text:
    F. P. Crossley, Appellee, v. St. Louis, Iron Mountain & Southern Railway Company, Appellant.
    (Not to he reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventeb, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Action by F. P. Crossley, plaintiff, against St. Louis, Iron Mountain & Southern Railway Company, defendant, for damages for negligence in shipping and handling of stock, including delay in shipment to destination. From a judgment for plaintiff, defendant appeals.
    Plaintiff, being desirous of shipping some cattle, forty-one head, from Pine Bluff, Arkansas, to East St. Louis, Illinois, made application to the agent of defendant at Pine Bluff, Arkansas, for a car, and was advised that the cattle would be shipped at about noon of September 11th. The cattle were loaded but not shipped out until 6:20 in the evening, at which time they were shipped to Little Bock, Arkansas, and there the car was transferred and put on the rear of another train of about eighty cars and arrived at Hoxie at 3:40 of the next morning of the 12th, where the cattle were unloaded for rest. Plaintiff was advised by the yardmaster that his cattle would be taken out of there about eight o’clock in the morning. Instead of unloading them immediately they were placed upon a side track and allowed to remain in the car until about eight or nine o’clock, when they were then unloaded into the stock pens. The stock pens were muddy and in bad condition and the cattle were kept there for twenty-nine hours. During that day several trains, as claimed by plaintiff, passed going to St. Louis, but plaintiff claimed that he was not able to get his cattle attached to any one of those trains because of the fact that the yardmaster who they claimed had to arrange to conduct them with other trains was out of town, but later on they were shipped out from Hoxie to East St. Louis and arrived at the stock yards about nine o’clock on the morning of the 14th of September, and it was claimed they were on the road for about sixty-six hours. There was evidence tending to show that during a portion of this time the cattle were roughly handled; that in shipping, the car was placed in a position at the rear of the train so that in starting and stopping the cattle were thrown from their feet and many of them bruised and injured, and that they were not well cared for while in the stock yards at Hoxie, and on arriving at East St. Louis were in very gaunt condition and badly bruised, and that the shrinkage was far in excess of that usually sustained by stock, in the making of that shipment. Some of the witnesses placed the shrinkage at one hundred to one hundred and twenty-five pounds, while they should not have shrunk more than from twenty-five to fifty pounds, if properly cared for in the making of the shipment. It appeared from the evidence that the usual time for the making of a shipment from Pine Bluff, Arkansas, to East St. Louis, Illinois, allowing rest at Hoxie, as provided by statute, would be about thirty-six to thirty-eight hours. The evidence of defendant tended to show that the trains that the plaintiff claims passed through Hoxie going to St. Louis were not St. Louis trains and that the car of cattle was taken up by the first train that passed going to St. Louis. The evidence of plaintiff also tended to show that the delay at Pine Bluff caused them to miss connection with the train that should have taken the cattle out from Hoxie on the morning of the 12th, and that such delay was unexplained.
    The defendant complained of the following instructions for plaintiff:—‘ ‘ The court instructs the jury that when a railroad company receives live stock for shipment it is the duty of such company to use reasonable diligence to carry and deliver said stock to said destination within a reasonable time. ’ ’
    “The court further instructs the jury that if you find from the evidence that the defendant company sent the cattle in question forward from Hoxie, Arkansas, on the first stock train leaving there after the expiration of the time required by the Federal law for feed and rest, then the defendant would not be liable for any damage to said cattle if not caused by such delay at Hoxie, Arkansas.”
    L. O. Whitnbl and H. L. Browning, for appellant; Edward J. White, of counsel.
    John E. Hamlin, S. W. Baxter and J. L. Flannigen, for appellee.

      Abstract of the Decision.
    1. Carriers, § 248

      —when evidence insufficient to establish contract limiting liability. In an action by a shipper for damages for negligence in the shipping and handling of stock, where plaintiff denied the signing of an offered contract limiting liability and no evidence was produced by defendant that the signature was plaintiff’s held that the contract was not established.
    2. Carriers, § 245*—when shipper may bring action of tort for negligence in shipment of stock. Where cattle are shipped, the shipper is not required to bring an action on the contract, if one exists, but may, if he choose, bring an action for nonperformance of the duty enforced by law to safely transport and promptly deliver such stock.
    3. Carriers, § 239*—when contract relieving from liability for negligence invalid. A common carrier cannot under the Carmack Amendment, by contract relieve itself from loss to an interstate shipment of property due to its negligence.
    4. Carriers, § 239*—when stipulations in contract limiting liability valid. Stipulations in a contract for an interstate shipment of property under the Carmack Amendment, as to the amount of loss, time for presentation of claim and commencement of suit, are valid.
    5. Carriers, § 246*—when stipulations in contract limiting liability matters of defense. Stipulations in a contract for the interstate shipment of stock limiting the liability of the carrier are matters of defense in an action of tort by the shipper for negligence in transportation, and it is not necessary that plaintiff produce the contract in making out his case.
    6. Conflict of laws, § 21*—what law governs interstate shipments. Interstate shipments are controlled by the Federal laws and the State courts are bound by the construction placed thereon by the Federal courts. . •
    7. Carriers, § 248*—when evidence sufficient to sustain finding that unreasonable delay and carelessness in handling stock proximate cause of injury. In an action of tort for damages for negligence in transporting an interstate shipment of live stock, evidence held sufficient to show unreasonable delay in transportation of, and carelessness in handling, live stock, and that such delay and carelessness was the proximate cause of the injury to the live stock.
    8. Carriers, § 250*—when instruction as to diligence in transportation and delivery of interstate shipment of "live stock proper.
      In an action by a shipper for damages for negligence in transporting an interstate shipment of live stock, an instruction as to the duty of the carrier receiving live stock for shipment to use reasonable diligence to carry and deliver said stock to the destination within a reasonable time, held correct.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

9. Carriers, § 234 —what is duty of carrier to carry and deliver interstate shipment of live stock. Where a railroad company re- ' ceives live stock for interstate shipment, it is its duty to use reasonable diligence to' carry and deliver such stock to its destination within a reasonable time.

10. Carriers, § 250*—when instruction on liability for damages for negligence in transportation of live stock erroneous. In an action of tort for damages for negligence in transporting and handling an interstate shipment of live stock, including delay in delivery to the destination, an instruction that if the jury found that the defendant company sent the cattle forward from the station at which they were unloaded for rest and feed on the first stock train leaving there after the expiration of the time required by the Federal law for feed and rest, then the defendant would not be liable for any damage to such cattle if not caused hy such delay at such point, held erroneous as ignoring the delay in unloading the cattle at such point, the improper care and feeding of them while there, and also as misleading because assuming that the damage was caused by delay at such' point, when there was evidence tending to show damages from other causes.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Sabo Sandor, Appellee, v. Verhovey Aid Association, Appellant.
    1. Instructions, § 22*—when reference to declaration not error. An instruction that if the jury believe from a preponderance of the evidence that plaintiff has made out his case as alleged in the declaration he is entitled to recover is not erroneous.
    2. Instructions, § 22*—when instruction making reference to declaration not erroneous. In an action on a sick benefit policy, an instruction that if the jury believed from a preponderance of the evidence that plaintiff had made out his case as alleged in the declaration he is entitled to recover is not objectionable as authorizing the jury to give the plaintiff such an amount as they think from the evidence he is entitled to receive, as the jury are required to base the assessment of damages on the evidence.
    3. Appeal and error, § 1241

