text:
    Harry Green, Appellee, v. Jones Bros. Coal & Mining Company, Appellant.
    1. Master and servant—what essential to recover for failure to furnish safe place to work. In order for a servant to recover of his master for the latter’s failure to exercise reasonable care to furnish him with a reasonably safe place to work, it must appear, first, that the place was dangerous in the particular alleged; second, that the master knew, or, by the exercise of reasonable care should have known, of such dangerous condition; and, third, that the servant did not know the defect or dangerous condition, and that his opportunity for knowing the condition and the danger was not equal to that of the master.
    2. Master and servant—when there is no duty to warn. A master is not required to point out dangers which are readily discernible by the servant for himself by the use of ordinary care, with such knowledge, experience and judgment as the servant actually possesses, or as the master is justified in believing him to possess.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. B. R. Burroushs, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed, with finding of facts.
    Opinion filed March 18, 1908.
    Schaefer, Farmer & Kruger, for appellant.
    Webb & Webb and Louis Klingel, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

This was an action in case, brought by appellee against appellant, to recover damages’for injuries sustained while employed and engaged as a shot-firer in appellant’s coal mine. The declaration is in one count and alleges; That it was the duty of said appellant to so drive and open up the said entries, cross-cuts and rooms in said mine so as to leave the pillars separating said rooms of sufficient thickness to prevent shots being fired in one room breaking through into an adjoining room and causing injury to the plaintiff; but contrary to its duty in that regard the defendant so negligently and carelessly drove the first mining room off of the third east entry and the adjoining room on the east thereof as to leave the pillar between said rooms too thin, and while the plaintiff, in the exercise of due care for his safety and without any knowledge that said pillar was too thin, was entering the adjoining room on the east of the first mining room off of the third east entry, a shot fired in the room last mentioned broke through the said pillar and into the room where plaintiff was, causing large piece of coal to strike plaintiff, breaking his right leg and dislocating the left one and otherwise severely injuring plaintiff’s body.” Appellant filed the general issue. A trial by jury resulted in a verdict and judgment for appellee for $1,500, from which appellant prosecuted an appeal to this court. Appellee was employed by appellant and at the time of his injury was a shot-firer. He is a man thirty years old and a miner of sixteen years’ experience. He worked for appellant as a miner sometime prior to his becoming a shot-firer and as a shot-firer he worked for seven or eight months in rooms one and two, that part of the mine where the injury occurred. The rooms referred to had been driven south from an east and west entry a distance of about 140 feet. Eighty feet from the entry is the first cross-cut which connects these two rooms. From the entry to the face, room two is practically, straight, of uniform width and within parallel lines. Boom one, which is west of room two, was driven in line to the southeast toward room two, to the point where the first cross-cut was opened. By this divergence from a north and south line, the pillar between the entry and cross-cut was triangular in form, being thirty-seven feet, the distance between the rooms at the entry, and about eight feet at the cross-cut. From the cross-cut, room one was driven south a distance of fifty-nine feet. The coal was taken out in such manner that the pillar between the rooms was eight feet thick at the north end and gradually increased to fourteen feet near the south end, where, by mining the east rib near the face of the coal in room one, the pillar or coal between the rooms was reduced to only six feet. This was substantially the condition when appellee and his buddy (a brother) entered the rooms and began the operation which resulted in his injury. It was the duty of a shot-firer to enter the mine after the miners had left, to inspect and fire the blasts that had been prepared in a practical and workmanlike manner by the miners for the purpose of shooting down coal for work the following day. On the evening of August 28, 1906, appellee and his brother entered room one about 5:30 in the evening. They found two charges to be fired in this room, one in the face, and the other—which caused the injury—in the left or east side six feet back from the face. The hole drilled for the charge in the rib lacked only a few inches, less than a foot, of going through the pillar into room two. This was the third of a series of shots that had before that day been placed and fired in the left rib eight or ten feet back from the face. As to the purpose in blasting out the left rib, there was dispute; the appellee contending that it was merely to widen the room, while appellant insists that it was to open a cross-cut at that point as by the statute required, it being substantially sixty feet from the other cross-cut already mentioned. Appellee and buddy lighted the two charges in room one and to escape danger from the explosion ran back and through the cross-cut into room two. Appellee then went to the south end or face of the coal in room two, and when about to light the prepared charges or shots found there, the rib charge in room one exploded, blowing through the pillar, dislodging, breaking and scattering the coal, a part of which struck and injured appellee.

At the close of the evidence in behalf of the plaintiff, and again at the close of all the evidence, the defendant moved the court for a peremptory instruction to find for the defendant. The motion was denied, the instruction refused, and the defendant excepted. Error was duly assigned and the ruling of the trial court is challenged in this appeal. The appellee’s complaint, the substance of the charge in his declaration, is that appellant failed in its duty to furnish him a safe place to work. It is alleged that the pillar between the rooms was too thin, a condition which endangered appellee while in the performance of his duty as a shot-firer. To maintain an action on this allegation it was necessary to prove, (1) that the place was dangerous in the particular alleged, (2) that appellant knew or by the exercise of reasonable care should have known the dangerous condition, and (3) that appellee did not know the defect or dangerous condition and that his opportunity for knowing the condition and the danger was not equal to that of appellant. The authorities are numerous and harmonious in support of this proposition. The rule is stated in Goldie v. Werner, 151 Ill. 551, and quoted with approval in Montgomery Coal Co. v. Barringer, 218 Ill. 327. After a careful consideration of all the evidence in the case we are of opinion that the evidence does not tend to prove the third proposition under the rule. Appellee’s long experience as a miner, his knowledge of the relative location of the two rooms, his familiarity with the course, direction and progress of the work, his knowledge and skill as a shot-firer, all considered, we are pursuaded that no one connected with the mine, so far as disclosed by the evidence, was better qualified than he to judge and determine the danger incurred by exploding the charge which caused his injury. He knew and testifies, that room two was straight, that the pillar at the cross-cut was hut eight feet in thickness, that room one was driven in a curve toward room two, for a distance of forty or fifty feet beyond the cross-cut, that the miners were at work taking out the coal on the east rib of room one back from the face eight feet or more, and that he fired the shots required in that part of the work, that the mining was then directed toward room two, as was also, the charge, which being fired caused the injury. Appellant’s evidence and the circumstances shown tend strongly to prove that the purpose of mining the east rib was to drive a cross-cut through the pillar at that point. But whether that was the purpose, which appellee denies, makes no difference, for the operation of mining and blasting out the coal was directed the same as it would have been had a cross-cut been intended, and appellee must be held to have known, as well as any one could know from observation, that the pillar was being reduced by every shot fired. He testifies that he had been firing in rooms one and two for eight months, that he had gone through the cross-cut a hundred times or more, and that the east rib was cut in to a depth of eight feet toward room two at a point six or eight feet from the face of room one. From his own testimony he must have known that there remained only a few feet of coal between the rooms. The known conditions were such that he must be charged with knowledge of the danger, or at the very least, that his opportunity for knowing the danger was equal to that of the appellant. As an experienced shot-firer, acting within his statutory duty to inspect the blasts prepared for him, may it be said that he did not know and did not appreciate the danger from firing a shot located and directed as the one in question? He handled the explosive in use, knew, or as an expert should have, known, the probable effect of a discharge under the conditions shown in this case, and we are constrained to hold, as matter of law, that he assumed whatever risk was incurred by the operation. “It is the settled and elementary law that it. is not necessary that the servant should be warned of every possible manner in which injury may occur to him, nor of risks that are as obvious to him as to the master. The master is not required to point out dangers which • are readily discernible by the servant for himself by the use of ordinary care, with such knowledge, experience and judgment as the servant actually possessed, or as the master is justified in believing him to possess.” C. & A. R. R. Co. v. Pettigrew, 82 Ill. App. 33. “An employe assumes the risk of known dangers, and such as are so obvious that knowledge of their existence is fairly to be presumed.” Pittsburg Bridge Company v. Walker, 170 Ill. 550. “It is the rule that an employe of sufficient age and experience is chargeable with knowledge of the ordinary conditions under which the business is conducted and its ordinary risks and hazards, and will be presumed to have assumed all such risks and hazards which to a person of his experience and understanding are, or ought to be, patent and obvious.” C. & E. I. R. R. Company v. Heerey, 203 Ill. 492. For the reasons indicated the peremptory instruction should have been given. The judgment will therefore be reversed with a finding of facts to be incorporated in the judgment of this court.

Reversed with finding of facts.

We find as facts that the appellant was not guilty of the negligence charged in the declaration, and that the risk and hazard from the explosion of the shot which caused appellee’s injury was incident to his employment and was by him assumed.


source: Caselaw Access Project

author: Mr. Justice Myers

license: Public Domain

text:
    William Dabney, Appellee, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    Passenger and carrier—when latter not liable to former for permitting him to leave train in intoxicated condition. The law does not impose the duty upon a common carrier to place a guard over an intoxicated passenger to prevent him from injuring himself or from placing himself in a place of danger.

