author: Mr. Justice Duncan

text:
    Minnie Kirsch, Appellee, v. Edward Walter et al., Appellants.
    1. Evidence—when admission of conclusions of witness not error. The admission by the trial court of conclusions of law will not reverse where no objection was made to such evidence upon the ground that it stated conclusions.
    2. Evidence—what proper upon cross examination. Upon the cross examination of a witness it is proper to permit a full inquiry with respect to any matter touched upon on direct examination.
    3. Evidence—when testimony of grand, jurors competent. Grand jurors may be compelled to testify to proceedings in the jury room if it is necessary for purposes of public justice or for the protection of private rights.
    4. Instructions—must not assume facts in dispute. An instruction is erroneous and ground for reversal which assumes the existence of the principal fact upon which the defense is predicated.
    Action in case for malicious prosecution. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed and remanded.
    Opinion filed November 13, 1909.
    W. M. Yandeventer and W E. Knowles, for appellants.
    B. H. Canby, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

This is a suit for malicious prosecution, the trial of which resulted in a verdict and judgment in favor of the appellee in the sum of $300 against the appellants, Walter, Knowles and Vandeventer. A verdict of not guilty was rendered as to the other two defendants.

The declaration charges that all the defendants at the September term, 1906, of said City Court of East St. Louis, appeared before the grand jury thereof and falsely, maliciously and without probable cause, charged the appellee with feloniously taking, stealing and carrying away certain merchandise and chattels of the defendant, Edward Walter; that she was thereupon indiéted by the grand jury for larceny, arrested by the sheriff and arraigned for trial; and that she was discharged out of the custody of the court, on a nolle, prosequi entered in said cause by the State’s Attorney.

We are now considering this case on a rehearing. This cause was affirmed by this court on the 12th of September, 1908, because of the failure of appellants to attach to the record an assignment of errors, although an assignment of errors was found printed in the abstract. The petition of the appellants for a rehearing and for leave to- attach the assignment of errors to the record has been granted, and the same assignment of errors printed in the abstract has been attached to the record.

The chief defense relied on in this case by the appellants, as appears from the record, is that they are not guilty of prosecuting the plaintiff at all, either maliciously or otherwise; that is to say, that they neither procured, nor in any manner aided or encouraged the procuring of the indictment of the plaintiff for larceny. The testimony of the foreman and clerk of the grand jury, and of all of the defendants is, in sub-stance, that not one of the defendants ever gave any evidence before the grand jury in any wise tending to incriminate the appellee. Their evidence is entirely corroborated by the sworn statements signed by the several defendants, which the clerk of the grand jury, Harry S. Kramer, says contain the substance of their evidence. The only time her name was mentioned before the grand jury, as these witnesses and these exhibits testify, was when Mr. Walter was asked who owned the store-house in which were his goods and chattels in question. His answer was in substance that he leased it from Minnie Kirsch. The evidence of the clerk and foreman of the grand jury tend to show that the State’s Attorney wrote up the indictment and. that the grand jury without ever reading it and without knowing appellee’s name was in it, unanimously voted for a true bill believing it simply an indictment against Francis Kirsch, her husband, and August Latinette.

The only evidence introduced by the plaintiff that tends to prove that the defendants procured, or aided in procuring the indictment against this appellee, is, first, the indictment itself, together with the further fact that the only names of witnesses endorsed thereon were the names of the five defendants in this cause; second, the affidavit of Judge C'anby for a continuance of the case admitted by the defendants, stating in substance that plaintiff expects to prove by F'. J. Tecklenberg, State’s Attorney, and Harry S. Kramer, clerk of the grand jury, that on September 27, 1906, the defendants appeared before said grand jury and falsely and maliciously, and_without probable cause, charged the plaintiff with stealing the goods and chattels of Walter, described in the declaration, upon which evidence the grand jury found said indictment; and, by Tecklenberg, that he prosecuted the plaintiff and at the close of the evidence entered a nolle prosequi as to her, because there was no evidence showing her guilty of larceny, or showing any reasonable or probable cause for her indictment.

It is insisted by appellants that this affidavit should not have been admitted because it is improper as only stating conclusions of the witnesses. It is true that this affidavit contains only mere conclusions of the witnesses and ultimate facts to be passed on by the jury. On objection made to it for those reasons it should have been excluded from the jury by the court. It is not proper to allow any witness to state to the jury that the defendants “falsely and maliciously, and without probable cause, charged the plaintiff with stealing the goods of Walter.” These are some of the ultimate facts on which the jury were to pass. Only the evidentiary facts upon which these conclusions are based, if any, were proper for the jury to hear. But there is no error in the court in admitting this evidence because no such objections to it were made by the defendants. It is the business of the attorneys, and not of the court, to object to improper evidence. It is too late now to complain for the first time. The court only permitted the affidavit to be read as the evidence of Tecklenberg, as Mr. Kramer came into the court room before it was put in evidence.

In his examination in chief by appellee, Mr. Kramer swears that the defendants testified before the grand jury in the criminal case. He also testified that he did not know that the appellee was indicted by the grand jury. On cross examination by the defendants he was asked these questions: “Do you remember what Mr. Knowles testified to?” “You stated that you did not know that Minnie Kirsch was indicted, didn’t you?” To each of these questions plaintiff objected, on the ground that the witness, a member of the grand jury, should not be permitted to contradict the record, the indictment; and that these questions were not proper as cross examination. The court sustained these objections and the defendants excepted to the ruling of the court. In these rulings we think the court erred. The effect of the appellee’s proving that the defendants testified before the grand jury and that they were the only witnesses endorsed on the indictment, in connection with the proof that appellee was indicted, was certainly to impress the jury that the defendants, or some of them, gave evidence tending to prove her guilty of larceny. The defendants had the right then by way of cross examination to show that Mr. Knowles, or any other of the defendants, gave no such evidence, if he could do so by this witness. The appellee had already by her examination elicited from the witness the fact that he knew nothing of this appellee being included in the indictment, although a member of the grand jury and present when it was proposed and passed upon as a true bill. The defendants then certainly had the right to cross examine him further on this question. The ruling of the court seems to be based on the holding of the Supreme Court in Gitchell v. People, 146 Ill. 175, to the effect that an indictment should not be subjected to attack by the members of the grand jury who returned it into open court as “a true bill,” or by any other persons authorized by law to be present in the grand jury room. That ruling was made on the trial of the party accused in the indictment and was proper and right in that case. The Supreme Court said in that case, “The hardship, which an accused party may suffer because he is not allowed to go behind the indictment to see how it has been found, will be small compared with the incalculable mischief which will result to the public at large from a disclosure of what the law deposits in the breast of a grand juror, as an inviolable secret. An innocent person will not be hurt by being forbidden to thus go behind the indictment, for he can always vindicate himself in a trial upon the merits.” But what shall we say of these defendants now before us? Would it not be a rank injustice to them to say that they shall not be permitted to prove by the grand jurors, or any' of the parties present when their evidence was heard, that they actually did nothing and said nothing to cause this woman to be indicted, and that there was no intention of the grand jury to indict her? Suppose on the other hand that there is a prosecution against a party for perjury in giving testimony before the grand jury, if this rule is to be invoked then the perjurer, if he be one, goes free because there could be no evidence against him. If this rule is to be taken without exception there would be no end to the mischief that might be done by perjurers in the grand jury room and the public would be powerless to prevent it. The Supreme Court did not mean for us to accept the above rule without exception, as appears clearly on page 181 of said opinion where they quote approvingly Am. and Eng. Ency. of Law, 9 vol. 17 (first ed.), as follows: “Grand jurors may not be compelled to testify as to the proceedings in the jury room unless it becomes necessary for purposes of public justice or for the protection of private rights.”

In Underhill on Crim. Ev., section 191, it is laid down as the rule that a grand juror is not compellable to testify as to matters that took place in the grand jury room, unless it is absolutely necessary for him to do so in order to prevent a miscarriage of justice. It is also stated there, too, that where justice requires it, an indictment may be shown to have been endorsed a true bill by mistake by the evidence of one of the grand jurors. See also Burr W. Jones on Ev., vol. 3, sec. 783.

The defendants should have been permitted to show if they could by the evidence of these grand jurors, that tlie indictment of the appellee was a mistake; that there was no evidence against her before the grand jury, if that was the case; and that the grand jury only voted to indict Francis Kirsch and August Latinette.

Appellee’s second instruction is erroneous and should not have been given to the jury. It reads thus: “If you believe from the evidence the defendants had no probable cause to believe that plaintiff had been guilty of the crime of larceny, then and in such case you may infer malice from such want of probable cause.” This instruction assumes the very fact that these appellants deny, that is, that they prosecuted her at all. The jury are told by this instruction that if they had no probable cause to believe her guilty of larceny, that they might infer malice, and without requiring a further finding on the main disputed question in the case. If the defendants did not make any attempt to prosecute her, as they claim, all grounds for inferring malice are wanting, and the instruction was therefore misleading.

