleged; that the defendant knew thereof or could have known thereof by the exercise of reasonable care; that the deceased did not know thereof and did not have equal means with the defendant of knowing thereof, and the deceased himself was, with reference to the injury, exercising reasonable care for his own safety.

It is true as contended by counsel for appellee that it is the duty of the master to use reasonable care to provide its servants with a reasonably safe place in which to work, is a positive obligation, and he is liable for the negligent performance of such duties whether he undertakes its performance personally or through another. Himrod Coal Co. v. Clark, 197 Ill. 514. It is charged by this declaration that the deceased was placed in a dangerous place to work which was known to the defendant or by the exercise of reasonable care could have been known to it, and that deceased did not know of its dangers and did not have equal means with the defendant of knowing it. It is true, it appears from the evidence, that, in the prosecution of the work, a clod fell and killed John Kennedy, but what was the apparent condition prior to the fall and during the time the men were engaged at work in taking down this coal? The evidence is overwhelming that prior to the accident the men there engaged at work did from time to time sound the roof and that it appeared to be solid. The only time any fault in the roof was shown to exist was prior to the commencement of the work, when Corcoran, the assistant mine manager, sounded the roof and found a soft place which he removed and after this soft place was removed the same witness then says the roof became solid and continued so up to the time of the fall, and some of the witnesses say that the fall was occasioned by a fault in the slate which could not be seen by anyone.

It is contended that there was a squeeze on in the mine, near this entry, which made it dangerous. Wé have examined this record carefully and practically all of the witnesses say that the squeeze did not extend to this place ; that a squeeze is evidenced by the bulging up of the bottom, or pressure upon the pillars, causing them to chip off and that no such evidences were present; and they further say that some of the coal remained upon this roof. One witness testified that he thought the squeeze extended to this entry but on cross-examination he did not know whether there was an upheaval of the bottom or crushing of the pillars or not, he did not examine it. The other witnesses did examine it and .say that no such thing occurred. Practically all of the witnesses for appellee and appellant who had any knowledge upon this subject say that from the time of the removal of the soft spot above referred to by Corcoran, that the roof continued solid. It seems to us from this evidence that any reasonable person would have been justified in concluding that the place in which the men were engaged at work, and their manner of performing it was reasonably safe. It is contended, however, that when the coal or slate is soft or brittle that it would be safer to timber it and many witnesses were put, upon the stand to prove that it would be safe in taking down coal, that was soft or brittle, to timber it, but all of these witnesses admitted upon cross-examination that if the roof when sounded appeared solid that there was no necessity for propping and that it would be practical to cut the coal and wedge it down as was done in this case. Proof was offered as to other safe modes of taking down this coal, and it was doubtless made to appear to the jury that these modes were safer and should have been adopted. The question before the jury, however, was not as to whether other modes were safe or safer, but was the mode adopted reasonably safe, -and our Supreme Court has held it to be reversible error to show that, a safer mode could have been adopted. Brossman v. Drake Standard Machine Works, 232 Ill. 412; Casey v. Reedy Elevator Mfg. Co., 142 Ill. App. 126. We believe that it appears from this evidence that the defendant’s representatives and the deceased both believed the place at which they were engaged at work to be reasonably safe, and that it is not made to appear that there was any reason why the representatives of the defendant could have believed otherwise. They, as well as others that worked with them and the deceased, applied the usual test for determining its safety, and we think sincerely came to the conclusion that it was safe to work under. We think that John Kennedy was a man of experience and that he had as much opportunity to know the conditions and as to whether they were reasonably safe or not as the defendant’s managers. It in fact appears from the record that about thirty minutes before the fall came the defendant’s manager had gone to some other part of the mine and that in the meantime there was a pop in the roof which caused the men to jump hack, and John Kennedy then tested the roof and proceeded with the work. It certainly looks as if his opportunities were as good as anyone to know the real condition of that roof; and if this be true then under the doctrine laid down by our Supreme Court it is not only necessary to prove that the place was defective but the plaintiff must also prove that he did not know of the defect and had not equal means of knowing with the master. Montgomery Coal Co. v. Barringer, 218 Ill. 327; Goldie v. Werner, 151 Ill. 551. One of the witnesses who helped to remove the fall after the injury says that the slate was hard, that they had to take a sledge to break it up and this confirms the statement of other witnesses that it appeared solid in the roof, and that the fall probably came from the fault in the slate which was concealed from everyone.