      Action in case for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed, with finding of facts.
    Opinion filed March 18, 1908.
    Kramer, Kramer & Cambpell and Kagy & Vandervort, for appellant; Edward Barton, of counsel.
    Charles H. Holt, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

Appellee, by next friend, brought suit in the Circuit Court of Marion county against appellant to recover damages for injuries sustained by being run over by appellant’s train at a point between stations, Iuka and Gfreendale, located on appellant’s railroad. The declaration alleges that appellant is a common carrier of passengers, that appellee became a passenger on an east-bound train to be carried from Salem to Iuka, and paid his fare, that appellee was intoxicated by liquor and thereby incapacitated and incapable of caring for himself which was known to the conductor. It is further alleged that appellant failed in its duty to exercise reasonable care to see that appellee alighted in safety from the train at Iuka and negligently carried him past Iuka to Gfreendale, a flag-station, and then ejected him from the train while he was in a helpless condition, incapable of caring for himself, and negligently placed him on the ground beside the railroad track, and negligently suffered and permitted appellee, in his then helpless condition from intoxication, to wander, unattended, upon the track where he was afterwards run over by another train and sustained injuries resulting in the amputation of his leg.

Appellant filed the plea of general issue, the case was tried by jury, which returned a verdict in favor of appellee for $1,325 damages. A motion for a new trial was denied and judgment rendered on the verdict, from which an appeal was taken to this court.

Numerous errors have been assigned, but in view of conclusions reached, after a careful examination of the record, it will he unnecessary to consider other than that which challenges the ruling of the trial court in refusing to instruct the jury to find for the defendant. There is no evidence tending to prove the negligence charged or that appellee’s injury was the proximate consequence of appellant’s failure in any duty owing to appellee as a passenger. It appears that on June 8, 1906, appellee went from Iuka, where he resided, to Salem on appellant’s train, arriving at Salem between five and six o ’clock in the morning. He visited divers saloons in Salem during the day and drank freely of intoxicating liquors. He went to Centraba about four o’clock, drank more liquor, returned to Salem, drank again, and at about 8:30 in the evening when the eastbound train stopped, he boarded the rear platform of the rear coach, went in and took a seat back near the door. The usual place for receiving and discharging passengers was at the front end of the coach, and the conductor and brakeman were there assisting passengers in getting on and off and did not observe appellee when he got aboard at the rear end. When the conductor came through appellee paid his fare, fifteen cents, from Salem to Iuka. Before the train arrived at Iuka, the brakeman called out the next station as did the conductor from the front door of the coach. The conductor did not know that appellee remained on the train, until, in going through collecting fares, after they left Iuka. He found appellee asleep and challenged him by saying, “I thought you wanted to get off at Iuka?” Appellee said that he did, and when told that the train had passed that station, appellee without complaint or protest, paid his fare from Iuka to Green-dale. He was told by the conductor to go to the front of the coach when the train reached Greendale, as that would give him landing on the station platform. At Greendale appellee left the train and went upon the platform without assistance. From there, after the train left, he started to walk back to Iuka on the railway track, and was found next morning, about a mile west of the station lying beside the track with his leg crushed, which evidently had been done by the wheels of a passing train. An empty whiskey bottle was found by Ms side. It does not appear at what time or by what train he was injured. His recollection of what occurred, intervening- the time of his taking the train at Salem for Iuka and when found the next morning, is very imperfect. He testifies that he was drunk and this we may well believe if his statement as to the frequency, quality, and character of liquors consumed during the day, are to be credited. "We tMnk it a matter of common knowledge—suspicion at least—that few men, not immune from the effects of intoxicating liquors, could have carried his load with as little apparent difficulty. It was a deplorable accident, most distressing in consequence, but we search the record in vain for any evidence by which appellant can be held responsible for the injury sustained. The general proposition of law upon which this action is based is that the servants of the carrier, when aware of the intoxication of a passenger must give him that degree of attention wMch consideration for Ms safety demands, beyond that ordinarily bestowed upon other passengers. In other words, the servants of the carrier, knowing that a passenger is helplessly drunk and incapable of caring for Mmself may not put Mm off, compel or permit him to leave the train at a time and place, and under conditions, dangerous to one in his known helpless and irresponsible condition. But the carrier can only be held liable for consequences which could reasonably have been foreseen and expected from the acts of its servants in ejecting the passenger from the train, but it cannot be held to guardianship over Mm during the period of his intoxication, nor to liability for injuries due to his intoxicated condition and in no way connected with the act of the carrier. The duty of the carrier ends when it has safely landed Mm in a safe place for one in his known condition. A man may be very drunk without being entitled to special consideration on that account. His intoxication must be in that degree that renders him helpless, unconscious, irresponsible, and it must be known by the servants that he is in such condition, before the law imposes upon the carrier the duty to care for him in any manner different from the treatment accorded other passengers who are sober and sane. In this case, though appellee was drunk and though the servants may be held to have known that fact, there is nothing shown by the evidence, outside of the statement of the appellee himself, that he was in fact helpless, or unconscious or incapable of caring for himself when he left the train, and there is no evidence to charge the servants of appellant with notice of such helpless condition. He boarded and left the train of his own motion and without assistance. He knew and stated his destination, paid his fare, was carried beyond his station while asleep, a not unusual occurrence; again he paid his fare, and with other passengers left the train at Greendale, drunk and staggering it may be, though there is nothing in what he did or said from start to finish, in the presence of the train men, from which it may reasonably be held that they knew Mm to be in a helpless condition and entitled to special care, under the law invoked. There is not a particle of evidence that he was put off the train, and for this reason the authorities cited by appellee are not analogous in the facts, though, in principle, they support the general proposition of law contended for. "Whatever his condition, the appellant was under no duty to carry him beyond Greendale, even if he had objected, which he did not. It was a regular flag-station and platform where trains stopped for the accommodation of passengers. The fact that there was not a depot or agent there might work inconvenience to night passengers, and in bad weather the lack of shelter might cause suffering, which, to one wrongfully ejected, would be an element of damages. But these considerations have no bearing upon the contentions in this case. It was no part of the train men’s duty to leave the train to prevent appellee from his attempted walk back to Iuka, or to accompany him that no injury should result. What more could a personal attendant have done than was done by the witness Henninger, a passenger, who walked part of the way with appellee after they left the train, and at their parting, tried to dissuade him from going home until morning, offering hospitality for the night. Henninger was with appellee, talking with him for upwards of a quarter of an hour, and is positive that he was then in good understanding, that he knew perfectly what he was talking about, where he was, what had happened and what he wanted to do. In such condition of mind and comprehension an attending railroad employe, nor any one else, would have legal right forcibly to restrain his action. A common carrier is not liable for injuries received by a passenger, through his own negligence, even though such a passenger is unconscious and helpless by reason of such intoxication, unless such condition is known to the persons in charge of the train, and in the face of such knowledge such servants allow the passenger to place himself in a dangerous position from which injury results. “The law does not impose the duty on a common carrier to place a guard over such a passenger to prevent him from injuring himself, or placing himself in a place of danger.” St. Louis, Alton & T. H. R. R. Co. v. Carr, 47 App. 353. “A carrier of passengers is only liable for the direct and proximate results of the negligence complained of or for those results which can reasonably be anticipated to flow therefrom. ” I. C. R. R. Co. v. Kerr, 125 App. 363. The case of Hamilton v. Railway Company, 183 Pa. St. 638, is similar in the facts and is in point as to the law. That was an action brought against the carrier for permitting a drunken passenger to get off the train in a dangerous place, after which he wandered onto the track and was killed. The court says: “The negligence with which the defendant is charged was in putting him (the passenger) off the train at a place of danger. But this danger he entirely escaped and when he got to the station he was as safe as if he had got off there. No negligent action of the company was the proximate cause of his death.” From the evidence it must he held, and we so find as facts to be incorporated with the judgment, that the appellant was not guilty of the negligence charged, and that the injury complained of was not the proximate result of any negligence on the part of appellant.

Reversed, with finding of facts.


text:
    Robert C. Settles, Defendant in Error, v. Threlkeld & Milburn, Plaintiffs in Error.
    1. Vekdict—when not disturbed as against the weight of the evidence. A verdict will not be set aside on review as against the weight of the evidence unless it is clearly and manifestly so.
    2. Instructions—when lack of clearness will not reverse. Lack of clearness in instructions will not reverse even though the jury may have had some difficulty in arriving at their meaning, if, from a consideration of all of the instructions given, it does not appear that prejudice resulted.
    3. New trial—when newly discovered evidence not ground for. Newly discovered evidence is not ground for a new trial where it relates merely to the question of the amount of the damages or was cumulative of the evidence heard.
    Action commenced before justice of the peace. Error to the Circuit Court of Jefferson county; .the Hon. P. A. Pearce, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    William H. Green, for plaintiffs in error.
    Kirby Smith and R. M. Farthing, for defendant in error.
   Mr. Justice Myers

delivered the opinion of the court.

