text:
    John J. Kinnegar, Appellant, v. Estate of John D. Kinnegar, Deceased, Appellee.
    Gen. No. 5557.
    Administration oit estates — what admissions not "binding. An attorney appointed to defend an estate against a claim presented by the administrator thereof is not competent to make an admission which will bind such estate.
    Contested claim in court of probate. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Robert Carr and Butters & Armstrong, for appellant.
    James J. Conway, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

Appellant, who is a son and administrator of the estate of John D. Kinnegar, deceased, filed a claim against said estate in the Probate Court of La Salle county, for $992.75. An administrator was appointed to defend, and upon a trial $106.50 was allowed. Claimant appealed to the Circuit Court, where after claimant amended his claim by adding a new item of $100 and eliminating several items and reducing another, which made a claim of $532.09, a trial was had before a jury, which returned its verdict in favor of the estate, and claimant appeals.

The amended claim consisted of four items, viz:

First. July and August, 1908, 651 bushels and 18 pounds oats @ 50‡...................$325.59
Second. February, 1908, to one year’s interest paid for deceased...................... 100.00
Third. February, 1909, to one year’s interest paid for deceased...................... 100.00
Fourth. July 24, 1909, to cash paid for lines and hits for deceased..................... 6.50
Total......................$532.09

In the summer of 1908, John D. Kinnegar, a farmer living near Utica, in La Salle county, contracted one thousand bushels of oats at fifty cents per bushel, to be delivered *to the purchaser, Van E. St. John, at Utica, by a certain time. About the expiration of the time for delivery, St. John testifies that deceased told him, while making said delivery, that the time was short, and that his son John (the claimant here) had some oats and he would deliver them to the applied on the contract; that later John delivered seven loads, six hundred and fifty-one bushels and eighteen pounds, on the contract, and identified six tickets introduced in evidence as representing loads delivered to him by claimant, totaling said amount, and that he paid deceased for all of it, and he was to settle with claimant for them. He testified that the tickets were in his handwriting. On cross-examination he could not remember who delivered all the oats represented by the tickets, but was sure claimant hauled one. It was the custom to deliver tickets to the teamster who brought the load in. St. John did not know whose they were or where they were from except what the teamster told him. Claimant offered in evidence the page of a book, which St. John testified was copied from his books by bim some time after the transaction. His books had been burned at the time of the trial, and claimant insists that this copy from his original books should have been admitted in evidence. It was but a copy made from his books some time after the original entries in his books, and was not competent, and the court was right in sustaining the objection to its introduction in evidence. St.- John was asked:

Question, “Now when you weigh a load of oats that is brought into the warehouse, did you have any way of determining who it was that furnished the oats?”
Answer, “Only what the teamster told me.”
Question, “Did you rely upon what the teamsters who delivered the oats told you at that time? Do you know of your own knowledge, basing it upon that, as to how many oats were delivered of the John D. Kinnegar oats, and how many of the John J. Kinnegar oats upon this one thousand bushel contract?”
Defendant objected and the objection was properly sustained. On cross-examination St. John was asked:
Question, “You say that this bunch of oats, these oats were hauled by John J. Kinnegar and his teams.
What man, besides John J. Kinnegar himself, hauled a single load of these oats?”
Answer, “I cannot tell you.”
Question, “How do you know it was his teams?”
Answer, “Because they told me it was.”

Appellee, who asked the question, moved to exclude the answer and the court correctly excluded it. The question was “ITow do you Tmow.” His answer was simply the evidence from which he concluded it was claimant’s teams, and was not responsive to the question asked.

Two brothers, a sister, and a brother-in-law testified on behalf of the defense concerning this transaction. Some of this testimony tended to show that about seven hundred bushels were delivered by deceased on this contract, and what claimant had delivered, if any, had been repaid by his father. From all the evidence, we cannot say that the jury were not warranted in finding as they did.

As to the next two items, Mr. Haeberle, assistant cashier of the First National Bank, testified that claimant paid them interest for two years on a note for $2,000 which deceased had assumed payment of. He knew nothing as to where claimant obtained the money, only the fact of his paying it. This was all of the evidence as to these items, and fails to establish appellant’s claim against the estate, as a voluntary payment thereof would not entitle him to judgment. But appellant insists that as counsel for defendant admitted one interest payment of $100 he was clearly entitled to that much. The abstract does not show such admission, but we have examined the record and find that Mr. Conway, the attorney for the defendant, in his opening statement to the jury, said:

“There is one item he claims he paid for his father in February, 1908, of One Hundred Dollars on a certain trust deed that his father had. * * * He claims credit for One Hundred dollars that he paid as interest for his father, on his father’s mortgage. We know that in February, 1909, a year later, when John Kinnegar was administrator of the estate and acting as his- father’s representative, he did go in and pay one hundred dollars to the National City Bank. Where he got the money, whether the old gentleman gave it to him or wheré he got it from was hot disclosed on the last trial.”

Mr. Carr, “You are in error; in February, 1909, John Kinnegar was living.”

Mr. Conway, “I should have said that on February 9th — when he got the money- — he went into the bank and paid it, . and we will not dispute it. Oscar Haeberle will be here; he will testify John Kinnegar, Jr., paid One Hundred Dollars to be applied upon his father’s note as interest. We are not disputing that. When Mr. Haeberle says it is true, we think it is true or he would not say it, because Mr. Haeberle is an honest, decent citizen and would not have any object in misrepresenting, and would not if he did. We know that is a fact; we know he paid that One Hundred Dollars, but how he got the One Hundred Dollars Mr. Haeberle don’t know, nor does any party in the bank know. One significant remark made by Mr. Carr may serve us, that John Kinnegar, Jr., has been acting as the agent for his father, he had been doing his father’s business; he had been paying bills like this for Ms father; he had been buying things for him, paying out money, and undoubtedly when a man acts as agent, the person for whom he is acting pays Mm to do it and gives Mm the money with which to do it.”

This was simply an admission that appellant had paid the one hundred dollars but falls far short of an admission that the estate was liable to claimant for the amount paid. Besides the attorney was appointed under the statute to defend against said claim, and not to admit it. Marshall v. Adams, 11 Ill. 37; Horner’s Probate Law, Second Edition, Chapter 14, paragraph 251.

The remaining item for lines and bits, the evidence shows was purchased and paid for by claimant, from W. H. Kelly in Ottawa. Otto Grabot, who worked for claimant, testified that claimant brought them home in July, 1909, and he next saw them after that on John D. Kinnegar’s horses, about a week or so afterwards, and after that he saw them pretty nearly every day being used on the old gentleman’s horses. Cross-examination. “They are out at John J. Kinnegar’s now.” Be-direct, “John J. Kinnegar bought them at the public sale of John D. Kinnegar’s property and brought them down to John J. Kinnegar’s house after the sale.” Be-cross examination, “Samuel Bute bought them at the sale, so John J. Kinnegar said.” Defendant offered the sale bill in evidence, as stated, to show that no lines and bits were reported sold at the sale, and that said report did not show that Samuel Bute purchased anything at that sale. Claimant objected and it was sustained. We think the sale bill should have,been admitted. It was made by the claimant pursuant to the requirements of the statute and his oath. These articles may have been bought from Kelly with the money of deceased. Claimant may have given them to his father. The proof did not show that deceased owed appellant for them. Finding no reversible error in the record the judgment of the Circuit Court is affirmed.

'Affirmed.


source: Caselaw Access Project

author: Mr. Justice Morton W. Thompson

license: Public Domain

text:
    Malachi Dempsey, Appellee, v. Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 5562.
    Contbibtjtoby negligence — encountering known danger. One who is injured as a result of a danger well known to him and which he should have avoided cannot recover.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. C. B. Campbell, Judge, .presiding.
    Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed March 13, 1912.
    Snapp & Heise, for appellant; M. L. Bell, of counsel.
    0. E. Antram and D. R. Anderson, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

The defendant operates a double track railroad between Minooka and Morris, Illinois, a distance of about eleven miles, with no cross over or connecting track between these places. The north track was used for west-bound and the south track for east-bound trains. On January 4, 1908, a wreck occurred on the north track about four and a half miles west of Minooka. Plaintiff was and had been for a number of years a member of the section crew on said road and familiar with its tracks and the operation of trains there. The crew of which appellee was one, went to the wreck and assisted until after dark, when they left and started on a hand car to return to Minooka over the west-bound track, after, as plaintiff says, it had been decided to push the disabled car west to Morris. Later it was decided to abandon that plan, and the engine, which had come from Minooka over the west-hound track to assist in clearing the wreck, started hack east to return to Minooka, and on the way overtook and ran into the hand car on which plaintiff and others of the crew were, injuring him, for which he sues.

The declaration consisted of nine counts, and this was the second trial, the jury having failed to reach a verdict on the first trial, and on this trial returned a verdict for the plaintiff for $3,900.

