text:
    F. G. Chapin et al., Appellants, v. Thomas Dougherty, Appellee.

      Easements—when equitable, exist. Where the proprietors of lots establish a plan or scheme to create a desirable residence district and to that end adopt certain building restrictions, such restrictions will be enforced as against a purchaser with notice in favor of a purchaser who was induced to acquire his property by reason of such restrictions.
    Bill for injunction. Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded with directions.
    Opinion filed November 11, 1911.
    Johnson & Johnson and W. L. Coley, for appellants.
    R. V. Gustin, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellants, F. G. Chapin, A. J. Barnham and L. B. Ganóte, filed their bill for an injunction to restrain appellee from the erection of a building on Harding avenue commonly called North Fortieth street, in the city of East St. Louis. A demurrer was interposed and sustained; and a decree entered dismissing the bill at the cost of the appellants. Appellants have appealed from that decree.

In substance the bill charged that appellants were severally the owners, and had been for five years, of lots in block eighteen, in East Landsdown subdivision in the city of East St. Louis, and that appellee was the owner of lot twelve in block twenty in said subdivision, all of said lots fronting on said North Fortieth street; that appellants purchased their lots for the purpose of establishing permanent homes and that they had resided thereon with their families for five years; that they respectively purchased said lots subject to the following conditions, to-wit: That only one house should be built on one lot; that no house should be less than two stories high nor cost less than two thousand dollars; that no building should be built less than thirty feet from the street line of the street on which the lots fronted, to-wit, the street known as Harding avenue, commonly called North Fortieth street and that the property should not be used for other than dwelling purposes; that said conditions were a part of a general plan or scheme adopted by the proprietors of said subdivision for the benefit of all purchasers of lots therein and especially upon said street, and said scheme was held out to all purchasers of lots therein as an inducement to purchase; that the deeds to appellants contained said conditions and restrictions and were recorded in the recorder’s office of St. Clair county, five years before the filing of the bill herein.

It was further alleged that at the time appellants purchased, it was a matter of common knowledge throughout said subdivision and a general and tacit understanding publicly known to all owning or contemplating the purchase- of property there, especially on North Fortieth street, that all lots would be restricted as above stated as part of the general plan or scheme above- mentioned and that the subdivision would be an exclusive residence - district free from the annoyances of public business houses of every kind; that they purchased and were induced to purchase with such understanding and paid higher prices for the property for that reason than they would have paid otherwise. All of which facts were well known to appellee before he purchased the property in said subdivision. The bill further averred that appellee notwithstanding such restrictions and conditions and his full knowledge thereof, had commenced to excavate on his said lot for the purpose of erecting a double flat and business house full up to the street line on North Fortieth street in violation of such general plan or scheme and such conditions and restrictions; that said proposed building was injurious to them; that it cut off their view; destroyed the symmetry of the general plan which it was represented to them and to the general public by the then owners would be maintained; that it would reduce the value of their properties to the extent of one thousand dollars each and would convert said street from its original plan of a private restricted residence street into a public or business street. It was further averred that as soon as it became known to them that appellee intended to erect said building, they objected and protested and that appellee ignored said protests. The bill concluded with an averment that irreparable injury would result from the erection by appellee of such proposed building.

It is claimed by appellants that the allegations of the bill are sufficient to authorize a court of equity to restrain the threatened alleged injury and that the court erred in sustaining the demurrer to the bill and dismissing it.

If the averments of the bill are sufficient to entitle appellants to relief in a court of equity it must be upon the ground that appellants’ rights are in the nature of an easement or servitude upon the lot of appellee as well as all other lots along North Fortieth street which are alleged in the bill to be within the scheme or plan adopted by the proprietors of the lots. While the restrictions alleged were incorporated in the deeds to appellants, no restrictions were contained in the deed to appellee nor in the plat of the premises. By the averments of the bill there was a general plan or scheme adopted'by the proprietors whereby the property was to be devoted exclusively to residence purposes. The plan embodied the kind of residences which were to be erected, their minimum cost and the distance they were to occupy from the street line, and the plan was known to appellee when he purchased, and was an inducement to appellants to purchase and pay a higher price than they would have paid otherwise. 'The question is whether appellee under such averments is bound to observe such general plan in the erection of his building.

There is a class of easements called equitable, because they are chiefly cognizable in courts of equity. “A covenant though in gross at law may nevertheless be binding in equity even to the extent of fastening a servitude or easement on real property or of securing to the owner of one parcel of land a privilege or as it is sometimes called a 6right to an amenity’ in the use of an adjoining parcel by which his own estate may be enhanced in value or rendered more agreeable as a place of residence.—A purchaser of land with notice of a right or interest in it existing only by agreement with his vendor is bound to do that which his grantor had agreed to perform because it would be unconscientious and inequitable for Mm to violate or disregard the valid agreements of the vendor in regard to the estate of which he had notice when he became the purchaser.— There may be neither privity of estate nor privity of contract between Mmself and those who attempt to appropriate property in contravention of the use or mode of enjoyment impressed upon it by the agreement of their grantor and with notice of wMch they took the estate from him.” Parker v. Nightingale, 6 Allen (Mass.) 341.

Citing the case of Tulk v. Moxhay, decided by the English Courts of Chancery, Washburn in his work on Easements and Servitudes says, in quoting from that case, “that the question does not depend upon whether the covenant runs with the land is evident from this, that if there was a mere agreement and no covenant this court would enforce it against a party purchasing with notice of it for if an equity is attached to the property by the owner no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased. ’ ’

Many cases illustrating the nature of the equity under consideration have been decided. In Sharp v. Ropes, 110 Mass. 381, it was held that where a tract of land was subdivided into lots and they were conveyed to separate purchasers subject to conditions that were of a nature to operate as inducements to the purchaser and to give" to each purchaser the benefit of a general plan of building or occupation so that each should have attached to Ms own lot a right in the nature of an easement or incorporeal hereditament in the lots of the other, a right was thereby acquired by'each grantee which he might enforce in equity against any other grantees. To the same effect is Frye v. Partridge, 82 Ill. 267, and Willoughby v. Lawrence, 116 id. 11. See also Hays v. St. Paul M. E. Church, 196 id. 635.

By the averments of appellants’ bill there was a plan or scheme by the proprietors of the lots described, to create a desirable residence district, to accomplish which certain restrictions were, and were to be, imposed respecting the character, cost and location of the buildings of which all persons purchasing lots including appellee had notice. It is immaterial there were no restrictions in appellee’s deed if he had the notice averred. It is alleged the plan or scheme was the inducement to appellants to purchase for residence purposes at a higher price than they would have otherwise paid, and that each of them has observed the restrictions in their deeds. By the facts alleged the proprietors of the lots when they so sold to appellants and made a severance of them impressed the servient estate of which they remained the owners with a servitude for the benefit of the appellants who became the owners of the dominant heritage, and the lot purchased by appellee with notice of such alleged facts came to him impressed with the same easement or servitude that was upon it in the ownership of his grantors.

We are of opinion the bill on its face was sufficient and the court erred in sustaining the demurrer.

The cause will be reversed and remanded with directions to overrule the demurrer to the bill.

Reversed, and remanded with directions.


source: Caselaw Access Project

author: Mr. Presiding Justice Shirley

license: Public Domain

text:
    Village of Germantown, Defendant in Error, v. Theodore Apke, Plaintiff in Error.
    Criminal law—when insufficiency of complaint not material. It is the duty of the court to which an appeal is taken from the judgment of a justice of the peace to hear and determine the ordinance violation charged according to the justice of the qase without regard to the proceedings before the justice or the manner of the arrest, etc. It is sufficient if the justice had jurisdiction of the subject-matter.