■This suit was brought in a justice court by the defendant in error against plaintiffs in error to recover damages for the alleged failure of plaintiffs in error to accept and pay for hay under a contract of purchase. Judgment was rendered in favor of the defendant in error and plaintiffs in error appealed to the Circuit Court, where a trial by jury resulted in a verdict and judgment in favor of the defendant in error for $100 and one-half the costs. The record is brought to this court for review on writ of error. The evidence introduced on the trial tends to prove that plaintiffs in error by their, agent, one Lon Gibson, bought of the defendant in error a certain lot of hay in ricks standing in the field. Gibson examined the hay and agreed to pay therefor upon delivery $9 per ton for certain of the ricks and $8 per ton for certain other ricks, hay to be baled and delivered to plaintiffs in error. Subsequently and before the hay was baled, plaintiffs in error notified the defendant in error that unless the hay graded one and two on inspection at the car when delivered, they would not receive and pay for it. On the day following the above notice, plaintiffs in error offered to pay $15 to be released from the contract and this being refused, they requested defendant in error to deliver to them only such part of his hay as would grade No. 1 on inspection. This likewise the defendant in error declined to do.

Argument of counsel for plaintiffs in error is first directed in contention that the evidence does not justify the verdict and judgment. It is conceded that the contract of purchase made by Gibson with the defendant in error was substantially as claimed, but it is said that Gibson, the agent, exceeded his instructions, made a mistake, and therefore the plaintiffs in error may not be bound. Gibson was a general agent, the purchasing agent for the plaintiffs in error, and as we conclude from the evidence, it was quite within the scope of his authority to agree upon a price, terms and conditions by which the hay could be purchased and efféct the purpose of his appointment. He was authorized to contract for Ms principal in the purchase of hay, and, impliedly, he was clothed with incidental and necessary authority to negotiate and agree upon the price, terms and conditions. He was in no sense a special agent with limited powers under the rule, that one dealing with a special agent must inquire the extent of his authority, and the cases cited by plaintiffs in error upon tMs point are without application. If, as plaintiffs in error contend, Gibson disregarded instructions to contract only for hay that would grade Nos. 1 and 2, subject to inspection, the rights of the defendant under the contract were not affected thereby for he had no notice. It may be said of Gibson that he was a general agent with special instructions rather than that he was a special agent with limited authority. “Power to act generally in a particular business, or a particular course of trade, in a business however limited, would constitute a general agency—if the agent is so held out to the world, however so restricted Ms private instructions may be.” Doan v. Duncan, 17 Ill. 272; Crain v. National Bank, 114 Ill. 516. Other questions of fact discussed in argument are concluded by the verdict. From a careful consideration of all the evidence we cannot say that it is not sufficient to warrant the verdict.

Complaint is made of instructions one, two and six, given on request of defendant in error. These instructions are subject to the criticism that they do not express clearly the propositions of law intended, and it is not improbable that the jury had some difficulty in fully understanding them. However, when considered in connection with all the other instructions given, wé are persuaded that they worked no prejudice to the plaintiffs in error.

The newly discovered evidence, as a ground for new trial shown by affidavit, was not calculated to defeat the action. It related to the question of damages, was cumulative of the evidence heard and, at most, could be effective only in reducing the sum allowed. Besides, it appears that the discovery was made during the trial. The plaintiffs in error should then have moved for continuance in order to raise the point for consideration by this court.

There is no merit in the objection to the form of judgment. The objection was not made in the trial court and may not now be considered by this court.

Finding the record free from error prejudicial to the rights of the plaintiffs in error, the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Sarah K. Buck et al., Appellees, v. Ellen Casper, Appellant.
    Appeals and errors—when affirmance will he pro forma. An affirmance follows as a matter of law where the transcript does not contain a certificate of evidence, does not show the preservation of exceptions, is unaccompanied hy an abstract of the pleadings and the evidence, and is not followed hy an argument presenting the errors relied upon for a reversal.
    Bill to redeem. Appeal from the Circuit Court of Union county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Taylor Dodd, for appellant.
    James Lingle, for appellees.
   Mr. Justice Myers

delivered the opinion of the court.

From a very imperfect statement of the case, as made by appellant, and the formal assignment of errors, we understand this to be an appeal from the ruling of the Circuit Court on a motion made by appellees to correct or modify a decree before that time rendered, in a case wherein the appellant was complainant and the appellees defendants. The abstract is wholly deficient in matters necessary to be shown by the record in a proper presentation to this court for review. We find no sufficient certificate of evidence, no exceptions preserved, no abstract of the pleadings or evidence. The appellant’s counsel presents no argument or in any manner points out the errors upon which he relies for a reversal of the judgment. Under such a presentation we cannot do otherwise than affirm the judgment of the Circuit Court which, until the contrary is shown in manner required by the law, is presumed to be correct. Douglass v. Miller, 102 App. 345; Traeger v. Mutual Building Assn., 189 Ill. 304; Staude v. Schumacher, 187 Ill. 187. Judgment affirmed.

Affirmed.


text:
    James S. Walker, Appellee, v. O’Gara Coal Company, Appellant.
    1. Garnishment—when jurisdiction to enter judgment does not appear. A judgment in garnishment by which a wage claim is reached is void for want of jurisdiction where it does not appear from the docket of the justice that the statutory demand upon the employer and employe for the excess above exemptions had been made.
    2. Exemptions—when demand for excess wages essential. A demand for the wages of an employe in excess of his exemptions is essential to the valid maintenance of a garnishment proceeding regardless of whether such wages are paid by the day or by the amount of labor performed.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    M. S. Whitley, for appellant.
    W. S. Summers and G. E. Dood, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

This is an appeal by the defendant from a judgment rendered by the Circuit Court of Saline county in favor of the plaintiff upon an appeal from a justice of the peace. Appellee brought suit to recover from appellant the sum of $16.90, claimed as wages earned, due for work as a miner in the employ of appellant. Proof was made of a demand in writing prior to commencement of suit, as required by section 13, chapter 13, Revised Statutes, and upon evidence heard on trial by jury in the Circuit Court a verdict was returned and judgment rendered in favor of appellee for $16.90, the sum demanded, and for $20 as an attorney fee. The contention of appellant and the only defense interposed was, that prior to the hearing in this case, it paid the sum due and now claimed by appellee, in satisfaction of a garnishee judgment rendered against appellant and in favor of one C. W. Turner, for the use of appellee, in a proceeding before a justice of the peace. In proof of the garnishee judgment and satisfaction thereof, appellant offered in evidence the justice’s docket which recites the summons, service and return, appearance and answer by appellant, that $16.90 was then due appellee, and a judgment for that sum against appellee and in favor of the plaintiff in garnishment. It also appears from the docket that the judgment was satisfied by appellant. There was no evidence by the docket or otherwise, showing jurisdiction of the justice in the garnishee proceedings. The statute (section 14, chapter 62) expressly provides' that before bringing a suit in garnishment a demand in writing shall first be made upon the wage earner and his employer for the excess above exemptions, and that a copy of such demand shall be left with each, twenty-four hours previous to bringing suit, and be filed with the justice before it shall be lawful to issue a summons in such case. And the statute reads that “any judgment rendered without said demand being served upon the wage earner, and so proven and filed as aforesaid shall be void.” It appearing from the record that the justice in garnishee proceedings acted contrary to the statute and without having acquired jurisdiction of the parties as the law provides, the judgment rendered was absolutely void and its payment by appellant is without effect as a defense to this action. The statute plainly so declares and so must we. The jurisdiction of a justice of the peace is statutory and presumptions extending it beyond the plain limits of the statute cannot be indulged. Vogel et al. v. The People, 37 App. 388. The jurisdiction of a justice of the peace cannot be presumed. It must appear affirmatively upon the face of the proceedings. Garrett v. Murphy, 102 App. 65; O’Brien v. Gooding et al., 194 Ill. 466. The evidence introduced by appellee was sufficient to authorize a recovery, and as the evidence of damages and the attorney’s fees was undisputed, and the appellant offered no evidence tending to establish a legal defense, the court very properly instructed the jury to return the verdict rendered.

It is argued by counsel, that inasmuch as appellee was paid by the ton for the coal mined instead of by the day or hour for the time he worked, he is not entitled to the rights accorded by the statute to wage-earners; that is, that he was not working for wages and therefore not within the protection of the statute invoked. There is no merit in this contention. Appellant cites no authority, and we are acquainted with none, that would justify a discrimination based upon the manner of payment, calling the miner’s earnings “wages” when paid by the day, but not to be so regarded when paid by the ton. It is not reasonable to suppose that the legislature had such intent when the law was enacted, for in the statute the miner is classed with the mechanic, artisan, laborer, servant and employe, who “shall have cause to bring suit for his or her wages, earned or due.” At the time, and since the statute was passed, it is matter of common knowledge that miners are usually paid by the ton and not by the day or week, for the coal taken out. Appellant’s abstract makes no mention of the judgment appealed from, and for that reason alone it would be proper and quite within the approved practice in such case, to affirm the judgment. Amundson Printing Co. v. Empire Paper Co., 83 App. 440, and cases there cited. Nevertheless as indicated by the foregoing opinion, we have carefully considered all the errors pointed out in argument, and find no cause for reversal. The judgment will therefore be affirmed.