We have passed on all the principal rulings of the court that are assigned as error by the appellants except those challenging the sufficiency of the evidence to support the judgment. As the case will have to be reversed and remanded fop a further trial in the court below, we do not deem it proper to express an opinion on the merits of the case on the evidence. For the errors indicated the cause is reversed and remanded for a new trial.

Meversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    St. Louis Hay & Grain Company, Appellant, v. Chicago & Alton Railroad Company, Appellee.
    1. Common carriers—when obligations become those of warehouseman. .When a common carrier places freight cars on its team tracks and notifies the consignees of their arrival and then holds them for inspection and sale by the consignees while waiting the further orders of the consignor, the obligations of the common carrier have been reduced to and become those of a warehouseman.
    2. Railroads—when not liable for extortion as to freight charges. Held, under the evidence .in this case, that the defendant company was not liable for a penalty of treble the amount of freight charged as provided in sections 124, 125 and 129 of the Railroad Act.

      Assumpsit. Appeal from the City Court of Bast St. Louis; the Hon. Mortimer Millard, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    L. 0. Whitnel, for appellant.
    Kramer, Kramer & Campbell, for appellee; Winston, Payne, Strawn & Shaw, of counsel.
   Mr. Justice Duncan

delivered the opinion of the court.

This is an action of assumpsit on the statute, chapter 114, sections 124, 125 and 129, entitled “Extortion and Unjust Discrimination,” brought by appellant against appellee. The plaintiff sues to recover the penalty of treble the amount of freight charges, alleged to be unjustly collected by the defendant as common carrier of the plaintiff, on two hundred ears of hay, shipped to East St. Louis by consignors in Illinois and elsewhere, to consignees in East St. Louis, from the latter of whom the appellant purchased said cars of hay on the tracks of defendant at East St. Louis. No question arises on the pleadings. The trial was had before the city court of said city without a jury by agreement, September 10, 1908, resulting in a judgment in favor of defendant against the plaintiff for costs.

From 1903 to 1907, the time involved in this suit, East St. Louis was one of the principal hay-markets of the country. A great deal of hay from Missouri, Illinois and Indiana was shipped to East St. Louis for consumption there; and, also, for shipment to other points. At this time in question the appellant was engaged in the commission business in said city and dealt largely in hay, most of which it purchased on the tracks of railroads running into the city. During this time the said two hundred cars of hay were hauled by the defendant on its road in carloads onto its team tracks in its Front street yards located near the river in said city. The hay was first brought by trains of appellee to its Venice yards located outside of East St. Louis about three miles north of its Front street yards, where the trains were broken up and the cars brought thence to Front street yards by switch-engines and placed on what is known as the team tracks if they contained room, or if the team tracks were full, they' were placed on the hold tracks of the company. In accordance with the custom of this market, the cars were then manifested by appellee posting up notices in its freight office giving the number of the cars, the contents and the name of the consignees. The consignees also received notice of the date of the arrival of the cars and the freight charges thereon. By custom the consignees then assembled the buyers, inspected the hay, and sold the two hundred ears of hay to appellant on said tracks. The appellant then, through the original consignees, as its agent, gave notice to appellee of reconsignment to itself at its warehouses in said city, one of which, the Union, is located on the tracks of the East St. Louis Connecting Railway Company, sometimes known as Wiggins Ferry. The other warehouse, the National, was located on the tracks of the Southern Railway Company, sometimes known as V. & C. Belt. Neither one of these warehouses could be reached by the appellee by any of its tracks, nor by any other track that it was authorized to use. To reach the Union warehouse, a car would have to be moved from Front .street yards about two and one-half miles north to the connecting road, East St. Louis Connecting Railway, for delivery by that road. To reach the National warehouse, the car would have to be moved from Front street yards three miles north to appellee’s Venice yards and delivered to the V. & C. Belt, for delivery by that line to the warehouse. It does not appear from the evidence what part of these two hundred cars were transported to each of these warehouses. After the hay was sold on the yard tracks, no extra charge was made by the appellee to the appellant or to any other buyer or consignee of hay, for delivering the cars onto the team tracks for convenient carting away of the hay bv the purchaser or consignee, when such was desired and made known to appellee. All sales, however, were made on the team tracks unless they were full; and, when the cars were on the team tracks, no physical movements of the cars were usually required for unloading there. The unjust discrimination and extortion that appellant complains of is the practice of the appellee of charging two dollars a car for each of the said cars delivered to said connecting railroads, while on the other hand it makes no additional charge for delivering cars of hay on these team tracks.

There are many errors assigned on this record by the appellant; but its real contention is set forth in the following language of its counsel, quoted from appellant’s argument,_ viz.: “There is, as we view it, but one question involved in this case: * * * The court seemed to be of the opinion that after the cars were placed on the tracks in the yards they remained in the possession of the railroad company as warehouseman and not as carrier. We contend that there was but one shipment of each car and there was but one delivery of each shipment. If we are right in this contention then the judgment of the court below was wrong.”

The evidence in this record clearly shows that there was no intention of the defendant railroad company to unload these cars of hay and store them in any of its freight-houses in any event. It was not expected or desired by any of the consignees or their assignees to • have the hay so stored. Whether the delivery to the appellant was to be made to it on the team tracks or at its warehouses, the hay remained in the cars of appellee until they were unloaded by the appellant. None of these two hundred cars were unloaded by the appellant at the team tracks; but all of them by its direction, were hauled to the connecting roads aforesaid for delivery by those roads to appellant at its warehouses. We are not able to understand how the question of whether or not an actual manual delivery to either the consignees ■ or to this appellant at the team tracks of these shipments, such as is spoken of by appellant, is to be the sole question upon which this controversy is to be settled. Suppose that instead of an order from the appellant to the appellee to have these cars delivered or shipped to its warehouses after the purchase of the cars of hay, the order of appellant had been to deliver this hay to it at Alton, Illinois, would appellant contend that no extra charge could be made by appellee for this service? Would it make any difference in the settling of this question that Alton was the place that the appellant usually or customarily had these cars delivered to it by appellee? Whether or not the appellee was holding these cars of hay as a common carrier or as warehouseman at the time it received orders from the appellant to reship or deliver this hay to it at its warehouses, may be a factor in settling this case, but not necessarily the controlling one. We think, however, under the authorities that when the appellee placed these cars on its team tracks or other tracks in its Front street yards, and notified the consignees of their arrival and then held them for inspection and sale by the consignees, and while awaiting further orders of appellant, that the appellee was acting in the capacity of a warehouseman and that its original duty as a common carrier had ceased. It had then done all that was required of it as a common carrier by its first contract, as there was no other place of delivery specified in its contract. As warehouseman, if the hay was to be unloaded from its cars and carted away while on the yard tracks, the consignee or assignee would still have the right to demand of the appellee that it place the cars so they could be reached by teams for the purpose of unloading. But this would not make them still a common carrier. If they had been stored in a freight house and appellee was holding them there as warehouseman, it would be its duty to have them in an accessible place for loading and carting away; and if they were not in such a place, the duty of appellee as warehouseman would be to so place them that they would be accessible for delivery. Before these cars of hay were sold to the appellant by the consignees, the railroad company had no sort of notice that they were to be sold to appellant. The railroad company could not foresee that any sale of this hay would be made at all. If sale should take place and if the railroad could reasonably expect a sale, the buyer could not be known until sale was made. The buyer after sale, whether appellant or some other person, might want it reconsigned to New Orleans or to any other place in this country. This reconsignment might be to some other city on appellee’s line or to some city off its line, or there might be no reconsignment or reshipment any where and the hay carted away by the consignee or his assignee. For the accommodation of the hay market people, the railroad allowed its team tracks and hold tracks, to be the market place and its cars the market house for this hay. We can see no difference in the relation of the parties at the time these sales took place, than if the sales had taken place in appellee’s freight houses after the articles had been unloaded by the carrier and stored for delivery. In either case we would regard the appellee as a warehouseman.

