text:
    Village of Ina, Illinois, by O. T. Shinn, Taxpayer, Appellant, v. F. F. Kelley, Appellee.
    (Not to be reported in full.)
    Abstract of the ^Decision.
    1. Municipal cobpobations, § 129

      —when officer paying out -funds without authority is liable therefor to village. Where the president of a village board of trustees, in order to secure evidence. of a violation of the anti-saloon law in the village, employed a certain detective to investigate same and, without first having procured an appropriation to pay for such employment or authorization by the village board so to do, he issued orders to himself upon the village treasury and drew therefrom funds which he paid for. such employment, held that an action for recovery of such money was properly brought against the president and not against the one to whom he paid the money.
    2. Justices of the peace, § 54*—what constitutes debt giving

      jurisdiction of action for recovery. Where money was procured unlawfully from a village, held that the procuring of such money created a money liability or debt upon the party procuring same, over which a justice of the peace would have jurisdiction for its recovery.

      Appeal from the County Court of Jetterson county; the Hon. R. E. Hickman, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by the Village of Ina, Illinois, by O. T. Shinn, a taxpayer, plaintiff, against F. F. Kelley, 'defendant, to recover $122.53 paid to defendant without authorization of the village board. From a judgment for defendant, plaintiff appeals.
    E. M. Peavler, for appellant.
    Curtis Williams, for appellee; G. Gale Gilbert, of counsel.

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

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

   Mr. Presiding Justice McBride

delivered the opin- . ion of the court.

3. Judgment, § 419*—when dismissal of action is bar to another action. For dismissal of one action to operate as a bar to another action there must be identity of parties and of subject-matter.

4. Judgment, § 434*—what constitutes a former adjudication. To constitute a former adjudication there must have been a trial and a determination of the rights of the parties.

5. Judgment, § 419 —when dismissal of action is not bar to another action. Dismissal of an action for want of jurisdiction on motion without trial by a justice of the peace, held no bar to another action.


source: Caselaw Access Project

author: Mr. Presiding Justice McBride

license: Public Domain

text:
    Ada L. Ferrell, Appellee, v. Southern Illinois Railway & Power Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Ada L. Ferrell, plaintiff, against the Southern Dlinois Railway & Power Company, defendant, to recover damages for the obstruction to the drainage of plaintiff’s premises by reason of the construction of defendant’s railroad. From a judgment for plaintiff for $300, defendant appeals.
    Whitley & Combe, for appellant; Marsh, Stilwell & Finney, of counsel.
    W. C. Kane, for appellee.

      Abstract of the Decision.

      1. Pleading, § 232

      —when amendment of declaration is not erroneous. A motion for leave to amend a declaration rests in the sound discretion of the court, and the court’s ruling thereon is not assignable as error unless the discretion has been abused.
    2. Continuance, § 31*—when granting of motion for is proper. A motion for a continuance rests in the sound discretion of the court, and the court’s ruling thereon is not assignable as error unless the discretion has been abused.
    3. Pleading, § 260*—when amendment is germane to original declaration. Where the original declaration charged that the defendant had by the construction of its railroad prevented the escape of waters naturally coming upon plaintiff’s premises, and an amendment added the charge of diverting surface water out of the course of natural drainage and casting it upon plaintiff’s premises, held that such amendment was germane to the original declaration, and the charges of negligence remained the same; the amendment added merely an additional element of injury.
    4. Continuance, § 7*—when surprise may not he claimed hy motion to amend declaration. Where defendant offered no objection to the admission of certain evidence on the part of the plaintiff as not admissible under the pleadings, held that defendant could not claim surprise by plaintiff’s motion to amend the declaration by adding an additional charge as an element of injury from defendant’s negligence charged in the declaration so as to authorize a continuance, especially when such motion was not made until plaintiff’s evidence was nearly all in.
    5. Continuance, § 51*—when affidavit for on ground of absence of witness is insufficient. Where, in support of defendant’s motion for a continuance, defendant filed affidavit that a certain absent party would testify to certain facts to which substantially a witness on the part of defendant testified, and as to which many other witnesses on the part of defendant who appeared to have had opportunity of knowing such facts were not interrogated, held that no abuse of discretion was shown in denying such motion.
    6. Railroads, § 350*—when evidence sufficient to show negligence in obstruction of drainage. Evidence held to sustain the charge of defendant railroad’s negligence in obstructing the drainage of plaintiff’s premises by the construction of an embankment in a street above grade.

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

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

7. Railroads, § 325*—when railroad has duty to provide culverts, ditches and drains. "Where it becomes necessary for a railroad in the construction of its roadbed under a franchise from a city to raise the grade of a street of the city, and such change interferes with the surface drainage and diverts it from its usual and natural course, or obstructs the flow thereof to the injury of abutting property owners, such railroad has the duty to provide and maintain such culverts, ditches and drains as will perinit the free passage of surface water in the usual and natural course of surface drainage.

8. Railroads, § 349*—when effect of construction of sidewalk upon drainage is question for jury. The effect of the construction of a certain sidewalk by plaintiff in front of her premises above the surface of her lot subsequent to the construction of defendant’s railroad upon the drainage of said premises, held to be for the jury, in an action to recover damages for the claimed obstruction of such drainage by defendant’s railroad.

9. Railroads, § 315*—what is not excuse for negligence of railroad in raising grade of street and obstructing drainage. The fact that a certain fill of land south of plaintiff’s premises obstructed the free passage of surface water from such premises which was cast upon them by reason of defendant having raised the grade of the street in the construction of its railroad, and which would but for such raising of the grade have passed to the east of such premises in its usual and natural course, held no excuse for defendant’s negligence in maintaining such grade without providing for the free-passage of surface water and no release of defendant’s liability in consequence of such negligence.

10. Instructions, § 151*—when refusal proper. It is not error to refuse instructions covered by those already given.

11. Instructions, § 126 —when refusal proper because abstract in form. It is not error to refuse an abstract instruction which is inapplicable to the case.


text:
    George H. Elder, Appellee, v. Insurance Company of North America, Appellant.
    1. Pleading, § 476

      —when defect in declaration is cured tty verdict. In an action on a fire insurance policy to recover for a loss, .an objection that the declaration failed to allege that the demand sued for was due or that the insured property at the time of the fire was located at the place described in the policy, held of no force after verdict and judgment.
    2. Sales, § 181*—when title passes. In a sale of personal property where anything remains to he done to complete the contract, such as ascertaining the quantity or delivering" the possession, the title does not pass until the contract is thus completed.
    3. Insurance, § 461*—what constitutes waiver of proofs of loss of property tty fire. Where defendant’s adjuster procured from plaintiff a statement of plaintiff’s entire loss and of the property saved from the fire, with the values of it, which the adjuster accepted and took away with hito, held that there was a waiver of any proofs of loss, in an action to recover under a fire insurance policy for a loss.
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Burke G. Slaymaker and Whitley & Combe, for appellant.
    A. G. Abney and W. F. Scott, for appellee.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

It appears from the record in this case that the appellee was the owner of the building located on Lots 1 and 2 in Block 9 in Carrier Mills, Illinois, and that lie was engaged in the business, in the building, of making harness and carrying a stock of merchandise consisting of harness, robes, buggies, etc., and that on the 20th day of October, 1914, he procured a policy of insurance to be issued by appellant, insuring the said building for $800 and the stock of merchandise for $800, and continued business therein until the time of the fire hereinafter referred to. That on January 7, 1915, appellee entered into a verbal contract with John A. Lewis for the' sale of the stock of merchandise above referred to, and by the terms of this contract Lewis purchased the stock of goods which was to be invoiced to him at the wholesale price, less freight and drayage, and Lewis was to pay appellee $400 in cash and to give him a note for the balance, with his son as security. The invoicing was to begin on January 8th and the appellee was to surrender possession of the stock of goods to Lewis on the Monday following, which would be January 11th; at that time Lewis was to execute his note, appellee was to execute to him a bill of sale for the stock of goods, and was to assign to Lewis the policy of insurance. On January 8th they began invoicing the goods and while engaged in invoicing the doors were not closed and as they would invoice the different articles they would be set apart as invoiced goods. During the time a few articles were sold out of the store and Elder told Lewis as such sales were made to keep account of them. On January 9th, Lewis returned to his home but left his son Hiram to assist in the invoicing. They proceeded with the invoicing on Friday and Saturday, January 8th and 9th, but did not complete the same. It was all completed except about $150 worth that had not yet been invoiced. On Saturday night, ■ January 9th, a fire occurred in the building which destroyed the building and the principal part of the merchandise. Appellee caused appellant to be notified of the fire and of the destruction of the stock of goods, and on the night of January 27th, H. Fredley, the general adjuster of the appellant eame to Carrier Mills to ascertain the loss and to have a conference with appellee, which he did. It appears from the testimony of appellee that on that night the adjuster asked appellee for his invoice of the stock of goods, which appellee gave to him, and then agreed to furnish him an invoice as to the remainder of the goods that had not been invoiced before the fire. That appellee advised him he could do that as he thought from memory. Appellee left the invoice with the adjuster and met him, again on the next morning, at which time he furnished the adjuster with a memorandum of the goods that had not been invoiced, and the adjuster also asked to be furnished with a list and value of the goods that had been saved from the fire; this the appellee also did, and while the agents of appellee were engaged in invoicing the goods that were saved from the fire the adjuster came there and directed them to classify the goods with reference to their value so they could be easily reckoned in the settlement. This occurred on the morning of January 28th, as testified to by appellee, and appellee further states that in the afternoon of that day the adjuster requested him to sign a waiver, which he did. The adjuster testified that the waiver was signed in the morning and before anything was done, but this is denied by appellee. Appellee further testified that after the invoice of the stock of goods that were destroyed by fire and the amount that had been saved from the fire were delivered to the adjuster, that the adjuster told him that this would be all right and he would soon receive a check. This is denied by the adjuster. The adjuster says he told him that he doubted if the company would settle it, but he would report it and they could do as .they thought best about it. After the adjuster had returned to the home office, appellant sent a check and proof of loss as to the building, and as to the goods not invoiced at the time of the fire, but declined to pay anything further on account of the loss of the goods. This the appellee refused to receive and instituted this suit.