Affirmed.


text:
    John Hopkins, Defendant in Error, v. O’Gara Coal Company, Plaintiff in Error.
    This case is controlled by the decision in Walker y. O’Gara Coal Co., ante, p. 279.
    Assumpsit. Error to the Circuit Court of Saline county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    M. S. Whitley, for plaintiff in error.
    John L. Thompson and James B. Lewis, for defendant in error.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action of assumpsit brought by the defendant in error against the plaintiff in error for wages earned in mining coal. The defendant denied liability for plaintiff’s attorney’s fees under the statute. A jury was waived, the court heard the evidence and rendered judgment for the plaintiff for $22.24 and allowed $15 as an attorney’s fee, to be taxed as costs. The defendant prosecutes by writ of error and asks a reversal of the judgment upon two grounds; (1) that the earnings for which the suit was brought was not wages within the meaning of the statute, and (2) that the evidence did not warrant the allowance of attorney’s fees to be taxed as costs. There is no merit in either contention. The Revised Statute, chapter 13, section 13, provides, “that whenever a miner * * * shall have cause to bring suit for his wages earned * * * and owing to the terms of his employment * * * and that a demand has been made in writing at least three days before the suit is brought, for a sum not exceeding the sum found to be due, it shall be the duty of the court to allow the plaintiff a reasonable attorney fee, not less than $10 in the Circuit Court, in addition to the amount found due for wages, the same to be taxed as costs.”

It appears from the additional abstract filed by the defendant in error and in the record, but not in plaintiff in error’s abstract, that written demand in due form was made before suit was. brought, and so far as pointed out, that the defendant in error fully conformed with all the requirements of the statute to entitle him to the allowance of an attorney’s fee. The sum demanded did not exceed the sum proved and allowed by the court on trial. The fact that he was employed as a miner and his compensation fixed at so much per ton for the coal taken out by him, instead of other wage rate of compensation, would not debar his right as a wage earner within the purview of the statute.

Incidentally, complaint is made of the form of the judgment, but as the informality is not pointed out in brief or argument we are not called upon to consider it. The judgment is for wages and should have so recited, but as it appears clearly from the evidence that it was right, this court under the record and presentation by counsel cannot do otherwise than affirm the judgment.

Affirmed.


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    Mathew Medley, Appellee, v. American Car & Foundry Company, Appellant.
    1. Master and servant—what does not constitute negligence. It is not actionable negligence for a master to adopt one of several methods of doing work, both of which methods are in general use, even though the adoption of the other method would have prevented the injury.
    2. Master and servant—what essential to recovery where injury results from obedience of order. In order for a servant to recover of his master for injuries sustained while obeying orders of the latter, it must appear that he was ordered to do work that was dangerous, that the master knew the danger to which the servant was exposed by the order, or, -by the exercise of reasonable care, should have known it, and that in the exercise of ordinary care such master might reasonably be held to have anticipated the consequences of giving the order.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R Burroughs, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed, with finding of facts.
    Opinion filed March 18, 1908.
    Wise & McNulty, for appellant.
    J. M. Bandy and Keefe and Sullivan, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action in case brought by appellee against appellant to recover damages for injuries alleged to be due to the negligence of appellant. The declaration consists of three counts, but at the close of the evidence the court instructed the jury to disregard the-first and second counts and submitted the case upon the issues .made upon the third count alone.

The jilea of the general issue was filed, the case was tried by a jury and a verdict rendered in favor of the plaintiff for $1,000, and from a judgment on the verdict the defendant appealed. Argument is mainly directed to the' contention of appellant, that the trial court erred in refusing to direct the jury to find the defendant not guilty.

• At the time of his- injury appellee was at work making car sills by riveting together iron plates brought to him from another department where they had been prepared with holes punched at certain intervals intended to correspond when the plates were brought together. In the operation it was appellee’s work to put bolts or rivets through the holes and by means of a pressing machine called a “squeezer” to clinch or head the rivet. Sometimes the holes in the two plates would not exactly correspond, and to bring them into line for the rivets it was necessary to use a punch or “drift-pin” and with a hammer to drive out the obstructing material. When this was impracticable, resort was had to the “reamer,” a machine or implement by which the holes could be enlarged sufficiently to receive the rivets. The plates to be joined were first fastened together temporarily with a few bolts put through holes that were.clear and then by means of a crane, chain, clamp, and a bolt through the plates near the middle, the plates were suspended and while in this position the riveting was done. The weight of the plates,- less than five hundred pounds, was sustained by a bolt five-eighths of an inch in diameter, which according to the evidence was capable of bearing as much as five tons. On the tenth of March, 1906, the day of the injury, while engaged in riveting plates, as above indicated, appellee found some of the holes in opposite plates so much out of line as to require more hammering than usual in driving the drift-pin to bring the holes together and testifies that he told Reese, the foreman, that the irons were not properly drilled and that he thought something might break from the hammering required. He further testifies that Reese told him there was no danger, to go ahead with his work and that he (Reese) would see that other plates sent up should be better prepared. Appellee continued at work, using the drift-pin and hammer, and while so engaged the bolt to which the clamp was attached broke and the plates fell to the ground, striking and injuring appellee's foot. The apparatus and the manner of operation was the same as in general use in other factories of like kind in doing like work. It is alleged by the declaration that to use the hammer and drift-pin in driving the holes larger, while the plates were suspended was an unsafe and dangerous operation, liable to cause the chain or bolt to break and allow the plates to fall; and, in substance, it is alleged that the defendant, by its foreman, negligently ordered appellee to so use the hammer and punch while the sills were suspended, by reason of which the sustaining bolt broke, the plates fell and caused the injury complained of. There is neither allegation nor proof that the appellant knew or by the exercise of reasonable care should have known that to do the work as ordered was dangerous or likely to injure appellee. In order to maintain his action it was necessary to prove the negligence alleged, that is, that to do the work in the manner directed was dangerous, and that appellant knew or by the exercise of reasonable care should have known that it was dangerous, for without such showing it cannot be held that it was negligence to give the order. The evidence is undisputed that an iron bolt of the kind and size in use at the time of the injury, was capable of sustaining several times the weight of the plates then suspended, and that no one had ever before known of a bolt so used breaking or giving away under like operations, or that there was any notice or suggestion of danger other than the opinion of appellee, which he testifies he expressed to the foreman. There is no complaint that the apparatus was imperfect or not suited for the purpose for which it was used, or that it was in any manner out of repair or that the bolt which broke was defective in size or material or otherwise unfit for use. The principle of law applicable in cases of defective machinery and unsafe places to work where an employe is required against his better judgment to go ahead notwithstanding apparent danger, may not be invoked under the facts in this case because the danger was not apparent either to employe or employer, and there is no evidence tending to show that either might reasonably have anticipated and, by the exercise of ordinary care, have provided against the happening which caused the injury. The mere fact that the bolt broke and injury resulted, is no evidence of negligence. Sack v. Dolese, 137 Ill. 129; Colfax Coal & Mining Co. v. Johnson, 52 App. 383.

Appellee insists that to enlarge the holes by using the reamer was less hazardous than by the method directed by the foreman. It may be said in reply, that there is no evidence that one method was less or more dangerous than the other. Until the occurence which resulted injuriously, both were considered safe. From the experience of appellee, the foreman, and others engaged in like work for many years, no danger was to be apprehended from the use of hammer and drift-pin, which it is claimed caused the bolt to break; hence, the failure of-appellant to adopt one method rather than the other, both being in general use, was not actionable negligence, though by so doing the accident would have been averted. Swinercz v. Illinois Steel Company, 231 Ill. 456, is in point. There, as here, the plaintiff’s cause of action founded on the alleged negligence of the defendant in giving an order to do a dangerous piece of work. The court says: “That the uncovering of the molds was attended with danger is shown by the fact that the plaintiff was injured in doing it, but if the defendant had no reason to anticipate that danger there was no negligence in giving the order to do it. The duty of the defendant was neither to see that the plaintiff was not injured in doing his work, nor to see that he was exposed to danger in doing his work, but was only to use reasonable care to see that he was not unnecessarily exposed to danger. If the master negligently gives an order, in obeying which the servant is exposed to danger which he would not otherwise have encountered, the master may beheld liable for an injury suffered by the servant; but an order given to a servant in the ordinary course of employment, even though the act to be done is dangerous, does not make the master liable for an injury which he could not be expected to anticipate. ’ ’ It was incumbent on the appellee to prove that he was ordered to do work that was dangerous, that the appellant knew the danger to which appellee was exposed by the order, or by the exercise of reasonable care should have known it, and in the exercise of ordinary care might reasonably be held to have anticipated the consequence of giving the order. As there is no evidence tending to prove the negligence alleged, the action must fail. The judgment will therefore be reversed without remanding.

Reversed, with finding of facts.

We find as a fact, to be incorporated with the judgment, that appellant was not guilty of the negligence charged and that appellee’s injury was not due to the negligence of the appellant.