      —when giving of modified improper instruction not error. Where an instruction is improper as offered, and, after being modified, is still not good, it cannot be assigned as error by the party offering the instruction.
    4. Instructions, § 137*—when refusal of requested instruction proper. A requested instruction not containing a correct theory upon which the jury should decide the case is properly refused.
    5. Insurance, § 908*—when instruction in action for sick benefits erroneous as based upon an incorrect theory. In an action by a member of an insurance order on a sick benefit policy, a requested instruction that before the plaintiff could prosecute a claim against the company, where there had been an adverse decision to his rights by the officers of the company, that it was necessary for him to appeal from the decision of such higher officers as provided by the by-laws before he could institute the suit, held erroneous as being based upon an incorrect theory.
    6. Insurance, § 854*—when member must appeal from decision of officers of order. It is the duty of a member of an insurance order in all cases where the controversy is concerning the discipline, policy or doctrine of the order to proceed in the manner prescribed by the association, and if an appeal as to such matters is provided for, then such member must prosecute an appeal.
    7. Insurance, § 854*—when court has jurisdiction to enforce rights of member of insurance order. The courts have jurisdiction of an action by a member of an insurance order to enforce a money demand, although the by-laws of such order provide for an appeal from the decision of officers of the order before instituting a suit at law.
    8. Insurance—when evidence sufficient to sustain verdict in action for sick benefits. In an action by a member of an insurance order to recover for sick benefits, evidence held sufficient to sustain the verdict.
    9. Insurance, § 913*—when plaintiff on appeal precluded from claiming construction of by-law contrary to theory on which case tried. Where the plaintiff in an action on a sick benefit policy tries the case on the theory that under a section of the by-laws of the order he had a right to demand a total settlement and obtains an instruction construing the by-law in accordance with such theory, he is precluded from claiming on appeal that such section only warranted a compromise.
    10. Insurance, § 717*—when by-law of insurance order construed as not providing for compromise of claim for sick benefits. A bylaw of an insurance order providing that total settlement might be asked by a sick member or that it might be offered by the chief staff of officials, where the member was unable to prove his right to half benefits but his sickness, upon examination by physicians, was. found to be of such a nature as would disable him for an uncertain length of time, but not for his whole life, and that benefits given under the title of total settlements should not exceed the amount of a half benefit, which was fixed at a certain sum, construed as not providing for a compromise.
    11. Instjbance, § 717

      —how by-laws of insurance order construed. Where" a benefit insurance order undertakes to insure a member against accident and such member has paid his dues and has been injured, he is entitled to such a reasonable and fair construction of the by-laws as will afford fair protection within their meaning.
    Appeal from the City Court of Bast St. Louis; the Hon. Robebt H. Blannigan, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    A. Gr. Hageter, Arthur E. Simpson and Gf. C. Borders, for appellant.
    Louis Beasley and Silas Cook, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

This was an action instituted by appellee upon a benefit certificate issued to him by the appellant.

It appears from the evidence that the appellant was a benefit association organized under the laws of the State of Pennsylvania for the purpose of assisting members in case of sickness or death, and with its home or parent office in the State of Pennsylvania, and branch offices at several places, in which organizations were perfected. That on April 3, 1910, appellee became a member of branch No. 39 of said association located at Beaver Falls, Pennsylvania, and a benefit certificate was issued to him of that date, and under the by-laws he was required to make a monthly payment of $1.25 dues and an annual payment of $1. The by-laws also provided a sick benefit of $6 per week for the first three months, to be paid out of the treasury of the branch, and for the next nine months he was to receive from the main treasury $5 per week. The amount of $500 was established by the by-laws as a half benefit. It is further provided by said by-laws: “Total settlement may be asked by a member, or it may be offered by the chief staff of officials, who, though unable to prove his right to half benefit, but whose sickness shall be found, on the ground of the special examination of the physicians, of such nature which will disable him for an uncertain time, but not for his whole life. Benefits which may be given under the title of total settlements cannot exceed the amount of a half benefit.” That while appellee was a member of the association, in good standing, on the 2nd day of June, 1913, while engaged at work in the Studebaker Manufacturing Company at South Bend, Indiana, he became sick and disabled by reason of receiving a broken wrist, and the evidence tends to show that such disability has continued to the present time. The disability was reported and he received $6 per week for the first three months from the branch office and received the sum of $113.50 from the main treasury of the parent association, in weekly payments of $5 each. The evidence further tends to show that the parent association, after having paid said amount of money, refused to pay him any more upon the ground, as it claimed, that his inability to continue work was because of his failure to obey the instructions. of the physician, to gradually use his arm so as to prevent his wrist from becoming stiff, and that when the parent association decided not to pay him" any further sums of money he failed to appeal from the chief staff of officials to the committee on superintendency, as provided by the by-laws.

It appears from the evidence that in February, 1914, appellee returned to work at the Studebaker plant but worked only a few hours because, as he claims, of his inability to perform the heavy work, and appellant says it was because of his refusal to use his arm to the extent to which he might have done. The evidence tends to show that he requested the lodge to make a lump sum settlement and that the branch office at South Bend made an examination of appellee’s wrist and then refused to pay him more, and that no appeal was taken from this decision. Later on he came to the home of his brother in East St. Louis, and while living there was examined by two physicians who gave certificates tending to show that he was disabled and would be for an uncertain time, which he says he forwarded to the company, and a letter is introduced from the secretary of the company showing that a communication of some kind was received by the company on August. 26th. The suit is instituted for the purpose of recovering what appellee claims to be a balance due him upon weekly benefits, and the amount due him upon a total settlement. The jury found a verdict in favor of appellee for "the amount of $450.

The declaration in this case consisted of two counts; the first count being based upon appellee’s right to recover the balance due him for weekly benefits to the amount of $75, and the second count being based upon what appellee claims to be owing to him on a total settlement, in a sum not exceeding $500.

The appellant seeks to reverse this ease upon the grounds:

First. That instructions one, two and three given on behalf of the appellee were erroneous in that they directed the jury that if the plaintiff has proven the allegations contained in the several counts of the declaration by a preponderance of the evidence, then they should find for the plaintiff in whatever sum they believe from the evidence he is entitled to, if anything.

The first criticism is, that it is error to refer the jury to the declaration to ascertain the things necessary to be proven. This instruction merely authorized a finding for the plaintiff if they believed from a preponderance of the evidence that the “plaintiffs have made out their case as alleged in their declaration,” and has been repeatedly approved by the Supreme and Appellate courts of this State. Fraternal Army of America v. Evans, 215 Ill. 629; Mt. Olive & Staunton Coal Co. v. Rademacher, 190 Ill. 538. We do not believe it was necessary to limit the instruction to the particular amount claimed in the declaration.

The criticism that the amount claimed in the second count of the declaration is specific is not well taken as the by-laws state that upon a total settlement they shall receive an amount not to exceed a one-half benefit, which might be as much as $500.

The criticism that the jury may give the plaintiff such an amount as- they think from the evidence he is entitled to receive, is not well taken and this exact point was passed upon in the case of St. Louis, A. & T. H. R. Co. v. Odum, 156 Ill. 78, where the language in the instruction was: “At such sum as the jury believe him entitled to from the evidence”; and the Supreme Court in passing upon that said the objection was not well founded as by the terms of the instruction the jury were required to base their assessment of damages on the evidence. This is unlike the class of cases referred to by counsel for appellant where the jury might be left open to consider questions of grief, inconvenience and matters of that character, which could not properly be considered as damages, but nothing of that character exists in this case.

It is next objected that the court erred in refusing instruction No. 5 offered on behalf of appellant, and modified. The instruction as offered was not proper, and the modification did not make it good. It is well settled that if an instruction is improper as offered, and that after being modified it was still not good, it cannot be assigned as error by the party offering the instruction; independent of that the instruction did not contain a correct theory upon which the jury should decide this case. The instruction was framed upon the theory that before the appellee could prosecute a claim against the company, where there had been an adverse decision to his rights by the officers of the company, that it was necessary for him to appeal from the decision of such higher officers as provided by the by-laws before he could institute this suit. The modification simply provided that he could' not institute a suit of this character unless he “knowingly neglected to exercise said right of appeal.” It is clearly the duty of a member of an order in all cases where the controversy is concerning the discipline, policy or doctrine of the order or fraternity to proceed in the manner prescribed by the association, and if an appeal as to such matters is provided for, then such member must prosecute an appeal, but where the member claims a money demand the “courts of justice are freely open to those who seek money due them upon a- contract. * * * In determining whether courts will take jurisdiction, a distinction must be observed between cases in which the association subjects its members to discipline for wrong conduct or for violation of the rules of the order, and those instances in which the member appeals to the court to secure property rights or to enforce money demands.” People v. Order of Foresters, 162 Ill. 78.