The policy issued contains the following clause: “This entire policy shall be void * * * if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured, or otherwise. * * * Otherwise that the said entire policy should be void if the interest of the insured be other than unconditional and sole ownership.” It also contained the usual clause as to giving notice of the loss and providing that no suit should be sustained upon said policy until after full compliance by the insured with the foregoing requirements.

The appellant contends that the declaration was demurrable for the reason that it did not allege that the demand sued for was due and that it failed to allege that the insured property at the time of the fire was located at the place described in the policy. These are matters that should have been called to the attention of the court during the trial, but we think that they can have no force after a verdict and judgment.

The principal contention of the appellant, and the one to which most of his brief and argument is devoted, is that there is a clause in the policy which provides : This entire policy shall be void * * * if any change, other than by the death of an insured, take place in the interest, title or possession of the subject of insurance.” We think from an examination of the record that this is the only question that requires any consideration by this court.

It is contended by counsel for appellant: First. That by virtue of the contract that was entered into between appellee and Lewis, the title to this stock of merchandise passed to Lewis; and second, at least an interest in the goods passed to Lewis. It appears from the evidence of Lewis and the appellee that under the contract the goods were to be invoiced; that after the goods had been invoiced the appellee was to make Lewis a bill of sale and was also to transfer to Lewis the insurance upon the stock of goods, and then Lewis was to make a cash payment of $400 and give him his note, with his son as security, for the remainder; and it further appears that the agreement was that possession of the stock of goods was to be delivered to Lewis on Monday, January 11th. It is true the $400 cash payment was made on Saturday because of the fact that Lewis was going away at that time. In a sale of personal property where anything remains to be done to complete the contract, such as ascertaining quantity. or delivering possession, the title does not pass until the contract is thus completed. O’Keefe v. Kellogg, 15 Ill. 347; Honeycutt v. Logg, 160 Ill. App. 237. The case of Honeycutt v. Logg, supra, contains the following language: “The rule established by the courts of this State is that in the sale of personal property, when anything remains to be done to complete the contract, such as ascertaining the quantity or delivering possession, the title does not pass until these things are done. Low v. Freeman, 12 Ill. 467; O’Keefe v. Kellogg, 15 Ill. 347; Schneider v. Westerman, 25 Ill. 514; Frost v. Woodruff, 54 Ill. 155; Richardson v. Rardin, 88 Ill. 124.” Many cases have been cited by appellant showing that where there has been a sale of a particular article, and in which the contract was completed, that the title passed, and while it is true there are cases of that character in which the courts have held that the purchaser may recover the property, but as we understand it, those were cases in which nothing further was to be done to complete the trade. In the case now under consideration, there was the invoice to be completed, the note executed and the appellee was to execute the bill of sale and deliver possession of the goods before the contract was in fact completed, and we do not believe that the title or any interest in the goods passed to Lewis, and that Lewis was in a position to refuse to execute the note unless the goods were delivered to him according to contract.

It is also insisted by counsel for appellant that instruction No. 6 was erroneous in that it did not leave to the jury the question of intention which was one of fact. This instruction is not subject to this criticism. It simply points out, in the language of the decision heretofore cited, that if anything further was to be done or possession given that this would not constitute a conveyance. We understand this to be in accord with the foregoing decision. They claim that instruction No. 8 should not have been given because it was with reference to a waiver of the conditions of the policy, when no such issue was involved. If not applicable to any issue, we do not see how the appellant was harmed thereby, but there was evidence in the record tending to show a waiver of proof of loss. The conduct of the adjuster and other matters developed tended to show such a waiver. More than that, the adjuster procured from the appellee an actual statement of the entire loss and of the property saved from the fire, together with the values of it, and this is all that he could have done by any proof of loss. This was accepted by the adjuster and taken home with him, and we can see no reason why that would not be a waiver of the right to require from appellee a sworn statement of the proof of loss. In the case of Dwelling House Ins. Co. v. Dowdall, 159 Ill. 186, the Supreme Court in commenting upon what constitutes a waiver of the proof of loss says: “The testimony of the plaintiff as to what took place between herself and the company’s agent, Smith, is wholly uncontradicted. She says he called upon her for proofs of loss, and took down, in writing, what she and her son told him. True, she did not furnish him proofs within the requirement of the policy; but if the agent called for ‘proofs of loss,’ and without objection accepted what was given him in response to that request, the insured surely had a right to assume no other proofs would be required. Upon being notified that the company did not so understand the matter, she furnished the formal statement required by the terms of the policy, to which no objection was made except that it was not furnished in time. Importance should also be attached to the fact that the agent offered to pay a part of the loss. That fact was well calculated to lead the insured to suppose that the loss was admitted, the only dispute being as to the amount she was entitled to receive.” In this case there was sufficient evidence to warrant the jury in finding that the appellee had furnished the adjuster with an invoice of the goods destroyed and those saved, and these were taken away by the agent, and this was certainly a waiver of any right to demand further proofs of loss. Manchester Fire Assur. Co. v. Ellis, 85 Ill. App. 634; Mitchell v. Orient Ins. Co., 40 Ill. App. 111. We do not believe that the appellant is in a position to now insist that appellee is not entitled to recover by reason of any failure to furnish proofs of loss in the manner prescribed by the policy.

It is also urged by counsel for appellant that the court erred in modifying one of its instructions. We have examined the instruction and find that the modification is in line with the authorities heretofore cited and does not constitute error.

It appears from the record in this case that the loss was an honest one; that the appellee had paid the appellant for carrying this loss and no fraud is charged or claimed, and no extra hazard is shown in any manner by the contract of sale entered into, and we are fully satisfied that the appellee had a just and meritorious cause of action, and that the verdict of the jury and judgment of the court was just, and the judgment of the lower court is affirmed.

Judgment affirmed.


author: Mr.. Justice Boggs

text:
    Robert H. Dunaway, Plaintiff in Error, v. Sam T. Brush et al., trading as Colp-Brush Company, et al., Defendants in Error.
    1. Appeal and error, § 1034

      —what mTl be judicially noticed. The Appellate Court will take judicial notice that a certain judge of the Circuit Court continued to hold office until the expiration of his term.
    2. Appeal and error, § 857*—when certificate of evidence is not properly signed by other than trial judge and filed. Where a certificate of evidence was presented to the judge trying the case within the time fixed in the order allowing an appeal, but was signed and sealed by another judge some time after said time had expired, with no order extending such time, and no reason appearing why the trial judge, whose term of office had not expired, did not sign the certificate or why the other judge did, held that such certificate was not properly signed and filed under the Practice Act, sec. 81 (J. & A. If 8618), providing that in case the trial judge is unable by reason of death, sickness or other disability to sign a certificate of evidence, the judge succeeding him or any other judge of the court may sign same.
    3. Appeal and error, § 862*—when certificate of evidence may be filed nunc pro tunc as of time fixed by order. A certificate of evidence must he filed within the time fixed by the court granting the order therefor, and if presented but not signed within such time, the party presenting same is entitled to an order nunc pro tunc directing its filing as of the time prescribed in such order.
    4. Appeal and error, § 862*—what is essential to sustaining of nunc pro tunc order for filing of certificate of evidence. To sustain a nunc pro tunc order for the filing of a certificate of evidence, there must be sufficient in the record itself to show affirmatively that the trial judge was authorized under the law to enter it.
    5. Appeal and error, § 862*—what delay in filing certificate of evidence must he explained. Irrespective of the statute, a party prosecuting a writ of error cannot by presenting an incomplete or a complete certificate of evidence to the trial judge within the time prescribed by the order of the court afterwards hold the certificate for more than two years before filing it, without an affirmative showing of some very good reason for so holding it.
    6. Account, § 35

      —when.equities' with defendant in suit for accounting for commissions. Evidence held to show that the equities of the case were with defendants, in suit for accounting and injunction to recover for certain commissions claimed growing out of a certain contract.
    Error to the Circuit Court of Franklin county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    W. F. Speller, for plaintiff in error.
    Denison & Speller and Hosea V. Ferrell, for defendants in error.

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

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

   Mr.. Justice Boggs

delivered the opinion of the court.