      Action commenced before justice of the peace. Error to the County Court of Clinton county; the Hon. James Allen, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    D. D. Haynie, for plaintiff in error.
    William Johnston and Hugh Vincent Murray, for defendant in error.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Plaintiff in error was arraigned and tried before a justice of the peace for an alleged violation of an ordinance of the village of Germantown. He was found guilty and a fine was imposed. He prosecuted an appeal to the County Court and upon a trial de novo he was found guilty by a jury and his fine fixed at twenty-five dollars upon which judgment was rendered.

The ordinance introduced in evidence was as follows :

Section 2. “Whoever shall in this village disturb the peace of this village by violent, tumultuous, offensive conduct or carriage or by loud or unusual noise, by profane, obscene or offensive language calculated to provoke a breach of the peace, shall be deemed guilty of a misdemeanor.”

The evidence in the case on the part of defendant in error showed that plaintiff in error somewhat under the influence of liquor, went into a saloon in the village where he used language calculated to provoke .a breach of the peace by calling a person there a “damn liar” without provocation, and starting towards him with a knife in his hand. When the proprietor admonished him to keep quiet he was abusive toward Mm. It being ten o’clock at night the proprietor invited the several persons in the place, including the plaintiff in error, to get out. After going-outside, plaintiff in error began to quarrel with another person inviting him to fight. He then started away and in a lond voice asked anybody who had anything against him to “come out and fight.” The village marshal hearing the disturbance came up and arrested plaintiff in error without a complaint or warrant and confined him in the village prison or calaboose until next day.

There was ample evidence to support the verdict that plaintiff in error disturbed the peace both in the saloon and on the street by offensive language and conduct calculated to provoke a breach of the peace, and was guilty of a violation of the ordinance.

Objection was made to the admissibility of the ordinance in evidence on the ground the complaint filed against plaintiff in error before the justice after his arrest, did not describe any offense contained in the ordinance.

The complaint does not charge any violation of the ordinance, but this was immaterial in this case. It was the duty of the court to hear and determine the matter according to the justice of the case without regard to the proceedings before the justice, or the manner of the arrest or who arrested plaintiff in error.

Sec. 185, Chap. 79, Hurd's Statutes, 1906, provides:

“In the Appellate Court no exception shall be taken to the form or service of the summons issued by the justice of the peace nor to any proceedings before him; but the court shall hear and determine the same in a summary way according to the justice of the case without pleading in writing.”
“If the justice has jurisdiction of the subject-matter this is the only requisite.” City of Alton v. Kirsch et al., 68 Ill. 261.

Perceiving no error, the judgment will be affirmed.

Affirmed.


text:
    The Purington Paving Brick Company, Appellant, v. W. H. Jenkins et al., Appellees.

      Comtracts—What does not create implied promise to pay in excess of contract price. If deliveries of brick are made pursuant to a written contract, no implied promise is created requiring the payment of a price in excess of that fixed in the contract by the vendor giving notice that the price of future deliveries of brick would be advanced.
    Appeal from the Circuit Court- of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed November 11, 1911.
    Terry & Gueltig, for appellant.
    Kramer, Kramer & Campbell, for appellees.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellant sued to recover a balance of $1,050 claimed to be due under a contract to furnish appellees with paving brick. A jury was waived and the court found the issues and rendered a judgment for appellees.

Appellees in the summer of 1908 were awarded a contract to construct some paving by the city of Murphysboro. To complete the work it was estimated that it would require eight hundred and sixty-four thousand paving bricks. Appellant was engaged in the business of manufacturing bricks at Falesburg and by writing dated July 21 of that year the parties entered into the following agreement:

“Agreement entered into July 21, 1908, between the Purington Paving Brick Company of the first part and Jenkins and Hill of Murphysboro, Illinois, party of the second part: Witnesseth: That the Purington ■ Paving Brick Co. party of the first part agrees to furnish to Jenkins & Hill party of the second part 846,000 No. 1 repressed block brick suitable for paving purposes. And the party of the second part agrees to pay to the party of the first part for all brick shipped under this contract at the rate of $20.46 per thousand, F. O. B. car tracks at Murphysboro, Illinois. _ (Here follows provisions that are immaterial in this controversy.) The party of the first part agrees to begin shipping of‘brick to the party of the second part when ordered, and continue the shipment as fast as possible until the entire shipment has been made unless prevented by labor troubles, fire, lack of cars, or other unavoidable cause.
“It is also agreed that the party of the first part guarantee that 43 will lay a square yard of pavement, and in no case is the total yardage to be used as a basis of settlement as the brick are sold at the above price per thousand.”

The above agreement was prepared by appellant, signed by it and forwarded in duplicate to appellees for signature with a request to sign and return. Appellees signed and returned the agreement on September 6, and on September 8 appellant acknowledged the receipt of it. On that day appellant in response to a telegram to rush forward one hundred and fifty thousand bricks notified appellees it would be impossible to ship blocks before October 1.

On October 6 after appellees had during the month of September been urging the shipment of bricks, appellant wrote asking appellees if they could use any other blocks at Murphysboro provided it could purchase them saying “the only way to help you out is by buying from some of our competitors” and if there was any chance to use some other make to wire it as it knew where it could buy about three hundred thousand. On October 7 appellees replied if appellant would guarantee the blocks equal to Purington to rush the shipment, and also sent a letter of the same purport. October 12, appellant advised appellees it had ordered the brick and offered in evidence a letter dated October 16, in which appellant wrote appellees that the contract provided for No. 1 blocks at $20.46 per thousand, guaranteeing forty-three to a square yard; that the blocks being shipped from Clinton, Indiana, took only thirty-nine to the square yard and the price would be $22.56 per thousand. The letter was objected to and excluded. A letter from appellant dated October 22, stating it had shipped ninety-six thousand blocks at $22.56 was offered and also excluded on objection.

A number of other letters of appellant were offered containing statements of brick furnished from Clinton at $22.56 per thousand which were also excluded on the theory of the trial court that the excluded correspondence was immaterial unless it were shown appellees consented to the terms of the letter of October 16, in which it was stated the price of the Clinton brick would be $22.56 per thousand instead of $20.46 as fixed by the contract.

Appellees have paid for all brick received at the price fixed in the written contract, $20.46 per thousand, but refused to pay at the rate of $22.56 for the Clinton brick which sum amounted to $1,050 above mentioned.

Appellant contends that there was a modification of the written contract arising from a request on the part of appellees to furnish the Clinton brick instead of the Purington brick and that the Purington brick not being available this furnished a sufficient consideration to support such modified contract. The proposition to supply Clinton brick did not come from appellees. They were demanding brick under the written agreement in which appellant agreed to begin shipping brick when ordered and to continue shipments as fast as possible until the entire shipment was made. No objection was made by appellees to Purington brick. The active obligation rested upon appellant to perform its agreement by sending brick when ordered. It could not perform by shipping Purington brick and it proposed by its letter of October 6 to buy three hundred thousand from its competitors if they could be used under the specifications. Appellees had urgently demanded brick and they answered to rush shipment if appellant could guarantee the blocks equal to Purington. The shipments by appellant of the Clinton brick began October 12.