It is not compulsory upon the appellee to appeal from the decision of the officers of the company in the manner provided by the by-laws before resorting to a suit at law to recover the amount that he claimed was due him. Supreme Lodge O. M. P. v. Meister, 204 Ill. 527.

It is next insisted that the verdict is contrary to the evidence in the case, and is claimed by appellant that there was no evidence warranting half benefits and that total settlements contended for by appellee were mere compromises under the section of the by-laws offered in evidence. While the evidence offered on behalf of appellant tended to show that the appellee was rendered unfit to continue his work after the expiration of a year by reason of his failure to obey the instructions of the physician, there was, however, some evidence offered upon the part of the appellee that tended to show that his wrist was rigid and stiff, and that there was some uncertainty as to when he would recover the proper use of such wrist, and the examinations had been made by the physicians and certificates thereof forwarded to the company to this effect, and owing to the conflict of the evidence as to these matters it was for the jury to determine the rights of the parties with reference thereto.

The criticism that the section of the by-laws with reference to total settlements was a mere compromise is not well taken, as we think, for two reasons: First. The by-laws provide that a total settlement may be asked by a member or it may be offered by the chief staff of officials when a person is not able to prove his right to a half benefit, when the sickness shall be found upon an examination by the physician to be of such a nature as will disable him for an uncertain time but not for his whole life; that under such circumstances a total settlement may be given which cannot exceed the amount of a half benefit. It seems to us that if a member of the order felt that he was entitled to a total settlement that he certainly had the right to demand it and receive it, if the conditions warranted it, or if the order preferred to give him a total settlement, instead of the payment of weekly benefits, it might do so under this section; but whether we are right or not upon our construction of this section of the by-laws, the case was tried by appellant upon the theory that appellee had the right to demand such settlement, for by the sixth instruction given upon behalf of the appellant the jury are informed as follows: ‘ ‘ The court instructs the jury that before yon can find in favor of this plaintiff on the second count in his declaration, for a total settlement or for the payment of a lump sum on account of his alleged disability being of uncertain duration, you must find and believe from the evidence that plaintiff requested such total settlement before the institution of this suit and that his injuries and sickness were of such a nature as to disable him for an uncertain length of time. ” We think that where appellant adopted the theory that it did in the trial of this case, and obtained the above instruction from the court, placing this construction upon the by-laws, it is too late now to say that such section only warranted a compromise. The jury having determined that appellee offered to make a settlement, and produced evidence tending to show that the condition of his wrist was such as to show an injury of uncertain duration that such finding ought not to be disturbed. .

The objection urged that the verdict is contrary to the law in the case, and error in overruling motion for a new trial, and the other matters urged by counsel for appellant, have been fully considered and determined under the foregoing errors, and it will not be necessary to give them any further consideration.

It is urged by counsel for appellant that there was no possible combination of figures as shown by the evidence that could be made that would produce the verdict of $450 as arrived at, and for that reason the judgment should not be entered. This is based upon the mistaken theory, as we think, that a total settlement would have to be $500, when in truth and in fact the by-laws provide that the total settlement should not exceed a half benefit, which is $500, and the jury were not necessarily required to give the full amount of the total settlement that would be allowed by the by-laws.

It is insisted by counsel that because of the small amount of assessments made that it is important that the by-laws be strictly adhered to so that the funds of the association may not be depleted by unworthy claims. It is true that in the trial of a case of this character the court should see that there was at least merit in the claim before permitting a judgment to be rendered upon it, but as we understand the law where companies undertake to insure another against an accident and such party has paid their dues and assessments and have been injured that they are entitled to such reasonable and fair construction of the by-laws as will afford proper protection within their meaning.

We are unable to say that the verdict of the jury in this case is manifestly against the weight of the evidence or that such errors were committed by the court in the trial of the case as would require its reversal, and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    L. S. Lacey, Appellee, v. A. H. Lacey and E. P. Lacey, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding. Heard in this court at the October term, 1915.

      Certiorari denied by the Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Bill by L. S. Lacey, complainant, against A. H. Lacey and E. P. Lacey, defendants, adjoining property owners on the south and west respectively of complainant, to enjoin defendants from trespassing on his lands or from diverting water from their premises upon his land, and cross-bill seeking affirmative relief. From a decree granting the prayer of complainant’s bill and dismissing the cross-bill, defendants appeal.
    Abstract of the Decision.
    1. Waters and water courses, § 8

      —when right to have surface water flow over land of another exists. Where lands of one property owner are servient to those of another, such latter property owner is entitled to have the surface waters naturally coming -from his lands flow over and across the lands of the other.
    2. Waters and water courses, § 29*—when evidence sufficient to show construction of private ditch for exclusive use of property owner. On a hill by a property owner to enjoin two adjoining property owners on the south and west of complainant’s land from trespassing on his lands or from diverting water from their premises upon his land hy means of ditches, evidence held sufficient to sustain a finding that a ditch constructed by complainant’s predecessor in title along the west side of his land was solely for his own interest.
    3. Waters and water courses, § 12*—when owner of land not required to Tceep open private ditch for convenience of adjoining property owners. Where an immediate predecessor in title constructed a private ditch on his own land for the drainage of surface waters flowing from the lands, of adjoining property owners, the owner cannot be compelled to keep such ditch open for the benefit of such adjoining property owners.
    4. Waters and water courses, § 19*—when easemént hy prescription to carry surface water through private ditch not acquirable. Property owners, merely because of the fact that surface water flowing from their premises, as it was accustomed to flow in a state of nature, after it reached adjoining premises, was collected by a private ditch intended solely for the benefit of the owner, and was carried over such owner’s land, cannot acquire an easement by prescription to have the surface water 'from their land continue to drain through such ditch.
    Nolemah & Smith, for appellants.
    Kagy & Vandervort, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

5. Waters and water courses, § 29—when evidence sufficient to show natural flow of water from land of property owners over adjoining land. On a bill by a property owner to enjoin two adjoining property owners on the west and south of complainant from trespassing on his land or from diverting water from their premises on his land, by means of ditches evidence held sufficient to sustain a finding that the natural flow of the water from the land of defendants was from the south over and across complainant’s land.

6. Waters and water courses, § 11 —-when adjoining property owner may not discharge surface water in ditches and drains oral servient estate. The fact that at the time of the purchase of land by a property owner, which was adjoined on the west and south by two separate tracts of land, there was a ditch south of and along an east and west road on his land, which connected with a north and south private ditch on his land and conveyed the surface water coming from such adjoining property owner’s land north, does not authorize the adjoining property owners to construct ditches and drains on their own lands so as to discharge such surface water in a body at any particular point on such owner’s land and thus interfere with the natural flow of the surface water.

7. Waters and water courses, § 11*—how owner of servient heritage may convey surface water coming from dominant heritage. The owner of a servient heritage may construct ditches and drains in any manner he chooses on his own land to convey surface water coming from a dominant heritage, provided that in discharging it from his own land he does not interfere with the natural flow thereof.

8. Waters and water courses, § 15*—when owner of servient heritage may construct embankments. The owner of a servient heritage has the right to construct an embankment upon his own land provided it does not obstruct the natural flow of water from the dominant heritage and operate to the damage of the owner of the latter.

9. Waters and water courses, § 11*—when owner of dominant estate has no right to discharge surface water through ditches upon servient estate. The owner of a dominant estate who sells a right of way to another across such estate and allows him to grade the road above the natural surface of the land so as to interfere with the natural flow of the surface water, and to construct a' ditch along such road to convey the surface water to a certain point and thence over the servient estate, does not acquire the right to discharge the surface water in a body through such ditch upon the servient estate.

10. Waters and water courses, § 15*—when owner of servient estate may construct embankments and barriers to prevent discharge of surface water on his land. Where surface water does not naturally flow from the dominant estate upon the servient estate at a particular point but is conveyed by means of ditches to such point, the owner of the dominant estate has the right to erect such embankments and barriers as will effectually prevent the discharge of the surface water upon his land at such point.