In the case of Gregg v. I. C. R. R. Co., 147 Ill. 550, our Supreme Court said: “The law is well settled in this State that the liability of a railroad company, as a common.carrier of freight, ceases upon the unloading of the goods from the car at the place of destination, and placing them in a safe and secure warehouse, or where the carrier is not required in the usual course of business, or expected, to remove the freight from the car, as in the case of grain in the bulk, coal, lumber and the like, by delivering the car in a safe and convenient position for unloading, at the elevator, warehouse or other place designated by the contract or required in the usual course of business, or if no place of delivery is thus designated or required, on its side track, in the usual and customary place for unloading by consignees. * * * In all such cases the question to be determined is, whether anything remains to be done by the carrier in completion of its contract to safely carry and deliver the goods at the place of destination. If there is, its liability as carrier continues; if there is not, and the goods remain in the possession of the carrier, its liability in respect thereof, when not varied by contract or usage, is as warehouseman, only.” See also on this point-, Richards v. Mich. S., etc., R. R. Co., 20 Ill. 405; Vincent v. C. & A. R. R. Co., 49 Ill. 33; M. D. T. Co. v. Hallock, 64 Ill. 286; Cahn v. Mich. Cent. R. R. Co., 71 Ill. 96; I. C. R. R. Co. v. Carter, 165 Ill. 570; Schumacher v. C. & N. W. Ry. Co., 207 Ill. 206, and same case in 108 Ill. App. 520; Gratiot St. Warehouse v. Railroad Co., 221 Ill. 418.

In M. D. T. Co. v. Hallock, 64 Ill. 286, quoting 49 Ill. 38, the court said, “The rule of the common law requiring common carriers by land to deliver to the consignee, has been so far relaxed in regard to railways, from necessity, as in most cases to substitute in place of personal delivery, a delivery at the warehouses or depots provided by the company for the storage of goods.”

In the case of Schumacher v. C. & N. W. Ry. Co., 207 Ill. at page 206, the doctrine of railroads ’ liability is thus discussed: “Railroads, as to freights committed to its charge, during the period of transport and until they are delivered, bear two well recognized relations. While in transit, and for a reasonable time after reaching the point of destination, they owe the duties and bear the relation of common carriers; and when the car containing the freight is delivered to the consignee upon his own track or at a place selected by him for unloading, if he have one, or to the consignee upon the company’s usual and customary track for the discharge of freight, with reasonable and proper opportunity to the consignee to take the same, or when placed in the warehouse of such company or the warehouse of another selected by him, in any and all such cases such companies then bear to such freight the relation of warehousemen.”

In Cyc., vol. 6, page 454, it is said: “So, if by the shipper’s orders, the goods are stopped in transitu, and they are held for the shipper, the carrier while so holding is liable as a warehouseman only.” In the ease at bar the ears of hay were held in appellee’s yards for inspection and sale by the consignees, and the consignees availed themselves of this privilege. We think under the law the appellee was holding these cars of hay as warehouseman at the time it received the order of the appellant to deliver them to its warehouses via these connecting roads.

But whether the cars of hay in question be regarded as in a warehouse or as in transitu, at the time of the direction of appellant to deliver them to its warehouses, by way of these connecting roads, we think that the delivery to these warehouses was properly held by the lower court as a new consignment or reshipment for which the appellee could make an extra reasonable charge. It is a well-recognized principle of law that the consignor or consignee under certain circumstances may divert the shipment of a car of freight in tramsitu and have its destination entirely changed by paying the extra charge of freight, if any be due, for a longer haul. If the original shipments had been directed by the consignors to the appellant’s warehouses by way of these connecting roads, the delivery evidently would have been made to these connecting roads in the first instance at the Brooklyn and Venice yards of the appellee, thereby saving the double haul between these yards and the front street yards, and these extra charges of two dollars per car would not have arisen. It appears from the evidence that the Venice yards of appellee, where one of these connecting lines had to be reached by appellee, are not within the limits of East St. Louis. Neither one of the warehouses of appellant could be reached by appellee’s road or by any road or switch that it was using or had the right to use. A railroad corporation will only be compelled to deliver grain in the particular warehouse or elevator to which it is consigned when such warehouse or elevator is upon the line of its road. Hoyt v. C. B. & Q. R. R. Co., 93 Ill. 601.

This consignment of these cars of hay to appellant’s warehouses entailed all the routine and expenses of an original shipment and also the further expense of per diem charges for the cars of other railroad companies while on the line of these connecting roads, as well as loss of service of its own cars that contained the hay while in this new service; and, while the matter of expense is not necessarily a deciding factor in this case, we think these reshipments were new services for which the appellee had a right to make a reasonable charge. The lower court so found and also found that the charges made by appellee were reasonable and we think the evidence in this record sustains the finding and judgment of the lower court. We are unable to agree with the appellant that the contract of the appellee for the original shipment, bound it to-, make this delivery of the hay in question to appellant’s warehouses or to the connecting roads. We recognize the principle that custom has much to do with the duty1 of a carrier as to the delivery of freight. If a carrier habitually collects money for the delivery of goods to the merchant’s store, by this custom the duty of the carrier to deliver at the store might be established and its duty as a carrier be continued until the goods were delivered at the store. But if a carrier habitually carries freight from East St. Louis to Venice or to Alton and sometimes charges and sometimes makes it a gratuity, we do not see how the law could require it to continue the gratuity because it had done so customarily provided every one is treated alike.

We have examined all the errors assigned by appellant, on special findings of fact and of law, etc., and find nothing therein seriously conflicting with the judgment of the lower court. The judgment of the lower court is, therefore, affirmed.

Affirmed.


text:
    Celeste Odorizzi, Plaintiff in Error, v. Southern Coal & Mining Company, Defendant in Error.
    1. Mines and Miners Aci—^when peremptory instruction proper in action charging wilful violation. . If the injury of the plaintiff cannot by any fair process of reasoning be attributed to the violation of the statute, it is proper that the trial court should give a peremptory instruction for the defendant.
    2. Mines and Miners Act—what essential to recovery in action charging wilful violation. In order to recover under this statute it is essential that the plaintiff establish by a preponderance of the evidence that the wilful violation alleged was the proximate cause of the injury complained of.
    Action in case for personal injuries. Error to the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    L. D. Turner and L. D. Turner, Jr., for plaintiff in error.
    Kramer, Kramer & Campbell, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

On December 26, 1907, the defendant in error was the owner of and operating a'coal mine near New Baden, in Clinton county, by means of a main shaft, entries, rooms and cross cuts. On that day plaintiff in error, Celeste Odorizzi, and his helper were undercutting the face of the coal with an air machine in room No. 6, off of the fifth north entry in said mine, by direction of the pit-boss of the defendant in error. This room was opened about twenty-seven feet in advance of the air current, or last open cross cut, and was driven to the distance of about fifty-two feet to the place where the accident happened. Plaintiff was injured in the afternoon while he was running his machine, hy coal falling on him out of the face of the room and breaking his leg and permanently injuring him. An appropriate declaration was filed charging that his injury was caused by the defendant’s wilful violation of the statute on Mines and Miners, providing that “cross cuts shall be made not more than sixty feet apart, and no room shall be opened in advance of the air current.” A plea of, not guilty was interposed by the defendant; and, upon a jury trial, a verdict of not guilty was returned at the close of the plaintiff’s evidence by direction of the court; and judgment was entered in bar of the action and for costs. Plaintiff has sued out this writ of error to review this judgment.

It is contended by the plaintiff in error that there is sufficient evidence in this record to prove that the injury which he sustained was directly caused by the defendant’s wilful violation of said statute; and that the case ought to have been submitted to the jury by the court.

The evidence for the plaintiff was in substance that he was undercutting the face of the coal with his machine ; that at the time the coal fell there was dust in the room in the air and that the air was bad; that the cutting of the coal made the dust, that he could not see the face or the top of the coal for the dust, that he was three or four feet from the face when the coal fell on him and that it fell from the face; and that it fell down on him without him noticing it before it was down. He also testified that the roof of the room was all right and that he tried it to see if it was good or not before he went to work. His witnesses further testify that there is always some dust from operating the machine, and that the air current does not have much effect on that; that the coal dust is generally too heavy, and settles without going any distance. The foregoing is all the evidence that was offered showing, or tending to show, the condition of this room and the cause of the injury to the plaintiff at the time in question. It clearly appears from the evidence that the plaintiff’s injury was caused by the coal falling on him, but it is not shown what caused the coal to fall. It is equally clear from the evidence that this room being in advance of the air current had nothing to do with the falling of the coal in question. The evidence does not even show, or tend to show, that the plaintiff could or would have avoided the injury if the room had been completely ventilated and cleared of bad air, dust and smoke. The injury to the plaintiff cannot, by any fair process of reasoning, be attributed to the violation of the statute in question. The lower court therefore very properly held as a matter of law that the violation of this statute was not the proximate cause of the plaintiff’s injury. Terminal R. R. Ass’n v. Larkins, 112 Ill. App. 366; Wright v. I. C. R. R. Co., 119 Ill. App. 132.