A request either expressed or implied by appellees to modify the contract by changing from Purington to Clinton bricks does not arise out of this state of facts. The shipment of the Clinton bricks was a shipment of bricks by appellant under and in performance of its written agreement modified only to the extent of substituting Clinton bricks for Purington bricks provided they were equal in quality, and was not a substitution of the manufacturers of the Clinton bricks for the appellant company. It is claimed that accepting the brick after notice that the price would be $2.10 more per thousand than appellees were to pay for the Purington brick, raises an implied promise to pay such additional sum. The law would imply such promise in the absence of the written agreement but with it no such promise can be implied for the reason the bricks were furnished in performance of the agreement which appellant was bound to perform and there was no consideration to support such supposed implied promise. We are of opinion it was immaterial that appellees were notified by the letter of October 16 and frequently thereafter of the price of Clinton bricks.

This did not change the obligation of appellant to furnish bricks at the price fixed in the written agreement. The fact that the Clinton bricks would lay thirty-nine to the yard instead of forty-three was immaterial. By the written agreement it was guaranteed that forty-three bricks would lay a square yard. If it required more appellant would have been liable for the excess but it cannot claim anything under the agreement if a less number than forty-three laid a yard. This would have been so if it had furnished its own make of-bricks and it is equally so where if furnishes another make under the agreement.

The refusal of the court to hold the propositions of law asked was in harmony with the views expressed in this opinion and the ruling was proper.

We find no error in the exclusion of evidence nor in finding the issues for the appellees. The judgment will be affirmed. ■

Affirmed.


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    Mary A. Lowther, Appellant, v. Eclipse Oil & Gas Company et al., Appellees.
    1. Appeals and errors—when finding of court not subject to review. Where a case is tried before the court without a jury and no exception is taken to the finding and judgment, error cannot he assigned thereon in the Appellate Court; such exception must appear in the bill of exceptions.
    2. Appeals and errors—when question of law not preserved. If it is desired to preserve in the record the rulings of the court as to the law applicable to the case where the trial is by the court without a jury, the trial court should be required by propositions submitted to give its holdings as to the law.
    3. Appeals and errors—when evidence presumed to support finding. If the bill of exceptions does not purport to contain all the evidence it will be presumed that the court heard other evidence and that such other evidence so presumed to have been heard was sufficient to support the finding and judgment.
    4. Appeals and errors—when ruling upon motion to withdraw pleas not subject to review. In order to review the ruling of the court upon a motion to withdraw pleas, such motion, the ruling thereof and the exception to such ruling must be preserved by the bill of exceptions.
    Replevin. Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.

      John E. Turner and William P. Wilson, for appellant.
    James H. Martin, for appellees; M. D. Mugan, of counsel.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellant brought an action of replevin for the recovery of a lot of machinery which she alleged was wrongfully taken and wrongfully detained by appellees. Pleas were filed of not guilty; also alleging property in all the defendants, also in each of them, and upon issues being joined, a jury was waived and the cause tried by the court. The court found appellant was not entitled to the possession of the property and awarded a writ of retorno and adjudged the costs against appellant.

The alleged errors relied upon in this court are that the court erred in entering a judgment against the appellant on the ground the judgment was contrary to the law and the evidence and that the court should have sustained the motion of appellee, Eclipse Oil and Q-as Company, to withdraw its pleas and in not entering judgment against it under a stipulation entered into between said company and appellant wherein it was stipulated appellant should have a judgment against it for possession of the goods.

No exceptions are preserved in the bill of exceptions to the court’s finding and judgment. Where a cause is tried by the court without a jury and no exception is taken to the finding and judgment, error cannot be assigned thereon in this court. Such exception must appear in the bill of exceptions. David M. Force Mfg. Co. v. Horton et al., 74 Ill. 310; Bailey v. Smith, 168 id. 84; Dickinson v. Gray, 72 Ill. App. 55.

No propositions of law were submitted to the court. If it is desired to preserve in the record the rulings of the court as to the law applicable to the case where the trial is by the court without a jury, the trial court should be required by propositions submitted to give its holdings as to the law, otherwise the court of review cannot know there was error as to the law. Farwell v. Shove, 105 Ill. 61; Bank v. Haskell, 124 id. 587. Appellant iñ her brief makes no complaint of the rulings of the court on the admissibility of evidence and questions of law arising thereon are waived and not before us. The bill of exceptions does not show that it contains all the evidence. In such case it will be presumed the court heard other evidence and that it was sufficient to sustain the judgment. James v. Dexter, 113 Ill. 654.

The motion and stipulation and the court’s rulings thereon on the motion of the Eclipse Oil and G-as Company to withdraw its pleas are not preserved in the bill of exceptions and cannot be considered. Such motions will not be so considered unless so preserved. Gaddy v. McCleave, 59 Ill. 182.

In this condition of the record and bill of exceptions no errors of law or fact are presented to this court for review and the judgment will be affirmed.

Affirmed.


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    Garret Halloran, Appellee, v. L. A. Hall, Appellant.
    Landlord and tenant—when assignment does not relieve lessee from obligation to gay rent. Although a landlord may consent to the assignment of a lease by his lessee and may have accepted the assignee and received rent from him, still the lessee is not released from his covenant to pay rent unless the landlord has accepted the surrender of the lessee and released him.
    Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.

      Dan McGlynn and H. E. Schaumleffel, for appellant.
    Alex. Flannigen and B. H. Canby, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This case was commenced before a justice to recover from appellant the rent of one month claimed to be due by the terms of a lease of certain premises. In the City Court where the cause came by appeal, there was a verdict and judgment in favor of appellee for the sum of $150.

It appeared from the evidence that on July 5, 1905, appellee demised to appellant by written lease a lot and the building thereon in the city of East St. Louis for the term of seven years, reserving as rent $125 per month for the first two years and $150 per month for the remainder of the term. The judgment in this case was for the rent from July 5 to August 5, 1908. There was no dispute that the rent for that month had not been paid, the controversy arising over the claim of appellant that the appellee had accepted one Norris as his tenant and released appellant from his tenancy and obligation to pay the rent.

It further appeared from the evidence that appellant occupied the premises as a saloon about two and a' half years after the execution of the lease when he sold the saloon to Norris who was his brother-in-law and his barkeeper, and that thereafter Norris paid the rent to appellee’s agent either by cash or by his own check. He occupied the premises five months when he ceased to occupy them. Appellant testified that after he sold the saloon to Norris he did not remain there and that before the sale appellee’s agent, John Halloran, was in the saloon and that he said to Halloran he was going to sell the place to Norris if Halloran had no objection and that Halloran replied “No, Joe is a good fellow, it is all right;”, that after this conversation he paid no more rent having just after-wards sold to Norris; that he again met Halloran in the saloon after the sale and said “How are you and Joe getting along” and he replied “All right. Joe is a good fellow, getting along all right.”

Norris testified that the agent Halloran when told by appellant that he, appellant, was going to sell to him, Norris, and asked Halloran if it would be all right, said “Yes as long as I get my rent, I am satisfied.” This witness further testified he had a saloon license posted over the bar; that the agent was in the saloon every week, sometimes oftener and that he ran bills there which he would usually pay every week.

John Halloran, the agent, testified he knew nobody as a tenant but appellant and denied the conversations related by appellant and Norris.

It is the law that although the landlord may consent to the assignment of the lease by the lessee, and may have accepted the assignee as his tenant and received rent from him, still the lessee is not released from his covenant to pay rent unless the landlord has accepted the surrender of the lease and released him. Grommes v. St. Paul Trust Co., 147 Ill. 634. Unless there was a substitution of Norris for appellant as a tenant and a clear intent to make a new contract with Norris and to discharge appellant from further liability under the lease, and unless there was an intent to accept a surrender of the lease from appellant, appellant was not relieved of his liability. Barnes v. Northern Trust Co., 169 Ill. 112. And it was for the jury to say whether under all the evidence there was such substitution, discharge and surrender and new agreement with appellant.