11. Waters and water courses, § 19*—when easement by prescription to discharge surface waters not acquired. An easement by prescription to discharge surface water through a ditch conveying water from the dominant estate upon the servient estate in a manner interfering with the natural flow of the surface water is not acquired by continuous use thereof for six years.

12. Waters and water courses, § 29*—when evidence sufficient to show that water would be naturally discharged on dominant estate after construction of ditch. On a bill by the owner of a servient estate to enjoin the owners of two dominant estates from trespassing on his land and interfering with the natural flow of water, evidence held sufficient to show that the natural flow of the surface water after the construction of a ditch on one of the dominant estates was over the other dominant estate.


text:
    Mosiman Plumbing Company, Appellee, v. Village of Pocahontas, Appellant.
    1. Municipal corporations,’ § 184

      —when city has power to make extensions to light plant. The power granted to a city under Hurd’s Rev. St. ch. 24, sec. 62 (J. & A. U 1334), to provide for the lighting of streets, alleys, avenues, sidewalks, wharfs and public grounds, includes the power to make extensions to purchase a light plant or to contract for extensions to an existing plant.
    2. Municipal corporations, § 48*—■when irregular exercise of power granted by -statute restrained. Where a statute authorizes a municipal corporation to exercise a certain power but specifically regulates the mode in which it is to be exercised, any attempt on the part of municipal officers to override the regulations and exercise it in another manner will be restrained.

      3. Municipal corporations, § 49

      —when municipality estopped to set up irregular exercise of statutory power. A city which accepts and uses an electric light plant as improved which it has the statutory power to- purchase or improve is estopped to set up the failure of the common council to previously make an appropriation therefor before entering into the contract for improvements as required by law.
    4. Municipal corporations, § 1146*—when appropriation must be made before entering into contract for improvement. A municipal corporation is not authorized to enter into a contract for improvements to an electric light plant without first making an appropriation therefor.
    5. Municipal corporations, § 416*—when not chargeable with interest. Municipalities are not liable for interest in the absence of a specific agreement to pay it.
    Appeal from the Circuit Court of Bond county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed April 17, 1916.
    Cook & Meyer, for appellant.
    C. E. Hoiles and Albert & Albert, for appellee.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

Appellee recovered a judgment against the appellant in the Circuit Court of Bond county for $787.57, which the appellant seeks by this appeal to reverse.

A trial was had before the Circuit Court without a jury upon an agreed state of facts, which are, in substance, as follows:

First. Plaintiff is a corporation.

Second. The defendant" is a municipal corporation under the general laws of the State of Illinois.

Third. That defendant owned, possessed and was operating a light plant in the village for the lighting of its streets, and desired to build additions and extensions thereto.

1 Fourth. That the fiscal year of said village began on the third Tuesday of April in each year; that about September, 1911, the board of trustees entered into an agreement with plaintiff to construct said additions and extensions; that plaintiff did such work and furnished such material and completed the samé before December 8, 1911; that the reasonable value and price of the work, services and material rendered by plaintiff in such was $1,350.

Fifth. That the trustees of said village accepted said work and have used the same from thence to the present time and are still using it; that the defendant paid to plaintiff $675, and delivered to plaintiff the note in question, which is as follows:

“One year after date the Village Treasurer will pay to Mosiman Plumbing Company, or order, six hundred seventy-five dollars ($675.00) out of the lighting fund as allowed by the Board of Trustees, on the 8th day of December 1911, for balance owing on installment of new lights, with interest at six per cent, until paid.

“Given under my hand and seal this 8th day of December 1911.

“Signed, Ed Kleimann, Clerk.

“Henry Kleimann, Pres.'”

Sixth. The village made no annual appropriation ordinance during the first quarter of its fiscal year in 1911. During the first quarter of the fiscal year 1912, it appropriated $1,500 for street lighting, intending thereby to appropriate $675 to pay plaintiff its said balance of $675; that said village failed to pay plaintiff out of said appropriation. During the years 1913 and 1914 the same amounts were appropriated by ordinance in each year and with the same intention and understanding, but it neglected and refused to make the payment and has never paid plaintiff the balance due on its claim.

The declaration consisted of the common counts and an additional count, setting forth that the defendant desired to repair and build extensions to its said plant, and' the plaintiff at its request did furnish labor, material, machinery and fixtures in the extension of said plant, the reasonable value whereof is $1,350; that when said work was completed on December 8, 1911, the plaintiff rendered its account to the defendant and defendant agreed that such was the reasonable value of the labor and materials furnished, and paid $675 thereof and agreed to pay the balance, with five per cent, interest; that defendant accepted said work and material and has held and used said plant and still uses the same as the property of said village -but re-' fuses to pay therefor.

The defendant filed a plea of general issue. The appellant contends that as there was no appropriation ordinance passed by the village board providing a fund for the lighting of the streets or the extension of its improvement, that the contract entered into and the warrant or note issued in pursuance thereof are void and that the appellee is not entitled to recover anything for extending the said plant, and in support of this proposition he refers to sections 1, 2, 3 and 4 of article 7 of chapter 24, ‘ ‘ Of Finance, ’ ’ Statute 1912 (J. & A. 1f1f .1360, 1361, 1362, 1363), together with other authorities which will be hereafter noticed. We agree with the contention of counsel that before the appellant was authorized to enter into a contract for the extension of this improvement, it was necessary that an appropriation should have been previously made, and do not believe that appellee could recover upon a contract entered into without such appropriation ordinance having been passed. It appears, however, from the stipulation entered into in this case that the work and materials furnished by appellee were reasonably worth $1,350, and that the appellant upon the completion of the extension accepted the same, used it and continues to use it, passed ordinances in three succeeding years appropriating funds for the purpose of paying for it but never in fact making any further payments. The serious question in this case is whether or not the village can request an improvement to be made and, when made and accepted, the village can continue to use such improvement for three years or more without paying therefor its reasonable value or in some manner place the appellee in statu quo. If the village had no power to provide for the lighting of the streets and extending the plant, then a different question might arise as to its liability, but in this case the village did have power to provide for the lighting of its streets. The Statute of 1872 provides that cities and villages shall have power to provide for a lighting of streets, alleys, avenues, sidewalks, wharfs and public grounds. Section 62, ch. 24, of Hurd’s Statutes (J. & A. fí 1334). The power of a city to light its streets includes the power to acquire by purchase the building and plant for such purpose. Hay v. City of Springfield, 64 Ill. App. 671. There can be no question, as we view it, but what the Village of Pocahontas had the power to provide for a lighting of its streets, and shall it be said that because this power was exercised in a manner different from that provided by statute that property and improvements thereby acquired shall be used and enjoyed by the village without paying reasonable compensation therefor? If this were an action to restrain the parties from carrying out an illegal contract, or an action by taxpayers to enjoin the prosecution of work, the question would be wholly different. “While courts should maintain with vigor the limitations which the statute has placed upon corporate action, whenever it is a question of restraining a city council in advance from passing beyond the bounds of statutory requirement, they should, on the other hand, enforce against the city, contracts of which it has received the benefit, if the subject-matter of the contract falls within the charter powers of the city. Where the statute authorizes a municipal corporation to exercise a certain power, but specifically regulates the mode in which it may be exercised, an attempt on the part of the municipal officers to override the regulations [of the statute] and exercise it in another manner will be restrained; but when the officers have so acted, and the municipality has received the benefits of a contract thus irregularly entered into, it is estopped from setting up the irregular exercise of the power when called upon to pay for what it has received.” Westbrook v. Middlecoff, 99 Ill. App. 327, and the various authorities therein referred to. This authority is quoted and the exact language used in the case of the County of Coles v. Goehring, 209 Ill. 165, where the Supreme Court holds the county of Coles liable for the value of the courthouse, notwithstanding the warrants issued for the payment thereof were void as not conforming to the statute. The principles here announced are also sustained by the case of Village of Harvey v. Wilson, 78 Ill. App. 544. Even though a contract that is executory cannot be upheld where it is entered into in a manner different from that provided by statute, this rule has no application where the contract has been executed and accepted, if the act done was within the power of the city. City of East St. Louis v. East St. Louis Gas Light & Coke Co., 98 Ill. 415. This doctrine is manifestly fair and just and should, in our opinion, be applied in an action where the rights of a party are as just and equitable as the rights of appellee appear to be from this record.