Plaintiff in error filed a bill for accounting and injunction to recover for certain commissions claimed by bim growing out of a contract entered into between him and Sam T. Brush, Leon Colp, John Colp, Arthur Roberts and George S. Roberts, doing business as Colp-Brush Company. These persons with certain others were made parties defendant. A trial was had resulting in a finding for defendants in error and said bill was dismissed for want of equity at plaintiff in error’s cost. To reverse said judgment, plaintiff in error sued out this writ.

Defendants in error, limiting their appearance for said purpose, made a motion in this court to strike from the record the certificate of evidence, alleging as ground for said motion that the certificate was not signed by the judge who tried the cause; that the same was not signed within the time allowed by the court; that the purported certificate of evidence presented to Judge William H. Green, who tried said cause, was not the same certificate of evidence that was after-wards signed by Judge Charles H. Miller; that no sufficient reason was shown why the judge who tried the cause did not sign the certificate of evidence; that the same was not filed with the Circuit clerk within the time provided by law or the order allowing the appeal; and that the time elapsing after the order allowing the appeal to the time the certificate was filed was unreasonable and not authorized by law. Said motion was taken with the case.

The record discloses that said cause was tried before the Hon. William H. Green, one of the judges of said Circuit Court, and the order dismissing plaintiff in error’s bill was entered on March 12, 1913. An appeal being prayed by plaintiff in error, was allowed, the bond was fixed at $300, to be filed in thirty days and the certificate of evidence to be presented within sixty days. On May 9, 1913, counsel for plaintiff in error presented what purported to be the evidence to Judge Green, and he noted thereon: “Presented this 9th day of May, A. D. 1913, William H. Green, Judge.” So far as the record discloses, Judge Green had nothing further to do with the case. No order was made by him extending the time for the signing or filing of the certificate of evidence. Thereafter, on February 15, 1916, the Hon. Charles H. Miller, one of the then Circuit judges of Franklin county, signed and sealed the certificate of evidence appearing of record in this case. The record is absolutely barren of any legal reason why Judge Green, who tried said cause, did not sign the certificate of evidence and as to why Judge Miller signed the same. This court will take judicial notice that the Hon. William H. Green continued to hold the office of Circuit judge of said Circuit Court until his term expired in June, 1915, when the Hon. Charles H. Miller was elected as one of the judges of said court. Judge Green’s term of office did not expire for more than two years after the decree was entered dismissing said bill.

Section 81 of the Practice Act, being section 81 of chapter 110, Hurd’s Rev. St. (J. & A. 8618), provides among other things: That “in case the judge before whom the cause has heretofore been, or may hereafter be tried, is, by reason of death, sickness, or other disability, unable to hear and pass upon a motion for a new trial in a case at law, and allow and sign a bill of exceptions, certificate of evidence or report of trial, then the judge who succeeds such trial judge, or any other judge of the court in which the cause was tried, holding such court thereafter, if the evidence in such case has been or is taken in stenographic notes, or if the said judge is satisfied by any other means that he can pass upon such motion in a case at law, and allow a true bill of exceptions, certificate of evidence, or report of trial, shall pass upon said motion, in a case at law, and allow and sign such bill of exceptions, certificate of evidence or report of trial; and his ruling upon such motion in a case at law, and allowance and signing such bill of exceptions, certificate of evidence, or report of trial, shall'be as valid as if such ruling and allowance and signing had been made by the judge before whom, such cause was tried.” This act was construed by the Supreme Court in the case of People v. Rosenwald, 266 Ill. 548. At page 551, the court says: “Previous to 1907, the general Practice Act of this State contained no provisions of this kind. This court, however, had made numerous rulings before the passage of this portion of said section 81 of the Practice Act which had more or less bearing on the question here under consideration. In David v. Bradley, 79 Ill. 316, the court held that a bill of exceptions signed by one judge without the consent and against the objection of one of the parties, containing proceedings which took place wholly before another judge, was irregular and unauthorized. In Alley v. McCabe, 147 Ill. 410, the question was raised after the death of the trial judge whether any other judge had authority to sign the bill of exceptions, and it was there intimated that even though this might be done, it would only be permitted where the record showed that the appellant had used due diligence to obtain a bill of exceptions, not only after but before the death of the trial judge. Later, in People v. McConnell, 155 Ill. 192, the same case being under consideration, it was held, after a review of the authorities, that after the death of the trial judge, after verdict but before motion for new trial, the succeeding judge had authority, and it was his duty, to decide the motion for new trial. By a long and unbroken line of decisions this court has also held that a bill of exceptions was originally intended to be reduced to form and signed during the term in which the cause is tried, except in cases where counsel consent, or the judge by an entry on the record directs, that it may be prepared in vacation and signed nunc pro tunc.” Citing: Evans v. Fisher, 10 Ill. (5 Gilm.) 453; Wabash, St. L. & P. Ry. Co. v. People, 106 Ill. 652; Burst v. Wayne, 13 Ill. 664; Hake v. Strubel, 121 Ill. 321; Ferris v. Commercial Nat. Bank, 158 Ill. 237; West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288; Railway Conductors’ Benefit Ass’n v. Leonard, 166 Ill. 154; Chaplin v. Illinois Terminal R. Co., 227 Ill. 166; Haines v. Danderine Co., 248 Ill. 259; Hill Co. v. Guaranty Co., 250 Ill. 242.

In Hall v. Royal Neighbors of America, 231 Ill., page 192, the Supreme Court says: “It is settled by numerous decisions that if a bill of exceptions is presented to the trial judge at such time that it can be filed within the time allowed by the order of the court if it is then signed and sealed, the party presenting it will not be prejudiced by any delay or neglect of the court. - If the date of presentation appears on the bill, an order may be made whenever it is afterwards signed and sealed, to file it nunc pro tunc as of the date of such presentation to the judge.” (Citing: Hawes v. People, 129 Ill. 123; Ferris v. Commercial Nat. Bank of Chicago, 158 Ill. 237; West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288.) “A bill of exceptions on its face, purports to be signed at the time the exception is taken in the course of the trial, whether it is presented then or afterward; but if it is presented within the time as extended by the court and that fact is shown on the bill, it may be afterward filed of that. date within a reasonable time after it is actually signed. This case does not come within that rule, but the failure to file the bill of exceptions was chargeable solely to the attorney who had possession of it. The Appellate Court did not err in striking the bill of exceptions from the files, and the affirmance of the judgment, under the rules of the court, for failure.to file abstract, brief and argument, followed as a matter of course.”

Construing the certificate, of evidence in this case under the provisions of the statute above quoted and the decisions of the Supreme Court, construing said statute, we hold that it was not properly signed and filed. Counsel for plaintiff in error concedes in his brief that the certificate of evidence signed by Judge Miller was not the certificate of evidence presented to Judge Green, who tried the cause. The language of counsel being as follows: “The certificate of evidence was presented in the time required by order of the court, to-wit: May 9, 1913, but did not have the map showing the lands in question attached; which purported to have been used when the original contract between Colp-Brush Company and complainant was entered into. This map was found in the office of the clerk of the Circuit Court a short time before re-presenting to the attorneys for defendants and attached to the certificate of evidence. After which the certificate of evidence was- signed by Hon. Charles H. Miller, one of the Circuit Judges of the Second Judicial District and presiding Judge of the Franklin County Circuit Court.”

The map evidently was of sufficient importance according to the statement of counsel to render the certificate of evidence insufficient until it was included therein. The statement of counsel for plaintiff in error as to why it was not included in the certificate as presented to Judge Green furnishes no sufficient excuse for not having the certificate of evidence settled in accordance with the rule entered by the court.

It is further to be observed that the certificate of evidence after being signed by Judge Miller was thereafter on the same day, to wit: February 15,1916, filed with the Circuit clerk. Under the decisions of the Supreme Court above quoted from, a certificate of evidence must be filed within the time fixed by the court granting the order therefor, and if for any reason (the certificate of evidence having been presented within the proper timé) the judge who tried the cause fails to sign the same within said time, then the party presenting the bill of exceptions has the right to have an order of court entered nunc pro tunc directing the filing of the certificate of evidence as of the time prescribed by said order. No such order was applied for in this case, and if it had been applied for there is nothing in the record on which to base the same.

If a mmc pro tunc order is entered, there must be sufficient in the record itself to show affirmatively that the trial judge was authorized under the law to enter such order. People v. Rosenwald, supra, 555.

Without reference to the provisions of the statute above referred to, we hold that a party prosecuting a writ of error cannot by presenting an incomplete, or even a complete, certificate of evidence to the trial judge, within the time prescribed by the order of court, afterwards hold said certificate for more than two years before filing without an affirmative showing of some very good reason why the same is so held. It is the object of the statute that a bill of exceptions or certificate of evidence shall be settled within a reasonable time after the trial of the case. The motion to strike the certificate of evidence under the holding of the Supreme Court.in the case of Hall v. Royal Neighbors of America, supra, should be allowed, and it is so ordered.

Notwithstanding we have allowed the motion of defendants in error to strike the certificate of evidence from the record, we have examined the case on its merits and have considered the evidence contained in said certificate, and while said evidence is conflicting, we are of the opinion that the weight of the evidence, discloses that the equities of the cause are .with the defendants in error, and the trial court did not err in ordering said bill dismissed for want of equity at plaintiff in error’s cost.