It is complained there was error in giving on behalf of appellee the following instruction:

“The court instructs the jury that where there is an express covenant to pay rent in a lease for a term of years, the mere acceptance of rent by the lessor from the assignee of the lessee does not discharge the lessee. The contract of the lessee continues in force notwithstanding he may have parted' with his interest in the estate unless the lessor enters into such stipulation with the assignee as to accept him as sole tenant and absolve the original lessee. If there be not a substitution of the assignee in place of the original lessee and a clear intent to make a new contract with the assignee and discharge the lessee from further liability under the lease both the lessee and the assignee will be liable for payment of the rent.”

That portion of the instruction which requires the lessor to “enter into such stipulations with the assignee as to accept him as sole tenant and absolve the originál lessee” before the original lessee can be absolved from the payment of rent is incorrect.

Under the cases cited there must be a substitution and a clear intent to make a new contract with the assignee and to discharge the lessee before the lessee is discharged, but such agreement and substitution may be inferred from facts and circumstances, and it is not essential that there should be a stipulation entered into between the assignee and lessor to accept the assignee and release the lessee. Such substitution might be inferred from evidence in the absence of a stipulation entered into to that effect between the lessor and assignee. Williams v. Vanderbilt, 145 Ill. 238. We think that part of the instruction misleading as it would lead the jury to suppose that it required proof of an express stipulation between the lessor and assignee to make the substitution.

Under the evidence the instruction in the particular pointed out was misleading and we think prejudicial. The instruction in other respects seems to .conform to the principles announced in the cases, cited in this opinion.

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

Reversed and remanded.


text:
    Thomas Jacobs et al., Appellees, v. Madison Coal Corporation, Appellant.
    1. Mikes akd hikers—when declaration does not charge wilful violation. A declaration which charges that the owner could have known of the dangerous condition relied upon as the basis of the recovery, does not charge a wilful violation under the Mines and Miners Act.
    2. Mikes akd mikebs—what essential to liability of owner. Under the Mines and Miners Act in order to charge an owner with death or injury a wilful violation of the statute must be averred and proved.
    3. Mikes akd hikers—what not dangerous condition within meaning of statute. It is not a dangerous condition within the meaning of the statute to have a low entry or an entry lower at one point than another.
    4. Mikes akd hikers—when expert testimony competent. Expert testimony is competent upon the question of the proper placing of timbers and the safe condition of an entry.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    C. H. Burton, for appellant; John G. Drennan, of counsel.
    Webb & Webb, for appellees.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This was' an action by appellees, Thomas and Martha Jacobs, parents of Andrew J. Jacobs, to recover damages resulting to them from the death of Andrew which resulted from injuries received in the mine of appellant where he was employed as driver. The trial resulted in a verdict and judgment in favor of appellees for the sum of $1,999.90.

After appellant’s motion for a new trial had been overruled, it made a motion in arrest of judgment based on several grounds, the main ground urged in the argument being that the declaration did not state a cause of action.

The declaration containing one count in substance charged that deceased was employed in appellant’s mine as a driver to haul loaded cars of coal by means of a mule from certain rooms through an entry to the bottom of the shaft; that the roof of the entry through which he hauled was composed of rotten and brittle substances on account of which a number of cross bars were maintained underneath the roof to keep the same from falling on employes passing thereunder; that a number of said cross bars had become broken and sagged by reason whereof it was highly dangerous for drivers to haul full loaded cars thereunder and that said sagged and broken timbers constituted an unsafe and dangerous condition in said entry of which appellant then and there knew or could have known by complying with the statute in relation to the operation of coal mines. It was further charged that appellant wilfully allowed the deceased to enter said rooms and entry to haul before said dangerous condition had been removed and the place made safe whereby the deceased while driving a full loaded car through said entry came in contact with said broken and sagged timbers and 'was dragged from the car on said hauling road and so crushed that he afterwards died.

The declaration was, as argued by appellees, sought to be based upon subsection (b) of section 18, of the statute, in relation to mines and miners which provides that “when accumulations of gas or recent falls, or any dangerous conditions exist he (the mine examiner) shall place a conspicuous mark thereat as notice to all men to keep out and at once report his findings to the mine manager. No one shall be allowed * * * to enter the mine to work therein except under the direction of the mine manager until all conditions have been made safe.”

The averment that appellant then and there could have known of such dangerous condition by complying with the statute seeks to make appellant liable under the statute for negligence without regard to whether it had knowledge of the condition or had knowledge of facts from which it ought to have known its dangerous condition, and eliminates the wilful failure required to create the statutory liability.

It was only necessary to prove this averment in the declaration to show there was a dangerous condition and appellant could have known of it by complying with the statute. Mere neglect to discover a dangerous condition creates no statutory liability. It must be a wilful failure to observe the statute and this has frequently been defined to be a conscious failure. “If the mine is in a dangerous condition and the owner or operator has failed with knowledge of its condition to comply with the statute, he is liable and he cannot excuse himself that he had the mine examined and in good faith thought it was not dangerous.” Aetitus v. Spring Valley Coal Co., 246 Ill. 32. “It is the duty of the owner or operator of a mine to have his mine examined and if it is in a dangerous condition to have the dangerous places designated by the statutory marks, and if he fails in either particular with knowledge of its dangerous condition or with knowledge of facts from which he ought to know of its dangerous condition, he is liable to a person in the mine under his employ who is injured as a result of his wilful failure to obey the mandates of the statute.” Ibid.; Cook v. Big Muddy Mining Co., 249 id. 41.

No such liability as that alleged in the declaration existed by statute and the declaration did not aver a cause of action.

As the case will be reversed and remanded other errors to which the attention of the court has been called will be noticed. The 5th, 6th, 7th and 8th instructions contain the same elements of negligence as that contained in the declaration above considered and were erroneous.

It is insisted also the verdict is contrary to the evidence.

The cause of the injury was alleged to be broken and sagged timbers in the entry constituting a dangerous condition. No witness saw this accident. When Jacobs started with his trip it does not appear in what manner he was riding. His course was north through the entry. When he started a witness Eobach started after him to go to a tool box in the entry. While there he heard the deceased calling his name. He went to the place and found Jacobs lying across the track, the mule unhooked from the car or box and with the hook and chain fastened to the mule. The mule was about two steps ahead of the deceased and the front car was five steps behind or south of him. Measurements were taken of the cross timbers along the place on Monday, February 21, two days after the deceased was injured and before there had been any change in conditions. The evidence of these measurements shows the nearest cross timber south of where Jacobs was lying was twelve feet distant. This timber and the one next to it four feet further south were six feet three inches high from the top of the rail or the car track. Thence on south the timbers ranged in height from five feet seven inches to six feet five inches. There were no broken or sagged cross bars above the deceased and there were none within twelve feet south of him at the nearest shown by any evidence. The only evidence from which it might be inferred the deceased was dragged from his trip in the manner alleged in the declaration was that a small quantity of bark was found on top of the car of coal and his face was scratched. There was evidence that there were broken and sagged timbers in the entry testified to by witnesses for appellees but without discussing it at length we are of opinion the weight of the evidence is against the theory that the deceased was dragged from the car by a broken and sagged timber. The mining statute does not prescribe the height of entries. It was realized by the law maker that veins of coal differed in thickness and while a high entry would be practicable in a thick vein, it would not be so in a thin one. It is not a dangerous condition within the meaning of the statute to have a low entry or an entry lower at one point than another.