It is contended, however, by counsel for appellee, that the deceased was taken from his usual work and was at this time engaged at work under a specific order given by the defendant. Each count of the declaration alleges that the deceased was taken from his usual work; charges that the defendant knew of such dangerous condition or could have known thereof by the exercise of reasonable care, and that the plaintiff’s intestate did not know the dangers and did not have equal means with the defendant of knowing thereof, which, as we understand the law, it was necessary for the plaintiff to allege to entitle him to recover. Wiggins Ferry Co. v. Hill, 112 Ill. App. 475. As we have before observed, the appellee has failed to prove some of the material averments above set forth but aside from this we do not believe that the principle invoked by him is applicable to the facts in this case. The deceased was shown by the evidence to be a capable man, one of many years experience in mining, having had several years experience as mine foreman, was experienced in taking down and removing coal and slate from the roof of a mine, had been engaged in track laying and had in fact, in this mine, pursued to some extent each one of these particular occupations and, was relied upon and used as a man for that purpose on account of his skill to care for and repair dangerous places in a mine. The mere fact that he had, on the day previous, been .engaged in the particular business of track laying and was taken from that work and placed at a work that he understood, had heretofore performed and was experienced in and knew about, would not bring him within the rule of having been transferred from his regular business to a work to which he had no acquaintance. It is the fact of the servant being placed at a work with which he has no acquaintance, concerning which he is not informed, that the burden is cast upon the master to see that he is not exposed to dangers unknown to him. We think the facts are that the deceased was as well acquainted with the work in which he was engaged as the assistant mine manager or any other person employed in this work at that time. It was necessary for the plaintiff to allege and prove that the order was negligently given, and to make it a negligent order it was necessary to prove that the place to which the servant was sent to perform the work or the manner of its performance was not reasonably safe and that the master knew it or could have known it. It is said in the case of Swiercz v. Illinois Steel Co., 231 Ill. 462: “The issue on trial was the negligence of the defendant. It was essential to the plaintiff’s case that the order should have been negligently given. It was necessary to prove that the defendant knew, or by the exercise of reasonable care might have known, of the danger.” We do not believe that even if it is assumed that an order was given that the place to which deceased was put to work was not reasonably safe, the mere happening of an accident does not necessarily show that the place was unsafe or that the master was negligent in putting the servant at work in a place not reasonably safe.

There are many other errors assigned by counsel for appellant which we do not believe it necessary for ns to pass upon. It seems to ns from a fair and impartial consideration of this evidence that the verdict of the jury was manifestly against the weight of the evidence; that the court erred in the admission of testimony as above indicated, and the judgment is reversed and the? cause remanded.

Reversed and remanded.


text:
    Henry Vogler, Appellee, v. Chicago & Carterville Coal Company, Appellant.
    1. Nuisance—when obstruction of water course temporary. Where a private corporation unlawfully places slack from its mine in a ditch the obstruction is temporary and such corporation cannot give it the character of a lawful permanent obstruction.
    2. Damages-—nuisance. Recovery for damage to land submerged when defendant placed slack from its mine in a ditch can be had only to the time of the action even if permanent injury by the mine water is shown where it is not shown that such land was rendered wholly unfit for cultivation.
    3. Damages—measure of, where nuisance destroys lands for cultivation or as a habitation. It would seem if a mining company by unlawfully obstructing a ditch with slack rendered plaintiff’s land wholly unfit for cultivation or destroyed it as a habitation or damaged his well, that recovery might be had for damage subsequent to the bringing of action if such condition could not be remedied by the abatement of the nuisance.
    Appeal from the Circuit Court of Williamson county; the Hon. William W. Clemens, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    W. A. Schwartz and Hosea V. Ferrell, for appellant.
    Neely, Gallimore, Cook & Potter, for appellee.
   Mr. Presiding Justice McBride

delivered the opinion of the court.