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    Sarah Williams, Appellee, v. City of Granite City, Appellant.
    1. Contributory negligence—when not, as a matter of law, to drive upon street containing obstructions. It is not contributory negligence, as a matter of law, to drive upon a street in the night time knowing that obstructions existed in said street.
    2. Verdict—when not excessive. A verdict for $2,250 rendered in an action for personal injuries held not excessive.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    M. R. Sullivan and F. C. Sharp, for appellant; Warnock, Williamson and Burroughs, of counsel.
    J. M. Bandy and Keeps & Sullivan, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

This is an action in case brought by appellee against appellant to recover damages for injuries received in the overturning of a vehicle, while driving along one of the public streets of appellant. The declaration is in one count and alleges: that on the eighteenth day of February, 1907, defendant was in possession of a certain public street, called “Niedringhaus Avenue,” in Granite City, Illinois, and ought to have used reasonable care to have kept same in reasonably good and safe condition; alleges that on the eighteenth day of February defendant wrongfully permitted said street to be and remain in an unsafe condition for travel; alleges that on the south side of said street, between A and B streets, defendant permitted a large pile of brick to remain for several weeks; that defendant had notice of said pile of brick being on said public highway, or could have lmown it, by the exercise of ordinary care, in time to have removed the same before the injury; that the plaintiff, on the evening of the eighteenth of February, 1907, was driving with a horse and buggy on said street, and while exercising due care and caution for her own safety, she ran upon said pile of brick; that the buggy was overthrown and plaintiff was thrown out upon the brick pavement; alleges that plaintiff’s head, body and limb became injured, and that she became sick, lame and permanently injured, etc., claiming $5,000 damages. The defendant pleaded not guilty, and a trial by jury resulted in a verdict for plaintiff, with damages assessed at $2,250. Motion for new trial was overruled and judgment rendered on the verdict, from which the defendant appealed. At the close of the evidence offered by the plaintiff and again at the close of all the evidence the defendant moved for an instruction to find for the defendant. The court denied the motion and refused the instruction.

Appellant’s contentions will be considered in the order presented by argument. Under the evidence appearing of record it was for the jury to say whether or not tile plaintiff was in the exercise of due care for her own safety before and at the time of the injury. The fact that she had previously and frequently driven along the street in daylight, and had observed the pile of brick, and knew its location, would not necessarily, and as a matter of law, impute to her a lack of due care at the time of the accident or injury. That the pile of brick was a dangerous obstruction clearly appears. The plaintiff was driving along the street in the nighttime and unless there was sufficient light to see the obstruction (and' of this there was conflict of evidence to say the least), the plaintiff may not be held, as matter of law, to have been negligent in driving upon or against the obstruction. Streator v. Chrisman, 182 Ill. 215; Veach v. City of Champaign, 113 App. 151. The knowledge of an obstruction which will bar recovery in a case of this kind is knowledge at the time and place when the injury occurred. Evidence of prior knowledge and familiarity with dangerous conditions, is competent as tending to prove actual knowledge at the time which, in a cautious and prudent person in the exercise of ordinary care, would require them to avoid the' injury. There was testimony that the pile of brick was obscured in darkness, that there was no light in the street at that place and no guards or warning signal of any kind to indicate the obstruction. True there is other evidence in the case which, if believed by the jury, would have warranted a different verdict, but that only points the proposition that the question was one of fact for the jury. There is no doubt at all that it was the duty of the plaintiff to be careful of her own safety in driving along the street in question and to avoid known obstructions and conditions likely to cause injury. The decisions of our higher courts are all in harmony upon this proposition, and they are likewise harmonious in holding that the question of negligence is always a question of fact for the jury, unless from the evidence produced the court is able to say, that all reasonable minds would agree in a different conclusion. The evidence in this record would not warrant such determination. Complaint is made of the second and fourth of the plaintiff’s given instructions. It is insisted that they each call for a finding without submitting all the issues of fact necessary to justify a verdict; the contention being that the question of injury and the cause thereof are omitted. The instructions are not subject to the objection that is made because they embody all the facts that were in issue. There is no evidence in the record to contradict the plaintiff’s proof that she was thrown out of the overturned carriage and injured by reason of the wheel striking the pile of brick. These are not disputed facts and the instructions contained all the elements and questions upon which to call for an ultimate finding. The defendant was in no wise prejudiced by the instructions. City of Salem v. Webster, 192 Ill. 369. We would be better satisfied had the verdict been less, but we cannot say that the sum allowed is manifestly in excess of the injury sustained, or, considered in connection with all that appears of record, that it is not the result of a fair and impartial trial. The judgment of the Circuit Court is affirmed.

Affirmed.


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    Ira Moore, Appellee, v. Centralia Coal Company, Appellant.
    1. Instructions—what essential to propriety of giving peremptory. A peremptory instruction should not be given unless there is no evidence tending to establish the material allegations of the plaintiff's declaration.
    2. Mikes and Miners Act—what failure to keep clear “places of refuge." Held, that the evidence in this case tended to establish a wilful violation of the Mines and Miners Act in failing to keep “places of refuge” clear of obstructions.
    3. Mines and Miners Act—when instruction upon subject of negligence in action under, eironeous. In an action under the Mines and Miners Act, charging wilful violation, an instruction upon the subject of negligence purely, is erroneous.
    4. Mines and Miners Act—what not defense to action under. In an action under the Mines and Miners Act, the doctrines of fellow-servant, assumed risk, and contributory negligence, respectively, have no application, and do not constitute defenses thereto.
    Action in case for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed March 18, 1908.
    Frank F. Noreman and W. F. Bundy, for appellant.
    J. J. Bundy and Charles H. Holt, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

In this action Ira Moore, the appellee, brought suit against the Centralia Coal Company, the appellant, to recover damages for personal injuries received while at work in the coal mine of appellant. The case was tried upon the fifth and sixth counts of the declaration, in each of which it is alleged, as the cause of action, that defendant wilfully violated the statute known as the Mines and Miners Act, and thereby caused the plaintiff’s injury. The statutory provisions invoked by appellee are as follows:

“On all hauling roads or gangways on which the hauling is done by draft animals, or gangways where-.ever men have to pass to and from their work, places of refuge must be cut in the sidewalls at least two and a half feet deep, and not more than twenty yards apart; but such places shall not be required in entries from which rooms are driven at regular intervals not exceeding twenty yards, and whenever there is a clear space two and one-half feet between the car and the rib, such space shall be deemed sufficient for the safe passage of men. And all places of refuge must be kept clear of obstructions and no material should be stored nor be allowed to accumulate therein.” Rev. Stat. chapter 93, section 21, clause (b).

“No one shall be allowed to remain in any part of the mine through which gas is being carried into the ventilating current, nor to enter the mine to work therein, except under the direction of the mine manager, until all conditions shall have been made safe.” Section 18, clause (b).

“For any injury to person or property occasioned by any wilful violation of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby.” Section 33.

The appellant is charged with wilful failure to provide places of refuge and keep the same clear of obstructions according to the requirements of the statute, and also with wilfully and contrary to the statute permitting appellee to work in the mine while the same was in an unsafe condition.

The plea was the general issue. It appears in evidence that appellee was employed by appellant and at the time of his injury was driving a mule in hauling cars in and along what is known as the eleventh south entry of the mine. In this mine there is an entry leading west from the shaft, off of which, to the south, lead other entries, called south entries, and numbered in order from east to west. From the mouth of the shaft, through the west entry, and down the eleventh south entry to what is called the “old parting,” there was an electric motor line upon which cars were run from the “old parting” to the shaft. For sometime the appellant had been at work extending the motor line down the eleventh south entry, beyond the old parting, to what is called the new parting, a distance of 1,156 feet. From the end of the motor line at the old parting there was a track leading on south over which cars were hauled by mules from the working places of miners in the rooms to the end of the motor line. This new track when completed was to be used as an extension of the motor line. In reconstructitig the entry for the new motor line, it was necessary to excavate the bottom of the entry in order to lower the track and reduce the grade, which inclined south from the old parting to the top of the hill near the new parting. This excavation was greater near the top of the hill, being there about two feet deep. The track was laid within fourteen inches of the west rib, so that there was no space for passageway between the track and the west rib. The space between the track and rib on the east side of the entry was about three feet. At the point where the new parting was to be constructed miners were enlarging the entry by taking out the coal on the east side. Two cars had been loaded and to these had been coupled two empty trucks to be taken to the old parting. The mule was hitched to the front end of the loaded cars. The appellee was driving. Two other employes were riding on the empty trucks and appellee was riding on a seat which hung on the left side of the front loaded car. When they reached the top of the hill herein referred to as the spragging point, the cars were spragged by appellee and one of the men riding on the truck. After they started down the sprags came out, from what cause does not clearly appear, and the cars ran with increasing speed down the incline to the old parting where they left the track and came to a stop in a general mix-up. The appellee was badly injured. The jury returned a verdict in favor of appellee and assessed his damages at $4,000. A motion for new trial was made and overruled, and judgment rendered on the verdict, from which defendant appealed.