The court excluded evidence of experts offered by appellant of the proper placing of the timbers and the safe condition of the entry. We think the evidence should have been admitted and it was error to exclude it. Hamilton v. Spring Valley Coal Co., 149 Ill. App. 10, and cases cited.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Higbee

text:
    Morton T. Reigel, Appellee, v. Des Moines Life Insurance Company, Appellant.
    1. Vbbdicts—when set aside as against the evidence. A verdict will be set aside on review where it appears to the Appellate Court that it is against the overwhelming weight of the evidence.
    2. Evidence—what incompetent as self-serving declarations. A letter, the contents of which are self-serving declarations by the party offering it, is incompetent especially where the effect would be to give such party the benefit of what it was claimed other parties would testify to who were not witnesses in the suit.
    Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    McCarty & Arnold and Casper Schenk, for appellant.

      George W. Jones, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This is a suit in assumpsit by appellee, to recover the cash surrender value of a fifteen year paid up policy of insurance, issued by appellant on his life. While appellant filed the general issue with other pleas, it did not really seek to contest the execution or binding-force of the policy, the surrender value of which was claimed by appellee, to amount to $718.50, but its real defense, which extended only to a portion of the amount claimed to be due, was that appellee was indebted to it for the principal and interest of a note, amounting to $437.82, executed by appellee to the company and a tender of the balance of the policy, amounting to $280.68, was made by appellant.

Appellee denied the execution of the note under oath and further replied that the note was obtained by fraud and circumvention and that there was no consideration for it.

A trial was had resulting in a verdict and judgment in favor of appellee for the full amount claimed by him. From that judgment the insurance company has appealed.

The question of fact involved in the case is whether appellant is entitled to a credit of $437.82, as against the amount due on the policy and grows out of the following facts and circumstances shown by the proofs.

On November 21, 1894, a life insurance policy was issued to appellee by the Des Moines Life Association, an assessment association, for $1,000, payable at his death, by the terms of which he was to pay an annual premium of $17.40. By an arrangement entered into between appellant and appellee, the latter on February 11,1903, surrendered his policy in the association and took a new policy issued to him by appellant, known as a 15 payment life policy. Appellant had some connection, just what does not clearly appear from the proofs, with the association and the new policy stated it was issued' in consideration of the surrender of appellee’s policy in the association, the further consideration of the payment of the premiums thereon, to November 21, 1904, and the further consideration of subsequent annual premiums of $51.41 to be paid on the new policy until the 21st day of November, 1909. The effect of this policy was to cause the fifteen years, to commence November 21, 1894, which was the time the original policy was issued by the association and at a time when appellee was only 45 years of age. The new policy contained certain options, among which was one that if the assured was living at the expiration of the period named, that is November 21, 1909, he could elect to surrender the policy and accept the cash surrender value thereof, as shown by a table set forth in the policy itself. The surrender value of this policy at the end of the fifteen years, was shown by the table to amount to $599, but there was an accumulated surplus which accrued to appellee under the policy, which raised the surrender value to $718.50. The written application for the exchange of policies signed by appellee, contained the following • statement: “Í hereby apply to said company for a company loan of $327 no-100, secured by the reserve on said policy, to supply premium deficiency.”

At the time of the exchange of policies, appellee executed his note to appellant for $17.50, to pay the' tenth annual premium on the old policy, which would have been due November 11, 1904, and this note was afterwards paid and the amounts due as -premiums on the new policy were also fully paid up to the time of its maturity. The note or instrument relied upon by appellant, as set-off, was signed by appellee and purported to be an acknowledgment by him that appellant had loaned him $327 as part premium on policy No. 11636 and issued to him by said company on the 14th day of February, 1903, for $1,000 at the age of forty-five on the fifteen payment life plan, which amount with interest annually, at five per cent, should be a lien on said policy until extinguished by the surplus apportioned thereto or otherwise paid to the company on or before the 21st day of November, 1909.

Appellant also introduced in evidence a ■ receipt signed by appellant through an agent, which had been delivered to appellee, stating it had received of appellee said policy of the association, an application for exchange for a fifteen premium life policy to bear date of original, also policy loan for $327 and premium note for $17.50 due April 30, 1903.

Appellee, while not denying his signature to said note and the application for exchange of the policies, testified that the note was not filled out and that such portion of the application as referred to the loan was not filled out, at the time he signed them.

It further appeared from the proofs, based on the testimony of appellant’s auditor, that appellee had paid on his original policy nine annual premiums and a guarantee note of $10, amounting in all to $166.60; that in order to effect an exchange of the policies and give the advantage of rate at the age of forty-five it was necessary to pay the annual premium of $51.41 for nine years, amounting to $462.69; that the company required the payment of the premium in advance, at the time of the exchange, which would amount to an additional $51.41, making a total amount of premiums necessary to be paid on the fifteen payment life policy to the end of the tenth year, $514.10; that deducting from this amount said amount of $166.60, and the premium note for $17.50, would leave a balance of $330, for which appellee’s note should have been given, but that a mistake of $3 was made in the computation and as a result, the note was given for only $327. '

Another circumstance contended for by appellant, in support of its contention that the note must have been given at the time of the exchange, is the fact that appellee has paid in total premiums only $475.06, while he has had insurance upon his life for fifteen years to the extent of $1,000, which amount, with the accumulations, would have been paid at any time upon his death and now he seeks to recover $718.50 or $243.44 more than he has paid in.

To meet the facts and circumstances above set forth, appellee had only his own testimony to the effect that there had never been any conversation between himself and appellant’s agent concerning the giving of the note in question and that said note and said application for exchange were not filled out at the time he signed them, as is above referred to; also two letters, one insisting upon payment and stating appellant’s method of making settlement under its policies and another from appellee to appellant, written soon after the maturity of the policy and making complaints against appellant of fraud in the transaction. Upon the whole the facts and circumstances, proved on the trial appear to us to establish an overwhelming preponderance of the evidence in favor of the right of appellant to the credit claimed by it, to the extent of appellee’s note above referred to and the verdict therefore cannot be permitted to stand. Donelson v. E. St. L. S. Ry. Co., 235 Ill. 625.

The letter of appellee to appellant above referred, to, was written in an illiterate manner difficult to understand, but it apparently stated in effect that appellant wanted to rob appellee and his wife of over $100 and interest and if he took out another policy appellant would rob him again; that a man appellant sent out there was a fraud and had forged their names in several places on papers he had in his possession; that if appellant did not send the money appellee had paid in he would bring suit for forgery and fraud; that he had two living witnesses besides himself and wife to such facts and that certain other persons were going to sne the company as they thought they had been robbed.

Appellant objected to the introduction of this letter and it should not have been admitted in evidence as it was wholly self-serving and tended to give appellee to some extent the benefit of what it was claimed other parties would testify to, who were not witnesses in the suit and also the statement that other parties claimed that they had been robbed.

While other errors are claimed by appellant to have been committed in the trial of the cause, they do not appear to be of serious import and we do not think it necessary to discuss them.

The judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


text:
    The Republic Metalware Company, Appellee, v. The Bishop-Eberle Manufacturing Company, Appellant.

      Verdicts—when set aside as against the evidence. A verdict will be set aside as against the evidence if the clear preponderance of the evidence is in favor of the party against whom the verdict was rendered.
    Assumpsit. Appeal from the Circuit Court of St. Clair county; the Hon. L. Bernreutes, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Stephen C. Rogers and Koerner & Koerner, for appellant.
    Benjamin F. Ninde and Turner & Holder, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

The parties to this suit are both corporations. Appellee brought suit against appellant for the value of certain goods, wares and merchandise stated in the bill of particulars filed by it to have been worth $4,235.95. A jury was waived and the case tried by the presiding judge, who found the issues for appellee and entered judgment against appellant for the full amount sued for. Appellant asserts here that the findings of the court below and judgment entered thereon, are not sustained by the evidence.