The judgment of the trial court will therefore be affirmed.

Judgment affirmed.


author: Mr. Justice Boggs

text:
    Lafayette Birkett, Appellee, v. David A. DeVares, Appellant.
    1. Judgment, § 680

      —when plea of res adjudicate is sufficient. Demurrer to a plea of res adjudicate held properly sustained where the matters in litigation were not litigated in the former case set up in the plea.
    2. Covenants, § 33*—when plea in action for breach of warranty is insufficient. In an action for breach of warranty contained in a certain deed by a former conveyance of a right of way over the premises described in the deed for the construction of a drainage ditch, demurrer to a plea setting up that the defendant had formerly agreed with the grantee of such right of way as to the amount of damages for such construction and that plaintiff knew of such agreement, held properly sustained for the reason that plaintiff would not be bound by any such agreement not of record.
    3. Easements, § 7*—what constitutes an easement. A right of way over certain land for the construction of a drainage ditch, held to be an easement.
    4. Covenants, § 42*—what is measure of damages for breach of warranty where land subject to right of way for drainage ditch. Where certain land subject to an easement of a right of way for the construction of a drainage ditch was conveyed as an entirety, held that the measure of damages other than nominal damages for the construction of such ditch would be determined by the effect of such easement on the land as an entirety, in an action for a breach of warranty.
    5. Covenants, § 40*—what damages recoverable for breach of warranty where land benefited by construction of drainage ditch. In an action for breach of warranty contained in a certain deed by a former conveyance of an easement for right of way of a drainage ditch over the premises described in such deed, where the premises were benefited as an entirety by such easement, held that nominal damages only would be recoverable.
    Appeal from the Circuit Court of Hamilton county; the Hon. J. C. Eagleton, Judge, presiding. Heard in this, court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    J. H. Lane and Andrus & Trutter, for appellant.

      John M. Eckley and Harry Anderson, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

This appeal is prosecuted from a judgment for $397.94, rendered by the Circuit Court of Hamilton county, in favor of appellee,, in an action of covenant.

The declaration consists of three counts. The first count avers that on October 3, 1912, appellant by warranty deed conveyed to appellee certain premises therein described subject only to a mortgage of $14,000, and certain taxes and drainage assessments, and a lease to one T. N. Harris. It is then averred that appellant had formerly conveyed to the Commissioners of the North Fork Special Drainage District a right of way for the ditches of said district, and that said right of way was then in the use and possession of said district.

The second count is to the effect that appellee made and entered into a certain contract with appellant whereby appellant agreed to sell and convey to appellee by warranty deed 550 acres of land, describing it, and then avers that he failed to keep and perfoim his contract and conveyed to appellee only 512% acres of land.

The third count is the consolidated common counts.

To this declaration appellant filed a plea of the general issue, a plea of res adjudicata and a plea setting up that appellant had formerly agreed with the commissioners of said drainage district on the amount of damages for the construction of said ditch, and that appellee knew of such agreement and was therefore estopped from claiming damages. A demurrer was sustained to the second and third pleas and a trial was had by the court without a jury, resulting in a judgment as above set forth.

It is first contended by appellant that the court erred in sustaining a demurrer to the plea of res adjudicata. Appellant does not assign as error on the record the • ruling of the court in sustaining the demurrer to his second and third pleas, and is therefore not in a position to urge as error the ruling of the court thereon. However, we may state that an examination of the plea satisfies us that the court did not err in sustaining the demurrer to the plea of res adjudicata, as the matters in litigation in this case were not litigated in the proceedings set up in that plea, neither did the court err in sustaining the demurrer to the third plea for the reason that appellee would not be bound by any agreement not of record appellant may have had with said drainage commissioners.

The principal ground urged by appellant for a reversal of the judgment in this case, however, is that the court erred in refusing to hold as the law certain propositions submitted by him.

The record discloses that the court in ruling on the propositions of law submitted on the hearing held in effect that the title had failed as to the right of way (consisting of acres as stipulated by the parties on the trial) released by appellant to said drainage district, and that appellee was entitled to recover from appellant the value of said 8y2 acres at $40 per acre (being the price of the land as stipulated by the parties), with interest thereon from the date of appellant’s deed. The insistence of appellant is that the right of way granted to said drainage commissioners was a mere easement, and that at most it constituted an incumbrance on the title to the premises conveyed, and that in determining the amount of damages, if any (other than nominal damages), the effect of said easement on the whole premises was to be taken into consideration. In other words, appellant contends that if said lands taken as a whole were benefited as much or more than they were depreciated by virtue of said easement, then all of the damages that appellee would be entitled to recover would be nominal damages. That theory of the case was presented by the following proposition of law submitted by appellant: “The measure of damages for a breach of warranty caused by a drainage ditch being built across lands is not the number of acres taken by the ditch, but is the damage to the land caused by the building of such ditch, and if there is no damage occasioned thereby there can not be a recovery of more than nominal damages,” which proposition of law the court refused to hold.

In the case of Wadhams v. Swan, 109 Ill. 46, the question was raised as to the proper measure of damages in an action for breach of covenant under a warranty deed where premises were incumbered by the right of way of the Illinois Central Bailroad Company, and the court at page 60 says: “Upon the record before us we assume the Appellate Court must have found, as matters of fact and of law, that the land was sold as an entirety, for a gross sum; that appellant, by means of the several conveyances. heretofore mentioned, acquired, before the commencement of this suit, the legal title to the whole of the land purchased of appellee, subject to the easement of the Illinois Central Bailroad Company; that while the existence of this easement was a technical breach of appellee’s covenants against incumbrances, and consequently entitled appellant to nominal damages, yet its effect upon the land, considered as an entirety, enhanced rather than diminished its value, so that appellant was really benefited rather than injured by it. In all these findings we fully concur with the Appellate Court, and in so far as "they are findings of fact, they are conclusive on this court, whether we were satisfied or not.

“Had appellant seen proper, under these' circumstances, to have brought an original action for the technical breach of the covenants against incumbrances, he would have been entitled to nominal damages, merely, which might well have been fixed at a single cent. He elected, however, to set up this right of action as a defense to the present suit.”

The following stipulation was made in this case on the trial:

“It is stipulated and agreed that the drainage district in question across the land is a benefit to the whole tract of 550 acres, except the 8y2 acres used for right-of-way, and not a detriment.” Appellee testified on the trial as follows:
“Q. You knew the ditch was a benefit to the land? A. Yes sir, sure.”
“Q. You wouldn’t have that ditch off of there for considerable money, would you? A. No sir, I don’t think I would.”
“Q. The fact is that the ditch is a benefit to you rather than an injury? A. Sure it is. I wouldn’t want the land without it.”

Our holding, therefore, is that the land was conveyed as an entirety, and that the right of way released by appellant to the drainage district was an easement, and that the measure of damages (other than nominal damages) is to be determined by the effect of said easement on the land as an entirety. The evidence of appellee and the stipulated facts being to the effect that the premises as an entirety were benefited rather than damaged by said easement, all appellee would be entitled to recover would be nominal damages. The court therefore erred in refusing to hold the proposition of law above set forth.

Other errors were assigned, but in view of what we have already said it will not be necessary for us to consider the same in this opinion.

The judgment will be reversed and the cause will be remanded for further proceedings not inconsistent with the law as laid down in this opinion.

Reversed and remanded.


author: Mb. Justice Boggs

text:
    Willis Coal & Mining Company, Defendant in Error, v. Missouri & Illinois Coal Company, Plaintiff in Error.
    (Not to The reported in full.)
    Abstract of the Decision.
    1. Mines and minerals, § 34a

      —when burden on lessee to show acquiescence by lessor in talcing of coal after cancellation of lease. In an action to recover for the unlawful mining by defendant of a certain amount of coal in plaintiff’s land after cancellation of dpfendant’s lease of such land, held that the burden of proof was upon defendant to show that plaintiff had knowledge of and acquiesced in defendant’s taking the coal after such cancellation in order to estop plaintiff from enforcing its rights for the coal taken as though there had been no prior lease.
    2. Mines and minerals, § 34a*—when evidence is insufficient to show waiver of contract canceling prior contract for mining.
      Evidence held insufficient to show a waiver by plaintiff of the provisions of its contract with defendant canceling a prior contract as to mining coal on plaintiff’s land.

      Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by the Willis Coal & Mining Company, plaintiff, against the Missouri & Illinois Coal Company, defendant, to recover for certain coal alleged to have been unlawfully mined by defendant from plaintiff’s land. From a judgment for plaintiff for $734.19, defendant brings error.
    L. P. Crigler and Hamill & Hamill, for plaintiff in error.
    Dan McGlynn, for defendant in error.

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

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

   Mb. Justice Boggs

delivered the opinion of the court.

3. Waives, § 1*—what constitutes waiver. A waiver is the intentional relinquishment of a known right, and there must be both knowledge of the existence of such right and an intention to relinquish it.

4. Waives, § 1*—what are essentials of a waiver. A waiver of a right will not be implied from slight circumstances but must be evidenced by an unequivocal and decisive act clearly proven, and no waiver is established if the act is not of such character or is not inconsistent with the enforcement of the right claimed to have been waived or an intention to rely upon it.