The plaintiff’s contention seems to be that it was not necessary for him to prove that the violation of the statute was the proximate cause of his injury to entitle him to recover. The plaintiff says in his argument : “If the pit-boss of the defendant in error had not ordered the plaintiff in error to go there and work in the room, which was opened up in violation of the law, he would not have been injured.” That is true and it is also true that the room was opened in advance of the air current in wilful violation of the statute. But that is not enough. It must further appear from the evidence that if the statute had been complied with, that is, if the proper cross cut had been made in advance of this room and the air current had been traveling properly thereby, that the plaintiff would not have been injured. In other words, the wilful violation of the statute must be shown to have been the proximate cause of the injury. Failing to introduce evidence proving, or tending to prove, this material and necessary element of recovery, the cause was properly taken from the consideration of the jury. Schlapp v. McLean County Coal Co., 235 Ill. 630 ;. Odin Coal Co. v. Denman, 185 Ill. 413; Pittenger & Davis M. & M. Co. v. Gettleman, 126 Ill. App. 549; Mo. & Ill. Coal Co. v. Schwalb, 74 Ill. App. 567.

We are of the opinion that the lower court committed no error in this record. The judgment is therefore affirmed.

Affirmed.


author: Mr. Justice Duhcah

text:
    Louisa Fritzinger, Appellee, v. William F. Ahrens, Appellant.
    1. Marriage—what competent in action for breach of promise. Held, in this case, that it was proper upon the question of the existence of a contract of marriage, for the plaintiff to prove what household duties she performed while living in the house of the defendant, how she cared for him when he was sick, etc.
    2. Instructions—when need not negative defenses. The plaintiff in his instructions is not required to anticipate and negative defenses not made or relied upon by the defendant.
    3. Instructions—when reference to ad damnum not erroneous. It is not error for the .court to tell the jury at the close of an instruction that they “cannot give damages to exceed the amount alleged in the declaration.”
    4. Instructions'—when use of word “should” not erroneous. An instruction which tells the jury that they “should” take into consideration in estimating the damages of the plaintiff the fact, etc., held, not erroneous.
    5. Verdicts—when not excessive. Held, in an action of assumpsit for breach of promise to marry, that a verdict of $3000 was not excessive where the evidence tended to establish seduction under promise of marriage and the birth of an illegitimate child.

      Assumpsit. Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the February' term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    J. O. Miller and Barthel & Klingel, for appellant.
    Dill & Pfingsten, for appellee.
   Mr. Justice Duhcah

delivered the opinion of the court.

Louisa Fritzinger, appellee, is a widow about thirty-one years of age, who had one female child about four years of age. Prior to February 27, 1906, she lived with her parents in Smithton, Illinois. William F. Ahrens, appellant, is a farmer about forty-six years old, was never married, and has lived near Smithton, Illinois, all his life. He and his father had lived together upon the latter’s farm for sometime prior to February 27, 1906, on which latter date they procured plaintiff to come with her child and live with them as their housekeeper at nine dollars per month. After she had served in this capacity about two weeks, the senior Ahrens died. The defendant then contracted with her on the same terms to live with him as his housekeeper as long as she wished. From that time until May 28, 1908, she and her child and the defendant lived together practically all the time. On August 23, 1907, the defendant went with a nephew on a trip to Niagara Falls and Jamestown Exposition, remaining away until September 7th of that year. On May 28, 1908, the plaintiff while still keeping house for the defendant gave birth to a bastard child at his home. During all the time she thus lived with the defendant he called her “ma,” and frequently took her to her parents’ home for dinners and short visits. He also took her frequently to market, and she sold the chickens and other produce and did the buying of such things as were used in his home. She also cared for him during a five or six weeks’ illness, just previous to the birth of her illegitimate child. While the defendant was on his trip to Jamestown, at his special request, she cared for his valuable papers, such as notes, deeds, etc. Her father stayed with her at defendant’s home while he was away. Defendant brought her and her child a present on his return, a pin and a locket; and, at another time, he gave her a pair of overshoes for a Christmas present. She made him a present the year before. The defendant telephoned for the doctor when she was about to be confined, and assisted the doctor during her confinement. As soon as she recovered from her sickness in childbirth in the early part of June, 1908, the defendant at his own instance, settled with her, paying her ninety dollars for services past due. She then left his home at his direction. She had been paid no money for the last ten months, and she had not in that time asked him for money. The defendant owns sixty acres of land valued from $3000 to $3900; and about $2500' worth of notes and other securities. The foregoing with a few other details were the undisputed facts in this record. The evidence of the plaintiff, which is denied by the defendant, is that he spoke of marriage to her in July, 1906, and proposed marriage to her in February, 1907, and that she accepted; that thereafter he renewed the promise from time to time and never did deny his engagement or his intention to marry her until after her illegitimate child was born; that in consequence of his promise to marry her he seduced her and had intercourse with her four times from August 12th to December 23, 1907; that he got her with child in August, 1907;' that she informed him of this fact in the following September, when he returned from Jamestown, and he then again promised to marry her but kept putting it off until her child was born; that after that event he refused to marry her, placing his refusal on the ground that he was absent from home nine months before her child was born and he could not be the father of it.

Appellee sued appellant in assumpsit in the Circuit Court of St. Clair county in September, 1908, for breach of promise. The five counts in her declaration charge in substance (1) a promise to marry her on request; (2) a promise to marry her within a reasonable time; (3) a promise to marry her in the fall of 1907, and seduction of plaintiff in consequence of such promise. Breach of promise was assigned in each count. Only the general issue was pleaded to the declaration. The jury returned a verdict of $4000 in favor of appellee. After the plaintiff entered a remittitur of $1000, the court overruled appellant’s motion for a new trial and entered judgment against him for $3000 and costs of suit ip favor of appellee. Appellant has appealed to this court and relies on the following points for a reversal: (1) that the court admitted improper evidence to the jury; (2) that the court failed to properly instruct the jury as to the law; (3) that the damages are excessive.

First. It was proper for the plaintiff to prove what household duties she performed while living in his house, and how she cared for him when he was sick, also to show that they went to market together, and that she sold his eggs, poultry, lard, etc., and did the buying of the groceries and other articles for the household. It is said by the appellant’s counsel that this evidence does not in any way tend to prove a marriage contract. These circumstances by themselves are slight evidence of a contract of marriage, it is true; but, when considered with all the other circumstances in this record already recited, they certainly tend to prove a relation between these parties that is a little closer and a little more confidential and affectionate than that ordinarily existing between master and servant.- The defendant denied that he ever promised to marry the plaintiff, and also denied that he ever had sexual intercourse with her. Both of these facts were material to plaintiff’s case; and both of them may be proved by circumstances tending to show affection or the manner in which they held or regarded each other, as well as opportunity, etc. Under such a denial by the defendant, all the facts and circumstances existing between the parties prior to and after the time of the alleged marriage contract and seduction, tending to establish such contract or seduction, must be regarded as proper evidence for the jury. Richmond v. Roberts, 98 Ill. 472.

Second. Appellant complains of the giving of plaintiff’s instruction No. 2 to the jury, because it directs a verdict in favor of the plaintiff in case they find all the material facts therein mentioned proved by the greater weight of the evidence, without telling the jury that the evidence must also show that the defendant refused to marry the plaintiff without a cause. No justification or excuse whatever was pleaded or proved by the defendant except the bare fact that he testified that he made no promise to marry her and never had sexual intercourse with her. No instruction of appellant had any suggestion of excuse for his refusal to marry her. The proof in this record nowhere shows even an opportunity for sexual intercourse with any other man; and does not show excessive drunkenness or other vicious habits as matter of justification. It has been often ruled by our Supreme Court that the plaintiff is not required to submit in his instructions matters of defense or to negative them, in his instructions to the jury. It is proper for the plaintiff to submit his case to the jury on his declaration and proofs and to instruct the jury that if he has proven his case by the greater weight of the evidence that he is entitled to recover. We do not think it is proper or reasonable to require the plaintiff to anticipate and negative in his instructions a defense not made or relied on by the defendant.

The objection to the third instruction of appellee is without merit. It is not error to tell the jury at the close of an instruction that they “cannot give damages to exceed the amount alleged in the declaration. ” It is such expressions as “not to exceed $5000,” “the plaintiff cannot recover more than $5000,” and other like expressions that tend to lead the jury to understand that they ought to or may allow the full amount so named, that the Supreme Court and Appellate Courts have condemned as error. Kellyville Coal Co. v. Strine, 217 Ill. 516, 533.