The proofs presented on the trial show substantially the following state of facts: In October, 1905, O. H. Bishop and John B. Eberle were doing a partnership business in St. Louis, Missouri, under the name of Bishop-Eberle Manufacturing Company and at about that date, C. Sidney Shepard and Company, who have since been succeeded by appellee, sent them a large amount of metalware on consignment. The consignees, who manufactured stoves and certain other articles, sold some of these goods and used some of the others in their business. Early in 1908, a corporation known as the National Steel Furnace Company, located at New Athens, Illinois, through a committee of stockholders, traded a portion of its capital stock for the business and assets, except book accounts, of the BishopEberle Manufacturing Company, partnership, and shortly thereafter the name of that corporation was changed to The Bishop-Eberle Manufacturing Company, the appellant in this suit. At the time of the transfer, the committee of stockholders,, together with Bishop and Eberle, went through the stock and it appears to have been definitely understood between them, that the goods so consigned, were not included in the transfer. C. H. Bishop became president of the new corporation and John B. Eberle, the general manager. In 1909, the lease of the partnership having ended on its room in St. Louis, the balance remaining of the stock sent them, on consignment as aforesaid, was shipped to New Athens and stored in ah addition built onto appellant’s shop at that place. Appellee was carrying $5000 insurance on the stock in question and after a renewal was made in 1909, the insurance inspector went to the place where the goods had been stored and found them gone. He notified appellee and the latter then ascertained they had been shipped to New Athens as above stated. On April 6, 1910, after there had been some correspondence between C. H. Bishop on the one side and Mr. Wells, the president, and Mr. Ballenger, claim adjuster of appellee, on the other, relative to a settlement and adjustment of the account for the goods, Mr. Bishop wrote a letter to appellee stating, “If you will select any day the coming week and advise us we will be glad to meet you here at St. Louis and go over to New Athens. We are anxious to have this matter adjusted.” This letter was written on stationery bearing the letter head of The' Bishop-Eberle Mfg. Co. and was signed “The Bishop Eberle Mfg. Company, by C. II. Bishop, president.” In accordance with the suggestion made in the letter, Mr. Ballenger went to New Athens and there met Bishop and Eberle. They, with the assistance of the secretary of appellant, then went over the original inventory and the goods on hand and made therefrom an itemized list of such goods as had been used or sold and not accounted for, which amounted to $4344.20. From this amount a credit of $108.25 was deducted for charges and expenses, leaving a net balance of $4235.95, as the balance due appellee, which was the amount for which judgment was given. This itemized account was signed, “The Republic Metalware Company by H. W. Ballenger” and' “Bishop-Eberle Mfg. Co. by C. H. Bishop.”

It thus appears that there was no contention as to the balance due appellant for that portion of the goods composing the consignment which was sold, and as the proofs show that such portion of the same as had been shipped to New Athens was returned to appellee, this suit was not concerned with them.

The question presented was whether appellee had a legal claim for the amount of its indebtedness against The Bishop-Eberle Manufacturing Company, the corporation, or whether it should really be against BishopEberle Manufacturing Company, the partnership. While the names of the partnership and the corporation were-nearly identical, the former was composed of Bishop and Eberle alone, while the stockholders of the corporation included other persons besides those two.

The evidence most relied on by appellee to sustain its claim that the corporation should be charged with the indebtedness, is the letter of Mr. Bishop above referred to, written on the stationery of the corporation and signed by him as president thereof. It would be natural however, that, as he was president of the corporation at the time the letter was written, he should write on its stationery and he explains the manner of his signature by saying that it was an error on his part; but at any rate it does not appear that he had any authority to commit the corporation to the assumption of an obligation to pay for these goods which it appears it had never used or disposed of. It was also shown by the testimony of Mr. Ballenger that at the time the itemized account of the goods disposed of was made, Mr. Bishop stated that they would not be able to pay it at that time but would do so as soon as they could; that Mr. Eberle and he had a claim against the company which he expected would be taken up too and that Mr. Ballenger told bim in reply he had nothing whatever to do with the matter. This would tend to show that the settlement was being made between appellee and the partnership, composed of Bishop and Eberle.

It was in no way shown by the proofs that any of the goods named in the account sued for were used by nor did they appear to have been in the possession of appellant. A consideration of the whole record leads us to the conclusion that the preponderance of the evidence was so clearly in favor of the proposition the debt sued for was that of the partnership and not of the corporation, that the judgment in this case against the latter should not be permitted to stand.

The judgment of the court below will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    Grace Nichols, Appellee, v. City of Collinsville, Appellant.
    1. Variance—when material, not established. A slight variance is not material. Eeld, under the evidence, that the proofs tended to establish that the injury sued for was occasioned by stepping into an excavation rather than into a hole, as claimed in support of the contention of variance.
    2. Negligence—when evidence tends to establish notice of dangerous condition. Where it appeared that the place of the accident was in a dangerous condition for pedestrians passing along the walk at night, that the walk had been torn up for nearly three weeks and the excavation in question had been made several weeks before the day of the injury and that there was no light or danger signal in the vicinity of the alley, held, that constructive notice of the condition of such walk was sufficiently established to sustain the verdict rendered.
    3. Negligence—when city liable for dangerous condition of sidewalk. It is immaterial whether the excavation which caused the injury was made by the city itself or by a contractor whom the city had engaged to do the work.
    4. Instructions—when improper will not reverse. In the absence of prejudice resulting, the giving of an inaccurate instruction will not reverse.
    5. Verdicts—when not excessive. Eeld, in an action on the case for personal injuries, that a verdict for $1500 was not excessive where it appeared that plaintiff suffered severe pain for a considerable period of time, sustained an injury which was to some extent permanent and was compelled to expend the sum of $100 for physician’s services.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Lotos Bernbeutee, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Maury D. Powell, for appellant.
    C. H. Burton, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

The city of Collinsville is prosecuting this appeal from a Judgment against it, in favor of appellee, who was injured while passing along one of appellant’s streets, where improvements in the way of pavement and curbing were being made.

There is little controversy as to the facts. Sometime prior to June 26, 1910, the city entered into a contract with O. T. Dunlap, to pave portions of certain of its streets, including Hesperia street. In pursuance of this work, Hesperia street, running north and south, had been excavated for a block between Main street on the south to Clay street on the north of it, to a depth of some sixteen inches. In the middle of the block, Hesperia street was intersected by an alley running parallel with Main and Clay streets, from which it was equally distant. On the west side of Hesperia street, the city had formerly maintained a brick sidewalk, but this had been removed at the crossing of the alley and the dirt had been excavated back to the west line of the street, across the alley, preparatory to putting in the pavement. On the south side of the alley a stone curbing, five inches thick and twenty inches deep, extended across the place where the sidewalk had formerly been, to the east to meet the curbing, which was to form the west side of the street. The sidewalk had also been taken up for a distance of about five feet south of the curbing. The curbing was some two inches higher than the ground on the south side of it, from whence the brick walk had been taken, and 12 or 13 inches higher than the ground on the north side of it, which had been prepared for the street pavement. There was also a space of about an inch between the curbing and the ground south of it, which had been excavated when the curbing was set and not yet "filled in. There were no lights, danger signals or warnings of any kind across the walk at this point and the nearest lights were incandescent street lights, placed at intersections of Hesperia street with Main and Clay streets, the distance between the last two streets being 396 feet. The bricks in the walk had been removed about April 1, 1910, and the street had been torn up to prepare for the paving for several weeks prior to the time appellee was injured.