Counsel for appellant have cited several cases, some of which upon first impression would appear to hold that because this contract Was not entered into in the manner provided by statute, no recovery could be had, but an examination of these eases show that they were either seeking to recover upon a contract or were for the purpose of preventing the execution or carrying out of a contract illegally entered into. The case of May v. City of Chicago, 222 Ill. 595, referred to, was a case where the collector had promised the regular employees, who were engaged at work upon a salary, extra compensation for extra work, but the court in that opinion says that they were obliged to do the extra work for the salary and that the collector was not authorized or did not have the power to pay them for the extra work. The case of Hope v. City of Alton, 214 Ill. 102, referred to and relied upon, was where the services had been performed in direct violation of the ordinance which created a legal department, and provided that the city should not he liable for the services of any other attorney, and the court there said that the contract was void, and says: “The city council had no authority, by any method or process, to agree that the city should pay for legal services to be rendered by the plaintiff, who was neither city attorney nor corporation counsel.” The case of Litz v. Village of West Hammond, 230 Ill. 310, also referred to by counsel for appellant in support of their contention, is a case in which warrants had been issued but not paid, and the court was asked to restrain the carrying out of the contract, which had not been executed and also asks the court to restore the lots in controversy to the contracting parties, and in that case the court distinguishes between cases where the contract has been pursued in an unlawful manner, and the parties can be placed in statu quo, and cases where the contract has been executed and the other party is receiving the benefit, and under this heading the court says: “Upon this branch of the controversy appellees rely upon City of East St. Louis v. East St. Louis Gas Light & Coke Co., 98 Ill. 415; Town of Kankakee v. McGrew, 178 Ill. 74; County of Coles v. Goehring, 209 Ill. 142, and other cases where the municipality itself, after the contract was executed by the other party thereto, has sought to avoid the performance of the contract on its part, where it could not put the other party in statu quo or where it did not offer so to do. It seems scarcely necessary to say that such cases are entirely without application here, where the suit is brought by taxpayers who were not parties, to the contract. ’ ’ Without pursuing the investigation of this question any further, we are of the opinion that as it was within the power of the appellant to purchase and make the extensions of its plant, as it did, and that as it accepted it, used it and received the benefits of it for several years, that it ought to pay for it.

A further question is made as to the allowance of interest. It seems that interest was allowed to the amount of $112.57. This was not a recovery upon the warrant or the contract and could not be accepted for the value of the plant, and there is nothing in the stipulation showing an agreement to pay interest. The agreement to pay interest as stated in the contract cannot be enforced and, as we understand the rule of law, that as to municipalities, unless there is a specific agreement to pay interest they are not liable for interest. In the case of County of Coles v. Goehring, supra) the Supreme Court says: “We have held that ‘a municipal corporation, under the uniform ruling of this court, is not chargeable with interest on claims against it, in the absence of express agreement therefor, the only exception being where money is wrongfully obtained and illegally withheld by it.’ ” Citing City of Danville v. Danville Water Co., 180 Ill. 235, and other cases. There is no evidence in this record showing an agreement upon the part of the appellant to pay interest, and interest should not have been allowed, and a remittitur of $112.57 is required to be made by the appellee within thirty days, and if so made the judgment will be affirmed. If not made the cause will be reversed and remanded.

It is further ordered that each party pay its . own costs in the Appellate Court.

Counsel for appellant has complained of the refusal of certain propositions of law submitted, but the propositions were not abstracted and no specific reasons have been pointed ont why the court erred in the refusal, other than the principles above decided, and as the decision covers all of the matters in dispute in this case no further attention will be paid to such propositions.

Affirmed on remittitur; otherwise reversed and remanded.


text:
    Joe Ellis for use of W. S. Dorris, Appellee, v. Saline County Coal Company, Appellant.
    1. Assignments, § 3

      —when assignment of future wages valid. Where a debtor is in the actual employment of another and is receiving wages under a subsisting engagement, an assignment by him of his future earnings may be made, not for security and payment of an existing indebtedness, but for such advances as he may find it necessary to obtain.
    2. Assignments, § 3*—when assignment of future earnings invalid. An assignment of wages to be earned under a future employment not contracted for at the time of the making of the assignment is invalid.
    3. Assignments, § 3*—when debtor may not assign wages by power of attorney authorising. A debtor cannot assign his wages by an attorney in fact authorized by a power of attorney entered into before the contract of employment was made.
    4. Principal and agent, § 102*—when duty of employer to ascertain authority of agent to mahe assignment of wages. Agency to make an assignment of wages cannot be presumed, and an employer who deals with a pretended agent and makes payment of the money to such agent without ascertaining his authority does so at his peril.
    5. Assignments, § 28*—when payment by employer to creditor of employee under invalid assignment of wages 'no defense. Payment to a creditor under an invalid assignment of wages after notice of an existing valid assignment is no defense, and it is immaterial that the employer has not accepted the second assignment.

      Appeal from the County Court of Saline county; the Hon. Charles D. Stilwell, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed April 17, 1916.
    Whitley & Combe, for appellant.
    Lewis, Ronalds & Lewis, for appellee.

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

   Mr. Justice McBride

delivered the opinion of the court.

This was a garnishee proceeding in which plaintiff obtained a judgment against the defendant for $36.05, to reverse which this appeal is prosecuted.

It appears from the record in this case that on November 1, 1913, Joe Ellis was engaged at work for the O’G-ara Coal Company, and became indebted to C. V. Parker, who was doing business as the City Loan & Insurance Company, for money advanced by the said Parker to the said Ellis, and to secure the repayment of such money the said Ellis, on the 1st day of November, 1913, executed a power of attorney appointing C. V. Parker attorney in fact, and therein directed the said Parker “at any time hereafter, at his option, when I may be indebted to the said City Loan &, Insurance Company, to make, execute, acknowledge and deliver to said City Loan & Insurance Company, as collateral security for any such indebtedness, an assignment and transfer to said City Loan & Insurance Company of all my wages, salary and commissions then owing or to be thereafter earned from any individual, firm or corporation by whom I may be then employed”; and further authorizes his said attorney at his option to make “like successive assignments of my said' wages, salary and commissions, until any and all sums of money due or hereafter becoming due from me to the said City Loan & Insurance Company are satisfied in full. ’ ’ Under this power of attorney money was from time to time advanced by.Parker to Ellis and the wages due were assigned to the City Loan & Insurance Company in repayment of the loans. Ellis continued to work for the O’Car a Coal Company until sometime previous to November 1st.

On November 5, 1914, he began work for the Saline County Coal Company and continued to borrow money from the City Loan & Insurance Company, but executed no new papers. On November 28, 1914, he arranged with one W. S. Dorris to borrow some money from him, and on that date assigned to the said W. S. Dorris “all wages and claim for wages or commission earned and to be earned, and all claims or demands due or to become due me from the O’Gara Coal Company, the Wasson Coal Company and the Saline County Coal Company, their successors, heirs and assigns, or any other firm, person, company or corporation by whom I may hereafter be employed, or who may owé me money for any consideration whatsoever for the next six years from the date of this assignment”; and by the same instrument appointed W. S. Dorris his attorney in fact to receive and receipt for said money and take all legal measures for the recovery thereof. On April 1, 1915, the said C. V. Parker, by virtue of the power of attorney executed November 1, 1913, made an assignment of wages due Joe Ellis from the said Saline County Coal Company to the City Loan & Insurance Company, and on the same date filed the same with the Saline County Coal Company. The pay days at the Saline County Coal Company were on April 30th and May 15,1915, and there was due to Ellis on April 30th, $42.25, and on May 15th, $36.05. On April 30, 1915, and before the wages of Ellis had been paid out, the appellee served notice upon the Saline County Coal Company and left with it the assignment of the wages of Ellis due appellee. On the next day the assignment was returned by the Saline County Coal Company to appellee and he was informed that there was a prior assignment of the Ellis wages to the City Loan & Insurance Company, and appellant thereupon refused to pay Dorris any part of his claim.