Numerous errors are assigned, hut in the view we take of the case, it will only be necessary for us to discuss one. The evidence clearly shows that plaintiff had for several years before this time worked on defendant’s road as a section hand, was familiar with the tracks at this place, as well as with the operation of trains there; that he knew that unless the engine could push the disabled car on to Morris, it could not get over onto the south track without coming back to Minooka; that he knew it was the custom among trainmen, as well as the rules of the defendant, that section men should look out for all trains, and keep out of their way. C. & N. W. R. R. v. Thomson, 128 Ill. App. 594.

After a very careful consideration of all the evidence in this case, we conclude that defendant is not liable to plaintiff, and the trial court erred in not granting defendant’s motion and instructing the jury to find the defendant not guilty, and for this error the case is reversed.

Reversed.

Finding of facts to be incorporated in the judgment: We find as a fact in this case, that plaintiff was not at the time he was injured, in the exercise of due care for his own safety, and therefore has no cause of action against the defendant for said injury.


author: Mr. Justice Morton

text:
    Robert W. Crossen, Appellee, v. Chicago & Joliet Electric Railway Company, Appellant.
    Gen. No. 5564.
    Vekdicts&emdash;when not disturbed as against the evidence. A verdict will not he set aside as against the evidence unless clearly and manifestly so.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Charles B. Campbell, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    E. Meers, for appellant.
    J. W. Downey and J. W. D’Arcy, for appellee.
   Mr. Justice Morton

W. Thompson delivered the opinion of the court.

This case was before us at the October term, 1910, 158 Ill. App. 42, when it was reversed and remanded for errors of law. At the first trial, plaintiff recovered a judgment for $1,750. At this trial plaintiff recovered a judgment for $800.

.While several errors are assigned by appellant, only one is insisted upon in the argument, namely, that the verdict is against the weight of the evidence. We will therefore confine ourselves to that assignment. While there was some testimony heard on this trial not given at the former, yet the main facts are as stated in our former opinion, and we see no need of repeating them here. We have examined all the evidence carefully and find it so conflicting that the jury might have found their verdict either way. In view of the fact that two juries have found the defendant guilty and two trial judges have approved the verdicts, we cannot say it is so manifestly against the weight of the evidence that we should, for that reason, set it aside and reverse the case. C. & J. Electric Railway Co. v. Barrows, 128 Ill. App. 11.

Finding no error in the record the judgment of the trial court will be affirmed.

Affirmed.


text:
    C. C. Ridinger, Appellee, v. Toledo, Peoria & Western Railway Company, Appellant.
    Gen. No. 5566.

      Instructions — refusal of, containing theory of defense. It is error to refuse the only instruction which fairly and fully presents the theory of the defendant’s defense.
    Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 13, 1912.
    Stevens, Miller & Elliott and Norton & Ortman, for appellant.
    Bert W. Adsit, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

On' June 4, 1908, plaintiff shipped six horses from Saunemin to Washington, Illinois, over the Wabash Railroad and The Toledo, Peoria & Western Railway, Saunemin being oh the Wabash and Washington being on the Toledo, Peoria & Western. ■ The car was ordered from Mr. Mcllroy the agent of the Wabash, at Saunemin, some days before, and the shipping contract was signed and the freight charges paid by plaintiff to the agent at Saunemin. Plaintiff loaded the horses about five o’clock and the car was taken by the Wabash about seven o’clock and delivered to the Toledo, Peoria & Western at Forrest about eight o’clock that evening where it remained until about one o’clock the next morning, when it was taken by appellant and delivered at Washington about six a. m. June 5th.

Plaintiff testified that when he loaded the horses he put two mares in the north end, one mare in the south end, and. the mare Eosetta on the east side about the middle of the car, tied to a brace rod about four feet above the floor, with a half inch rope and leather halter. Plaintiff went with the horses and rode in the caboose, and says that he examined the horses at Forrest fifteen or twenty minutes before they started for Washington, and found them all right; that somewhere between Forrest and Washington he was awakened by a jar of the caboose; that he unloaded the car about six o’clock and found the mare Eosetta in the middle of the car with her halter rope broken, and from stains ©n her sides she had evidently been down in the car; that she was standing with her head down, kind of drawn up, and when being taken off the car and to the barn she did not walk right, refused water and did not eat all of her feed; that later he started to lead them to the farm, but this one did not lead up and he had to leave her about three miles out at Mr. Ficht’s; that he sent a veterinary out to treat her, and she died that night; that she was a Perdieron brood mare, twelve years old, blind in one eye and could not see well with the other, and was worth between three hundred and three hundred and fifty dollars; that he had filed a claim with the Wabash agent for one hundred dollars.

This suit was against both roads, and at the close of plaintiff’s case, the court, on motion of the Wabash road the suit was dismissed as • to it. There was a verdict and judgment against appellant for two hundred and seventy-five dollars, and it appeals and assigns errors. As the case will have to be reversed and remanded, and as some of the errors complained of will probably not occur on another trial, we will refer only to the following.

Plaintiff was permitted to give, over appellant’s objection, the conversation with the Wabash agent concerning this shipment, and appellant insists that it was not competent against it. Aside from the fact that plaintiff’s direct evidence did appellant no harm, appellant offered the shipping contract in evidence, claiming the benefit of its terms, and accepted and delivered the car according to its provisions. The contract was for a through shipment from Saunemin to Washington by the Wabash Railroad “and its connecting lines.” Besides the Wabash Railroad was a defendant at the time this conversation was detailed.

Instruction No. 15 refused, told the jury that if they believed from the evidence that plaintiff’s mare at the time she was loaded, had some internal malady which was aggravated by the ordinary motion or jar of the train, and as a consequence thereof the death of the mare followed, and that such ordinary motion or jar of the train and not any negligence on the part of the defendant, was the cause of her death, then you should find the defendant not guilty. There was evidence in the case on which to base this instruction, and no instruction was given, which in any way announced that principle, and it should have been given. We find no error in the ruling of the court upon the other instructions.

Appellant complains of the action of the trial court in refusing to admit defendant’s exhibits 1 and 2, but neither is abstracted, and we will not consider them. Por the above errors the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


text:
    Jeanette McCann, Executrix, Appellee, v. Daisy Daly et al., (Hubert Lee, Appellant).
    Gen. No. 5567.
    1. Descent&emdash;effect of renunciation by widow. If the testator leaves a child or children etc., the widow by renunciation takes dower in his lands and one third of his personal estate. If, however, he leaves no child etc., by renunciation she takes one-half of his entire estate.
    2. Descent&emdash;effect of adoption of child, mthout consent of wife. The rights of the wife cannot be affected by the husband adopting a child without the consent of his wife. Nor can the rights of the wife be affected by the husband undertaking to name an heir other than herself.
    Appeal from the Circuit Court of Kankakee county; the Hon. Charles B. Campbell, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    L. H. Bancroft, Alvin W. Wise and C. M. Clay Buntain, for appellant.
    J. Bert Miller, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

Appellee entered her motion in this court to transfer this appeal to the Supreme Court, on the ground that a freehold is involved, and said motion was ordered taken with the case. As we view this case a freehold is not involved and the motion is therefore denied. Zinc Co. v. City of La Salle, 117 Ill. 411; In Re Ross Estate, 220 Ill. 142; Burrows v. Kotz, 226 Ill. 40.

March 21, 1910, Isaac McCann died testate in Kankakee county, Illinois. His will was duly admitted to prohate in the County Court of said county on May 2, 1910. Appellee, Jeannette McCann, and his widow Jennie were nominated therein, hut the widow refused to qualify, and appellee, Jeannette McCann, was duly appointed and qualified as sole executrix thereof.

In the disposition of his estate, the will says:

“After my just debts and funeral expenses are paid, I give to my wife Jennie McCann, the use, rents, incomes and benefits of all my property, real, personal and mixed for and during her life, excepting twenty-five ($25.00) Dollars a month, which is to be paid to my sister Ellen Kaler, during her life.”

“After the death of my wife, my real estate shall be sold within two years and the proceeds disposed of as follows: To Jeannette McCann my niece $1000.00. To Daisy Daly, my adopted daughter $1,000.00. The remainder to be divided into two equal parts one half to Hubert Lee in fee and the other half to be put in trust and the issue, rents and income to be paid him during his life and afterwards to his issue in fee and should he die without issue, then to the heirs of the testator as the law directs,” and other bequests not material to the issues here.

Isaac McCann and Jennie McCann were married in Wisconsin in 1866 where two children were born, both dying in infancy and prior to the death of the testator. On May 2, 1910, the widow filed her written renunciation, and election to take under the statute. On May 24, 1910, said widow died in said county testate and on August 6, 1910, her will was duly admitted to probate, in and by which she bequeaths all her estate to Jeannette McCann in trust with powers to sell, etc., and after certain bequests to pay Daisy Daly all the income of said trust estate for her life and then the principal remaining to be divided equally between her surviving issue. Isaac McCann left an estate amounting td about $4,000 about $1,000 personalty and the rest in real estate, and owing about $6,000.