On the day above mentioned appellee, Grace Nichols, twenty-four years of age, living just south of the city of Collinsville, was visiting her friends, Mr. and Mrs. Lon E. Hogan, who resided a short distance south of the point in question. Shortly before nine o ’clock that evening, she started with them to an amusement park, some blocks north of their residence and in so doing proceeded to walk along the west side of Hesperia street. Appellee had not been along there before and did not know the street had been torn up that improvements might be made. It had been raining during the afternoon and was quite dark. As they reached the place where the sidewalk was torn up and were about to cross the alley, appellee’s right foot slipped into a hole on the south side of the curbing and she was thrown forward over the curbing into the excavation. By the fall she was severely and painfully injured. Her ankle was partially dislocated, there was a rupture of some of the attachments on the inside of the ankle joint and the ligaments connecting the large bone with the bone of the foot were partially torn. She was taken to the home of the friends with whom she was walking, suffering intense pain and was unable to be taken to her own home for two weeks. For two months she could only walk with the aid of crutches and at the time of the trial, five months after she was injured, was compelled to walk with a cane.

Suit was brought by appellee against appellant and the contractor Dunlap too, but the jury found Dunlap not guilty. The verdict and judgment against appellant was for $1500.

Appellant insists there was a material variance between the declaration and the proofs in regard to the location of the cause of the injury, in this, that the declaration charged appellee was injured by reason of stepping into an excavation which had been made in or near said alley, while the proofs showed she was injured by stepping into a hole on the south side of the curbing.

We do not think this contention of appellant is well founded, as there was in fact a small excavation next to the curbing on the south side thereof which had not yet been filled and the witness Hogan who examined the place immediately after the accident, testified that a small slope going down to the curbing and a little hole on the south side of the curbing, were at the place where she fell.

It appeared also she in fact fell from the curbing into the excavation at the entrance to the alley which was a part of the same excavation in which the curbing was set. If it could be said that there was any variance whatever it was so very slight as to be immaterial.

It is claimed by counsel for appellant that no notice to the city, either actual or constructive, of the unsafe condition existing at the place in question, was shown. The proof was positive, however, that the place was in a dangerous condition for pedestrians passing along the walk at night; that the walk had been torn up for nearly three months and the excavation had been made several weeks before the day of the injury and that there was no light or danger signal in the vicinity of the alley. These facts were sufficient to charge the city with notice and it was immaterial whether the excavation was made by the city itself or by. the contractor, who had engaged to do the work. Hogan v. City of Chicago, 168 Ill. 551.

Appellant complains of the second instruction given for appellee, which told the jury, if it found that the contractor, Dunlap, under a contract with the city, was doing some paving and improvement work on Hesperia street oh the west side thereof, at and in the alley in question, it was the duty of the contractor and appellant to place proper signal lights or other means of warning, to notify the public of the conditions existing at the place.

The criticism of this instruction is that it required warnings to be placed without regard to the question as to whether the conditions were dangerous to the public or not. This instruction was not carefully drawn and might well have been refused, but it could have done no injury in this case, as the evidence plainly showed the conditions at the place in question were dangerous and that a warning signal was necessary to protect the public.

Finally, appellant contends that as appellee was unemployed and living at home with her father and mother, the judgment was excessive. The evidence shows that appellee suffered severe pain for a considerable length of time and that her injury is to some extent permanent. It was shown that an expense of $100 for a physician’s bill had already been incurred by appellee, which would leave $1400 for the other expenses incurred by her in endeavoring to be healed of her wound and for compensation for her pain and suffering and the permanent injury sustained by her.

Upon a consideration of all the facts concerning the injuries suffered by appellee, we do not feel justified in holding that the damages awarded her, are so excessive as to warrant a reversal of the judgment on that account.

The judgment of the court below will be affirmed.

Affirmed.


text:
    Sylvia Weisguth, Appellee, v. John Stack, Appellant.
    1. Dbam-shofs—proximate cause in action under section 9 of Act defined. “The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It- is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster. The proximate cause is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss."
    2. Dbam-shofs—sections 8 and 9 distinguished. Under section 8 there could only be a recovery for the care of the intoxicated person, while under section 9 there can be a recovery for injury or death although the person injured or killed was not intoxicated.
    Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Charles A. Karch, W. H. Nelms, Carl M. Reisch, Rufus M. Potts and Alfred Adams, for appellant.
    No appearance for appellee.
   Mr. Justice Higbee

delivered the opinion of the court. •

This is a suit brought by appellee under section 9 of the Dram-Shop Act against Pat Dwyer, a saloon keeper, and John Stack, the owner of the building, to recover damages for injury to her means of support, in consequence of the intoxication of her husband, John Weisguth, caused by the sale to him of intoxicating liquors by Dwyer.

The facts upon which the case is based are not disputed, and are in brief as follows: On March 13, ,1910, John Weisguth, clerk in a railroad office and living in Bast St. Louis, went to Dwyer’s saloon to cash his pay check for $85. Dwyer went with him to another saloon where the check was cashed and they then returned to Dwyer’s place where Weisguth purchased liquors, became intoxicated and finally, about 10 o’clock p. ,m. went to sleep in a back room of the saloon, where drinks were served. When he went to sleep he had upon his person the money which he had procured upon the check and a small amount in addition thereto. After sleeping an hour or more he was awakened so that the saloon could be closed, and it was discovered that his money was gone. His clothing was disarranged and it was evident that some one had robbed him of his money while he was sleeping. Upon the trial the jury found in favor of appellee, assessing her damages at $85 and for that amount judgment was given.

This appeal is taken by John Stack, the owner of the building alone, and appellee has filed no brief but upon an examination of the record we have deemed it proper to decide the case upon its merits.

It is stated by appellant in his brief that “the sole question is whether or not the intoxication of Weisguth was the cause of the alleged injury to the plaintiff or stating it conversely, whether or not the alleged injury to the plaintiff was in consequence of the intoxication of her husband.” The question thus presented is therefore the only one necessary for us to consider upon this appeal.

It is insisted by appellant that the facts in the case' show that the proximate cause of the injury to her was not the intoxication of her husband, but that it was the intervening and independent act of the person who robbed him.

It has been well stated in Black on Intoxicating Liquors, page 311: “The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is of course, to be charged with the disaster. The proximate cause is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss.”

In the opinion in Schroder v. Crawford, 94 Ill. 357, which is quoted with approval in Triggs v. McIntyre, 215 Ill. 369, it is stated that “It was not the intention that the intoxicating liquor alone of itself, exclusive of other agency, should do the whole injury. That would fall quite short of the measure of remedy intended to be' given. The statute was designed for a practical end, to give a substantial remedy, and should be allowed to have effect according to its natural and obvious meaning. It is said there was here an intervening agency which caused the death, to wit, the train of cars; that that was the proximate cause, and the intoxication but the remote causé, and that the proximate cause only is to be looked to. So it might be said where one from intoxication lies down and becomes frozen to death, or falls into the fire and is burned to death, or is drowned by a freshet as in Hackett v. Smelsley, 77 Ill. 109, that the intervening agency of frost, fire and the freshet occasioned the death and was the proximate cause, and thus no liability under this statute.”