Judgment was rendered in favor of the plaintiff in the Circuit Court of Williamson county, Illinois, to reverse which the defendant prosecutes this appeal.

The declaration consists of two counts; the first count alleges in substance, that appellee was the owner of the southwest quarter of the N. W. %, Sec. 18, Tp. 8 South, Range two, called the east forty; also the S. E. % of the N. E. % of Sec. 13, Tp. 8 South, Range one east of Third Principal Meridian, called the west forty, and that he occupied the same as a residence and for agricultural purposes. That on April 20,1906, the appellant wrongfully and unlawfully filled up a branch or natural drain flowing along the southwest corner of said premises with slack and waste substances from its mine and thereby unlawfully diverted and changed the natural drainage of the water that fell on and flowed off of the above described premises into said branch so that said water could not flow off of said land in the natural way, and the water that fell on said land was caused to be and remained standing on said land and that by reason thereof large quantities of water were caused to stand and remain upon the premises of plaintiff and his said premises and land thereby rendered incommodious, unhealthy and unfit for occupation and agricultural purposes, and otherwise greatly and permanently injured the land. The second count alleges that appellee occupied the said lands as a permanent home and the same was well improved with shrubbery, - trees, well and outbuildings and that appellant from April 20, 1906, unlawfully pumped water out of its mine in large quantities and deposited the same so that it flowed over and across' said lands and remained on said premises in - large quantities and that by reason thereof the said lands and premises have been rendered unhealthy and unfit for occupation as a residence or for agricultural purposes and has been greatly depreciated.

It appears from the evidence in this case that said lands lie side by side, or nearly so, and that immediately south of them a slash of irregular shape covers a large area of land extending east and west beyond the lines of appellee’s lands; that about one-fourth of a mile almost south of the southwest corner of the west forty and at the south edge of said slash a creek or branch extends therefrom off to the southeast and connects with Hurricane creek that has for many years been used as drainage for this slash. That plaintiff’s residence was located near the southeast corner of the west forty.

Several years ago the appellant sunk a coal mine at a distance of about half a mile and almost south of the southeast corner of appellee’s east forty and near the branch above referred to. That afterwards appellant erected a coal washing plant near its mine and near this drain and so conducted and managed its business as to permit the water used in washing coal to drain into this ditch or branch, causing such ditch or branch to be filled with slack to such an extent as to cause the waters and refuse to flow from said mine towards and into said slash and to prevent the said creek from carrying away the overflow into said slash and thereby caused the waters from said slash to submerge appellee’s lands, or a portion of them and that by reason thereof for the last two years caused some fifty or sixty acres of appellee’s land, as claimed by him, to overflow and rendered it unfit for cultivation, and also destroyed a well upon the said premises. There was no evidence offered by appellee as to the rental value of such lands but the evidence of appellant shows the rental value to be from two to three dollars per acre each year. The jury returned a verdict assessing the plaintiff’s damages at $1,500.

Counsel for appellant has assigned as error the refusal of the court to set aside this verdict and grant a new trial and in support of this he assigns as one of the principal reasons that the verdict of the jury is excessive.

We are of the opinion that all of the principal questions involved herein may be considered under this proposition. .

The cause was tried by appellee apparently upon the theory that the nuisance complained of was permanent and of a character that could not be abated and that he was therefore entitled to the full depreciation of the value of his land. The nuisance complained of consisted in the filling up of a ditch with slack, etc., and caused the water to flow back into a depression in lands adjoining the appellee’s and obstructed the natural drainage of the water and by reason thereof submerged appellee’s land and rendered it unfit for cultivation.