It is contended by appellant that the court erred in refusing to instruct the jury to find for the defendant. To justify the ruling of the trial court on the motion for a peremptory instruction we have only to examine the record to see whether or not there was evidence tending to prove that the space betwen the track and east rib of the eleventh south entry from the old parting to and beyond the spragging point was so filled and piled with dirt from the excavation, ties, rails and other debris and unused material, that places of refuge within the spirit and meaning of the statute were entirely wanting. With such accumulation and obstruction, of which there is evidence, there could not have been a ‘ ‘ clear space of two and a half feet between the car and the rib,” a condition under which the appellant was not bound to cut places of refuge in the wall of the entry. And whether the abandoned rooms opening on the east side were such as to exempt the appellant under the statute, and whether or not the openings to the rooms as places of refuge were kept clear of obstructions as required by law, were questions of fact concerning which there was a sharp conflict of testimony, and necessarily to be submitted to the jury. But it is insisted by appellant that there is no evidence to prove that the injury complained of was caused as alleged in the declaration, viz.: by appellant’s wilful violation of the statute. On the contrary it is urged that the injury was caused by mismanagement of the cars, the failure properly to sprag the wheels, the loss of control which must be taken as the immediate proximate cause in nowise connected with the failure to provide places of refuge. We are inclined to the opinion that “places of refuge” to be kept clear of obstructions, include, not only the “cut in the sidewall,” but where conditions are such that a cut is not required, that is, where “there is a clear space' of two and one-half feet,” such space must'be regarded as a place of refuge, and a failure to keep the same clear of obstructions would violate the statute. It is undisputed that the space between the rib and track was legally sufficient if clear of obstruction. It is then the question in this case, whether the court may say, as a matter of law, that appellee could not and would not have saved himself by stepping from the running cars before they reached the foot of the incline. Does it so clearly appear that all reasonable minds would agree, that the failure of appellant to keep clear the passage-way on the east side of the entry, had nothing to do with appellee’s injury, and was not in any degree the proximate cause of his injury. We do not so conclude and therefore hold that the peremptory instruction was properly refused. There is no evidence tending to prove liability under the allegation that the defendant wilfully neglected and failed to prevent the plaintiff from entering the mine within the requirements of section 18 of the statute.

The plaintiff requested and the court gave the following instruction:

“The court instructs the jury that if you believe from the preponderance of the evidence in this case that the defendant was guilty of the negligence charged in the plaintiff’s declaration, or either count thereof, and if you further believe from the evidence that the plaintiff, while in the employ of the defendant in the line of his duty, was injured by reason of such negligence of the defendant, in the manner and form as charged in the declaration, if you believe from the evidence that he was injured, then you should find the defendant guilty.”

This instruction is erroneous and was highly prejudicial. There was no issue of negligence under the pleading. Both counts upon which the case was tried charge a wilful violation of the statute. Under that averment it was necessary to prove that the defendant wilfully failed to comply with the statute and that the injury complained of was the direct result of such failure. Appellee’s contention that the charge of wilfulness and negligence are combined in the declaration will not avail against the objection to this instruction. If relying upon negligence to justify recovery, the instruction lacks the material element of due care on the part of the plaintiff, and for that reason would be fatally defective. If the declaration could be construed as a charge of wantonness and wilfulness, in common law form, whereby the plaintiff was injured, we would be constrained to hold that there is no evidence to warrant the instruction. There is a wide difference in the evidence required to sustain an action for wilful injury at common law, and that which is sufficient to prove liability for wilful violation of the statute. In" the one case an evil intent must be shown and it must appear that the injury was purposely inflicted, or,. what the law holds to be the equivalent of an evil intent, that the act of the defendant was in such reckless disregard of certain injurious consequences that wilfulness will be imputed. On the other hand when the action is founded upon the wilful violation of the statute, it is only necessary to prove that the defendant consciously or knowingly did or omitted what the law requires, and inasmuch as he is bound to know the law, he will not be heard to say that he could not foresee and did not intend injury. The policy of the law forbids that one may disregard the requirements of the statute and thereafter be excused from the consequence of violation, merely because such consequence was not intended. There is no question of negligence in either case. Wilfulness and negligence are the opposites of each other, the one signifying intention or purpose, the other its absence. Springfield Coal Mining Company v. Grogan, 53 App. 60. In the allegation of wilful negligence, the qualifying word has no legal significance. It was error to give this instruction. Consolidated Coal Co. v. Stein, 122 App. 310. We find no substantial error in refusing instructions asked by appellant. The doctrine of fellow-servants, assumed risk and contributory negligence has no application under the issues in this case.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


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    John Bradbury et al., Appellants, v. Vandalia Levee & Drainage District, Appellee.
    Immunity ebom suit—to whom applies. An involuntary public corporation created and organized as an instrument of the state to effect a specified purpose in a specified way, is not liable to respond in an action for damages.
    Action in case. Appeal from the Circuit Court of Fayette county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Brown & Burnside, for appellants.
    B. W. Henry and Albert & Matheny, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

Appellee is a drainage district organized (incorporated) under the Drainage Act of 1879, and amendments thereto (chapter 42 Rev. Stat.). Pursuant of its corporate purpose and act within statutory powers, in 1904, it constructed a levee along the east bank of the Kaskaskia river, in Fayette county, a distance of twelve miles, and from the river to the bluff at the upper end, the purpose and effect of which was to reclaim or protect from overflow the bottom land between the river and bluff on the east side. Appellants owned eighteen acres of high bottom land on the west side of the river, one-fourth of a mile above the upper end of the levee on the opposite side and not within the territory of the said drainage district.

The action is in case, brought by appellants against the appellee in its corporate capacity, to recover damages caused by overflow of the Kaskaskia river. It is alleged by the declaration that plaintiffs’ land was not subject to overflow prior to the construction of the levee and that the levee caused the flood waters of the river to rise higher than they otherwise would.on the west side of the river and above the levee, thereby submerging plaintiffs’ land and causing the damage complained of. The defendant filed a general and special demurrer to the declaration, which was sustained, and judgment was rendered by 'the court in favor of defendant and against the plaintiffs for costs, from which this appeal prosecuted. The special demurrer would not avail on the grounds stated, for we find no allegation in the declaration abstracted that “lands of divers other persons besides the plaintiffs, have been damaged,” nor is other averment pointed out which violates the rule against duplicity in pleading.

The controlling question in the case is made by the general demurrer by which it is admitted that the levee caused the overflow and damages alleged in the declaration. That the appellee drainage district is a corporation of the class known in law as involuntary ¿pm,sipublic corporations, against which no action for damages can be maintained, seems to be settled beyond controversy by our Supreme Court. The case of Elmore v. Drainage Commissioners, 135 Ill. 259, is directly in point and conclusive of the question made by the demurrer in this ease. In the Elmore case action was brought against the drainage commissioners as a corporation to recover for damages caused by an overflow of plaintiff’s land lying within the district. The commissioners, in regular and lawful manner, extended the boundary of the district and connected the drainage of the added territory with the drains already constructed, which being inadequate, the resulting overflow of water damaged the plaintiff’s land. A demurrer to the declaration was sustained on the ground that the drainage district was a gwosi-public corporation against which the action would not lie. The court says: “A drainage district is organized merely for a special and limited purpose. Its powers are restricted to such as the legislature has deemed essential for the accomplishment of such purpose, and it is only authorized to raise funds for the specific object for which it is formed, and can do that in no other mode than by special assessments upon the property benefited, which can in no case exceed the benefit of the lands assessed. No funds or means are furnished such district with which to pay damages occasioned to individuals by the tortious or unauthorized acts of the drainage commissioners, and there is no express statutory requirement that it shall be liable for such torts. The duty which was incumbent upon appellee to protect the lands of appellant through which its ditch passed from inundation, was a duty of imperfect obligation, and one for the breach of which no action for damages lies against the district. The act (1879) under which appellee is organized is a general law, and applicable alike to all parts of the state, and under its provisions drainage districts may everywhere be formed. Appellee is to be regarded a mere public involuntary quasi-aorporation, and the well established and uniform doctrine is, that there is no corporate liability to respond in damages to an individual injured by the negligent or wrongful act of its officers, agents, or servants. ’ ’ Appellee being an involuntary public corporation, created and organized as an instrument of the state to effect a specified purpose in a specified way, its acts are those of the state and as such may not be held to respond in an action for damages. It is contended by appellants that their land is “lying above” the appellee district within the meaning of section 2, chapter 42 of the statute, which provides “that the lands embraced in such drainage districts shall be liable for any and all damages which may be sustained by any lands lying above such drainage district,” etc. It is doubtful that the statute may be so construed or that such was the purpose and intent of the legislature, but inasmuch as the construction of the statute does not affect the question now to be decided, we refrain from expressing any opinion upon this contention. It may be stated as a general proposition, that the drainage law was enacted by the state in the exercise of its police power, that the drainage district is the governmental agency to enforce the law so enacted, and that the constitutional restriction in the right to take or damage private property has no application. “A levee district is a gwsi-public corporation, created by the state under its police power for the purpose of certain prescribed governmental functions in the district,'such as the protection of the overflowing or inundation of lands.” 25 Cyc. 194. Though not so required by the constitution, the legislature may provide for the payment of damages occasioned by exercise of police powers in such manner as measurably, at least, to distribute the burden and benefits equally among those directly affected. To this end, the drainage laws have been so framed that the expense of a drain or levee including compensation for property taken and damages to property not taken within a definite territory, shall be borne by those whose property, within the district, has been specially benefited by the improvement.