It further appears from the evidence that on April 1, 1915, Ellis was indebted to the City Loan & Insurance Company in the amount of $24.05, which was due and unpaid. Upon the facts above set forth, the court rendered judgment for the appellee in the amount of $36.05.

The real question of dispute in this case is as to whether Parker or Dorris is entitled to this money.. It is contended by Dorris that the power of attorney and the assignment made to Parker is invalid for the reason that, at the time of the making of the power of attorney authorizing Parker to make the assignment of wages, Joe Ellis was not engaged at work for the Saline County Coal Company, and had no contract to work for them but was engaged at. work for the O’Grara Coal Company. Upon the other hand, it is contended by appellant-that the assignment so made to Parker was valid and that Parker was prior in point of time in presenting his assignment, and that Parker was entitled to receive the money.

If Ellis was at the time of the commencement of this suit indebted to Parker, and the assignment was valid, then there could be no question about the rights of Parker to receive the money. It is disclosed by this record that on April 30, 1915, there was $42.25 and on May 15, 1915, $36.05 earned and owing for labor performed by Joe Ellis from the Saline County Coal Company, and the only indebtedness that is shown to exist by Ellis to Parker is $24.05 on April 1st, and it does not appear that any money was obtained by Ellis from Parker after that date, so that there was more than money enough owing by the Saline County Coal Company on April 30th to reimburse Parker, but as it does not appear from the evidence that the coal company had notice of the amount that was really due from Ellis to Parker, the case will have to be determined upon the validity of Parker’s power of attorney and assignment.

The Supreme Court of this State is committed to the doctrine that “when the debtor is in the actual employment of another and is receiving wages under a subsisting engagement, an assignment by him of his future earnings may be made, not only for security and payment of a present indebtedness, but for such advances as he may find it necessary to obtain.” Mallin v. Wenham, 209 Ill. 252. In the decision of the case last above cited, stress is laid upon the fact that the debtor was at the time in the employment of the trustees under a subsisting contract.

It seems to be the well settled law of this State by numerous decisions that a workman cannot himself assign wages to be earned in a future employment for which he has not contracted at the time of the assignment; and it seems to be equally well settled that he cannot assign his wages by an attorney in fact authorized by power of attorney entered into before the contract of employment is made. Ogle Co-operative House Furnishing Co. v. Shauman, 188 Ill. App. 4; Stromberg, Allen & Co. v. Hill, 170 Ill. App. 323; Richards v. Olsen, 185 Ill. App. 395. Many decisions referred to in the cases above cited sustain this doctrine.

This record discloses that the power of attorney under which defendant claims that Parker is entitled to this money was executed on November 1, 1913, and while Ellis was at work for the O’G-ara Coal Company, and fully a year before he began working for the appellant, and we do not believe that Parker was entitled to receive this money. It is insisted, however, that the defendant is an innocent party in this matter and should not be made to suffer. The defendant knew it was dealing with an agent of Ellis’ and either did know, or should have known, the extent of the authority of this agent, Parker, who made the pretended assignment, and if the defendant had called upon bim for his authority it could have at once seen that his authority was invalid under the law. Agency could not be presumed, and the defendant dealt with Parker as an agent at his peril, and if he was not lawfully authorized to make the assignment and receive this money, then the payment under such could not be justified. Good v. Arkin, 147 Ill. App. 390.

It is further insisted that appellant never accepted the assignment made by Ellis to Dorris; this was not necessary when it was brought to the notice of the defendant that the assignment had been made, then it could do no act to prejudice the rights of the assignee. “Payment by him to the nominal creditor, after such notice of assignment, without the consent of the assignee, will be no defense to an action brought, for the benefit of assignee; neither can the original parties, after such notice, make any compromise or adjustment of the cause of action as against the assignee.” Chicago Title & Trust Co. v. Smith, 158 Ill. 417.

We believe that under the' facts- as disclosed by this record the lower court was fully warranted in rendering judgment for appellee, and finding no- reversible error in the proceeding, the judgment of the lower court is affirmed.

Affirmed.


text:
    Charles Pauly and Edward C. Pauly, copartners, Appellants, v. Madison County, Appellee.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Counties, § 29

      —when presumed that meetings of hoard of supervisors properly convened. It will be presumed that the members of a county hoard of supervisors, as public officers, have done their duty, that their meetings were properly convened and at the time designated by law.
    2. Counties, § 29*—what degree of exactness in procedure required of county hoard of supervisors at meetings. All reasonable liberality must be accorded to meetings of a county board of supervisors relative to the technicalities of procedure, and the mere fact that there was no formal motion or resolution expressly authorizing a building committee to contract for plans and specifications for a county building cannot affect the rights of the parties to such contract.

      Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Rehearing denied May 25, 1916.
    Statement of the Case.
    Action by Charles Pauly and Edward C. Pauly, co-partners, plaintiffs, against Madison County, defendant, to recover compensation for services as architects in preparation of plans and specifications for a courthouse. From a judgment for defendant, plaintiffs ap-' peal.
    D. H. Mudge, for appellants.
    J. F. Gillham and J. F. Beck, for appellee.

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

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

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

   Mr. Justice McBride

delivered the opinion of the court.

3. Counties, § 57 —what constitutes ratification of act of committee of board of supervisors in making contract for public building. Where the report of a building committee of a board of supervisors recommending improvements to a county building and the employment of an architect is adopted by the board of supervisors, and the building committee, believing that such adoption confers' power upon it to act, procures the services of an architect, the action of the board at a subsequent meeting in adopting their report constitutes a ratification of their acts. <

4. Contracts, § 188*—when acts of parties controlling in construing contract. Where the proper interpretation of a contract or other writing is in issue, the parties will be held to that interpretation which they themselves have placed upon it, and their acts may be shown to determine such interpretation.

5. Counties, § 60*—how contract may be made with county. A contract may be made with a county by its board of supervisors acting through a properly constituted committee or agent.

6. Principal and agent, § 187*—when acts of agent beyond scope of authority deemed ratified. Where an agent acts without authority, or where he transcends his authority, it is the duty of the principal to repudiate the act as soon as he has been fully informed of what has been done in his name by the agent, else he will be bound by the act as having ratified it by implication.

7. Contracts, § 177*—when construed to carry into effect intention of parties. Contracts should be so construed as to carry into effect the intention of the parties where such intention may be ascertained and given effect without doing violence to the language used.

8. Contracts, § 329*—when departure from terms of contract occasioned by party’s oton act no defense. Where one party to a contract, either directly or by implication, induces or causes the other party to depart from the letter and terms of the contract in his performance thereof, he cannot predicate a defense upon such departure or variance.

9. Counties, § 57*—when evidence sufficient to show implied acceptance of building plans and specifications. In an action by architects against a county to recover for the making of plans and specifications for a new courthouse, where it appeared that the board of supervisors at a meeting ratified a report of a building committee recommending the employment of an architect, and that apparently only the question of making improvements to the existing courthouse was considered at such meeting, but, after presentation of resolutions to the board by citizens protesting against the remodeling of the existing building and requesting an entirely new building, at a subsequent meeting of the board, the committee directed the architects to make plans for a new building and the plans were prepared and presented by the committee at a subsequent meeting and retained by the board without objection or criticism thereto, evidence held sufficient to establish a recognition and implied acceptance of the plans and specifications.

10. Counties, § 25 —when may ratify acts defectively done. Where a county has power originally to do a certain thing, it has the power to ratify and make valid an attempted effort to do the same thing, although the same may have been done defectively, informally, and even fraudulently, in the first instance.

11. Counties, § 57*—when county liable to architect for preparation of plans and specifications for county building. A county which has impliedly accepted plans and specifications for a new courthouse procured by its committee by retaining them without objection or criticism is liable for the reasonable value of the services of the architect preparing the same, although it had previously only authorized the preparation of plans and specifications for the remodeling of the existing building.