5. Principal and agent, § 200*—when notice through agent deemed to arise. Where notice through an agent is relied upon, the nature of the agency must be such that the law will presume that the agent carried the notice to his principal, or it must be established as a fact that the agent communicated such notice to his principal.

6. Principal and agent, § 200*—when notice to principal through agent not shown. Receipt by plaintiff’s bookkeeper of statements rendered by defendant containing certain credits, held not notice to plaintiff of such credits in the absence of evidence showing it was the bookkeeper’s duty to inform plaintiff’s managing officers as to same, or that he did inform them.

7. Principal and agent, § 200*—when principal not chargeable with knowledge of facts ascertained by agent. Where plaintiff’s engineer was employed by defendant, with plaintiff’s permission, to make certain surveys, held that plaintiff would not -be chargeable with knowledge of the facts that came to the engineer in making such survey, as he was not then in plaintiff’s employ.

8. Mines and minerals, § 34a*—when judgment for plaintiff for coal mined unlawfully not disturbed. Where the testimony as to the expenses of mining, transporting, hoisting, dumping, etc., of certain coal unlawfully mined by defendant in plaintiff’s land was conflicting, in an action to recover for such coal, held that the judgment for the plaintiff would not be disturbed.

9. Instructions, § 126*—when refusal proper. Instructions abstract in form, held properly refused.

10. Trial, § 298 —when refusal of propositions of law is proper. Where certain propositions of law were submitted and substantially covered the law in the case, held that there was no prejudice in refusing other propositions.


text:
    Daisy E. Buntin, Appellant, v. John W. Hutton, Appellee.
    1. Intoxicating liquors—what was liability at common law for giving or selling liquor to able-bodied man. It was not a tort at common law to either sell or give intoxicating liquor to a “strong and able-bodied man,” or such culpable negligence as to impose legal liability for damages upon the vendor or donor of such liquor.
    2. Intoxicating liquors—when drunkard may not recover for injuries resulting from sale or procuring of liquor. Section 6% of the Dramshop Act (J. & A. f 4606), providing a penalty for “every person, whether the keeper of a dramshop or not, who shall buy, or in any manner procure or aid in procuring” certain intoxicating liquors for any minor, without an order of such minor’s parent, guardian or physician, or for any person intoxicated, or in the habit of becoming intoxicated, held not to give a right of recovery to a person intoxicated, or in the habit of becoming intoxicated, for whom such liquors were bought or procured, for injuries resulting from such buying or - procuring.
    3. Intoxicating liquors—when drunkard has no right of action against seller or procurer. Neither the common law nor the Dram-shop Act gives to a person for whom intoxicating liquors are bought or procured a right of action against the seller or procurer where such person buys or procures the liquors with full knowledge.
    4. Intoxicating liquors, § 170

      —nature of Dramshop Act. The Dramshop Act is penal in character.
    5. Intoxicating liquors, § 168*—what construction given to Dramshop Act. The Dramshop Act provides remedies unknown to the common law and should be strictly construed, and a plaintiff to recover thereunder must bring himself clearly within its terms.
    Appeal from the Circuit Court of Jasper county; the Hon. William B. Wright, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Davidson & Fithian and Andrews & Real, for appellant.
    Fithian & Kasserman, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

This appeal is prosecuted by appellant to reverse a judgment rendered by the Circuit Court of Jasper county against appellant in bar of action and for costs.

The declaration in said cause, omitting the formal part, was as follows: “Daisy E. Buntin, plaintiff, complains of John W. Hutton, defendant, of a plea of trespass on the case. And for that whereas, also the plaintiff before and on the first day of October, 1914, was a person in the habit of getting intoxicated, which fact was then and there well known to the defendant, and knowing such fact, it then and there became and was the duty of the defendant not to buy, procure or aid in procuring for the plaintiff any alcohol, whisky, lager beer, wine, rum, brandy, gin, hard cider, or any other vinous, malt, spirituous, fermented, mixed and intoxicating liquors whatsoever for the plaintiff, but notwithstanding his duty in that regard, and the fact that he then and there knew of her habit, the said defendant on the day aforesaid and on divers other days and times both before and since said day and before the commencement of this suit, did wilfully and unlawfully procure and aid in procuring alcohol, whisky, lager beer, wine, rum, brandy, gin, hard cider and other vinous, malt, spirituous, fermented, mixed and intoxicating liquors for the plaintiff, which the plaintiff then and there drank, whereby the plaintiff then and there became intoxicated, and as a result of such intoxication she became and was sick and disabled in body and mind from thence hitherto and has suffered great pain in her body and mind, and her body has become frail and weak and her mind weak and vacillating until she is a physical and mental wreck on account thereof, and is permanently disabled”, alleging expenditure of $500 for medical attention endeavoring to be cured and alleging damages in'the sum of $10,000. A general demurrer filed by appellee was sustained by the court, and appellant, electing to stand by her declaration, judgment was rendered against her in bar of action and for costs. To reverse said judgment this appeal is prosecuted as above set forth.

Appellant bases her right to recover on the provision of section 6% of the Dramshop Act, being section 6% of chapter 43 of Hurd’s Revised Statutes (J. & A. 4606), the provisions thereof being as follows: “Every person, whether the keeper of a dramshop or not, who shall buy, or in any manner procure or aid in procuring any wine, rum, brandy, gin, whisky, lager beer, hard cider,- alcohol, or other vinous, malt, spirituous, fermented or mixed liquor, or any intoxicating liquor whatever, for any minor, without the written order of such minor’s parent, guardian or family physician, or shall so procure, or aid in procuring any of said liquors for any person intoxicated, or who is in the habit of getting intoxicated, shall, for every such offense be fined not less than twenty dollars nor more than one hundred dollars, or confined in the county jail not less than ten nor more than thirty days, or both, in the discretion of the court.”

Appellant concedes that section 6%, above quoted, does not in terms give a civil right of action for damages to any one injured by reason of the violation of its provision, but contends that where the statute has been violated any person who suffers injury therefrom different in effect from the injury suffered by the public in general is entitled to a common-law right of action.

The Dramshop Act was construed by our Supreme Court in the case of Cruse v. Aden, reported in 127 Ill. 231. In that case suit was brought by Julia Ann Cruse to recover for the death of her husband, who was thrown from his horse while intoxicated, receiving injuries therefrom from which he afterwards died. The declaration in that case alleged among other things “that the proximate cause of the accident which resulted in Ms death was intoxication, and that two drinks given him by appellant contributed to cause such intoxication; that said two drinks of intoxicating liquor were given to said husband of appellee by appellant as an act of mere courtesy and politeness, and not for any pay, profit, benefit or advantage to appellant,” and the question before the court there was as to whether, on the facts as alleged, Julia Ann Cruse, as such admimstratrix, was entitled to recover. The court in constrMng the Dramshop Act in that case laid down certain fundamental principles which have not been overruled or set aside by any subsequent decision of that court. Among other things the court said: “It was not a tort, at common law, to either sell or give intoxicating liquor to a ‘strong and able-bodied man, ’ and it can be said safely, that it is not anywhere laid down in the books that such act was ever held, at common law, to be culpable negligence, that would impose legal liability for damages upon the vendor or donor of such liquor. The present suit can in no sense be regarded as an action of tort at common law.” Citing, Meidel v. Anthis, 71 Ill. 241.

It was conceded by counsel for the administratrix in the Cruse v. Aden case, supra, that all of the sections of the Dramshop Act then in force, with the exception of sections 6 and 9 (J. & A. ¶¶ 4605, 4609) were directed against dramshop keepers and those engaged in the liquor traffic, but it was insisted that sections 6 and 9 of said Act had a broader effect, and that those sections gave a right of action against any person, whether dramshop keeper or not, who should sell or give intoxicating liquor to another causing his intoxication, and by reason of which intoxication the person suing was damaged in person, property or means of support. The court in passing on the question thus raised by said administratrix, at page 235 of the opinion in said case, says: ‘ ‘ Section 13 of article 4 of the Constitution of 1870 provides: ‘No act hereafter passed shall embrace more than one subject, and that shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed. ’ In the Revised Statutes of 1874 the title of the act under consideration is ‘Dram Shops,’ and the title of the act in full is, ‘An Act to. provide for the licensing of and against the evils arising from the sale of intoxicating liquors.’ If the intent and scope of said sections 6 and 9 are as broad as the contention of appellant claims they are, and include the acts of a person who is not engaged, either directly or indirectly, in selling intoxicating liquor, but who merely gives at his private residence, or elsewhere, a drink or two of wine, beer or other liquor to a guest, friend or neighbor, as a mere courtesy or act of politeness, and without any consideration whatever, pecuniary or otherwise, then it would seem such sections would, to the extent- they include such acts of such person, be in violation of the constitutional provision we have cited, and void.” If sections 6 and 9 would be unconstitutional if construed to include a right of action against persons other than dramshop keepers and those engaged in the sale of intoxicating liquors, then it would seem to follow that to construe section 6% as giving a right of action against others than dramshop keepers and those engaged in the sale of intoxicating liquors would also be unconstitutional.