This was an amended bill filed by appellee, Jeannette McCann, executrix, to construe the will of Isaac McCann, deceased, and for other relief not material here. Answers and replications were filed. The answer of appellant denied that said testator died leaving- no child or children, but alleged that said testator left surviving him Hubert Lee as his only son, and Daisy Daly as an adopted daughter of said Isaac McCann and Jennie McCann. James J. Daly, administrator with the will annexed of Jennie McCann, deceased, filed his cross-bill herein asking that the court decree that he as such administrator be entitled to one-half of all the real and personal estate of said Isaac McCann, deceased, after the payment of all debts, etc. Answers and replications were filed thereto and the case was heard before the chancellor, who found and decreed substantially as prayed in the amended bill, and defendant, Hubert Lee, appeals.

The only question here argued is as to the correctness of the decree finding that said testator, Isaac McCann, left surviving him no child or children or descendants of any. The evidence shows that in 1879 Mary Ewers, a sister of said testator died, leaving her daughter Daisy, then about seven weeks old; that just before she died she requested the testator and his wife to take the child and give her a home, etc.; that they assented to said request, and from that time she made her home with them, and seems to have been treated by them as their own child. Certified copies of records of the Circuit Court of Richland county, Wisconsin, were introduced in evidence, which show that in 1880, Isaac McCann filed his petition in said court, asking that by an order of court said Ella Ewers may be made and established the legal heir of petitioner, and that her name be changed to Ella McCann, etc. Also certain bound volumes of the Statutes of Wisconsin were introduced in evidence, and much of the argument is made upon the admissibility and effect of said records. As we view this case it is not necessary to discuss or decide those, questions. Jennie McCann, the-wife of Isaac McCann, did not join with him in said petition, and hence her rights under the laws of Illinois could hot be and were not affected by any proceedings had on his petition alone, in said court. McCann was a resident of this state at the time of his death and all his property was located here, and hence our statute governs the descent of it. Keegan v. Geraghty, 101 Ill. 26; Stoltz v. Doering, 112 Ill. 234; Hall v. Gabbert, 213 Ill. 208. Under our law the wife has certain rights and interests which cannot be taken away without her consent. One is the right after his death, to renounce the provisions made for her in his will, and to take in lieu thereof as provided in chapter'41, of our statute. This she did and thereby became under section 12 entitled to one-half of his estate, after the payment of his just debts, etc. Under our law, if the testator leaves a child or children, etc., the widow by renouncing takes dower in his lands and one-third of his personal estate, while if he leaves no child, etc., by renouncing, she takes one-half of his entire estate. Our statute of adoption, chapter 4, provides: “.but the prayer of such petition, by a person having a husband or wife, shall not be granted unless such husband or wife joins therein.”

It would seem strange indeed, if McCann could do indirectly what he could not do directly, that is, contrary to our law, either in this or another state, adopt a child without his wife’s consent, thereby depriving her of valuable rights accorded her under our laws.

But it is argued that McCann did not adopt Mrs. Daly but proceeded under a statute of Wisconsin, which provided simply for the making of another his heir. We are unable to see that it makes any difference in this case whether it was an attempt to make her his heir or adopt her. The result so far as it would affect the rights and interest given the widow under our law would be the same.

As was said in Wallace v. Rappelye, 103 Ill. 229: “Where there are husband and wife, the wife’s interest as respects herself or her children in the right of inheritance cannot he affected by any act of adoption by the husband alone of another’s child than their own, giving it the right of inheritance, but there must be consent of the wife thereto.” See also Stanley v. Chandler, 53 Vt. 617; Barnes v. Allen, 25 Ind. 222, Finding no error in the record, the decree of the trial court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Emil Pressler, Plaintiff in Error.
    Gen. No. 5572.

      Dram-shops — section J/9 of act construed. This section which prohibits the sale of intoxicating liquors etc., upon “any general or special election day” includes an election held for the purpose of electing a trustee of schools.
    Error to the Circuit Court of Lee county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    John E. Erwin and John J. Swenie, for plaintiff in error.
    Harry Edwards, for defendant in error.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

Plaintiff in error was indicted at the April term, 1911, of the Lee county Circuit Court for keeping a saloon open within one mile of the place of holding an election for a trustee of schools.

By agreement the case was submitted to the court and tried upon the following statement of facts.

“On April 8, 1911, an election for trustee of schools was held in Township Number Twenty One North, Range Nine East of the Fourth Principal Meridian, in Lee county, Illinois, and that on said day defendant kept open a saloon for the sale of intoxicating’ liquors at retail within one mile of the place of holding said election; that Township Number Twenty One is a township for school purposes, the boundaries of which do not coincide with towns as established under Township Organization Laws; that said township for general election has five voting precincts, a number of which would be at a greater distance than one mile from the place of business of defendant.”

Propositions of law were submitted raising the sole question of defendant’s guilt under Section 79, Chapter 46 Revised Statutes, which is as follows:

“Sec. 79. No spirituous, malt, vinous or intoxicating liquor shall be sold or given away at retail, nor shall any saloon or bar room or place where such liquor is so sold or given away, be open upon any general or special election day within one mile of the place of holding an election. Whoever violates the provisions of this section shall be fined in a sum not less than $25 nor more than $100. ”

Article III, Chapter 122, Revised Statutes, provides for the election of trustees of schools, and we think such elections come clearly within said Section 79. By said Article the election held for the purpose of electing a trustee of schools is provided for generally throughout the state; they are all governed by the same provisions, and uniform as to time in each of the two classes of townships. We think the term, “any general or special election day,” clearly includes the election held for the purpose of electing a trustee of schools.

We fail to see how the fact that the trustees of schools or judges may postpone said election, as provided in Section 14 of said Article III, affects the question at issue, as said postponed election would still come within its terms..

A general election is one provided for by law throughout the state or certain subdivisions. A special election is one provided for by law under special circumstances.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


text:
    Gust Johnson, Appellant, v. County of Winnebago, Appellee.
    Gen. No. 5573.

      Elections — for what expenses county not liable. A county is not liable for reasonable compensation to one who at the instance of the Election Commissioners of a city which has adopted the City Election Act, delivers for use at a primary election “the booths, ballot boxes, ballots, guard rails and other necessary articles for the conducting of said election.”
    Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Feost, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    A. Phillip Smith, for appellant.
    Harry B. North, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

The City of Rockford adopted what is known as the City Election Act (Revised Statutes 1909, page 984). Plaintiff sued defendant, and the case was tried before the judge upon a stipulation of facts in substance as follows: That the City of Rockford adopted said act in 1910; that February 25, 1911, a special primary election was held in the seventeenth judicial circuit to nominate candidates for judge in said circuit, to sueceed Hon. Robert W. Wright, deceased; that the Board of Election Commissioners of said city employed plaintiff to, and he did deliver to the voting places in said city, “the booths, ballot boxes, ballots, guard rails and other articles necessary for the conducting of said election,” for the sum of twenty dollars; that said sum is reasonable, and that it is due and payable to plaintiff.

Propositions of law were submitted, and judgment was entered against plaintiff for costs, and he appeals. The only question urged here is whether or not the defendant is liable to plaintiff for. said amount under, the stipulated facts.

Article VII, Section 1 of the Election Law provides that “All expenses incurred by such board of Election Commissioners shall be paid by such city”. The case of Bolles et al. v. Prince et al., 250 Ill. 36, was where one judge of election, one clerk of election, one who furnished a place for the election, and one who furnished printing and stationery for the township election in the City of Danville, which had previously adopted the City Election Law, filed a petition for a mandamus against the board of town auditors to meet, audit and allow their claims for said services. A demurrer was sustained to the petition and it was dismissed, and they appealed.

The Supreme Court in deciding the case reversed the judgment of the trial court, and say, “The legislature had the authority to make an apportionment of the cost among the county, the city, and the township, and require each to bear its proportion. Article 7 of the act is devoted to this purpose. The county is required to pay the salaries of the election commissioners and chief clerks. The city is required to pay all expenses incurred by the board of election commissioners * * * The township is not, however, liable for the rent of places of holding the election and the printing and miscellaneous expenses. These were expenses incurred by the commissioners required to be paid by the city. ’ ’

Plaintiff’s claim certainly comes within the term “miscellaneous expenses.”

Appellant argues that the attention of the Supreme Court was not called to the provisions of the act known as the “Ballot Law” in the Bolles case, therefore it should not apply in this case. However that may be, we fail to find anything in that act which would justify us in refusing to follow the holdings in the Bolles case.

Finding no error in the record, the judgment of the trial court is affirmed. ’A

Affirmed.


text:
    Elmer L. Forney, Appellee, v. Philip Schlachter, Appellant.
    Gen. No. 5575.
    1. Master and servant&emdash;duty to furnish safe place.- It is the duty of the master to exercise reasonable diligence to furnish to the servant a reasonably safe place to work and that duty cannot be delegated to another so as to relieve himself from liability in case he fails to do it.
    2. Instructions&emdash;when refusal of correct will not reverse. The refusal of an instruction which correctly states an abstract proposition of law will not effect a reversal especially if such instruction if given would have been calculated to have misled the jury.
    Action in case for personal injuries. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Rehearing denied and opinion modified April 25, 1912.
    Chubbuck & Jones and Butters & Armstrong, for appellant.