The appellant was a private corporation and had no right or authority to create and maintain as permanent an obstruction of a waterway; if it did so, and it could be proven to be unlawful, then we see no reason why it should not be required to abate such nuisance. Quasi public corporations such as railroads, etc., have been granted by the state the right to condemn lands, and if necessary to erect permanent structures that may result injuriously to other persons, but this is not true of corporations like the appellant, which was created for private purposes and not authorized to erect unlawful structures that would injure another person, and should be abated and is not in its nature necessarily permanent and as to this class of nuisances we think the law of this state is well settled that the plaintiff is limited in its recovery of damages to the time of the commencement of the suit and is not entitled to recover permanent damages for the depreciation in the value of the property. In the case of Joseph Schlitz Brewing Co. v. Compton, 142 Ill. 515, the court in speaking of the differences that have arisen in the application of the rule for assessment of damages says: “This confusion seems to arise from the different views entertained in regard to the circumstances under which the injury suffered by the plaintiff from the act of the defendant shall be regarded as a permanent injury. The chief difficulty in this subject concerns acts which result in what effects a permanent change in the plaintiff’s land, and is at the same time a nuisance or trespass.’ * * * Some cases hold it to be unreasonable to assume, that a nuisance or illegal act will continue forever, and therefore refuse to give entire damages as for a permanent injury, but allow such damages for the continuation of the wrong as accrue up to the date of the bringing of the suit. Other eases take the ground, that the entire controversy should be settled in a single suit, and that damages should be allowed for the whole injury past and prospective, if such injury be proven with reasonable certainty to be permanent in its character. * * * We think upon the whole that the more correct view is presented in the former class of cases.” In support of which many cases are cited by the Supreme Court. We think it is well settled by the case last above cited that the obstruction here complained of was only temporary in its character and could not, by anything that appellant could do, be given the character of a lawful permanent obstruction, and that it was improper to permit proof of damages sustained subsequent to the commencement of the suit. Appellee cites and relies upon the case of Chicago, R. I. & P. R. Co. v. Carey, 90 Ill. 514, and Strange v. Cleveland, C., C. & St. L. R. Co., 245 Ill. 246, but we do not think these cases in any manner change the rule laid down in the decision above cited. It was said in the case of Canteen Hunting & Fishing Ass’n v. Schwartz, 128 Ill. App. 224: “In cases of temporary nuisance resulting in injury, the right to recover is a continuing one, a cause of action accruing upon each recurring injury, for the particular damages sustained thereby, until the nuisance is abated, but nothing can be allowed for depreciation of the market value of the premises. This is not affected, for the continuing right to recover particular damages as they may accrue, ‘runs with the land’ and compensates for the injury so long as it may continue, the presumption being that an illegal act will not continue forever.”

Counsel for appellee, on page 15 of his brief, concedes that they have “No complaint to make with the argument of appellant and with the authorities cited on this question of damages, so far as the obstruction of the Arnold slough was concerned. We think that the measure of damages for such an obstruction would be the rental value of the lands. But this was not the real or at least the chief grievance. The chief and substantial grievance was the flooding of the land with the mine water. This is what Caused a permanent injury to the land. Though the obstruction may be only temporary the injury inflicted is permanent; though the refuse could be cleaned out of Arnold slough at once the injury inflicted by the poisonous substance from the mine water cannot be removed from the soil. It has permanently injured the land of appellee; the injury is irreparable, it-has killed the land.” This, however, does not change the rule with reference to the time to which damages may be recovered. The rule above announced is that they are limited to the time of the commencement of the suit and cannot recover for depreciation in value or for future damages. There is no evidence in this record showing that these lands cannot or would not, by the removal of the obstruction, ever be fit for agricultural purposes or would not produce when properly cultivated. The testimony simply is, that it killed the land, which, for ought this record shows, may and doubtless would be temporary. If it is true that the unlawful acts done by appellant prior to the bringing of this suit wholly destroyed appellee’s lands and wholly rendered it unfit for cultivation hereafter, or damaged the well or did any other damage that destroyed it as a habitation and which could not be remedied by the abatement of the nuisance, and if these facts were fully developed it might be then that a different rule would apply. We do not understand that where property is occupied as a home and that by reason of a nuisance created he has been damaged, that he is limited to the rental value of the land but his damages may be measured by his discomfort and the deprivation of the healthful use and comforts of his home. N. K. Fairbank Co. v. Nicolai, 167 Ill. 242.