In our opinion appellant in this case is not entitled to recover on the case made by her declaration, but we do not base our opinion alone on the ground that section 6%. of the Dramshop Act would not afford appellant a right of recovery. In our judgment appellant cannot recover, either at common law or under the Dramshop Act, for injury to her means of support by reason of intoxication resulting in whole or in part from liquors sold to her, either by a dramshop keeper or by any one else, under the circumstances set forth in her declaration. In other words, neither the common law nor the dramshop statute gives to a person a right of action against the seller or against any one procuring liquors for the person suing, where the person suing voluntarily and with full knowledge purchases the same or procures the person sued to procure them. To hold that one could recover under the allegations set forth in appellant’s declaration, would savor too much of allowing a person to benefit by his or her own wrongful act. Counsel for appellant admit that they have been unable to find a single case where a person had recovered a judgment for injury to means óf support by reason of intoxication caused in whole or in part by liquor sold or given to the person suing. The language used by appellant being: “We have searched the books in vain to find a case where a person who is himself injured has brought suit to recover for his own injuries under a similar Dramshop Act.”

The Dramshop Act is penal in its character. It provides remedies unknown to the common law, and our Supreme Court has invariably held that it should be strictly construed, and that a plaintiff in order to recover must bring himself clearly within its terms. Schulte v. Schleeper, 210 Ill. 357; Brannan v. Adams, 76 Ill. 331; Freese v. Tripp, 70 Ill. 496; Meidel v. Anthis, 71 Ill. 241; Cruse v. Aden, 127 Ill. 231.

For the reasons stated the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    Andrew Letz, Appellee, v. Kolb Coal Company, Appellant.
    1. Mines and minerals, § 133

      —when miner disobeying orders may not recover for injuries. Where a miner is ordered by his mine manager to remove a dangerous condition in a working place in the mine, and, instead of doing so, he proceeds to mine coal therein and is injured in so doing, he cannot recover for such injuries.
    2. Mínes Ann minerals, § 82*—when employee is a company man and not a coal miner. Where plaintiff’s working place as a miner ■ in defendant’s coal mine was marked dangerous by the mine examiner, and when plaintiff was given his entrance check on the following day he was ordered by the mine manager to remove the dangerous portion, held that plaintiff thereupon entered the mine not as a coal miner but as a company man to remove such condition, and would not be entitled to the protection of the Mining Act as a miner or digger of coal.
    3. Mines and minerals, § 176*—when verdict in action for personal injuries is against weight of evidence. Verdict held against the manifest weight of the evidence, in an action by a coal miner to recover damages for personal injuries sustained while working in defendant’s mine.
    Appeal from the Circuit Court of St. Clair county; the Hon. George E. Crow, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    William E. Wheeler, for appellant.
    Thomas R. Mould and Barthel, Farmer & Klingel, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

An action on the case was brought by appellee in the Circuit Court of St. Clair county, to recover damages for personal injuries sustained by him while working in appellant’s mine. The action is based on the Mines & Miners’ Act, the declaration charging that appellee demanded certain props and cap pieces to make safe his working place, and that appellant, contrary to the statute, wilfully failed and omitted to furnish the same. Appellant filed a plea of not guilty. A trial was had resulting in a verdict and judgment in favor of appellee for $6,000. To reverse said judgment appellant prosecutes this appeal.

The record discloses that appellee is a certified miner of experience, having worked for many years in the mines of Europe and of this country. For some months prior to his injury, appellee and his buddy had been driving the entry in which the injury occurred and had worked back for some four hundred feet to a width of twenty-one feet. The roof over this entry was composed of loose slate or stone, some four or five inches thick, and above which appears to have been a solid rock top. The loose slate and stone had been removed from the roof of the entry within a few feet of the face of the coal, leaving the solid rock roof above.

On the morning of December 22, 1914, the mine examiner examined this entry, found loose slate and stone extending out about nine feet from the face of the coal, placed danger marks thereon and took- up the checks of appellee and his buddy, and gave them to the mine manager with a report of the dangerous condition of the roof. When appellee and his buddy appeared for work that morning the- mine manager delivered their checks to them and instructed them to pull down the loose slate and stone from the roof. This, the record discloses, they did not do, but instead thereof mined out more coal. On the following morning the mine examiner again examined the entry before appellee and his buddy went to work; found about twelve feet of loose slate and stone exposed on the roof in a dangerous condition, and again marked the place dangerous as provided by statute. The mine examiner again took up the checks of appellee and his buddy, delivered them to the mine manager, reported the place dangerous and directed that the loose slate and stone be taken down. When appellee. came to work that morning he applied to the mine manager for his check and the manager gave him his check and directed him to pull down the loose roof. Appellee testified that when he called for his check that morning and the preceding morning he asked the mine manager for props to hold up the roof and testified that the mine manager did not say yes or no, but directed him to pull down the loose slate and stone, but that they were unable to do so; that they went to work loading up coal that had been shot down the previous night; that they had loaded one box and started to set up the drill to start drilling when the roof fell, causing the injury for which appellee seeks to recover. '

It is contended by appellant that the verdict of. the jury is against the manifest weight of the evidence and that said cause should be reversed with a finding of facts,

The record discloses that the mine examiner fully complied with the requirements of the statute in marking the dangerous condition in the entry of the working place of appellee and in taking up his entrance check and delivering same .with proper report to the mine manager. In fact, appellee practically concedes as much in his brief and argument. The record also discloses that the mine manager withheld appellee’s check and. delivered it to him on the morning of December 23rd and again on the morning of December 24th with specific instruction to pull down the loose slate and to remove said dangerous condition. In so doing said mine manager fully complied with paragraph 4 of section 20 of said Mines & Miners’ Act (J. & A. ¶ 7494).

Appellee on his direct examination was asked the following question: “Q. Did you get your check that morning before you went down in the mine? A. The boss gave me the check. Q. What did he say, if anything, when he gave you the check? A. He told me to pull the slate down.” On cross-examination appellee was asked this question: “Q. Now Mr. Killian then told you at that time when you got your check from him that the roof was loose and to pull it down, didn’t he? A. After he gave me the check he said ‘tear the slate down.’ ” This further question was asked appellee on cross-examination, “Q. Didn’t Mr. Killian tell you to take down the slate? A. Yes, he said that when he gave me the check number, ‘pull down the slate.’ ”

On the part of appellant, its mine manager testified that at the time he delivered appellee his check on the mornings of the 23rd and 24th of December, 1914, he specifically directed him to pull down the slate in the entry in which appellee and his buddy were working, and that he made no promise to appellee, directly or indirectly, to furnish props.

After the mine examiner had marked the roof in said entry, dangerous, it became “unlawful * * * to enter the place against the danger signal without permission of the mine manager,” and it was unlawful for appellee to disobey the order of the manager, to take down the dangerous roof. Paragraph (e) of section 23 of said Mining Act (J. & A. ¶ 7497).

The law further is that when appellee discovered the dangerous condition of the roof in his working place it became his duty not to work therein except to make such dangerous condition safe. Paragraph (c), section 23 of said Act (J. & A. ¶ 7497).

The record also discloses that when appellee applied to the mine manager for his entrance check on the morning of the day he was injured, the only order received by bim was to take down the dangerous roof in his working place. He was not told to mine coal or anything else except to pull down the slate, for which the evidence discloses he would have been paid at the rate of thirty-three cents per hour.

Appellee contends, however, that he requested of the mine manager that he be furnished with seven-foot props for use in making safe the dangerous condition in said mine. He does not testify, however, that said mine manager agreed to furnish said props, but says that he made no reply thereto. One of the witnesses on behalf of appellee testified that the mine manager, in response to the request of appellee, shook his head up and down. So far as the evidence discloses no props were necessary in carrying out the instructions of the mine manager, and, in fact, if appellee had followed said instructions no props would have been necessary. The county inspector of mines, who was a witness on behalf of appellee, testified it was safer to remove the roof in question than to prop it, and that seems to have been the method employed in this particular entry. The record also discloses that appellee after making an unsuccessful attempt to remove the loose roof went to work in said entry, preparatory to shooting down coal in violation of the mine manager’s instructions and contrary to his statutory duty. Paragraph (e), section 23 of said Mining Act.

Under the holding of the Appellate Court of the Third District in the cases of Cappelin v. Jones & Adams Coal Co., 164 Ill. App. 267, and Driza v. Jones & Adams Coal Co., 171 Ill. App. 139, appellee did not enter appellant’s mine as a digger of coal on the morning of the injury, but he entered said mine as a company man. under definite instructions from the mine manager to remove a dangerous condition, and while occupying such ‘position would not be • entitled 'to the. protection of the Mining Act as a miner or. digger of coal.

Where a miner is ordered to remove a dangerous condition in a working place, and instead of doing so proceeds to mine coal therein and is injured in so doing, he cannot recover. Piazzi v. Kerens-Donnewald Coal Co., 262 Ill. 30; Arkley v. Niblack, 272 Ill. 356.

In Piazzi v. Kerens-Donnewald Coal Co., supra, at page 35 the court says: “The conditions under which a miner may work at a dangerous place at his own risk are where the owner has complied with the law by having the mine examined, the dangerous place has been marked by the mine examiner, and the miner is sent to that place, by the direction of the mine manager, to make safe the particular dangerous conditions there existing.” The language of the Supreme Court in said cause is peculiarly applicable to the ease under consideration for the reason that the record conclusively discloses that appellant had complied with the law by having the mine examined, the dangerous place marked by the mine examiner, and the mine manager had directed appellee to make safe the particular dangerous condition therein existing.