      Lucey & Larkin, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

The declaration in this case consisted of the one count alleging that the defendant, “did negligently and wrongfully erect and construct a platform in an unsafe and dangerous manner by putting poor material in said platform and then and there overloaded said platform with cement, materials and men, and did negligently and wrongfully, by a certain foreman, order and direct the plaintiff to go under said platform so defectively constructed, to perform certain duties for defendant”, etc.

Defendant was a concrete contractor, using a cement mixer in connection with which was built a wooden platform about four and one-half feet high and sixteen feet long, with an incline or runway several feet long from the ground up to the platform. On this platform were placed the materials for making the concrete, and from which they were put into the mixer. On June 18,1909, plaintiff was one of the workmen for defendant, putting in concrete work at Streator, Illinois. While he was under said platform, connecting the water hose to the engine, the platform collapsed, injuring the plaintiff, for which he brings suit. The trial resulted in a judgment for plaintiff for $1,000 and defendant appealed, and assigns numerous errors.

Appellant insists that the trial court erred in overruling his objections to several statements of the plaintiff that witness Wissen, who he says ordered and directed him to go under the platform and attach the hose to the engine, was a foreman. No motion was made to exclude this statement and as the witness told what Wissen did there, what acts of authority he exercised over the men of that crew, what directions he gave them on that job, etc., we think his conclusion that Wissen “was a foreman” is not reversible error.

Appellant also insists that there is no proof that the platform was negligently constructed of poor material. The evidence shows that the platform and run were huilt every time they moved the mixer from one job to another; that the timbers were used over and again, sometimes being used for forms, many of them slivered up like old lumber, split and twisted; and we cannot say that the jury were not fully warranted in finding that allegation proven.

It is also insisted that plaintiff helped build the platform at this place and knew its unsafe condition, which would preclude a recovery. We have examined the testimony carefully, and while it is somewhat conflicting on that point, yet we think it clearly shows that he did not help build the platform.

It is also insisted that the breaking down of the platform was the result of a fellow servant dropping a sack of cement on it. This platform was built to carry five thousand pounds, and at the time of the accident had not over two thousand pounds on it. It was about four and one-half feet from the ground, and the runway was not yet completed and some of the workmen were carrying the sacks of cement weighing about one hundred pounds each, to the platform, while one was on the platform taking them and placing them in rows or piles.

It was the duty of defendant to exercise reasonable diligence to furnish plaintiff a reasonably safe place to work, and that duty could not be delegated to another so as to relieve himself from liability in case he failed to do it.

Appellant complains of the action of the trial court in refusing instructions numbered 30, 31, and 32.

Number 30 directed a verdict for defendant, unless the jury believed that the platform or run had been constructed of poor material, and that such poor material was the cause of its giving way, which was clearly erroneous. Number 31 told the jury, as a matter of law, that “Wissen was not authorized by the defendant to give the order, direction or request to the plaintiff to connect the hose to the injector as testified to in the evidence, and that all orders given by said Wissen to the plaintiff, under the evidence in this case, were not authorized by the defendant or binding upon him.” This was clearly a question of fact for the jury under all the evidence in this case. Number 32 told the jury that if they believed the injury to the plaintiff was caused by mere accident, they should find for the defendant. As an abstract proposition of law it is no doubt correct; but when given to a jury in that form, who may speculate upon what an “accident” is, without any limitation or qualification, it is not correct. If the injury had been caused by a “mere accident,” the trial court, no doubt, would have granted appellant’s motion to exclude the evidence and have instructed the jury to find defendant not guilty. It was properly refused under the facts in this case. Yarber v. C. & A., 235 Ill. 589.

Finding no reversible error in the record the judgment of the trial court is affirmed.

Affirmed.


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    The People of the State of Illinois, Defendant in Error, v. John Kryl, Plaintiff in Error.
    Gen. No. 5579.
    1. Instructions — predicated upon evidence. An instruction not predicated upon any evidence in the cause and which was calculated to mislead is ground for reversal.
    2. Dram-shops — when defendant not liable, for sales made without his authority. In a prosecution for the illegal sale of intoxicating liquor if the defendant kept a dram-shop it will be presumed that those attending to that business had authority to sell but if the defendant did not keep a dram-shop and members of his family, servants, or anyone else sold liquors there, contrary to the provisions of the statute, he is not liable for such sales unless so made with his knowledge, consent or approval.
    Error to the County Court of McHenry county; the Hon. D. T. Smiley, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 13, 1912.
    George H. Mason, for plaintiff in error; Mullen & Hot and Henry Y. Freeman, of counsel.
    David E. Joslyn, for defendant in error; E. H. Waite and Paul J. Donovan, of counsel.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

On September 30, 1910, the state’s attorney of McHenry county filed in the County Court of said county his information, consisting of six counts, charging defendant with the offense of selling intoxicating liquors in less quantities than one gallon, not having a legal license to keep a dram-shop, contrary to the form of the Statute, etc. The case was tried by a jury, which found defendant guilty on five counts, and he was sentenced to pay a fine of $40 on each of said counts; and defendant appeals to this court, which by agreement of parties is to be considered as pending here on writ of error. Defendant assigns twenty errors, most of which he does not refer to in his argument. The evidence shows that defendant lives and is engaged in business in Chicago; that he also owns a forty acre tract of land on the Fox Eiver in McHenry county, upon which were located three dwelling houses, a barn, ice house and other improvements, and where he with his family spent more or less time during the summer season; that frequently their friends visit them there, remaining from a few days to several weeks; that he keeps in the ice house, groceries, provisions, beer and wine; that he did not keep liquors for sale, but only for the use of his family and help, and for the entertainment of his guests; that he had no knowledge of any liquors of any kind having been sold there by any one during the time he owned the place; that he had expressly declared that none be sold. The evidence of the prosecution shows that on several occasions witnesses had purchased beer there from persons on the premises; but the only one identified was the wife of defendant, who positively denied having sold to anyone.

Complaint is made of the statements made by the state’s attorney in his examination of veniremen and in his opening statement to the jury. We think some of the statements made were improper, and when objected to should have been excluded by the court, and the jury instructed to disregard them.

Complaint is also made of several of the instructions given at the request of the prosecution. Instruction No. 7 reads:

“You are instructed, as a matter of law, that the giving away of intoxicating liquors or other shift or device to evade the provision of the dram-shop act is an unlawful selling.”

There is no evidence on the part of the prosecution that any liquor was given away, and on the part of the defendant that it was given only to members of his family, the help, and to the guests when they wanted it. There is no pretense that this giving away was any shift or device to evade the provisions of the dram-shop act. It is a case where the giving of a correct legal proposition in the form of an instruction to the jury, without any qualification as to the facts in the case, tends to mislead or confuse them.

No. 8 réads:

“The court instructs the jury that if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant or his bartender, or his servants or agents, or through the members of his family within eighteen months just prior to the filing of the information in this case, within the said county, sold intoxicating liquors in less quantities than one gallon, not having any license to keep a dram-shop, then yon should find the defendant guilty”.

This instruction should not have been given in this case. There is no evidence here that defendant had a bartender, or that he kept the place for the sale of intoxicating liquors, and unless he did so, sales made by agents or servants or members of his family, without his knowledge, consent or approval, would not render him liable; and directing a verdict, it should have been accurate.

Nos. 9 and 10 are likewise objectionable.

No. 18 reads:

“You are instructed that it is not necessary for the state to prove any specific days when sales were made, —all that is necessary is to prove sales made within eighteen months prior to the filing of the information.”

This is too general as applied to the facts of the case.

The evidence in this record fails to show that defendant was keeping a dram-shop at this place, and that the sales, if made as testified to by the witnesses for the prosecution, were made by him, or with his knowledge, consent or approval. If the defendant kept a dram-shop there then it would be presumed that those attending to that business had authority to sell; but if he did not keep a dram-shop, and members of his family, servants or anyone else sold liquors there, contrary to the provisions of the Statute, he would not be liable for such sales, unless so made with his knowledge, consent or approval. Grosch v. City of Centralia, 6 Ill. App. 107.

For the above errors and others which may not occur on another trial, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


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    John H. Ladd, Appellee, v. Ernest C. Ladd et al., Appellants.
    Gen. No. 5580.
    1. Appeals and errors — when question not saved for review. The action, of the trial court in permitting files to be supplied is not saved for review in the absence of an exception having been preserved.
    2. Forcible entry and detainer — what essential to recovery. In order for the plaintiff to recover in an action of forcible entry and detainer it is essential that he establish that at the time of the commencement of the action he was entitled to the possession of the premises in question.
    3. Forcible entry and detainer — what does not show right of possession. A judgment in ejectment rendered in an action between the same parties as those involved in the forcible entry and detainer suit does not establish the plaintiff’s right of possession at the time of the commencement of the action by him in forcible entry and detainer.
    4. Dismissal — when not allowed on appeal. The appellant cannot dismiss on appeal a defendant to an action of forcible entry and detainer against whom a judgment has been erroneously entered.
    Forcible detainer. Appeal from the City Court of Kewanee; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 13, 1912.
    Sturtz & Ewan and "Wilson & Cummings, for aplant.
    Anderson & Andrews, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

This is an action of forcible entry and detainer, commenced before a justice of the peace, where defendants had judgment, and plaintiff appealed to the City Court of Kewanee, where plaintiff recovered judgment, and defendants appeal.