The appellee’s instruction No. 4 is objected to by appellant for the reason that the instruction is peremptory in character telling the jury that they “should” take into consideration in estimating the damages of the plaintiff, the fact that in consequence of such promise to marry her she was’seduced and begotten with child by the defendant, if they so find from the evidence. Appellant insists that the word ‘‘ should’ ’ in this instruction ought to have been “may;” or, that the instruction should have been so worded as to leave it discretionary with the jury whether or not they would consider these facts matters of aggravation of damages. The same objection in substance is made to appellee’s instruction No. 5 which closes with the words “are to be taken into consideration by the jury in making up the verdict, and go in aggravation of damages.” These instructions are copies of instructions found in our Supreme Court reports and which were thoroughly discussed and approved by our Supreme Court. In discussing said instruction No. 4, our Supreme Court in case of Tubbs v. Van Kleek, 12 Ill. 447, says: “It is possible, but hardly probable, that a case may arise where both parties are equally culpable, but the instruction under consideration, does not suppose such a case. It is based upon the presumption, that the jury believe from the evidence that the defendant, under pretense of marriage, enticed the plaintiff from the path of rectitude and duty; and in such case, to say that both narties were eaually in fault, would be to confound the innocent with the guilty, and to visit the same condemnation on the party defrauded, as on him committing the fraud.” This same instruction and also No. 5 were again approved in case of Fidler v. McKinley, 21 Ill. 308. Such damages are declared on page 313 of the latter opinion to be those immediately resulting as a consequence of the breach of promise, in other words they are actual damages as distinguished from exemplary or punitive damages. No idea of punishment for the public good or to make a public example is given to the jury by these instructions. In this view of the case the instructions are not reversible error although it might be more nicely accurate to so frame the instructions in every ease as to leave it to the discretion of the jury to award such damages, particularly if there were any circumstances of mitigation in the case. For discussion of damages for seduction and of exemplary damages, and mitigation of damages in breach of promise, see Sutherland on Damages, vol. 3, secs. 984, 985, 986, 987 and 990. One of the important inquiries in this case is should this jury have given this plaintiff damages for seduction, as a matter of right. Examining into this record we find absolutely no charge or objection of any kind against this plaintiff or her character, except the bare fact of this intercourse and this bastard child as a result thereof; and the jury has found, and were required to find, by these instructions, before she could recover such damages, that he was her seducer by reason of such promise of marriage. The jury were properly instructed as to the meaning of the word “seduction.” We do not think that the defendant could reasonably and conscientiously hope that any other jury would under the evidence in this record do otherwise than give such damages against him, even if instructed in the language the appellant insists is the law in this case. We think such damages were thoroughly warranted under the evidence in this case, and we are entirely satisfied with the instructions as given. See also Burnett v. Simpkins, 24 Ill. 265; and Poehlman v. Kertz, 204 Ill. 420.

The other objections to appellee’s instructions are untenable. The last case above cited holds against the contention of the appellant that seduction must be pleaded. We are also satisfied with the ruling of the court in refusing to give appellant’s instructions numbered 6, 7 and 8. They are of a character liable to mislead a jury into believing that if the defendant denies the appellee’s material charges and she is the only one to affirm them that the jury must find for the defendant. Two of these instructions are also bad because they assume the-fact that the plaintiff and defendant are of equal credibility. Such instructions merely serve to confuse, rather than to aid, a jury in properly reaching a verdict. Johnston v. People, 140 Ill. 350:

Fourth. As we have already indicated the judgment in this case is not excessive. While $3000 may be a heavy burden for the defendant to bear, yet, in our judgment, it is but poor recompense for the injury and damages that this plaintiff has suffered. Her story was simple and convincing. The circumstances are corroboration of her story all the way through. The jury believed her and have found against the defendant’s contentions. If, as she says, he made the many promises of marriage disclosed in this record and then sought to, and did, seduce and ruin her, using as his dire and powerful argument, that she could trust him implicitly and rely on his word that they were the same as man and wife, and that they would be man and wife as he had promised her, for the ruin of such a woman as this record' proves her to be in this manner, the damages are certainly not excessive. Looking at them from her standpoint they are light. The evidence shows that this plaintiff is industrious, a good housekeeper and was very specially prized for these qualities by the defendant before he seduced her. She is not even accused of being unlawfully intimate with any other man, except that the defendant says he did not have sexual intercourse with her, or does not remember it if he did. The bare suggestion of a bad memory in this regard by the defendant, staggers the credulity of all mankind, and condemns his story with all reasonable men of the most common experience.

We have considered "all that the able counsel for the appellant have said in his behalf, and believing that the judgment of the lower court is right, and that there is no reversible error in this record, the judgment is affirmed.

Affirmed.


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    Sallie A. Cromwell, Appellee, v. G. F. Allen, Appellant.
    1. Landlord and tenant—obligations to repair-. The relation of landlord and tenant creates no obligation or duty on the landlord to make repairs unless he has assumed such duty by express agreement with the tenant. In the absence of special agreement the tenant takes the premises as he finds them subject to his own risk, and there is no implied covenant that they are fit for habitation, or that they are in any particular condition of repair.
    2. Landlord and tenant—what essential to liability of former for personal injuries. There can be no liability by the landlord to his tenant for personal injuries received in consequence of a breach of contract by the landlord to make repairs unless such contract to repair amounts to a covenant to keep the premises reasonably safe or unless the contract was made under such circumstances as plainly indicated that such damages were contemplated by the parties at the time of making the contract, or unless there is some duty resting on the landlord to make the repairs not arising from the contract.
    Action in case. Appeal from the Circuit Court of Randolph county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed.
    Opinion filed November 13, 1909.
    A. E. Crisler and H. C. Horner, for appellant.
    Ralph E, Sprigg and J. Fred Gilster, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellee sued appellant in case to recover damages for personal injuries sustained, July 18, 1908. A trial before the Circuit Court and a jury resulted in a verdiet and judgment, of $1200, from which appellant has appealed to this court.

The evidence in this record is in substance, that appellee, about February, 1907, rented from appellant a store building in Sparta, Illinois, to be used by her as a millinery store. Before she took possession of the building, certain alterations and specific repairs were agreed on and made by appellant. Appellee' claims, and introduced evidence to prove, that appellant agreed to make repairs of the building generally as needed during the term of the lease, as a part of his original contract of leasing. This is denied by appellant’s evidence. There is a little platform, four feet by eight feet and four feet from the ground, onto which the rear door of the building opens. There are steps leading from the platform to the ground. In June, 1908, one of these steps broke under appellee’s weight; and, in consequence thereof, she fell sustaining no injury. Appellee notified the agent of the appellant of the condition of the steps; and, also of the fact that the platform had moved several inches from the building and that it was ‘1 rickety. ’ ’ A carpenter at the instance of the agent of the appellant, secured the platform against the wall of the building and put up a new pair of steps. On the day of her injury, appellee again went out on this platform while in the discharge of her usual chores and fell through one of the boards of the platform, and sustained the injuries for which she has sued. She alleges that her fall was caused by one of the boards of the platform being worm-eaten or rotten and thereby breaking under her weight. The evidence discloses no actual knowledge of the agent or of the carpenter of the appellant, of any rotten or defective condition of the plank that broke with appellee. Neither appellant nor appellee is shown to have known of such defect in the platform before her injury. The contract of leasing was an oral contract by which appellee was to pay as rental fifteen dollars per month. The grounds upon which the appellee seeks to recover is the alleged negligence of the defendant in failing to keep the said premises in repair according to his contract of leasing, etc.

Appellant contends (1) that an action in tort cannot be maintained by the appellee for her alleged injury by reason of the defendant’s failure to perform his alleged contract to repair; and that, therefore, the declaration states no cause of-action; (2) that the evidence in this record is not sufficient for the appellee to maintain an action in any form for her alleged injuries; (3) that the court erred in refusing to give certain instructions for the appellant; and, also, in giving certain others for the appellee.

First. The cases are numerous and very confusing as to the dividing line between actions on contract and in tort, and there are many cases where one may have his election to bring either action. "Where the cause of action arises merely from a breach of promise, the action is in contract. There must as a general rule be some breach of duty distinct from breach of contract to support tort. Bishop in his work on Non-contract Law, section 4, says: “The word tort means nearly the same thing as the expression, 1 civil wrong. ’ It denotes an injury inflicted otherwise than by mere breach of contract; or, to be more nicely accurate, a tort is one’s disturbance of another in rights which the law has created either in the absence of contract, or in consequence of a relation which a contract had established between the parties.” An examination of the authorities will abundantly show that the relation of landlord and tenant creates no obligation or duty on the landlord to make repairs unless he has assumed such duty by express agreement with the tenant. In the absence of special agreement the tenant takes the premises as he finds them subject to his own risk, and there is no implied covenant that they are fit for habitation, or that they are in any particular condition of repair. Sunasack v. Morey, 196 Ill. 569 ; West. Chic. M. Ass’n v. Cohn, 192 Ill. 210; Borggard v. Cale, 107 Ill. App. 128, and 205 Ill. 511; Carpenter v. Stone, 112 Ill. App. 155; Gridley v. City of B., 68 Ill. 47.