In Cappelin v. Jones & Adams Coal Co., supra, the court at page 269 says: “At the time of the accident his relation to the defendant was not that of a miner engaged in digging coal, as alleged, but that of an employee under direction to assist in repairing and making safe a dangerous place. Coke Co. v. Andrewsewski, 137 Ill. App. 1. Having been assigned to the latter duty, for which he was to receive special compensation by the hour, it was his duty to continue in the performance of the same until his work was completed. The defendant had the right to assume that he would do so. He had no right to change his status by digging coal or working at the face of the room while he was being paid as a company man. After the defendant had assigned him to the work in question, it was manifestly not its duty to place a guard over him to see that he did not mine coal until the place had been made safe. To hold that he was at liberty, without notice to the defendant, to change at will, from one capacity to the other, and thus place himself alternately within and without the protection of the statute, would be manifestly unjust to the defendant. If he chose to depart from the employment which he willingly and knowingly assumed, whatever may have been his motive, without first notifying the mine manager, he cannot claim the protection of the statute.”

The evidence, both on the part of appellee and of appellant, is conclusively to the effect that appellant’s mine manager directed appellee to make the dangerous place safe in his working place, and the manifest weight of the evidence is to the effect that no promise, directly or indirectly, was made by appellant’s mine manager to furnish props as contended for by appellee. Appellee having seen fit to disobey the order received by bim from the mine manager to make safe the dangerous place in his working place, and seen fit to mine coal in violation thereof, he did so at his own risk.

We hold, therefore, that the verdict of the jury is against the manifest weight of the evidence, and that the judgment of the Circuit Court should be reversed therefor. Other errors were assigned by appellant, but in view of what we have said, it is not necessary for us to discuss the same.

The judgment of the Circuit Court is reversed and cause remanded.

Reversed and remanded.


text:
    Belle Duncan, Appellee, v. Louis Kammeier et al., Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Intoxicating liquobs, § 225

      —when evidence sufficient in action by wife for injury to means of support. Evidence held to tend to show that two of the defendants charged with' selling intoxicating liquors as a result of which plaintiff’s husband was killed, in an action by a wife to recover damages for injury to her means of support, under section 9 of the Dramshop Act (J. & A. j[ 4609), were guilty, and refusal to direct a verdict as to such defendants was proper.
    2. Intoxicating hquobs, § 225*—when evidence sufficient to show that purchaser did not drink liquor. Evidence held to show plaintiff’s husband did not drink any of the liquor procured by him from one of defendants, in an action to recover under section 9 of the Dramshop Act (J. & A. -j[ 4609), and refusal to direct a verdict for such defendant was error.

      Appeal from the Circuit Court of Marion county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Belle Duncan, plaintiff, against Louis Kammeier, J. F. H. Tiemann and August Gansauer, defendants, to recover" damages under section 9 of the Dramshop Act (J. & A. ¶ 4609) for injury to plaintiff’s means of support. From a judgment for plaintiff, defendants appeal.
    W. H. Nelms, F. P. Drennan, Noleman & Smith and John Bundy, for appellants.
    L. B. Skipper, Charles Wham and Kagy & Vandervort, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

3. Intoxicating liquobs, § 240*—when exemplary damages recoverable for sale of liquors. To warrant recovery of exemplary damages under section 9 of the Dramshop Act (J. & A. If 4609), the sale of liquors must have been wilfully or wantonly made.

4. Intoxicating liquobs, § 240*—when sale is wilful and wanton. A sale of intoxicating liquor to a party known by the seller to be intoxicated or a habitual drunkard, is in its nature wilful and wanton, so as to authorize the recovery of exemplary damages.

5. Intoxicating liquobs, § 238*—who may recover exemplary damages for sale of liquor. The right to recover exemplary damages, in an action under section 9 of the Dramshop Act (J. & A. H 4609), is not limited to sales of intoxicating liquors to persons to whom the plaintiff may sustain some relationship as father, husband, wife or child.

6. Intoxicating liquobs, § 250*—when instruction on exemplary damages is erroneous. In an action under section 9 of the Dram-shop Act (J. & A. 1f 4609), by a wife' to recover for injury to her means of support, an instruction as to allowance of exemplary damages held erroneous in not explaining the meaning of the term or when or how such damages might be allowed.

7. Pleading,' § 248*—when amendment to declaration properly allowed. Allowance of an amendment of a declaration, after overruling a motion for a new trial, in accord with, the evidence and conduct of the trial, held not error.

8. Intoxicating liquobs, § 208*—when evidence that person was known to be drunkard is admissible. In an action under section 9 of the Dramshop Act (J. & A.'K 4609), where the declaration charged wilful sales of intoxicating liquor to a certain person and that such person was a habitual drunkard, evidence that such person was such' drunkard and that the fact was known to defendants, held properly admitted, in connection with a claim for exemplary damages.

9. Intoxicating liquobs, § 249*—when modification of instruction is improper. A modification to an instruction by adding the words “as to such sale” at the end of the instruction as tendered, in an action under section 9 of the Dramshop Act (J. & A. fl 4609), held improper where the evidence showed but one sale of liquor.

10. Instructions, § 18*—when properly refused. An instruction which is involved and misleading is properly refused.

11. Instructions, § 151 —when property refused. An instruction already covered hy a given instruction is properly refused.


text:
    Harry B. Dunlap, Appellee, v. Brotherhood of Railroad Trainmen, Appellant.
    1. Insurance, . § 717

      —right to show total and permanent disability under certificate iohere disability not of class specified. A total and permanent disability may be shown to be such, in an action to recover under a benefit insurance certificate providing payment of a certain amount upon total and permanent disability, notwithstanding the disability is not of the character set forth in a portion of the constitution of the association issuing such certificate declaring certain injuries to constitute total and permanent disabilities.
    2. Insurance, § 897*—when question whether injuries constitute a total and permanent disability is for jury. The question whether certain injuries constitute a total and permanent disability, in an action to recover under a benefit insurance certificate providing that a certain amount shall be paid upon total and permanent disability, where such injuries were other than those declared in a portion of the constitution of the association issuing such certificate to constitute total and permanent disability, held to he for the jury, and a directed verdict upon such question would be error.
    3. Pleading, § 50*—what are requirements of declaration. A declaration must be sufficient in itself, without reference to extraneous matters.' •

      i. Insurance, § 867*—when declaration in action on benefit certificate is insufficient. A declaration, in an action to recover under a benefit insurance certificate, not containing any allegation from which it could be determined the amount of recovery plaintiff would be entitled to, if successful, but merely referring to the constitution of the association issuing such certificate as the basis of plaintiff’s right to recovery, held insufficient on general demurrer.
    5. Appeal and error, § 1713*—when assignment of error waived. Where an appellant’s counsel makes no reference in his brief and argument to an assignment of error, such assignment is taken as waived.
    6. Insurance, § 868*—when plea setting up provision barring claim is insufficient. Where the constitution of a beneficial insurance association provided that an action upon a certificate issued by such association should be barred unless brought within six months “after the final rejection of the claim by the Board of Insurance” of the association, a plea setting up such provision in an action based upon such a certificate averring merely that “the Board of Insurance rejected plaintiff’s claim,” held, insufficient on demurrer, as not averring also that such rejection was final; such plea being taken most strongly against the pleader and, because being based upon a provision limiting the right to bring action, it must come specially within such provision.
    7. Insurance, § 887

      —when certificate is admissible without requiring proof of existence of fund in beneficiary department. In an action to recover under a.benefit insurance certificate, providing that the beneficiary is entitled to participate in the beneficiary department of the association issuing such certificate to the amount set forth in the constitution of the association, which provided for the payment of a definite amount, such certificate held admissible in evidence without first requiring proof that there was a fund provided for in its beneficiary department.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Cbow, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    W. C. Collister and W. P. Launtz, for appellant.
    T. M. Webb, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

Action was brought by appellee in the Circuit Court of St. Clair county upon a benefit certificate issued by appellant. To the declaration filed in said cause, counting on said certificate, appellant filed a plea of the general issue and three special pleas, setting up certain sections of appellant’s constitution and bylaws relied on by it as a defense in said cause. A demurrer to said special pleas was sustained, and the cause went to trial on the declaration and plea of general issue. At the dose of all the evidence appellant requested the court to peremptorily instruct the jury to find the issues in its favor, which request was refused. Thereafter, upon motion of appellee, the court directed the jury to find the issues in favor of appellee ■and to assess his damages at $1,968,55.

The record discloses that on the 15th day of January, 1910, appellee suffered a serious and permanent injury to his right foot, while working for the Wiggins Ferry Company as a switchman in Bast St. Louis; that appellee is twenty-nine years of age; was a member of appellant, Brotherhood, from October 1906 to the day of trial. The record further discloses that appellee made proofs of injury which were forwarded to the Grand Lodge of appellant, Brotherhood.

Motions for a new trial and in arrest of judgment were overruled, and judgment was rendered on the verdict. It is first insisted by appellant, for a reversal of said judgment, that the court erred in directing a verdict in favor of appellee.