Before the ease was tried in the City Court plaintiff asked and obtained leave to file a copy of the complaint, which, the affidavit of his attorney says, was not among the papers transmitted by the Justice, and which he believes has been lost. Defendants assign error upon the action of the trial court in permitting plaintiff to supply the files in that way; and they devote considerable of their brief and argument to that assignment. Suffice it to say, defendants made no objection to that action of the trial court, and took no exception to said proceeding, which could only be preserved by bill of exceptions, which was not done, and is therefore not before us.

Upon the trial, plaintiff introduced in evidence, over the objection of the defendants, a transcript of his judgment against Ernest C. Ladd and Grace L. Ladd in an action in ejectment, obtained in the Circuit Court of Henry county, Illinois, for the same premises in controversy in this suit.

The only testimony offered was that of plaintiff, who testified that defendants lived in the property in questipn from the time this suit was begun until the time of trial, but wholly fails to show how he is entitled to its possession. Neither does the complaint show how he is entitled to it nor how the defendants have violated the Forcible Entry and Detainer Act. The complaint alleges that he is entitled to the possession of said premises, and that defendants unlawfully withhold the possession thereof from him.

The evidence does not show whether defendants5 entry was forcible or peaceable and unlawfully withheld, or made into vacant or unoccupied lands without right or title, or were lessees holding without right after determination, or whether said premises had been conveyed by any grantor in possession, etc., as provided by said Act. Woodbury v. Ryel, 128 Ill. App. 459. A suit under our Forcible Entry and Detainer Act, Chapter 57, Revised Statutes, is purely a statutory proceeding and before tbe plaintiff can recover tbe possession of real estate in tbis summary manner, its provisions must be strictly complied witb. Fitzgerald v. Quinn, 165 Ill. 354; Whitehill v. Cooke, 140 Ill. App. 520.

Appellee insists that tbe transcript of tbe ejectment judgment conclusively proves that be was entitled to tbe possession, etc. Tbe judgment in tbe ejectment suit was as to tbe title of plaintiff to tbe premises. Tbis suit could bave nothing to do witb tbe title, for various reasons, but was solely a question as to who bad tbe right to tbe possession at that time.

Tbe ejectment judgment was against only two of tbe defendants, and tbis judgment is against Isabella Ladd, also. Appellee admits tbis error, and moved tbe court to dismiss bis suit as to said defendant, Isabella Ladd, which was denied, for obvious reasons. Plaintiff has judgment below against her for tbe possession of said premises and for costs and from which she has appealed and given bond to comply witb in case that judgment is affirmed. Tbe granting of that motion would not release tbe judgment below against her.

For tbe errors above tbe judgment of tbe trial court will be reversed and tbe cause remanded.

Reversed and remanded.


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    Eleanor M. Truman, Appellee, v. R. A. Rodesch, Appellant.
    Gen. No. 5583.
    Forcible entry and detainer — what not defense. In an action solely for possession the tenant cannot prove his damages suffered because of the failure or neglect of the landlord to perforin an independent covenant on his part.
    Forcible detainer. Appeal from the County Court of Lee county; the- Hon. Robert H. Scott, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Wingert & Wingert, for appellant.
    H. A. Brooks and Henry C. Warner, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

This was a suit brought in the County Court of Lee county for the possession of certain premises in the City of Dixon, Illinois, under the Forcible Entry and Detainer Act. A jury was waived and there was a trial by the court by agreement. Plaintiff obtained judgment for possession of the premises, and defendant appeals.

Defendant took possession of said premises September 1, 1907, under a written lease for the term of five years at $60.00 per month rent, with the privilege of an additional term at his option. The lease contained the following provision: “It is also agreed by the party of the first part, that said premises shall be comfortably heated between the hours of seven o ’clock a. m. and 10:30 p. m.”

Defendant refused to pay the rent for the months of February, March, April and May 1911; and on May 25th plaintiff served a written notice of the rent due and a demand of payment on or before May 30, 1911, or said lease would be terminated, as provided by the Landlord and Tenant Act, Sec. 8, Chapter 80, Revised Statutes. Defendant did not pay said rent, and this suit was brought.

On the hearing defendant offered to prove that said premises were not heated comfortably during said hours; that many days during the fall, winter and spring months, the temperature was as low as forty-five degrees; that he had suffered damages on that account far in excess of the rent owing, etc., all of which was denied by the trial court. Defendant takes the position that if his damages exceeded the rent due, then he was in fact not in default, and there was no rent due, and therefore this suit could not be maintained. With this contention we do not agree. The covenant to pay rent was not upon condition that plaintiff comfortably heat said premises, but was a separate and independent covenant; and when he failed to perform it, the landlord had the right, after notice and demand, to declare the lease forfeited, and to sue for possession. “The whole question in actions of this nature is, does the defendant unlawfully withhold possession of the premises sought to be recovered in the action.” Woodbury v. Ryel, 128 Ill. App. 459.

If this was an action for recovery of the rent, a different question would be presented. Appellant argues that he should have been permitted to make said defense, on the grounds that it would prevent a multiplicity of suits, which is favored in law, but the legislature of this and many other states has seen fit to provide this summary proceeding solely for obtaining possession of real estate, regardless of the question of the amount of rent due or damages sustained. This act has been in existence too many years, and our courts have dealt with it too long, for us now to declare it ineffectual for the purpose intended.

The law is well settled in this and other states, that the tenant cannot prove his damages suffered because of the failure or neglect of the landlord to perform an independent covenant on his part, in an action solely for possession. Peterson v. Kreuger, 70 N. W. Rep. 567, (67 Minn. 449); Mark v. Shumann Piano Co., 208 Ill. 282; McSloy v. Ryan, 27 Mich. 109.

Finding no error in the record, the judgment of the trial court is affirmed.

Affirmed.


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    Austin Davis, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 5586.
    Personax, injuries — what essential to recover in action for. A plaintiff in an action for personal injuries cannot recover unless lie affirmatively establishes that at the time of bis injury be was in tbe exercise of ordinary care for bis own saft.ey.
    Action in case for personal injuries. Appeal from tbe Circuit Court of Peoria county; tbe Hon. N. E. Worthington, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed March 13, 1912.
    Pinkney & McBoberts, for appellant.
    Quinn, Quinn & McGrath, for appellee.
   Mr. Justice Morton W. Thompson

delivered tlie opinion of the court.

Appellant operates a double track street railroad on Adams street in the city of Peoria, Illinois. Adams street runs northeast and southwest. The north bound cars run on the east, and the south bound on the west track.

Plaintiff testified that he was twenty-nine years old; that about 7:30 o ’clock on the morning of March 25, 1910, as he was returning to his home from work, he alighted from a north bound car at McCall street, and went to the rear of his car, and started to cross the north bound track when he was struck by a south bound car; that it was a clear morning; that he had no idea how fast the car that struck him was going; that his eyesight and hearing were good, and that he did not hear any bell sounded, and did not see the car until it was almost upon him, when he jumped and was struck by the car and was hurt, in consequence of which he lost three weeks’ wages at $12.50 per week, and his physician’s hill of $23 and suffered considerable pain, etc; that he knew how the cars operated on the double tracks; that cars ran along there every few seconds; that he did not look up before he stepped into the track, and when he did look up the car was right close to him, looked not over a foot or so away; that he was about in the center of the down bound track when he looked up and saw it, and he then jumped to the far side, and was hit by the corner of the car; that Adams street is level for two blocks each way from McCall street and runs in a straight line; and there was nothing to obstruct his view but the car from which he alighted. The declaration consists of three counts' in the usual form, charging that defendant carelessly and negligently, without any warning, ran its car against him; that defendant carelessly and negligently ran its car past the one standing still at McCall street without ringing a bell or giving any warning of its approach, and struck him. The third counts on the violation of the city ordinance in not sounding a gong one hundred feet from street intersections and keeping it sounding until such street is reached. Each count contains the usual averments of due care and caution for his own safety.

The above was the only testimony in support of the declaration, and at the close of plaintiff’s case, defendant moved to exclude the evidence and instruct the jury to find the defendant not guilty, which was denied, and was renewed at the close of all the evidence and again denied, and a verdict and a judgment was rendered for the plaintiff for $60.50; and defendants appeals.