The evidence in this case offered by appellee does not go to the extent that the land had been permanently and irreparably injured for the witness Parsons, who had been a tenant upon the lands says: “Well it would not be worth anything to me for a home unless this water was taken off of it. It is dangerous to health and it is badly in the way for handling stock over the farm; has pasture shut off; have one pasture shut off now so we cannot use it for the water.” And appellee in his testimony says, “Fifty or sixty acres of the land was not worth anything to me for the last two years.” The evidence offered by appellee in this case would not warrant a court in rendering judgment for depreciation in the value of the land, as appellee claims he had been deprived of the use of only fifty or sixty acres of the land for the last two years, and all of the evidence in the record shows the rental value to be only from two to three dollars per acre, certainly would not warrant a verdict for the amount given in this case; while it may be true that if the appellee was occupying the’ place as a home he would not be limited to the rental value for his damages, yet he certainly cannot, under the conditions here presented, be entitled to the depreciation in value of said lands as claimed.

Objections have been made by counsel to questions asked and instructions given but we think upon another hearing of this case the court will be governed by the principles above laid down and that no necessity exists for a minute discussion of'such errors.

The verdict and judgment in this case is manifestly against the law and the weight of the evidence and the judgment is reversed and cause remanded.

Reversed and remanded.


author: Me. Presiding Justice McBride

text:
    Henry Bachmann, Plaintiff in Error, v. Southern Coal & Mining Company, Defendant in Error.
    1. Master and servant—defective appliances. Where a rope to which a weight is attached and used to hold a swinging saw away from a bench, repeatedly breaks in the place mostly used on the pulley, such fact would indicate that a wire cable is not adapted to the purpose for which the rope was used.
    2. Master and servant—when master has opportunity to inspect cable. A master has had an opportunity to examine a cable with a weight attached, used to keep a swinging saw away from a bench, where the workman who operated the saw attached it about six weeks before the accident.
    3. Master and servant—when negligence of master is for the jury. In an action for injuries received when a swinging saw came forward and struck plaintiff on the breaking of a cable with which it was held, the question whether defendant was guilty of negligence is for the jury where there is evidence that the copper wire cable was not of the proper material when used over a pulley of the size used, that defendant had an opportunity to examine it, and the rope previously used had broken repeatedly.
    Error to the Circuit Court of St. Clair county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    Fred B. Merrills and James A. Farmer, for plaintiff in error.
    Kramer, Kramer & Campbell, for defendant in error.
   Me. Presiding Justice McBride

delivered the opinion of the court.

This case was tried at a former term of the Circuit Court of St. Clair county and judgment rendered for plaintiff, from which judgment an appeal was prosecuted to the Appellate Court of the Fourth District and reversed at the October Term, 1911, thereof and remanded to the Circuit Court for a new trial. After the case had been remanded to the Circuit Court several additional counts were filed to the declaration upon which issue was joined and trial had at the September Term, 1912, of said Circuit Court. At the conelusion of plaintiff’s evidence the court directed the jury to find the defendant not guilty, which it did, and judgment was rendered against the plaintiff for costs, to reverse which the plaintiff prosecutes this writ of error.

For a statement of the facts in the case reference is made to the case of Bachmann v. Southern Coal & Mining Co., 165 Ill. App. 485. After the case had been remanded additional counts were filed conforming to the suggestions of this court; plaintiff also offered some additional evidence, especially with reference to the wire rope that broke causing the injury to plaintiff.