The benefit certificate sued on provided among other things that the beneficiary is entitled to all the rights, privileges and benefits of membership and to participate in the beneficiary department, Class C. of said Brotherhood, to the amount set forth in the constitution thereof, which amount in the event of his total and permanent disability shall be paid.

Section 60 of the constitution of appellant is as follows: “There shall be four classes of beneficiary certificates, namely Class A. $550, Class B. $1,100, Class C. $1,500, Class D. $2,000. Each class shall be evidenced by a beneficiary certificate to be issued under the hands of the President and General Secretary and Treasurer and in the name and under the seal of the Grand Lodge. Each certificate shall show in which class it was issued, and provide for the payment, in accordance with the constitution, of the full amount of such class upon the death of the member insured therein, or upon his becoming totally and permanently disabled within the meaning of section 68.”

Section 68 of the constitution referred to in section 60 was not offered in evidence on the trial of the cause. That section, however, is set forth in appellant’s third special plea, to which the court sustained a demurrer. An examination of this section discloses that certain injuries therein set forth are declared to constitute a total and permanent disability. Appellant therefore argues that a total and permanent disability can only arise under the certificate sued on, upon proof of the character of injuries set out in said section 68. However, this court in the case of Bond v. Grand Lodge Brotherhood of Railroad Trainmen, 165 Ill. App. 490, and the Appellate Court of the Third District in the case of Convery v. Brotherhood of Railroad Trainmen, 190 Ill. App. 479, have held a total and permanent disability may be shown under a benefit certificate similar in character to the certificate sued on in this case, notwithstanding the injury is not of the character set forth in said section 68 of appellant’s constitution.

In Convery v. Brotherhood of Railroad Trainmen, supra, the court at page 482 says: “It is insisted that section 68 defines what shall be a total and permanent disability and that it excludes all'liability for any other kind of permanent disability than that enumerated therein, no matter how total and complete it may be. We do not think this section, should receive any such construction. This section simply provides what in certain instances will be considered a total disability, thus, if a member shall suffer the amputation of an entire hand at or above the wrist, joint, or of a foot at or above the ankle joint, or the complete, loss of sight of both eyes, he will be considered as being totally and permanently disabled without further question, and upon furnishing sufficient and satisfactory proofs the full amount of his certificate will be paid, but not otherwise.- The words ‘but not otherwise’ refer to the funnisTurtg of the proofs in such cases, and do not have the effect of excluding liability for all other forms of permanent injury. At least-an ambiguity and uncertainty are created when the certificate is reád in connection with these various sections of the constitution and by-laws, and it is a fundamental law of construction of insurance contracts in this State that all such uncertainties shall be resolved in favor of the assured.” Under the holding in this case the question of a total and permanent disability becomes a question of fact to be determined by the jury, except as to those injuries set forth in section 68. It is not contended that the evidence in this record shows an injury of the character mentioned in section 68 of appellant’s constitution, but is that character of injury which may or may not constitute a total and permanent disability under the certificate sued on. The injury in question consisted of an injury to all of the toes of appellee’s right foot, except the small toe, and an injury to his instep. It was therefore error for the court to direct a verdict in favor of appellee, for in doing so the court, in effect, had to find that the injury sustained by appellee constituted a total and permanent disability under the certificate sued on. Appellant was entitled to have this question determined as a question of fact by the jury.

It is next insisted by appellant that the court erred in overruling appellant’s motion in arrest of judgment for the alleged reason that the declaration is insufficient to support a judgment, even after verdict. Inasmuch as the judgment will have to be reversed for the reason above set forth, it is not necessary for us to determine whether or not the declaration is sufficient to support a judgment after verdict, but only as to whether the declaration would be good on general demurrer.. ■ .

The declaration does not contain any allegation or allegations; from which it can be determined the amount of recovery appellee would be entitled to if successful. The declaration, in ^effect, refers to appellant’s constitution as the. basis of its right of recovery. That part of the constitution relied on is not set out in the declaration either in hcec verba nor in legal effect. The declaration must be sufficient in itself, without reference to extraneous matters. Mutual Accident Ass’n v. Tuggle, 138 Ill. 428; Heffron v. Rochester German Ins. Co., 220 Ill. 514; Fish v. Farwell, 160 Ill. 236. The declaration is clearly insufficient.

It is next insisted by appellant that the court erred in sustaining the demurrer to its three special pleas. The first special plea relied on section 68 of appellant’s constitution, above referred to, as a defense to appellee’s canse of action. Under the construction placed on said section 68 by this court, and by the Appellate Court of the Third District, the court did not err in sustaining a demurrer to this plea. No reference is made by counsel for appellant in its brief and argument as to the ruling of the court in sustaining the demurrer to its second special plea. The assignment of error with reference to that plea is therefore taken as waived.

Appellant’s third special plea is based’ on section 64 of its constitution, which provides as follows“All right of action upon beneficiary certificates shall be absolutely barred unless proofs of death or total and permanent disability shall be forwarded to the General Secretary and Treasurer as hereinafter required, within six months after such death or disability occurs ; and it shall be likewise barred unless such action shall be commenced in some court of competent jurisdiction within six months after the final rejection of the claim by the Board of Insurance.” After pleading the above provision of its constitution, appellant avers “that the Board of Insurance rejected plaintiff’s claim,” and that no action or suit was commenced by appellee in any court within six months after the rejection of his claim by the said Board of Insurance.

The section above quoted provides for the suit being instituted within six months “after the final rejection of the claim by the Board of Insurance.” The averment of the plea is that the claim was rejected, but it does not state that the rejection of the Board of Insurance was final. The plea is taken most strongly against the pleader and, being based on a provision limiting the right to bring action, must come specially within its provisions. The court did not err in sustaining the demurrer to said plea.

Lastly, it is argued by appellant that the court erred in admitting the certificate sued on in evidence without requiring proof that there was a fund provided for in its beneficiary department for a disability benefit. Section 60 of the constitution above referred to provides that each certificate shall show in which class it was issued, and provides for the payment in accordance with the constitution of the full amount of such claim upon the death of the member insured therein or upon his becoming totally and permanently disabled. As the constitution provided for the payment of a definite sum upon proof of total and permanent disability, the court did not err in admitting in evidence the certificate sued on without first requiring the proof referred to.

For the error in directing a verdict as above set forth, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Toledo, St. Louis & Western Railroad Company, Plaintiff in Error, v. East St. Louis & Suburban Railway Company, Defendant in Error.
    (Not to be reported in full.)
    Error, to the Circuit Court of St. Clair county; the Hon. George A. Cbow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Toledo, St. Louis & Western Railroad Company, plaintiff, against East St. Louis & Suburban Railway Company, defendant, to recover under a contract allowing defendant to cross plaintiff’s right of way, and providing that defendant in crossing should first bring its cars to a full stop and remain until the conductor in charge of such ears should “flag said crossing,” and that defendant would indemnify and save harmless the plaintiff against all loss, damage, costs, expense, actions, claims or demands by reason of defendant’s failure to flag as so provided; the basis for recovery being a judgment entered against plaintiff for $6,500 in a certain action brought by Anna Perenchio against plaintiff and defendant in the City Court of East St. Louis to recover damages for injuries sustained by said Perenchio in a collision between the cars of defendant and a train of plaintiff, which was dismissed as to defendant upon removal to the federal court where such judgment was entered. From a judgment against plaintiff in bar of action and costs, plaintiff brings error.
    C. E. Pope and H. F. Driemeyer, for plaintiff in error; Charles A. Schmettau, of counsel.
    Barthel, Farmer & Klingel, for defendant in error.

      Abstract of the Decision.
    1. Appeal and error, § 1411

      —when judgment not reversed because verdict is against evidence. Where the evidence on a controverted question is sharply conflicting, judgment will not be reversed on the ground that the verdict was against the manifest weight of the evidence.
    2. Railroads—what is meaning of phrase “flag the crossing” in contract for crossing railroad by another company. The testimony of certain expert witnesses held to show that the term “flag the crossing,” used in a certain contract requiring defendant to flag plaintiff’s railroad crossing before crossing same, meant that the party flagging looked in both directions up and down the track to see if anything was approaching, and should listen, should see that the way was clear, that if he went to the crossing after he stopped his car, looked in both directions and saw nothing, listened and could hear nothing, then if he gave the signal to the motorman to come across, that would be flagging the crossing.
    3. Trial, § 103*—when evidence not objected to should be excluded. In an action to recover on a contract by defendant to indemnify plaintiff for loss arising from the negligent crossing of plaintiff’s right of way by defendant’s cars, held that evidence that the air brake on defendant’s street car caused the car to stop on plaintiff’s railroad tracks and that the motorman tried to release the air four times, but was unable to do so, should have been excluded, although not objected to when offered, as not tending to prove any issue in the. case.
    4. Trial, § 204*—when refusal to direct verdict for plaintiff is proper. Refusal to direct a verdict for plaintiff held proper where there was evidence tending to support the defense that defendant was not guilty of the negligence charged.
    5. Appeal and error, § 1413*—when similar verdict by succes- ■ sive juries not disturbed. Where three juries have passed upon a case and have each found the same way, an Appellate Court will be slow to disturb the verdict in the absence of prejudicial error.

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

   Mr. Justice Boggs

delivered the opinion of the court.