The defendant examined eight witnesses, passengers and employes operating the two cars; and from the overwhelming weight of the evidence, we think plaint-' iff was not struck at the intersection of McCall street, as he says, but south of that street; that he either alighted from this car at the crossing south and walked on ahead of it towards his home on the west side of Adams street, near the middle of the block, or dropped off before it reached McCall street, closer to his home, and stepped from behind it onto the south hound track and was struck. But, however that may he, the evidence wholly fails to prove that plaintiff was in the exercise of that care required of him by the law for his own safety, as alleged in his declaration. He was a man twenty-nine years old, in possession of all his faculties and knew the situation well, and had he exercised ordinary care under the circumstances surrounding him at the time, would not have stepped upon the south-hound track from immediately behind a car, at a place which was not a street crossing, without ascertaining if a car was approaching from the opposite direction, which he knew was liable to occur “any second”. The allegation of due care on his part, being a material one not proven, the instruction to find the defendant not guilty should have been given. Von Holland v. Chicago City Railway, 148 Ill. App. 320.

Reversed.

Finding of fact to he incorporated in the judgment:

We find that at the time of the injury complained of, plaintiff was not in the exercise of due care for his own safety.


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    William Large, Appellee, v. Wabash Railroad Company, Appellant.
    Gen. No. 5591.
    1. Judicial sales — what interest acquired by purchaser. The purchaser at a sheriff’s sale takes such interest and such interest only as the defendant in the execution actually had.
    2. .Railroads — when not liable for destruction of building by fire. If a building is situated upon the right of way of a railroad company by permission' only and if such building is subject to removal therefrom at the will of such company its destruction by fire through the negligence of such company will not render the railroad liable.
    Action in case. Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed March 13, 1912.
    R. S. McIlduet and B. R. Thompson, for appellant.
    Robert Henning and Stevens R. Baker, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

On July 8, 1910, plaintiff’s elevator at Wing, Illinois, was destroyed by fire, and this suit is to recover the value of said building from the defendant. There are three amended counts charging negligence, with-plea of the general issue. A trial was had which resulted in a verdict and judgment against defendant for $450 and costs, and it brings the case here, and assigns several errors, only one of which we deem it necessary to discuss in this opinion, as each of the others may not occur on another trial. The elevator was built by one Gray in 1892 upon the right of way of defendant. Later Gray sold the building to one Kellogg, who on July 16,1906, executed a written lease of the ground occupied by said building for tbe term of five years, which contained the following:

“Third: To assume all risks or loss, injury or damage of any kind or nature whatsoever to any building or other structure or appurtenance thereto, belonging to said second party, his heirs, incoming partners, sublessees or others, which may be now or hereafter placed upon said leased premises, or on land adjoining or adjacent thereto, and which are at the time connected with or used in connection with any building or structure upon said leased premises, and all risks of loss, injury or damages of any kind or nature whatsoever, to the contents of any such buildings or structures, or to any goods, merchandise, chattels or other property now or that may hereafter be upon said premises, or land adjacent thereto, as aforesaid, whether belonging to said second party or to others, and ¡whether such loss, injury or damage results from fire or other agency, and whether the same be caused by the negligence of the party of the first part, or any of its employees, agents or servants or otherwise; and to save and keep harmless the party of the first part from all claims and suits growing out of any such loss, injury or damage. ’ ’

Later Gray instituted suit against Kellogg, and obtained judgment, and said building was sold at sheriff’s sale on March 21, 1910, to plaintiff.

On the trial defendant offered the written lease in evidence and an objection to its admission was sustained by the trial court. This we think was error. The defendant was under no obligation to permit the building upon its right of way, and could not be compelled to allow it to be built or remain there against its will, and if it did permit it to be there, it had the right to do so under such terms and conditions as it should see fit to impose. Griswold v. Illinois Central, 90 Iowa 265; Hartford Fire Ins. Co. v. C. M. & St. P. R. R. Co., 175 U. S. 91.

. Plaintiff insists that as he did not buy the leasehold of Kellogg, but only the building, at the sheriff’s sale, lie was in no way in privity with said lease. The plaintiff bought the interest of Kellogg in the building at the sheriff’s sale, and he knew that it was on defendant’s right of way, and that it must be there by virtue of some arrangement express or implied, between Kellogg and defendant; and he was bound to know, at his peril, by what right the building was there.

Plaintiff relies upon the case of Texas and Pacific R. Co. v. Watson, 190 U. S. 287, and similar cases, where a shipper places property in a warehouse on the right of way of a railroad company. These cases involve a very different principle; and we do not consider them authority in this case.

For the above error, the case will be reversed and remanded with direction to proceed in conformity with this opinion.

Reversed and remanded with direction.


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    William Pyle, Appellee, v. City of Ottawa, Appellant.
    Gen. No. 5595.

      Verdicts — when not disturbed as against the evidence. A verdict will not be set aside as against tbe evidence unless clearly and manifestly so.
    Appeal from tbe County Court of La Salle county; tbe Hon. W. H. Hinebaush, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Eector C. Hitt, for appellant.
    Snow & Haight, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

Guthrie street runs north and south, and Glover street east and west, in the city of Ottawa. In 1903 the defendant in accordance with a general plan, constructed a sewer on Guthrie street stopping at Glover street, which runs along the south side of plaintiff’s property, and later extended on south and connected with Luther College. In the fall of that year, plaintiff connected his house with said sewer, with what is known as a running trap. From the following year to April, 1910, when this suit was brought, plaintiff’s basement was flooded several times by the sewage backing into it, and damaging the property and contents of said basement. There was judgment in the trial court for plaintiff for $500 and costs; and defendant appeals.

No complaint is made of the amount of the verdict, but appellant urges that plaintiff was to blame for all the injury sustained because he did not use what is known as a back water trap instead of a running trap. The evidence shows that plaintiff repeatedly complained to the city authorities about the trouble; that the matter was referred to committees to look after, who reported their actions to the council; that at one time, at least, plaintiff offered to waive all damages if the defendant would correct the trouble, but nothing seems to have been done in the matter.

The evidence shows that the Guthrie street sewer was only a part of the plan for a general system of sewerage for the city of Ottawa, which it is not contended would not have been adequate had it been completed according to said plans, which provided for other sewers and drains west of Guthrie street to help care for some two or three hundred acres of land lying south of Glover street and east of Guthrie street and draining to the northwest. Had the original plans been carried out, we are satisfied from the evidence in this case, that plaintiff’s trouble would not have occurred. Chapman v. City of Staunton, 246 Ill. 394, and authorities cited. Appellant insists that had plaintiff used the hack water trap instead of the running trap, the injury would not have occurred. He seems to have used due diligence in that matter. He employed a plumber licensed by the city, and made the connection recommended by him. We find no evidence in the record that plaintiff knew of any better device than the one installed. If the city knew of a better one, why was plaintiff, during the several years of his complaints, not advised of it?

Errors are assigned upon the giving and refusal of instructions, hut in view of all the facts disclosed by the record, we think the defendant clearly liable, and that whatever errors there may have been in that respect, if any, were harmless.

Finding no reversible error in the record, the judgment of the trial court is affirmed.

Affirmed.


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    L. E. Ingraham, Appellant, v. Duncan B. Medill, Appellee.
    Gen. No. 5598.
    Bills to remove cloud — when option should he cancelled of record. An option given by tbe complainant wbicb bas been filed for record should be cancelled if no performance or proper tender of performance thereunder has been made.
    Appeal from the Circuit Court of Marshall county; the Hon. T. N. Green, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed March 13, 1912.
    Thomas Kennedy and McDougall & Chapman, for appellant; Barnes & Magoon, of counsel.
    E. D. Richmond and Mastín & Sherlock, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

This was a bill to remove, as a cloud on complainant’s title, the following instrument of record:

‘ ‘ For and in consideration of the sum of one dollar, receipt of which is hereby acknowledged, and for the further consideration of four thousand dollars, ($4000.00) to be paid in four payments as follows: One thousand dollars ($1000.00) within five days after the execution of a certain lease between Maggie Hakes of Rutland, Illinois, and Duncan B. Medill of West-ville, Illinois, and one thousand dollars each year thereafter until paid, with interest at the rate of 5% I agree to option to Duncan B. Medill of Westville, Illinois, as follows: The coal underlying the north one half (N%) of the south east one quarter (S.EJ4) of Section thirteen (Sec. 13) town 29, north of range one, east of the Third P. M., Marshall County, Illinois. This option to terminate within sixty days from date. Witness my hand and seal this 28th. day of May 1910.
L. E. Ingram.”

The lease referred to was executed July 6, 1910, and on July 11, 1910, defendant delivered to complainant the following:

“Rutland, III., July 11, 1910.
Mr. L. E. Ingram,
Rutland, Ill.
Dear Sir :—
In accordance with and to fulfill the terms of an instrument executed by you, dated May 28,1910,1 hereby tender to you $1000.00 in currency, three (3) notes for $1000.00 each maturing July 1st. 1911, July 1st. 1912 and July 1st. 1913, respectively, executed by me and to secure said notes a first mortgage on the coal and other minerals underlying the North half (%) of the south east quarter (%) of Section Thirteen (13) Town twenty nine (29) North, Range One (1) East of the 3rd. P. M. in Marshall County, Illinois; and I hereby demand under said instrument a warranty deed covering said coal and other minerals underlying said north half (y2) of the south east quarter (%) of said Section thirteen (13) and the right to mine and remove the same.
Duncan B. Medill.”