From these authorities it appears that when the cause is other than the intoxication it must be entirely independent of the intoxication, but when the injury is in consequence of the intoxication it is not necessary that it be exclusive of any other agency. That is to say, that it is not sufficient that in the absence of the cars, the freshet or the freezing, there would have been no fatality but on the contrary it is sufficient to show these agencies would not have caused the death in the absence of the intoxication. So, in this case, while it is apparent that there would have been no robbery without a robber to commit it, on the other hand the jury were justified in finding, as they must have, that the money would not have been taken from Weisguth had he not been in a drunken sleep brought about by the intoxication.

Appellant however insists when an injury is done intentionally or wilfully and is chargeable to some person, the rule is different from what it is when brought about unavoidably and unintentionally; that in the former case the intoxication is not to be considered the proximate cause of'the injury. He cites a number of cases of our state in support of his position and those most strongly relied upon are here referred to.

In Shugart v. Egan, 83 Ill. 56, wherein the court reversed a judgment in favor of the wife, it is stated: “It is claimed that the plaintiff’s husband, while in a state of intoxication caused by liquors obtained by him from the defendant Friel, insulted or menaced one Mc-Graw, who thereupon stabbed him, inflicting a wound whereof he died shortly afterwards * * * All that can be certainly said of the act of Friel in letting plaintiff’s husband have liquor, is, that act caused or contributed to his intoxication; bis intoxication may have been the cause of his insulting or menacing Mc-Graw, and McGraw’s act of stabbing him may have been because of this insult or menace; and because of this stabbing he died. But it is not entirely certain he would not have insulted or menaced McGraw if he had not had any liquor, nor is it entirely certain that McGraw stabbed him in consequence of such menace or insult.” So it seems the judgment was reversed, not because the killing was done by a person intentionally, who could be held accountable therefor, but because it was not proven the killing was the result of the intoxication.

In Schmidt v. Mitchell, 84 Ill. 195, it appeared the husband while intoxicated, made an attack on and broke in the windows of the house of a man who shot him in the thigh; that he g’ot along well for a few days but disregarding the instructions of his doctor used the injured leg and thereafter gangrene set in, the leg had to be amputated, and death ensued. The court held it was not shown the intoxication was the proximate cause of death.

In Schulte v. Menke, 111 Ill. App. 212, Pohlman and Brock became intoxicated and quarreled, the former assaulted the latter and wounded him, appellant took care of Brock during his injury and then sought to recover for his services from the appellees who sold the liquor and caused the intoxication, under section 8 of the Dram-Shop Act. A demurrer was filed to the declaration, sustained by the court and judgment entered against appellant for costs. Oh the appeal the judgment was sustained and in its opinion the court said: “The intervention of the independent act of Pohlman in this case between the wrong complained of and the injury sustained, was the direct or immediate cause of Brock’s injury.”

There is a sharp distinction between the provisions of sections 8 and 9 of the Dram-Shop Act. Under the first there can only be a recovery for the care of the intoxicated person, while under the second there can be a recovery for injury or death, although the person injured or killed was not intoxicated. So in the above case the fact that Pohlman was intoxicated added nothing to appellant’s right to recover, his right being based solely on the intoxication of Brock.

The case of Gage v. Harvey, 66 Ark. 68, referred to and to a large extent relied upon by appellant, was similar to the case at bar and it was there held, that where one became intoxicated and thereby incapacitated to take care of his money and the same was forcibly taken from his pockets without his knowledge or consent by some one, he could not maintain an action against the keeper of the dram-shop who sold him the liquor causing the intoxication and the sureties on the bond to recover the money taken. It is there said: “The act must in a natural and continuous sequence, unbroken by any new cause, operate as an efficient cause of the injury. If a third person intervenes between the act of the defendant and the injury, and does a culpable act for which he is legally responsible, which produces the injury, and without it the injury would not have occurred, and the act of the defendant furnished merely an occasion for the injury, but not an efficient cause, the defendant would not be liable * * * The sale and consumption of the liquor may have furnished the opportunity or occasion for the wrongful act of the third person, but was not the proximate cause of the injury.”

The statute of Arkansas, under which the suit was brought, was not the same as ours which we have under consideration here, which is much fuller and more favorable to parties bringing suit for injuries causecj. by the sale of intoxicating liquors. But apart from the difference in the statutes, we cannot agree with the reasoning of the opinion in that case and it appears to us to be entirely at variance with the theory of the law adopted by our supreme and appellate courts as applicable to our Dram-Shop Act. What is said in that opinion in regard to the intoxication only furnishing the opportunity for the injury and not being the efficient or proximate cause thereof, might apply with equal force to cases where persons intoxicated are run over by railroad cars, frozen or drowned, in which cases recoveries under the Dram-Shop Act have been sustained by our courts of appeal.

We are of opinion that appellee was injured in her means of support by her husband’s loss of the money, in consequence of his intoxication, and that it is immaterial so far as her right of recovery is concerned, that the act of another person contributed to bring about the loss or formed a part of the chain of circumstances which occasioned that result.

The judgment of the court below will be affirmed.

Judgment affirmed.


text:
    George J. T. Wilkening, Appellee, v. Alton Baking & Catering Company, Appellant.
    1. Appeals and errors—effect of failure to file brief. If the appellee fail to file a brief the Appellate Court of the 4th District is authorized by virtue of its rules pro forma to reverse and remand.
    2. Verdicts—when set aside as against the evidence. A verdict will be set aside on review where the Appellate Court finds that it is clearly and manifestly against the weight of the evidence.
    Action in case for personal injuries. Appeal from the City Court of Alton; the Hon. James E. Dunnesan, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 11, 1911.
    Wise, Keefe & Wheeler, for appellant.
    No appearance for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought suit and recovered a judgment against appellant for damages resulting from injuries received by him while working at a kneading machine in appellant’s bakery in Alton.

The charge in the amended declaration, upon which the case was tried, was that at the time of the injury, appellant was operating a bakery in which there was a dough-rolling machine operated by steam, electricity or other power in a room in which there was a concrete floor, upon which said machine was’ placed; that at the time of constructing the floor appellant left imbedded therein, certain wooden strips or sills, and carelessly and negligently allowed the same to remain in said floor; that said sills became covered with flour, bits of .dough, paste and grease which fell thereon from said machine and made them dangerous in that they became smooth and slippery to walk, stand or work upon; that appellant failed to place proper guards or covers over the cylinders or rollers of said dough rolling machine to protect its employe working thereat; that while appellee, acting in the line of his duty with all due care, was gathering up dough from the platform of said machine, feeding it back into the cylinders, he was, by reason of the slippery and unsafe condition of the floor and said wooden strips or sills, thrown forward with great force and violence against said machine and his left hand coming in contact with said cylinders or rollers which were then in full motion, was lacerated and permanently injured.

Appellee has failed to file a brief in this case and therefore, under the rules of the court, it is our duty to reverse the judgment of the trial court unless, on an . examination of the record, we deem it proper to decide the case upon its merits. Under this rule we have concluded to examine the record in the case and from such examination have determined that the judgment must be reversed and the cause remanded upon its merits.

The charge in the declaration is that appellee slipped by reason of the slippery and unsafe condition of the floor and certain wooden strips or sills, which appellant had carelessly and negligently allowed to remain imbedded therein, and was in consequence thereof, thrown against the machine; and it appeared from his testimony and that of his brother that he complained of a board about thirty inches long and 4 to 8 inches wide, which had become slippery and was located under the center of the. machine, at which he was working. The overwhelming weight of the testimony was that the floor on which he was standing, was concrete and that at the sides of this concrete, which was 21 inches wide, there were boards but that in the middle where the operator of the machine stood, while at work, there was no board whatever. In this condition of the proofs, plaintiff was not entitled to recover and the judgment must therefore be reversed and the cause remanded.

Reversed and remanded.