Higbee, J., dissenting.


text:
    Fred Lincoln, Appellee, v. Edward B. Pryor, Receiver of the Wabash Railroad Company, Appellant.
    1. Master and servant, § 565

      —when variance between pleading and proof as to place of injury not fatal. In an action by a car inspector for damages for injuries sustained as a result of being struck by a “kicked” car moving on one track while he was standing between such track and another track inspecting cars on the latter track, a variance between the declaration, which alleged that the car was “kicked” in upon the track on which the cars being inspected were placed and evidence showing that the car was “kicked” in on the other track, held not fatal.
    2. Appeal and error, § 438*—when objection of variance may not be raised on appeal. The question of variance between the declaration and the evidence cannot be raised on appeal when the attention of the trial court was not called thereto so as to give an opportunity to amend the pleadings.
    3. Master and servant, § 693*—when evidence sufficient to sustain finding that yard foreman of switching crew knew that car inspector was inspecting cars. In an action by a car inspector for damages for injuries sustained as a result of being struck by a “kicked” car moving on a track on one side of him while inspecting a train on a track on the other side, evidence held sufficient to sustain a finding that the yard foreman of the switching crew knew that plaintiff was engaged at his work of inspecting the cars of a train that had arrived.
    4. Master and servant, § 177*—when railroad liable for negligent injuries to employee by “kicked"- car under Federal Employers’ Liability Act. The knowledge of a yard switchman that a car inspector was at work inspecting a train on a certain track at night and his negligence in “kicking” an unlighted and unattended car without warning at a speed of from eight to seventeen miles per hour on an adjoining track so that the car struck the car inspector, is sufficient to render the railroad company liable under the Federal Employers’ Liability Act.
    5. Master and servant, § 717*—when negligence in “kicking" car without warning question for jury. In an action by a car inspector for damages for injuries sustained as a result of being struck by a “kicked” car moving on a track on one side of him while he was inspecting a train on the other side, where there was evidence that the accident occurred at night, that the car was not lighted, was unattended and was sent without warning at a speed of from eight to seventeen miles per hour, held that the negligence of the railroad company was a question for the jury.
    6. Master and servant, § 628

      —when evidence as to existence of custom, of having brakeman or light on “kicked” car admissible. In an action by a car inspector for damages for personal injuries sustained as the result of being struck at night by a “kicked” car moving on a track on one side of him while inspecting a train on a track on the other side, held that evidence as to the existence of a custom of having a brakeman or a light on a “kicked” car was admissible on the questions of due care and assumption of risk.
    7. Master and servant, § 337*—what risks servant does not assume. A servant does not assume the risks of the negligent acts of the master that are unusual or extraordinary and not known to the servant.
    8. Master and servant, § 698*—when assumption of risk of being struck by “kicked” car question for jury. In an action by a car inspector for damages for personal injuries sustained as the result of being struck at night by an unattended unlighted car which was “kicked” without warning on an adjoining track at a speed of from eight to seventeen miles per hour, where there was evidence that it was not customary to kick a car in on the track without a brakeman thereon to control it and without a light, held that it was a question for the jury whether plaintiff assumed the risk.
    9. Master and servant, § 363*—what risks assumed by servant. An employee assumes all risks which are obvious and apparent and which are known to him, although such conditions are produced as the result of the master’s negligence if he continues in his employment without a promise to remedy such defects.
    10. Negligence, § 196*—when question of proximate cause for jury. The question of proximate cause is usually one of fact for the jury, unless there arises out of the evidence such a state of facts as all reasonable minds would agree that the facts so proven do not constitute the proximate cause.
    11. Master and servant, § 760*—when negligence of railroad in “kicking” car on track adjoining car inspector as proximate cause of injury question for jury. In an action by a car inspector for damages for personal injuries sustained as the result of being struck at night by an unattended, unlighted car which was “kicked” without warning on an adjoining track at a speed of from eight to seventeen miles per hour while he was inspecting a train, held that it was a question for the jury whether the negligence of the defendant in “kicking” the car on the adjoining track under the circumstances was the proximate cause of plaintiff’s injury was a question for the jury.
    12. Instructions, § 159

      —when deficient instruction cured by other instructions. An instruction is not objectionable as not limiting negligence to that charged in the declaration where other instructions limit the negligence to that charged in the declaration.
    13. Damages, § 206*—when instruction authorizing damages for future suffering not erroneous as not being based on evidence. An instruction in an action for damages for personal injuries authorizing damages for future suffering and loss of health, held not objectionable as directing the jury as to the amount of damages where there was evidence that plaintiff still suffered from pain at the time of the trial and would probably have to undergo an operation for the amputation of his leg before he could regain his health.
    14. Master and servant, § 98*—when instruction on damages in action under Federal Employers’ Liability Act erroneous. An instruction in an action undér the Federal Employers’ Liability Act which fails to inform the jury that under such act the plaintiff’s damages, if any, must be diminished to the extent that the plaintiff contributed to the injury by his negligence is erroneous.
    15. Master and servant, § 98*—when damages suffered by servant must be diminished by Ms contributory negligence. Under the Federal Employers’ Liability Act, the damages which an injured employee is entitled to recover must be diminished to the extent that the plaintiff contributed to the injury by his negligence.
    16. Master and servant, § 833*—when erroneous instruction on question of damages cured by erroneous instruction for adverse party. An erroneous instruction for plaintiff on damages, in an action for damages for personal injuries under the Federal Employers’ Liability Act, which failed to inform the jury that under such act the plaintiff’s damages, if any, must be diminished to the extent that the plaintiff contributed to the injury by his negligence, held to be cured by an erroneous instruction for defendant that in each count of the declaration plaintiff had alleged that at the time he was injured and immediately prior thereto he was in the exercise of ordinary care and caution for his own safety, that this was a material allegation and that, unless plaintiff proved it by a preponderance of the evidence, the defendant should be found not guilty, no matter what their opinion might be concerning any other fact or issue in the case.
    17. Instructions, § 159*—when taken as series. Instructions must be taken as a series.
    18. Appeal and error, § 1316*—when jury presumed to have followed instructions. It will be presumed that the jury followed the instructions of the court.

      19. Appeal and error, § 1406

      —when verdict not disturbed on ground of excessive damages. A verdict will not be disturbed on the ground of excessive damages where the jury were not influenced by passion or prejudice.
    20. Damages, § 122*—when verdict for personal injuries not excessive. A verdict for $8,000 in favor of a railroad car inspector for the loss of his left leg below the knee, the end of one finger and other injuries, held not excessive.
    Appeal from the Circuit Court of St. Clair county; the Hon. M. R. Sullivan, Judge, presiding. Heard in this court-at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 17, 1916.
    Rehearing denied May 25, 1916.
    Kramer, Kramer & Campbell, for appellant; J. L. Minnis and N. S. Brown, of counsel.
    Henry B. Bathbone, for appellee; Lloyd Y. Walcott, of counsel.

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

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

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

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

   Mr. Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment in the court below for $8,000, which it is sought to reverse by this appeal. It appears from the record that at the time of the injury of appellee, the appellant was engaged in interstate commerce, and the injury happened between 9:45 and 10:00 o’clock on the night of July 3, 1913, in the Wabash yards at Forty-seventh street in Chicago. Appellant’s switch tracks at said yards were elevated about sixteen feet above the level of the ground and there were twenty-one switch tracks running north and south. The accident happened at about Forty-fifth Place in Chicago, and the nearest light to the place of accident was from five hundred to seven hundred feet. The tracks which have any special relation to the matters in question were tracks 14, 15 and 16. Track 14 was on the east side of 15 and track 16 on the west side thereof. The distance between the tracks was seven feet and six inches, and cars passing along such tracks overlapped the rail for a distance of about thirty inches on each side so that the space between the two tracks when cars were thereon was about thirty inches.