By the several counts of the declaration, as it now appears, it is charged in various forms that the plaintiff was inexperienced in the work which he had been called upon to perform and this was known to the defendant ; that defendant made use of an insulated electric wire, insufficient in tensile strength and durability for the purpose for which it was used; that the rope was weak, defective and insufficient and made of improper material and was dangerous; that such defective, improper and insufficient cable was liable to break and cause said saw to come forward and injure the plaintiff; that the defendant made use of an insulated electric wire which was not designed to resist tension; that defendant failed to furnish plaintiff with reasonably safe appliances with which to work; that the defendant had knowledge of all such defects or by the exercise of due care might have known of them and that plaintiff did not know of them, and in each case avers that such defective appliances and materials were negligently furnished by the defendant.

It is disclosed by the evidence on this trial that when the saw was not in use it was held away from the bench by a wire rope attached to the frame work and running over a pulley to which there was fastened an iron weight of about ten pounds; that the plaintiff was inexperienced in such work and says, “I did not know at that time what made it (the saw) go back.” That the cable used for holding this weight was an electric wire cable. The witness who attached it to the machine says, “I put the rope on a month or six weeks before, it was a copper cable; I picked it up laying around the shop, old cable, I picked it up in there. As near as I can remember it was about three-eighths or probably one-half inch in diameter. It was bought for conducting power to electric machines. Before that time we used a hemp rope, or cotton. The other rope had broken several times and did not give satisfaction and I thought the copper cable would be more substantial and last better and I had none other of the kind. The rope broke in the place mostly used on the pulley. I operated the saw. The effect of the breaking of the rope was that the saw would swing forward, swing down to a plumb and toward the man operating it.”

The evidence discloses' further that the constant use of a wire of this character over a pulley of this size would mash the wires and weaken the cable and cause it to break, and that the constant straightening and bending of the wires would, at every time, rearrange the molecular construction of the wire and gradually weaken it. It was further shown by some of the witnesses, who claim to be conversant with these matters, that they had never seen a cable of this character used in bearing a weight, and that the constant use of a wire of this kind would gradually weaken and result in its breaking. The evidence tended to show that this cable was not constructed for the purpose of sustaining a weight but for an entirely different one. It was picked up by defendant and used by it as a matter of convenience because, as the witness says, they had no other. It further tended to show that the appliance used was not adapted to that purpose. It is the duty of the master to use reasonable care to furnish the servant with reasonably safe place and appliances with which to work and he is liable for the negligent performance of that duty whether he undertakes its performance personally or through another. Actual knowledge by the master of the defective condition of the place furnished for the servant to work is not essential to the master’s liability if the circumstances are such that he ought to have had such knowledge, and the same rule is invoked as to appliances. Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145.

The law is well settled that a peremptory instruction should not be given where there is “Any evidence in the record fairly tending to support the plaintiff’s cause of action.” Chicago City Ry. Co. v. Martensen, 198 Ill. 511. “Or where there was any evidence tending to sustain the cause of action set up in the declaration.” Consolidated Coal Co. of St. Louis v. Fleischbein, 207 Ill. 593. Or where there was any evidence “which, with all its reasonable inferences and intendments, fairly tended to prove the plaintiff’s case.” Chicago City Ry. Co. v. Lannon, 212 Ill. 477.

We are of the opinion that the fact that the rope used, before putting this cable upon it, had repeatedly broken; that this cable was not adapted to the purpose for which it was used; that the defendant had the opportunity to examine the cable; that the question as to whether or not the cable was of proper material when used over a pulley of the size the evidence shows this to have been used over, together with all of the facts and circumstances were matters that tended to show that the defendant had not exercised the care he should have done in using this cable for such purpose, and ought to have been submitted to the jury and let them determine from all of these facts as to whether or not the defendant was guilty of negligence.

The court erred in directing the jury to find a verdict of not guilty and for that reason the cause is reversed and remanded for a new trial.

Reversed and remanded.