Jones in Ms work on Landlord and Tenant, section 592, says: “The landlord’s responsiMlity for damages caused by Ms failure to perform Ms contract to repair rests altogether upon his breach of contract. It may be stated as a general rule that a landlord who has covenanted to repair, is not liable m tort for personal injuries resulting from the want of repair. Such injuries are too remote to be recovered as damages for breach of contract and the duties arismg from the relation of landlord and tenant are not mcreased by such a contract in respect to the duty of the landlord to provide for the personal safety of the tenant. On principle, the landlord, who has contracted to make repairs that he is not otherwise under obligation to make, should be held to exactly the same liability that a stranger-contractor would incur. Damages for personal injuries resulting from the mere breach of such a contract must be deemed to be too remote and not within the contemplation of the parties at the time the contract was made.” Contmuing in the same section he says: “Where injuries under such circumstances were admittedly too remote to be recovered m an action of contract, it was claimed they could be recovered in an action of tort. But to permit a recovery for such damages, based on contract simply because it is in the form of an action of tort, would be makmg a distmction that could not be justified by reason or authority. There must be somethmg more than a mere failure on the part of the landlord to make the repairs he has agreed to make. It makes no difference whether the form of the action is ex delicto or ex contractu,, the real and substantial gravamen of the complamt is the alleged breach of contract, and in such a case the same law is applicable to both classes of action. A landlord, under contract to repair, may, under some circumstances, be liable for damages for personal injuries by reason of a negligent failure to make repairs; but in such case his negligence must be firmly established as a basis for the liability, ’ ’ citing Thompson v. Clemens, 96 Md. 196. See also Dustin v. Curtis, 11 L. R. A. 504 (N. S.); Miles v. Janvrin, 13 L. R. A. 380 (N. S.); Sutherland on Damages, vol. 3, sec. 874. What special circumstances would render the landlord liable to his tenant for personal injuries received in consequence of a breach of a contract to make repairs is not stated by Mr. Jones. On principle we would say, that there can be no such liability unless the covenant to repair amounts to a covenant to keep the premises reasonably safe; or unless the contract was made under such circumstances as plainly indicated that such damages were contemplated by the parties at the time of making the contract; or unless there is some duty resting on the landlord to make the repairs not arising from the contract. The weight of the authorities is decidedly against such a recovery, except under such special circumstances above named; and the ordinary covenant to keep the premises in repair, is generally held to mean that the covenantor is to make such repairs on notice and that he is not in default until so notified, unless the lease shows an intention that he shall take notice from his own observation. This intention will not be implied where the lease does not give him the right to enter and view the premises. The rule is that notice to perform is necessary whenever the fact on the occurrence of which the right to claim performance depends, lies more peculiarly within the knowledge of the party claiming such right. Sutherland on Damages, vol. 3, sec. 873; Wood on Landlord and Tenant, sec. 380; Jones on Landlord and Tenant, sec. 593.

In case a landlord fails to make repairs in violation of his covenant the tenant may (1) abandon the premises if they become untenantable by reason of want of repair; (2) he may make the repairs himself and deduct the cost from the rent; (3) he may occupy the premises without repair and recoup his damages in an action for rent; (4) he may sue for damages for breach of the covenant to repair, and the damage recoverable in this last instance is usually the difference between the value of the premises in repair and out of repair. Jones on Landlord and Tenant, sec. 410; Wood on Landlord and Tenant, sec. 380; Sutherland on Damages, vol. 3, secs. 872 and 873; Sedgwick on Measure of Damages, side page 198; McFarlane v. Pierson, 21 Ill. App. 566; Wright v. Lattin, 38 Ill. 293. The foregoing states the law as it is applied to ordinary breaches of the landlord’s covenant to repair generally; and, as’thus stated, it must be admitted to be about what the ordinary landlord and tenant would expect to find it. Anything in the way of damages differing from those above stated and of the nature of consequential damages, while we may find cases where they are proper, must be stated as beyond the ordinary and are to be accounted for only by reason of some special feature or circumstance not usual in such contracts. Damages are not the primary purpose of contracts, but are given by law in place of and as a compensation and equivalent for something else which had been agreed to be done and has not been done. “Actions at law are usually brought to recover compensation for the wrong complained of. The law which is denominated the law of damages is principally that which defines, measures and awards compensation. Such damages as are not compensatory are either nominal or exceptional. The universal and cardinal principle is that the person injured shall receive a compensation commensurate with his loss or injury, and no more; and it is a right of the person who is bound to pay tins compensation not to be compelled to pay more, except costs.” Sutherland on Damages, vol. 1, sec. 12. “An important distinction is to be noticed between the extent of responsibility for a tort and that for breach of contract. The wrong doer is answerable for all the injurious consequences of his tortious act which, according to the usual course of events and general experience, were likely to ensue and which, therefore, when the act was committed, he may reasonably be supposed to have foreseen and anticipated. But for breaches of contracts the parties are not chargeable with damages on this principle. Whatever foresight, at the time of the breach, the defaulting party may have of the probable consequences he is not generally held for that reason to any greater responsibility; he is liable only for the direct consequences of the breach, such as usually occur from the infraction of like contracts, and were within the contemplation of the par: ties when the contract was entered into as likely to result from its non-performance. ’ ’ Sutherland on Damages, vol. 1, sec. 45.

Second. Tested by the foregoing principles it is very evident that the case now before ús has been tried altogether upon an erroneous idea of the law. Instruction No. 3 given for appellee,^ and which appellant insists is not the law, reveals the whole theory of appellee’s case, as it is based on her declaration. It is as follows:

“If you believe, from the greater weight of the evidence, that the defendant or his agent promised the plaintiff to keep the premises in question in repair as alleged in the declaration, then it became the duty of the defendant to keep said premises in repair so long as tenancy existed; and if you further believe, from the greater weight of the evidence, that the defendant neglected to keep said premises in repair, and that the porch became defective as alleged in the declaration, and that the defendant knew or by use of reasonable care should have known of the defective condition of said porch, and that the plaintiff did not know of such defect and was injured as alleged in her declaration by reason of such defective condition while in the exercise of ordinary care for her safety, then you must find the defendant guilty.”

The court also refused an instruction for the defendant charging that, “if you further believe from the evidence that the plaintiff knew of the defective condition of the porch floor complained of, or that she, by the exercise of ordinary care could have known it, then your verdict should be for the defendant.” The theory upon which this case was tried in the lower court is evidently based upon some expressions found in two cases cited by appellant, to wit: Sontag v. O’Hare, 73 Ill. App. 432, and Schwandt v. Metzger Linseed Oil Co., 93 Ill. App. 365. The Sontag case seems to have been contested and decided on a question of evidence. In that case there probably was a clear right of action upon the principle that where a portion of the premises, as a stairway, hall or porch, is retained under control of the landlord by contract or by implication of law, and other specified portions of the premises are rented to different tenants, and the landlord neglects to repair the portions so retained by him, and injury thereby results to a tenant or any of his family, while exercising ordinary care, etc., the landlord is liable. This is surely one of the stated grounds of recovery in the Schwandt case. We are left in doubt as to this point in the Sontag case. We do not question a right of action in either case on that principle. The grounds of the liability, if at all, do not rest simply in breach of contract. The authorities cited apparently in support of this doctrine in the Sontag case, it must be noted, do not at all support the doctrine. For that reason we are led to believe that the real ground of recovery in that case was not breach of contract simply.

It would be extending this opinion to unnecessary length to discuss the other lines of authorities cited by appellee’s counsel as supporting her case. We do not deem them applicable in this case where the contest is directly between the appellee and the appellant for her own personal injury caused by the defective condition of the porch. The relation of landlord and tenant is entirely different from that of a stranger and an owner or occupant of the premises. Neither appellee nor appellant is chargeable with notice of the particular defect complained of in the declaration at or prior to the time of her injury, and the appellant repaired the same imediately after her injury. The appellee’s claim is that she rented the whole of the premises from appellant, he agreeing to make repairs generally. The agreement was not to repair the porch, or any particular portion of the premises, so appellee claims, but an agreement to make repairs generally during her lease. So far as the evidence discloses in this case, the appellee has no right to recover of appellant for her injuries.

Third. It follows from what we have already said that the court erred in its instructions to the jury; but as the cause will have to be reversed because the evidence fails to prove, or tends to prove a right of recovery to the plaintiff against the appellant,' further discussion of the instructions would be useless. For the reasons indicated, the cause is reversed without remanding.

Reversed-.

Finding of facts to be incorporated in the judgment: The defendant at the time and prior to the plaintiff’s injury had no knowledge of the defective or rotten condition of the plank in the porch in question of which the appellee complained in her declaration, and could not by reasonable care have known of the same; that the defendant had no notice to repair the particular defect complained of by the appellee prior to her injury, repaired the same immediately after the injury, and is therefore not guilty of a breach of his promise to repair the premises in question.