It is conceded that the appellee acted within statutory authority in constructing the levee, and it is admitted by the demurrer that the damages suffered by appellants were caused by what was done by appellee, yet under the law, the appellee corporation cannot be held liable in an action for damages in such case. The demurrer was rightfully sustained, and the judgment of the Circuit Court must therefore be affirmed.

Affirmed.


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    W. H. Beckley, Appellee, v. S. H. Morton, Appellant.
    1. Finding of court—when not disturbed as against the evidence. The finding of a court in an action tried without a jury is entitled to the same force and effect as is the verdict of a jury and will not he set aside on review unless clearly and manifestly against the weight of the competent evidence in the record.
    2. Factors and brokers—what essential to recovery of real estate commissions. In order to recover real estate commissions it must appear that the broker tendered a purchaser ready, willing and able to purchase the property in question upon the terms proposed by the owner.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Randolph county; the Hon. Chas. T. Moose, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    McMurdo & McMurdo, for appellant.
    A. Russell, for appellee.
   Mr. Justice Myers

delivered the opinion of the court.

By writing of date August 9,1905, appellee appointed and authorized appellant, as his agent, to sell certain described land owned by appellee. For securing a purchaser acceptable to appellee appellant was to have commission, five per cent, on the contract price. On February 17, 1906, appellant and G. H. Runyon entered into the following memorandum or agreement for sale of the land:

“Received of G. H. Runyon fifty dollars as earnest money and part purchase money on account of the purchase of the following described property, situated in the County of Bandolph, State of Illinois, to wit: The northeast quarter of the northeast quarter of section three (3), township four (4), south of Range five (5) West 3d P. M., Randolph County, Illinois, which property is this day sold to G. H. Runyon for the total sum of eight hundred ($800) dollars, payable as follows: Four hundred ($400.00) dollars cash, balance four hundred ($400) dollars on or before three years at 6 per cent, with interest on deferred payments at the rate of six per cent, per annum, payable annually, said deferred payments to be secured by first mortgage' on said premises. The title to said property to be perfect and to be conveyed by warranty deed free from liens and incumbrances, except taxes for the year 1906, payable in 1907 which the undersigned purchaser agrees to pay. If the title be found imperfect and cannot be perfected within a reasonable time, earnest money to be refunded. The sale under this contract to be closed within 15 days from date or earnest money forfeited.

Maby A.

W. H. Beckley (Seal)

S. H. Mobtou & Co. (Seal)

Agts.

Accepted on above terms and conditions.

Gr. H. Bukyok.

This receipt to be returned to office of S. H. Morton & Co. on closing sale. It is agreed that the following memorandum on this contract was to be part of this contract. It is agreed that the $50 earnest money is to be taken out of the contract.”

Appellant told appellee that he had sold the land to Bunyon and in a general way advised him of the terms of the sale. Appellee expressed himself as satisfied with what had been done if the sale was effective. Thereafter appellant directed and advised appellee in matters pertaining to the deal, such as clearing his title, forwarding an abstract, and the preparation and tender of deed in conformity with his part under the contract. The time limitation, fifteen days, within which the sale was to be closed, was not observed or insisted upon by either party. On request of appellant, and for his accommodation no less than for that of Bunyon, the appellee consented to the postponement beyond the date fixed. In June, 1906, appellant directed appellee to prepare his deed to the land and also a note and mortgage to be executed by Bunyon and wife, papers to be forwarded by appellant to a bank at West Point, Miss., where Bunyon was supposed to have gone. Appellant sent the papers to the bank at West Point and notified Bunyon to call there and close the deal by executing his note and mortgage and paying the balance due under the contract. It does not appear that Bunyon was ever heard from, and later the bank returned the papers to appellant, who returned them to appellee. At the time the contract was made Bunyon paid the earnest money to appellant. When the papers were returned to appellee he demanded settlement of the fifty dollars earnest money. Appellant made a statement of account wherein he charged $40 commissions against the $50 received, and mailed to appellee a statement and check for the balance, $10. Appellee then brought suit before a justice of the peace to recover $40, less a five per cent, commission on $50, the sum received as earnest money, and obtained a judgment for $37.50.- On appeal to the Circuit Court and a trial without a jury, a judgment in like sum was given against the appellant, from which an appeal was taken to this court.

No question of law is made by rulings of the trial court upon propositions held or refused, for none were submitted by either party, and it only remains for this court to determine whether or not the finding and judgment of the trial court was warranted by the evidence. In deciding that question the finding of the trial court, as is the verdict of a jury, is conclusive of the facts, unless there is such showing of record as will justify this court in saying that the judgment is manifestly against the weight and preponderance of the evidence. Appellant relies upon the general proposition that a broker is entitled to his commissions when he brings the purchaser and seller together under a binding written and enforceable contract, and for authority cites Wilson v. Mason, 158 Ill. 311. The reason for that rule being that the broker having furnished a purchaser which the seller accepts by entering into a contract with him, the duty of the broker is at an end, for it may then be held that he has fully performed what he agreed to do, and the seller, having accepted the purchaser, knowing all the facts, will not be heard thereafter to say that the purchaser was not ready, able and willing to perform his part. In such case the commissions have been earned and are due when the contract is entered into. The reason for the rule prevents its application in this case. The appellant never brought appellee and Bunyon together in a written, binding and enforceable contract. He never relieved himself of his agency. He .never turned over the contract, nor is it shown that appellee was advised of its terms and conditions except in a general way. Appellee never saw the contract and never spoke to Bunyon. He was informed by appellant that he sold the land to Bunyon, who paid fifty dollars earnest money, and this appellant retained. Thereafter, until Bunyon disappeared, appellant assumed the duty and agency of effecting the contract pursuant to the memorandum made with Bunyon. By his own conduct appellant interpreted the transaction as it was understood by appellee (who testifies thereto without objection), and that was, that the sale was not complete, a buyer furnished, or the commission earned until the deal was closed. The money received by appellant was in earnest of the bargain and should have been paid to appellee. Under the terms of the memorandum it rightly belonged to appellee on condition broken. It does not appear from this evidence that Bunyon was at any time ready, able and willing to purchase the land upon the terms specified in the memorandum, nor is the appellee estopped from any fact appearing in evidence from denying that appellant furnished such purchaser. The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Baker

text:
    George Willard v. Pennsylvania Company.
    Gen. No. 13,786.

      Contracts—when implied promise does not arise. Held, that a district attorney of a railroad company, employed on a salary, cannot recover compensation for the signing of appeal bonds as surety for such company in the absence of an express contract or promise.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 20, 1908.
    Pliny B. Smith, for plaintiff in error.
    Loesch, Scofield & Loesch, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is a writ of error by the plaintiff to reverse a judgment of the Municipal Court entered on a directed verdict for the defendant in an action of assumpsit.

Plaintiff was from 1880 to some time in 1906 the district solicitor of the defendant in Illinois, was paid a fixed salary for his services, payable monthly, and was at the same time engaged in general practice. During the time he was such solicitor he signed a large number of appeal bonds as surety for the defendant. No claim was made by plaintiff for compensation for signing said bonds as surety until November, 1906, and December 18, 1906, this suit was brought to recover such compensation. The defendant pleaded the general issue and the five-years Statute of Limitations and the right to recover, if there can be a recovery, is limited to bonds signed after December 18,1901.

November 7, 1901, the general counsel of the defendant wrote plaintiff that the arrangement in regard to the former general counsel of the company becoming surety on the bonds of defendant had been terminated by his death, and that: “We will, therefore, be obliged to secure the name of someone who will be willing to act as surety on our bonds, or make some arrangement with a surety company for the purpose. If you are obliged to make an arrangement with a guaranty company, negotiate for as low a compensation as possible as the risk, as you know, is small.” No arrangement with any person or company to become surety on appeal bonds of the defendant appears to have been made, and plaintiff continued to sign such bonds as surety. October 17,1905, in answer to a request of the general counsel of the defendant for a list of appeal bonds given by defendant, plaintiff sent a list of such bonds given in his district from January 1,1902, to date, and wrote as follows: “With one exception it appears that I am the sole surety. This has been because of the small risk incurred, and the time and labor required and formalities to be gone through with in order to get signatures of guarantee companies as surety.”

The plaintiff offered no evidence tending to show either a request from the defendant that he sign any of said bonds as surety, or a promise to pay him for signing the same, but gave evidence showing that defendant knew of his signing said bonds as its surety, and that the usual compensation charged by guaranty companies for "becoming surety on the bonds on which plaintiff became surety after December 18,1901, would amount to $221.75. The defendant offered no evidence. The services which the plaintiff was required to perform under his employment as district solicitor were prescribed by the by-laws of the defendant. He was required to represent the defendant in the suits and proceedings in which said appeal bond were given.