With said instrument defendant tendered to complainant $1,000 in currency, the three notes for $1,000 each, the mortgage securing said notes, and a blank warranty deed for the conveyance to defendant of £ ‘ all the coal and other minerals with the right to mine and remove the same underlying” said land, ££Hereby releasing and waiving all rights under and by virtue of the Homestead Exemption Laws of this state.”

The cause was referred to the master, who heard the evidence and reported to .the court his findings that the tender made by Medill was a good and sufficient tender, payment and fulfillment of said option contract, and that the equities were with the defendant, and recommended a decree dismissing complainant’s bill, which was done by the chancellor, and complainant appeals.

It is clear that the offer and demands of Medill did not comply with the propositions of Ingram made in his option. Ingram did not agree to warrant the title to said coal and other minerals; did not agree to convey the other minerals underlying said land; did not ■agree to accept a mortgage on said coal and other minerals, which would have released his vendor’s lien; nor did he agree to waive his Homestead Exemption rights. The offer and demands of Medill were not even a substantial compliance, not to say a strict compliance, wdth the propositions of the option.

Ingram offered to accept the $1,000 and gave Medill a receipt for it, or to endorse the receipt of it on the back of the written option, but Medill refused to pay it to him in that way; and later had said option recorded.

We think that under the following authorities the Chancellor erred in dismissing complainant’s bill: Middaugh v. Stough, 161 Ill. 312; Bolton v. Huling, 195 Ill. 384; Anglo American Provision Co. v. Prentiss, 157 Ill. 506; Scott v. Fowler, 227 Ill. 104; Harding v. Gibbs, 125 Ill. 85; Rigdon v. Shirk, 127 Ill. 411; Miller v. Stalker, 158 Ill. 514; Sea v. Morehouse, 79 Ill. 216.

For the above error the decree will be reversed and the cause remanded with directions to the chancellor to enter a decree removing said instrument from record as prayed for in complainant’s bill.

Reversed and remanded with directions.


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    Lizzie Einwechter, Appellee, v. John Murray, Administrator, Appellant.
    Gen. No. 5602.
    1. Evidence — what- not material. Evidence upon which only a speculative argument could he based is immaterial and should not be admitted.
    2. Appeals and errors — when admission of erroneous evidence will not reverse. The admission of erroneous evidence will not effect a reversal if no prejudice appears to have resulted.
    Contested claim in court of probate. Appeal from the Circuit Court of Ogle county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed upon remittitur.
    Opinion filed March 13, 1912.
    Franc Bacon and J. C. Shyster, for appellant.
    W. J. Emerson, for appellee.
   Mr. Justice Morton W. Thompson

delivered the Opinion of the court.

Charles D. Murray died in Ogle county, Illinois, August 24, 1910, and John Murray was appointed administrator of his estate. Plaintiff filed her claim, ■which, we have been unable to find either in the record or abstract, and therefore we do not know when filed or what items it claimed for, except as we gather from the statements of counsel that it was for $800 which she claims she let the deceased have in the summer of 1908, to keep for her. The case was tried in the County Court, and $800 allowed. ' Defendant appealed to the Circuit Court, where the case was tried before a jury which resulted in a judgment for $800 and defendant appeals to this court and assigns errors.

Appellant' offered to prove by Mary Murray, mother of the deceased, that claimant said to her that she would like to make her home with her, and that she would work there for her board, and that witness replied, “No, I have very little work to do, and I would feel better if I did it myself, than to have somebody else do it,” and that then she went away and never claimed on that occasion that Charles had owed her anything. An objection to the offer was sustained by the court, and appellant insists that was error. Mrs. Murray testified at length as to conversations and what took place between claimant and herself during the several days claimant remained there after the funeral; how she had returned to claimant the shirt stud and cuff buttons, which she had given Charles; and that claimant never claimed to her that Charles or his estate ever owed her anything.

It is proper in a case-of this kind, to prove any statement made by the claimant which is material to the issue, but just how the statement of this claimant to the mother of the deceased that she wanted to come and make her home with her and work for her board, was material, we fail to see. It might have been used as the basis for a speculative argument to the jury, but that alone would not render it admissible.

The administrator was examined, on behalf of the defendant, concerning his loaning deceased $500 on July 21, 1910, and as to his search for and failure to find any receipt from claimant, or any papers pertaining to any matters between deceased and claimant; that he knew of no investments by deceased after that date; and was asked if he knew of any payments or expenditures he made after that date, and answered that he knew of none; and as to the amount of cash he left at the time of his death, etc. On cross-examination he was asked if he did not have a conversation with claimant at a certain place, in November, 1910, in which he admitted to claimant, in the presence of Mrs. John Brook, that he knew deceased had some of claimant’s money, but that he thought he had repaid it, etc., all of which the witness denied.

Claimant and Mrs. Brook were both asked these questions on rebuttal, and defendant’s objections to them were sustained; but appellant insists that the asking of these questions in the hearing of the jury, was prejudicial. These questions did not tend to contradict anything the witness had testified to on his direct examination, and therefore could not impeach him, and should not have been asked in the presence of the jury; but as he was permitted to and did answer denying all of them, which answers stand uncontradieted, we think that no harm was done defendant thereby.

The evidence was very conflicting, and we think sufficient to warrant the jury in finding either way. But the jury heard the witnesses; saw them while testifying, and no doubt observed their appearance, manner and conduct, and were in a much better position to judge of the weight and credibility of their testimony then we are.

Claimant examined a witness, Gearhart, who had testified in this case on the hearing in the County Court, and who defendant claims materially changed and added to his testimony on this trial. Appellant cross-examined this witness, and asked him about certain questions and answers made by him, in the County Court hearing; and then placed the stenographer on the stand, who took his testimony in the County Court, and showed his answers to those questions and then offered in evidence a transcript of all his testimony on said hearing in the County Court, to the admission of which an objection was sustained. Appellant now insists that that was error; but we have been cited to no authority and are aware of none that would justify such a contention.

On the motion for a new trial, defendant introduced affidavits and four express orders for $50 each, purchased by deceased, and payable to the order of claimant, and shown to have been paid to her after the time it is claimed that she let him have the $800. "We think that the trial court erred in not either granting a new trial, or requiring a remittitur of $200 from the amount of the verdict upon the showing made; and if appellee will within seven days file her remittitur in this court for $200 of said judgment, it will be affirmed in the sum of $600 at her costs. If not, the judgment of the trial court will be reversed for said error, and the cause remanded for another trial.

Affirmed upon remittitur.

Appellee having afterwards filed a remittitur herein in the sum of $200 the judgment is therefore affirmed in the sum of $600 at the costs of appellee.


text:
    Edwin E. Sherwin, Appellee, v. City of Aurora, Appellant.
    Gen. No. 5605.
    1. Negligence — when city cannot escape liability. When the city permits adjacent property owners to excavate a portion of its streets and to construct passage ways 'under the same, it cannot escape liability by saying that it owes no duty to the citizen who properly uses them. If the city permits such use of the street, which otherwise would be safe for travel, it must exercise such diligence as would be required of a reasonably prudent person under all these circumstances. If the one so using the street performs that duty for the city it would be a defense, but if he fails to do it then the city must.
    2. Negligence — obligation of city with respect to its streets. The law makes it the duty of the city to exercise ordinary diligence to discover and repair defects, and one lawfully using the street has the right to assume that the city has performed that duty and that if a portion is not safe that notice thereof will be given in some way.
    Action in case for personal injuries. Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slussek, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 13, 1912.
    Rehearing denied April 25, 1912.
    Charles F. Clyne and Benjamin P. Alschuler, for appellant; E. C. Putnam and J. C. James, of counsel.
    John M. Eaymond and John K. Newhall, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

The Plain building in Aurora is on Broadway, and in the business part of the city. A part of the sidewalk, about four feet wide and extending across the front of the building about twenty-two feet, is of what is known as “bull’s-eye” construction; that is, a cast iron frame with small openings into which are fitted glass discs fastened with cement, and is so made to afford light from above to the areaway beneath the sidewalk, which is about nine feet deep, and extends to the curbline, and was constructed in 1899 by the owner of the building.

While walking on this, on August 18, 1910, it suddenly gave way, and plaintiff fell into the areaway and was severely injured.