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    Hartford Fire Insurance Company et al., Appellants, v. D. C. Ledford et al., Appellees.
    1. Chancery—when will not supersede jurisdiction of court of law. Where a court of law has first acquired jurisdiction, a court of equity, even though its jurisdiction, is concurrent, will not oust the court of law of its jurisdiction, unless there are defenses unavailable at law, or unless there is some equitable circumstance in the case of which one of the parties cannot avail himself.
    2. Chancery—when hill for discovery does not lie. Equity will not take jurisdiction of a bill for a discovery and to enjoin the prosecution of suits at law where all the evidence sought to be obtained and all the defenses relied upon are available in such actions at law.
    3. Chancery—when hill for discovery does not lie. A bill for a discovery does not lie where the documents sought to be discovered may be required to be produced under the provisions of the Evidence Act.
    4. Chancery-—when does not take jurisdiction to avoid multiplicity of suits. It is only where a party prosecutes or defends against a great number of suits, or defends against a great number of persons, or where a great number of persons prosecute or defend a right against a single individual, that a bill will lie to prevent a multiplicity of suits, and even then the party must establish his right at law, if it is a legal one, before he can resort to chancery.
    Bill in equity. Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Herbert & Levy, Andrew S. Caldwell and T. T. Fauntleroy, for appellants.
    William P. Lightfoot, William A. Schwartz and James H. Martin, for appellees.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellants, The Hartford Fire Insurance Co., The National Fire Insurance Co., The Commercial Union Assurance Co. and The Spring Q-arden Insurance Company, filed this bill in equity for the purpose of compelling appellees, defendants in the bill, to make discovery of certain proofs of loss and sworn examinations in writing, to enable complainants to better defend four suits at law by appellees, pending against appellants in the Jackson county Circuit Court. Appellants also pray for the restraining of all further proceedings in said law suits; for the declaring of the amount due the appellees from appellants, if any; for the adjusting of all rights between the parties to this bill, including contribution and apportionment of said amount between the appellants; and also pray that said policies be declared void and cancelled on account of the fraud in said bill charged.

The bill avers in substance that the defendants about January, 1906, had $6000 insurance upon their stock of merchandise, furniture, and fixtures in the appellant companies, as follows: $2000 each in the Hartford and Commercial Union, and $1000 each in the National and Spring Garden Companies, all of which was concurrent insurance, and written upon standard fire insurance policy forms; that a fire destroyed the insured property July 31, 1906, and appellees demanded payment of the full amount of each policy; that when appellants’ adjuster requested the assured to furnish proofs of loss as required by their policies, they presented to him falsified duplicate bills of merchandise purchases from the time they began business to the date of the fire; that said bills were fraudulently increased by appellees to more than $3000 in excess of the actual purchases ma.de by them; and that on August 28, 1906, D. C. Ledford, one of the assured, submitted to an examination under oath, as provided by said policies and furnished to said adjuster proofs of loss and false and fraudulent statements under oath, thereby falsely swearing and representing that their loss was more than $3000 in excess of their actual loss with the purpose of defrauding the appellants; that appellees brought suits at law upon each of said policies against the respective companies, to the January term, 1907, of said Circuit Court; that the defendants each filed the general issue and four special pleas in which said fraud was pleaded and relied on as a common defense to said suits; that at the January term, 1908, of said court while the case against the Hartford Fire Insurance Company was being tried, appellants produced the said sworn statement of Led-ford and that it was identified by Ledford and offered in evidence by appellees as proofs of their loss; that while the Hartford Company was using said sworn statement in their, defense in said action at law, the same was by said Ledford and Hinchcliff surreptitiously taken and made way with and that they now have the same in their possession and control; that for want of the said sworn statement said trial was thereupon terminated and a continuance thereof granted; and that all of said suits at law are still pending in said court for trial.

A general and special demurrer to this bill was filed by the appellees, and the same was sustained by the chancellor. The appellants elected to stand by their bill, and the court entered a decree thereon dismissing the bill for want of equity. The appellants have appealed to this court and rely on the following points for a reversal; (1) that our statute making parties competent witnesses, and other statutes changing the common law rules of evidence, are merely cumulative, and do not deprive a court of equity of its power to order discovery; (2) the jurisdiction of the chancery court having rightfully attached in this suit upon grounds that a discovery was necessary, etc., the court erred in refusing to take jurisdiction and to adjudicate all questions and claims, legal and equitable, between the parties to this suit.

If it shall be conceded that a court of equity has concurrent jurisdiction of the subject-matters of the four law suits between the parties to this suit, as claimed by appellants, it must be remembered that where a court of law has first acquired jurisdiction, a court of equity will not oust it of its jurisdiction, unless there are defenses unavailable at law, or unless there is some equitable circumstance in the case of which one of the parties cannot avail himself. Boss v. Buchanan, 13 Ill. 55; Mason v. Piggott, 11 Ill. 85; Chittenden v. Rogers, 42 Ill. 95; Pomeroy’s Eq. Jurisprudence, sec. 179; Whitney v. Stevens, 97 Ill. 482; Howell v. Moores, 127 Ill. 67; Dunham v. Dunham, 162 Ill. 589. The Supreme Court in Boss v. Buchanan, supra, uses this language: “The rule in cases of concurrent jurisdiction is, that the tribunal which.first acquires jurisdiction of the subject matter must proceed to a final disposition of the case.” The Appellate Court in Shennehan v. Ill. Life Ins. Co., 100' Ill. App. 289, says: ‘ ‘ The general usage and practice of courts of equity is not to take jurisdiction when complainant has a full, plain and adequate remedy at law. * * * In cases of concurrent jurisdiction of courts of law and equity, the fact that the legal remedy is not full, adequate and complete, is the real foundation of jurisdiction.” See also to same effect Des Moines Life Ins. Co. v. Seifert, 112 Ill. App. 277. In the last two cases cited, it was charged in the bills that the policies of insurance were procured by fraudulent misrepresentations, etc., without knowledge of the companies; and, although no suits at law had then been brought, the courts refused to entertain jurisdiction in chancery, and the appellate courts sustained them. It is also announced in the case above cited in 112 Ill. App. 279, that it is a general rule that when courts of equity have concurrent jurisdiction with law courts, it is in the sound discretion of the chancellor whether or not he will assume jurisdiction in a particular case, citing a number of authorities.

It will be found also that the United States courts and many other courts in this country have adhered to the doctrine that the first court acquiring jurisdiction of the subject-matter of a suit must retain it until it is fully disposed of, etc., unless it is somewhere wanting in powers or remedies to do full and complete justice. Foster et al. v. Bank of Abingdon, 68 Fed. Rep. 723; Sharon v. Terry, 36 Fed. Rep. 337; Brown v. Circuit Judge of Kalamazoo County, 5 L. R. A. 226, note citing authorities.

But the issues pending for trial in the law court are purely legal questions arising out of the various provisions of the contracts of insurance. The fraud charged in this bill that the defendants have knowingly made false statements under oath and false and fraudulent proofs of loss with intent to defraud, renders these policies void, if they are so made, by reason of express provisions of the policies. It is also true that the right of apportionment of losses in proportion as the amount insured by each policy shall bear to the whole insurance, whether valid or not, is also a right by express provision of the contracts of insurance, and is a right as completely enforceable in a law court as in a court of equity. They have been many times enforced in our courts of law. A court of chancery will not take jurisdiction to cancel a policy for fraud alleged to have been committed after loss and where the defense to recovery can be made at law. Imperial Fire Ins. Co. v. Gunning, 81 Ill. 236; Hartford Fire Ins. Co. v. Peterson, 209 Ill. 112.

Where the evidence desired can be had on notice, there is no need of a bill of discovery, and this bill in equity will not lie for discovery. Clingman v. Hopkie, 78 Ill. 152; Craft v. Dickens, 78 Ill. 131. The claim made by this bill is that the defendants have in their possession and control these proofs of loss and sworn examination. It is nowhere claimed or averred that they are destroyed or lost so that secondary evidence of their, contents may be necessary. It also appears that the appellants were in possession and control of them from about the time they were made, August 28, 1906, to the time of the trial at the January term, 1907. It is nowhere averred that the appellants have no copies thereof, or that the defendants have the only knowledge of their contents in case they could not be found. We are unable to see wherein a bill of discovery would give any more satisfactory relief than may be had at law. A court of law has plenary power to order and compel the production of books and papers desired as evidence when material to the issues. Revised Statutes, chap. 51, sec. 9 ; Pynchon v. Day, 118 Ill. 9; Swedish American Tel. Co. v. Casualty Co., 208 Ill. 562; Wynn v. Taylor, 109 Ill. App. 603.