The contention of plaintiff in error is, that from the beneficial nature to the defendant of the services of the plaintiff in becoming surety for the defendant on said appeal bonds, and their acceptance by the defendant, an implied promise arose by the defendant to pay the plaintiff the reasonable value of such services. "Whether the law would imply such a promise in the absence of any contract of employment between the parties it is not necessary to decide. There was an express contract of employment. Under the contract it was the duty of the plaintiff to do what was necessary to perfect appeals, other than the mere signing of the appeal bond. He saw fit, during the course of his employment, covering more than a quarter of a century, to himself sign such bonds. In 1901 he was authorized by the defendant to secure some person or corporation to sign such bonds as surety. Instead of doing this, he continued to sign such bonds himself as surety, and did so in his own words, “because of the small risk involved and the time, labor and formalities necessary to be gone through with in order to get the signatures of guarantee companies.”

If he had expected to be paid for his services in signing such bonds, in addition to his salary as district solicitor, he would have applied for such additional compensation to his employer as would be natural and usual in human dealings.

In view of the employment of the plaintiff by the defendant, the fact that the services for which compensation is here sought to be recovered were of a nature so nearly similar to the regular duties of the plaintiff, and that no application was made by the plaintiff to the defendant for compensation for signing said bonds while he was in the employment of the defendant, we think that the plaintiff was not, in the absence of an express contract or promise, entitled to recover and that the trial court, therefore, did not err in directing a verdict for the defendant. Cany v. Halleck, Exr., 9 Calif. 198; Ross v. Hardin, 79 N. Y. 84.

The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Paul Probst et al. v. George Ehrat.
    Gen. No. 13,796.
    Accord and satisfaction—When established. An accord and satisfaction results where it appears that a bona fide dispute exists between the parties and a draft has been accepted which is tendered upon the condition that if accepted it shall be received in full.
    Freeman, J., dissenting.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 20, 1908.
    William Mannhardt, for plaintiffs in error.
    Mayer, Meyer & Austrian, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action of assumpsit in the Municipal Court the defendant had judgment, to reverse which the plaintiffs prosecute this writ of error.

The defendant was engaged in business in Chicago, and the plaintiffs were dealers in cheese at Langnau, Switzerland. June 14, 1906, the plaintiffs sold the defendant a bill of cheese amounting to 14,450.50 francs, apparently on sixty days’ time. July 16, 1906, the plaintiffs, by letter, offered thirty or forty tubs of winter cheese to defendant at a certain price, and in their letter stated: “In case you want forty, cable ‘accept 40.’ ” Defendant received this letter July 26, and immediately cabled plaintiffs “Accept 40. Await letter.”

As to the effect of this letter and cablegram a controversy arose between the parties, plaintiffs contending that the acceptance was conditional because of the words, “Await letter,” and that no contract for the sale of the cheese was effected, and defendant claiming that the acceptance was unconditional and that a contract of sale was thereby effected. August 9, plaintiffs wrote defendant that they did not consider themselves bound by defendant’s acceptance of their offer and had sold the cheese elsewhere. August 24, on receipt of said letter, defendant cabled plaintiffs, “Insist on the delivery of 40 winter,” sent them a draft for 10,000 francs to apply on the June invoice and wrote that he would send them the remainder of their said bill of 14,450.50 francs so soon as he received the forty tubs of cheese coming to him, and that if plaintiffs did not promptly send him said cheese he would buy forty tubs and deduct the difference in price. September 20, defendant wrote plaintiffs that he had bought forty tubs of cheese, and enclosed in his letter a computation of the difference in cost to him of the cheese between the price at which he claimed to have bought the same of plaintiffs, and the price paid therefor by him. This difference as stated in such computation amounted to 2,912.35 francs. The payment of 10,000 francs, with the discount of two per cent, left due from defendant 4,306 francs. The letter of September 20, concludes as' follows:

“At the same time we submit computation of difference amounting to frs. 2912.35 as well as sight draft “ 1393.65

“ 4306

whereby your bill of June 14th is balanced.

Respectfully,

(Signed) Geo. Ehrat & Co.

Enclosures: Computation of difference, special calculation, check for 1393.65. Vouchers for calculation of difference we will upon request place at the disposition of the Swiss Consulate here.”

October 2, plaintiffs wrote defendant as follows:

“Messrs. Geo. Ehrat & Co.,

Chicago.

In your favor of the 20th ultimo we received check on Zurich for francs 1393.65, which we. place to your credit.

Respectfully,

Probst & Co.

By Fluecldger.”

This check or draft was protested for lack of advice and defendant sent plaintiffs a second draft for amount of first draft and costs of protest, amounting in all to francs 1408.65, on receipt of which plaintiffs wrote defendant under date of November 9 as follows: “We are in possession of your favor of the 29th of October with the check on Zurich for 1408.65, for which we thankfully give you credit, as per advice. ’ ’

It is clear that the ease stands as it would if the first draft had been paid; it was so treated in the trial court and will be so treated here.

In Bingham v. Browning, 197 Ill. 122, it was said, p. 136: “Where there is a controversy and the balance due is fairly in dispute, the claim cannot be treated as liquidated. ‘In such cases,’ said Bockes, J., in Farmers Bank of Amsterdam v. Blair, 44 Barb. 652, ‘it is not admissible to go behind the settlement with a view to determine which of the parties was right.’ ”

From the correspondence between the parties in this case we cannot escape the conclusion that there was an actual bona fide dispute between the parties, and that the draft or check for 1393.65 francs sent by defendant to the plaintiffs September 20, 1906, was offered to the plaintiffs in full satisfaction of plaintiffs’ demand, in such manner, and accompanied by such declarations, as amounted to a condition that if the plaintiffs accepted the same, they did so in satisfaction of their demand.

The acceptance of the check so offered, in the opinion of the majority of the court, constituted satisfaction of the plaintiffs’ demand. Canton Coal Co. v. Parlin, etc., Co., 215 Ill. 244.

Whether the plaintiffs could have held the check and reserved the right to accept or reject the same until they had examined the vouchers the defendant offered to deposit with the Swiss Consul for their inspection, it is not necessary to decide. They did not claim or seek to exercise that right, but accepted the .check at once upon its receipt.

The judgment of the Municipal Court will be affirmed.

Affirmed.

Mr. Justice Freeman dissenting.


text:
    Franklin Benjamin v. Chicago, Indianapolis & Louisville Railway Company.
    Gen. No. 13,802.
    1. Appeals and errors—what not final judgment. A judgment for costs against the plaintiff is not final and appealable if unaccompanied by a finding on the issues for the defendant or an order that the suit be dismissed.
    2. Municipal Court—within what time writ of error must he sued out. To review a judgment of the Municipal Court a writ of error must be sued out within thirty days after the entry of such judgment.

      Action on the case. Error to the Municipal Court of Chicago; the Hon. Stephen A. Fosteb, Judge, presiding.
    Heard in the Branch Appellate Court, at the October term, 1907.
    Dismissed.
    Opinion filed March 20, 1908.
    M. L. Thackaberry, for plaintiff in error.
    L. L. Smith, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the conrt.

March 16, 1907, in an action of the fourth class in the Municipal Court, the plaintiff had judgment for $100 and costs. March 26, 1907, the following’ order was entered in the cause:

“This day again come the parties, and thereupon defendant moved the court to vacate and set aside the judgment heretofore rendered herein on the 16th day of March, A. D. 1907, and the conrt being fully advised in the premises doth sustain said motion, and it is ordered, that the judgment heretofore rendered herein be and the same is hereby vacated and wholly set aside.

It is therefore considered by the court that the defendant have and recover of the plaintiff its costs and charges by it herein expended, taxed, at-dollars, and that it have execution therefor.”

June 24,1907, the plaintiff filed the transcript of the record in this court and sued out a writ of error to the Municipal Court.

The writ of error must he dismissed for two reasons: First, Because the judgment is not a final judgment, and second, because the writ of error was not sued out until more than thirty days after the entry of the judgment.

For the judgment we must look alone to the judgment order or entry of judgment in the record proper, and such order cannot be aided or supplemented by any statement in a bill of exceptions or statement signed by the trial judge, which under the Municipal Court Act takes the place of a bill of exceptions. The judgment order in this case shows that the court, without a finding of the issues for the defendant, or order that the suit be dismissed, entered a judgment for costs against the plaintiff. Such a judgment is not final. People ex rel. v. Severson, 113 Ill. App. 496; Chicago Portrait Co. v. Chicago Crayon Co., 217 Ill. 200.

Section twenty-three of the Municipal Court Act provides that final judgments of that court, in actions • of the fourth class, shall be reviewed by this court by writ of error only, and “that the time within which a writ of error may be sued out shall be limited to thirty days after the entry of the final order or judgment complained of.”

“A writ of error is a writ of right by the common law and lies in all cases, civil and criminal, except capital but can of course be regulated by statute.” Unknown Heirs of Langworthy v. Baker, 23 Ill. 430; Peak v. The People, 76 id. 289.

The judgment complained of in this case was entered March 26, and the writ of error was sued out June 24, and for that reason we are without jurisdiction to hear or determine the errors assigned. Schindler v. Edwards et al., 134 Ill. App. 637.

The writ of error will be dismissed at the costs of the plaintiff in error.

Writ of error dismissed.