The declaration consists of one original and seven additional counts. The original count alleges that defendant wrongfully and negligently permitted, suffered and allowed said areaway to be and remain insufficiently and defectively covered, etc. The first additional eount alleges that defendant for more than, to wit, five years, wrongfully and' negligently permitted, suffered and allowed said areaway to be and remain insufficiently and defectively covered, etc. The second alleges that defendant on, to wit, March 1, 1899, suffered, allowed and permitted the reconstruction, repairing and building of a portion of an area-way or grating composed of glass, cement and metals, over said hole or opening, etc. The third alleges that defendant wrongfully and negligently and without reasonable diligence; suffered and permitted said covered areaway to be laid in said sidewalk for the purpose of permitting the occupants of the adjoining premises to have and receive light and air into said, basement through said covered areaway, and suffered and permitted said covered areaway to be and remain old, weak, rotten, rusted and insecurely fastened, etc. The fourth alleges that defendant for to-wit twenty years suffered, allowed, consented and permitted said covering areaway or grating to be laid, put and maintained in said sidewalk, for the purpose of permitting the occupants of the adjoining premises to have light and air to and from said basement, etc. The fifth alleges that defendant suffered, consented, allowed and permitted it to be laid, constructed, repaired, built and maintained in said sidewalk, for the purpose of permitting light and air to enter in and from said basement, and that it was constructed of divers materials that were subject to decay and deterioration by the action of water and air, and that it thereby became wet, rusted and decayed, and was thereby rendered weak, rotten, insecure and insufficient, etc. The sixth alleges that defendant having knowledge of the unsafe condition of said sidewalk, or having had reasonable time and opportunity for receiving said knowledge, etc., failed and neglected to pnt the same in proper repair and condition, for nse, and unlawfully and negligently suffered it to be and remain in bad and unsafe repair and condition, unfit for travel, etc. The seventh alleges the duty of defendant to exercise reasonable care and diligence to inspect, examine, repair and maintain said sidewalk in a reasonably good and safe condition and repair, but that defendant wrongfully, unlawfully and negligently failed to inspect, examine, repair or maintain it in reasonably good and safe condition, etc.

Defendant pleaded not guilty, and there was a judgment on a verdict for plaintiff for $2,500 and costs. Defendant appeals and insists upon but one error here, the refusal of the trial court to allow its motion to exclude the evidence and instruct the jury to find it not guilty.

The evidence shows that in the basement of said building were several steam pipes from which steam frequently escaped, causing moisture to collect throughout the basement and subway under this sidewalk. That in the stone part of the sidewalk and adjoining the part of said walk which gave way with plaintiff, was a small opening covered with an iron grating, through which air, snow and water could pass into said subway, which would tend to rust and weaken the iron frame as well as the iron supports upon which the frame rested. The evidence shows that the upper surface of this walk appeared smooth, sound and in good condition, with no indication that it was not safe, strong, sound and in good condition; but on examination after the injury to plaintiff, some of the metal parts were found to be badly eaten with rust, and in one or more pieces, old cracks or partial breaks. There is no evidence in the record even tending to show that defendant ever attempted to make an inspection or examination of the under side of this structure.

Appellant insists that so long as the upper side of said structure gave no indication that it was unsafe or out of repair, it owed plaintiff no duty to inspect or examine the under side. To this contention we cannot assent. A city owes to those in the exercise of due care for their own safety, the duty to exercise ordinary care to keep its streets in a reasonably safe condition for use; that is, such care as a reasonably prudent person would exercise under the same or similar circumstances. When the city permits adjacent property owners to excavate a portion of its streets, and to construct passageways under the same, it cannot escape liability by saying it owes no duty to the citizen who properly uses them. If the city permits such use of the street, which otherwise would be safe for travel, it must exercise such diligence as would be required of a reasonably prudent person under all the circumstances. If the one so using the street performs that duty for the city, it would be a defense; but if he fails to do it, then the city must. The city was under no obligation to permit- its street to be so used (Burton v. Chicago, 236 Ill. 383), and when it did, it was its duty to exercise reasonable diligence to keep it in a reasonably safe condition; and the evidence shows that it made no effort in that respect, but it says that so long as the walk appeared safe from above, it owed no duty to examine underneath. That probably would be true if this walk had rested upon the ground, or other solid foundation, with no opportunity for such examination; but where, as here, there was a space of about nine feet, affording ample opportunity to make a thorough examination of the support, ordinary care would require that the city do something to ascertain the safety of such structures.

If the city is not bound to do anything until the surface indicates a dangerous condition, then it cannot be held in any case, as, if the pedestrian was in the exercise of due care for his own safety, he would see it then. But the law makes it the duty of the city to exercise ordinary diligence to discover and repair defects, and one lawfully using the street has the right to assume that the city'has performed that duty, and that if a portion is not safe, that notice thereof will be given in some way.

Appellant insists that the evidence fails to show that such an examination would have revealed the defects. But if such an examination had been made, and no defects discovered, then the city would have performed its duty in that respect, which would have been a defense. As was said in City of La Salle v. Porterfield, 138 Ill. 114: “It is the duty of municipal officers to use ordinary care in keeping its bridges, culverts, etc., in a safe condition for public travel, and this involves the anticipation of defects that are the natural and ordinary result of use and climatic influences ; and so wherever there is neglect on the part of the proper officer to make a sufficiently frequent examination of a particular structure, a municipality will not be relieved from liability, although the defect may not be open and notorious.” See also Chicago v. Gillette, 108 Ill. App. 455; Hogan v. Chicago, 168 Ill. 551; Mattoon v. Worland, 97 Ill. App. 13.

In Sherwood v. District of Columbia, 3 Mackey 276, reported in 51 Am. Rep. 776, the court says:

“They ought to have known when they laid those wooden structures upon which the sidewalk was subsequently laid, they were laying something certain to decay. And although bound to know that this platform was liable to decay, the District made no examination of it for nine years. Here was a complete man trap, with the assurance to the public of security. We hold that the knowledge of these facts was all the notice that was required in this case. Where the city constructs a thing of this kind it becomes its duty to watch over it, to protect the public, or abide the consequences.” And as was said in Chicago v. Loebel, 228 Ill. 52, “* # * it is wholly immaterial whether it was placed there in the first instance by the city or by private individuals.”

This building was remodeled in the spring of 1899 and this walk was constructed at that time; but the evidence fails to' show by -what permit, if any, the street was excavated and said walk laid. But if the city authorities were in the exercise of due diligence at that time, they must'have known of its construction, and it was their duty then to see that it was made safe, or by reasonably frequent examination thereafter, and it was in a reasonably safe condition for use, which was for the jury to determine.

If the city did not have actual knowledge of its construction, then it was for the jury to determine from all the facts and circumstances, whether or not it was due diligence on the part of the city in not having made any inspection or examination of this structure in eleven years.

These were questions of fact for the jury; and the trial court committed no error in refusing defendant’s motion to exclude the evidence and instruct the jury to find it not guilty. The judgment of the trial court is therefore affirmed.

Affirmed.


text:
    Rollie Finney, Appellee, v. Harris & Cole Bros., Appellants.
    Gen. No. 5569.

      Verdicts — when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Action in case for personal injuries. Appeal from the Circuit Court of Massac county; the Hon. W. W. Duncan, Judge, presiding.

      Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed April 25, 1912.
    C. L. Y. Mtxlkey, for appellant.
    H. A. Evans and Fred E. Yotjng, for appellee.
   Mr. Justice Morton W. Thompson

delivered the opinion of the court.

At the April term, 1911, of the Circuit Court of Mas-sac county, the plaintiff recovered a judgment against the defendants for $5,000, and they appeal. ■

On July 23, 1910, the plaintiff was hurt in the planing mill of the defendants at East Metropolis, while feeding lumber into one of the planing machines, by one of the boards so fed into said machine being thrown out or “lacked back” and striking him, breaking his leg, and severely injuring him.

This machine consisted in part of two cutter heads, two and a half feet long and six inches in diameter, adjusted with numerous knives set to plane boards passed into it. These cutter heads revolved in the opposite direction from that in which the boards moved, or against the feed, and towards the operator when feeding timbers into the machine. The evidence shows that the proper and safe way to feed said planer is to put one board through at a time; and also that it is dangerous to put a second board into the planer until the first one has passed the cutter heads, as, if the second should be a little thicker than the first, it would raise the dead rolls designed to hold the board to the bed by which it was carried through the planer, thereby releasing it from the bed, and the action of the cutter heads would tend to throw it back and out of the planer.

At the time of the injury, plaintiff says he had two boards in the planer, and that the one that hit him lacked about two feet of passing the cutter head, when it just “flew back” and out of the planer and bit Mm, breaking Ms left leg midway between the knee and Mp.

The count upon which this case was tried, alleges that the defendants furnished plaintiff a defective and unsafe planer to work with; that they knew of said defective and unsafe condition, and that plaintiff did not know, etc.

Plaintiff had worked in defendant’s mill for about twelve years; had operated this planer before; had repaired it and adjusted it to do its work, and was familiar with its mechanism and operation.

' He also testified that he did not know that it was unsafe or out of repair at that time, and did not know that it was dangerous to start a second board into it before the first one was through. In this he was strongly contradicted; and while upon his uncontradicted testimony, the judgment would not be disturbed, we feel that in view of the conflicting character of the evidence, and surrounding facts and circumstances, the case should be submitted to another jury, and for those reasons the judgment of the trial court is reversed, and the cause remanded for another trial.

Reversed and remanded.