. The very design of this statute seems to be to obviate the necessity of a bill of discovery, seeking the same end. In the case in 208 Ill. at page 571, the court says: “The statute authorizes the court, upon cause shown, and proper notice, to require either party to a suit to produce books or writings in his possession or power, which contain evidence pertinent to the issue.” On page 572 it is further said: “The proceeding is purely a civil remedy, intended to enforce the private right of one of the parties litigant, and is intended to compel the doing of an act necessary to the administration of justice in enforcing such private right. In the class of cases where the purpose is to advance the civil remedy of the other party to the suit and where the penalty inflicted is intended to coerce, the party in contempt can only be relieved by compliance with the order. In this State, the Circuit Court has the right and power in a suit at law to punish for contempt persons who refuse to comply with its proper orders.” So it is clear that on proper showing and notice given, the appellants can compel by order of the Circuit Court the production of these writings, which they say in their bill is in the possession and control of the appellees. If appellees should refuse to surrender any such papers in their control, the court may punish by imprisonment as for contempt, and continue such imprisonment until they obey, or show cause, etc. The law suits may be continued and trial refused appellees until they do so. Besides, the court has ample power to compel them to give under oath all proper information concerning the whereabouts of these instruments. What more can a court of equity do in the premises ?

It is only where a party prosecutes or defends against a great number of suits, or defends against a great number of persons, or where a great number of persons prosecute or defend a right against a single individual, that a bill will lie to prevent a multiplicity of suits, and even then the party must establish his right at law, if it is a legal one, before he can resort to chancery. Imperial Fire Ins. Co. v. Gunning, 81 Ill. 236. No one of these appellants is in danger of more than one suit by appellees; and, the fact that appellees are bringing four suits, one against each of the appellants, should not prevent them from having them tried in a law court, although the same or very similar questions are to be tried in each case.

Under the authorities we are unable to find any grounds whatever for the maintaining of this bill and ousting the court of law of its jurisdiction. The demurrer to flie bill was properly sustained by the lower court. The decree of the lower court is affirmed.

Affirmed.


text:
    Eunice Bedell et al., Appellees, v. George S. Clark, Appellant.
    1. Landlord and tenant—effect of leasing for indefinite time. A contract of leasing made for an indefinite time, as “until the demised premises shall be leased to another,” creates a • tenancy at will.
    2. Landlord and tenant—notice essential to terminate tenancy at will. In order to terminate a tenancy at will where the rent is payable by the month, a thirty days’ notice is required, which must be given not later than the last day of the month preceding the month at the end of which the tenancy is sought to be terminated; such a notice should specify the day on which the premises are required to be vacated.

      Forcible detainer. Appeal from the County Court of Wabash county; the Hon. John A. Lopp, Judge, presiding. Heard in this court at the February term, 1909.
    Reversed.
    Opinion filed November 13, 1909.
    E. B. G-reen and Theodore G. Risley, for appellant.
    M. H. Mundy, for appellees.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellees commenced an action of forcible detainer before a justice of the peace on the first day of September, 1908, by complaint filed, for the recovery of the store-house of the Bedell Block, No. 416 Market street, in the city of Mt. Carmel.

The trial resulted in a judgment in favor of the plaintiffs and against the defendant, appellant, for recovery of said premises and costs of suit. Appellant perfected an appeal to the January term, 1909, of the County Court of Wabash county, in which court the cause was tried on January 18, 1909, before the judge without a jury, and again resulted in a judgment against appellant, from which judgment the appellant has appealed to this court.

The facts are not controverted, and appear in the record as follows: A lease was executed on August 27, 1907, by appellees to appellant for said premises from the first day of July, 1907, to the first day of July, 1908, with the right, at option of appellant, to hold until the first day of July, 1912, at a rental of one hundred dollars per month, payable monthly in advance. On July 1, 1908, appellant instead of exercising his option to hold to July 1,1912, surrendered the lease, saying to J. H. Decker, one of appellees: “My expenses are so great that I cannot keep both buildings, and you go ahead and rent the room and as soon as you do that, I will move the goods up to the other store;” and at that time appellant paid a month’s rent for the month of July, which was received by Decker for the owners, appellees. In three or four days Decker rented the room and notified appellant, and appellant said he was sorry and wanted to keep it, and asked if there was no way it could be fixed up. Decker told him there was no honorable way he knew of, as he had promised the room to another.

On the 29th day of July, 1908, Decker, for appellees, served on appellant a written notice to quit and deliver possession of the premises on the first day of September, 1908; and, on August 1, 1908, called on appellant and collected another month’s rent for the month of August. The rent was at all times paid promptly, and Decker, the only witness sworn, said the last month terminated on the last day of August.

Before entering on the trial, appellant filed his motion, based on the transcript from the justice of the peace, to dismiss the suit, because prematurely brought. This motion was renewed by appellant at the close of all the evidence, but both motions were overruled by the court. Thereupon the court found the defendant guilty as charged, and rendered judgment for recovery of the premises and costs, and exceptions were taken by appellant.

The only question for consideration by this court is, whether or not the suit was prematurely brought. The parties to this suit, at the end of the first year, by their express verbal agreement, made a new contract of leasing. It was not a contract for a term or a definite time, but a contract for an indefinite time, as it was uncertain when the premises would be rented to another. The rent was collected monthly after this contract, without any further agreement, as appears from the evidence. The tenancy created by this contract was what is known as a general tenancy at will, or from year to year or from month to month. Taylor’s Landlord and Tenant, secs. 59 and 60.

It required notice by the landlords to the tenant to terminate this tenancy. Taylor’s Landlord and Tenant, section 62; Wood’s Landlord and Tenant, sections 19 and 50; Wade on Law of Notice, sections 581 and 584; Prickett v. Bitter, 16 Ill. 96; Hately v. Myers, 96 Ill. App. 217; Hunt v. Morton, 18 Ill. 75.

The notice served in this case indicates that the appellees regarded the tenancy of appellant as one from month to month, and that he was entitled to> thirty days’ notice to quit. We think this is the correct view of the matter. If, as is shown by the evidence, the last payment of rent was for the month of August, and it was desired to terminate appellant’s tenancy at the end of that period, the notice should have been given to him to surrender on the last day of August, as that month would expire on that day at midnight. At least this is the latest date the notice should have specified to enable the appellees to bring their suit on September 1,1908. Prickett v. Bitter, 16 Ill. 96; Wade on Notice, sections 609, 610, 611.

The notice must, of course, specify the date on which the premises are required to be vacated. Wade on Law of Notice, sec. 631.

Under the Statutes of 1845, a suit for possession in forcible detainer could not be maintained against a tenant from year to year, or from month to month, until demand for possession was made by the landlord; and this demand could not be effectively made until after the tenancy had been terminated by the proper notice. This doctrine is fully discussed in the ease of Prickett v. Ritter, supra.

The fourth clause of section 2 of our Forcible Entry and Detainer Act dispenses with this demand for possession, and provides that the person entitled to possession of lands may be restored thereto in the manner provided in that act, “When any lessee of the lands or tenements * * * holds possession without right after the determination of the lease or tenancy by its own limitation, condition or terms, or by notice to quit or otherwise.” This section specifies the conditions fully upon which the appellees’ suit must be maintained. Unless the tenancy of the appellant was terminated at the time this suit was brought, the suit is premature and cannot be maintained.

The foregoing authorities make it clear that the tenancy of appellant was not terminated by proper notice on the day the suit was brought in this case. The notice specified definitely that the appellant was to deliver up the possession of these premises on the first day of September, the very day this suit was brought for possession. It is not sufficient to say that the suit could have been maintained if the notice had specified a day earlier for the delivery of possession, and that the tenant understood his tenancy was intended to be terminated at the end of the period to which he had paid rent. Neither is it sufficient that the notice may give more days ’ notice than was required. It fixed the date of delivering up' possession on a day certain, September 1, 1908; and the appellant by that notice had the whole of that day in which to deliver the premises or vacate them, that is, until midnight of that day, and the suit was therefore prematurely brought.

It is admitted by the appellees in their argument that the contract to hold the room until Decker rented it created a tenancy for an indefinite time. But, they say, “when Decker three or four days afterwards notified appellant that he had rented the room to another, and then received rent for the month of July, the time became definite and expired on the last day of July; and when that month had expired and appellant paid rent for the month of August, the time was definitely fixed, and expired on the last, day of August.” We cannot agree with this proposition. If we concede that the notifying appellant that the premises were rented to another made the tenancy a definite one, expiring on the day of such notice or on the last day of July, the holding over and again paying rent for August without further agreement, by all the authorities, would create the same character of tenancy we have just been discussing, a general tenancy at will. It is the holding over and paying the same rent, without further agreement, that creates a tenancy from year to year, or from month to month,, or from week to week, when the first contract to lease was for a specified year or month or week, as the foregoing authorities cited abundantly show.

For the reasons above stated, the judgment of the County Court is reversed.

Reversed.