Track 15 was used, and had been for a year or more, upon which trains were run from Twelfth street containing what the witnesses called “Twelfth street drag,” to be inspected by inspectors who were stationed, one on the east and the other on the west side of the train, and as the train ran slowly along the inspection was made. On the evening in question appellee was inspector on the east side of said track and Matt File was inspector on the west side, and these parties had been performing this inspection work for a year or more. This train of cars arrived for inspection about fifteen minutes earlier than usual on this occasion. After the cars were inspected they were distributed by another crew into proper trains for their destination upon other switch tracks. While the appellee was engaged at his work and in a position between tracks 15 and 16, a running switch was made by this distributing crew and a car kicked in on track 16 without having any brakemen or light thereon and was thrown in at a rate of speed variously estimated at from eight to seventeen miles per hour. It appears that appellee was facing to the north at the time this car reached the place where he was engaged, and, as the car came from the opposite direction in which he was faced, did not observe it, and it struck him on the shoulder, knocked him down, the wheels passed over his leg and by reason thereof his left leg was cut off about nine and one-half inches below the knee, and his shoulder injured, the end of his finger cut off, and was otherwise injured and bruised. He was taken to the hospital and there remained for a great length of time. He now uses a wooden limb, but claims that he has pain all the time, and a physician introduced by him testifies that in all probabilities it will be necessary for a further amputation of the limb. It further appears from the evidence that at the time of the trial appellee was a minor and attained his majority between the completion of the trial and the rendition of the verdict.

The suit was originally commenced against appellant and the Chicago Western Indiana Railroad Company, and also Walter K. Bixby, who was joined with appellant as associate receiver. At the close of plaintiff’s evidence Bixby was dismissed out of the case, and at the close of all the evidence the Chicago & Western Indiana Railroad Company was also dismissed out of the case. There were several counts in, the declaration, but at the close of plaintiff’s evidence the court sustained a motion to exclude the evidence and direct a verdict as to all of the counts in the declaration except the first and fourth counts.

The first count of the declaration set forth that “while the plaintiff was in the ordinary course of his duties and in the exercise of all due care and caution for his own safety, engaged in walking alongside of a certain string of cars which were then and there moving slowly along said track and was close to said cars and the rails of said track so that if any car were shunted, kicked or caused to run along said track and toward the plaintiff, said car would strike against the plaintiff; and this the said defendants then and there well knew, and had due and timely notice of; * * * that the said defendants then and there so negligently and wrongfully shunted, kicked and caused a certain car to run on and along said track and toward the plaintiff, and that said car struck on and against the plaintiff with great force and violence, and thereby plaintiff was thrown down upon the ground and injured,” etc.

The fourth count is the same as the first except that it alleges as to said car so shunted and kicked, that the defendant “negligently and wrongfully failed to station, have and keep on said car any of its servants to control said car or stop the same if need be,” etc.

The rights of the parties in this case are to be determined by an application of the facts to the law as laid down by an Act of Congress commonly known as the Federal Employers’ Liability Act, which by its terms permits persons injured while engaged in interstate commerce to institute suit and recover for such injuries, and provides that contributory negligence shall not bar a recovery but damages shall be diminished in proportion to the amount of negligence attributed to such employee, provided that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where a violation of such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee. It is also provided by said statute that such employee shall not be held to have assumed the risk of his employment in any case where a violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.

It is not contended that the injury to appellee was caused by a violation of any statute enacted for the safety of employees, and therefore any damages sustained by appellee would be diminished in proportion to his contributory negligence, if any, and the doctrine of the assumption of risks could be invoked by appellant if the facts and circumstances warranted it. It is insisted by counsel for appellant that the plaintiff failed to prove the particular negligence charged in the declaration, and for this reason cannot recover. It is claimed that the declaration in effect alleges that the car was kicked in upon track number 15 and the evidence shows that it was kicked in on track 16. It is true that the declaration in referring to the track upon which the car was kicked refers to it as “ said track, ’ ’ when it would appear by a reference to the former allegations that “said track” was 15. This, however, would constitute only a variance between the allegation of the declaration and the proof, and would not be of such a character as to defeat the action. If appellant had desired to take advantage of this variance he should have at the proper time pointed out the variance and given the court an opportunity to pass upon this question, and if there was a variance, in fact, to give an opportunity to amend the pleadings so as to obviate the question, and as appellant did not do this, he cannot raise the question for the first time in this court, and it is not properly before this court for consideration. Alton Railway, Gas & Electric Co. v. Webb, 219 Ill. 563.

In this connection appellant’s counsel have insisted that the defendant was not guilty of the negligence charged in the declaration and therefore appellee could not recover. The negligence charged is that the defendant negligently and wrongfully shunted, kicked and caused a certain car to run on and along said track and towards the plaintiff, and that said car struck on and against the plaintiff, etc., and to this, in the fourth count, is added that the defendant “negligently and wrongfully failed to station, have and keep on said car any of its servants to control said car or stop the same,” etc.

There is no dispute in the evidence in this case that the defendant, by its servants, did shunt or kick a car onto track 16 without having thereon any light or brakeman, or any person to control the same, and that said car was running, at a rate of speed variously estimated at from eight to seventeen miles per hour, and struck the plaintiff and injured him. The brakeman, whose duty it was to ride this car, says that it was running so fast that he was unable to get upon it without endangering his own life. The place where appellee was at work was not well lighted and was at a distance of from five hundred to seven hundred feet from a yard light. At the time the car approached appellee he was at work with his back towards the car, his attention directed to his work, and did not observe the car. The car was kicked onto this track by the switching crew, who were engaged in the yards in distributing cars upon different tracks for their destination. This was the regular work of appellee, and while it is true, that as the “Twelfth street drag” train, as denominated by the witnesses, came in a few minutes earlier than usual on this occasion, a portion of the switching crew knew that appellee was engaged at his work in the inspection of this train. The brakeman who threw the switch and whose duty it was to ride the car down said that he saw appellee with his inspector’s lamp at his place of work, and that there was nothing between appellee and Bay, the foreman of the switching gang, to prevent Bay seeing him. It is true that there is no direct testimony showing that Bay saw appellee at his place of work at this time, but Bay was there in the yard; was-in a position that he could have seen the light of appellee; knew that it was about the time for appellee to be engaged in this particular work; the “Twelfth street drag” train had come in; and while there is no evidence showing specifically that he knew this train had come in, yet, under all the circumstances, we think the jury would be warranted in finding that Bay knew that the drag train was in and that appellee was engaged at his usual work, even if it were necessary that he should have had particular knowledge of the fact that appellee was there at his work. It seems to us that under this statute the knowledge of the brakeman at the time the car was kicked in that appellee was there at his place of work, and his negligence in permitting the car, while moving so rapidly, to go unattended, would be sufficient, as the statute under consideration provides that a common carrier shall be liable “for such injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier.”

In speaking of the practice of kicking cars or making a flying switch, our Supreme Court has said: “This manner of switching has been condemned as dangerous by this court.” Illinois Cent. R. Co. v. Baches, 55 Ill. 379; Chicago Junction R. Co. v. McGrath, 203 Ill. 511.

“The practice of kicking or dropping cars and running switch engines and cars in railroad yards without giving adequate warning of their approach to employees engaged in the performance of their duties clearly constitutes negligence.” Adams v. Cleveland, C., C. & St. L. Ry. Co., 149 Ill. App. 574; Pittsburg, C., C. & St. L. Ry. Co. v. Bovard, 223 Ill. 176.

The question of negligence was one of fact under the circumstances here developed to be determined by the jury, and we cannot say that the jury were wrong in reaching a conclusion that the appellant was negligent in this respect.

The declaration in this case contains no allegation with reference to the existence of a custom as to having a brakeman or light upon a car when kicked in on track 16, and it is contended that the court erred in admitting testimony of the existence of such a custom under this declaration. It was necessary for the jury to determine whether or not the plaintiff was in the exercise of due care and whether or not he had assumed the risk in this case, and we think the evidence here offered was permissible for both of these propositions, if for no other. If there was a custom not to kick a car upon track 16 while plaintiff was engaged in the inspection of the train on track 15, without having on such car a brakeman and lantern, and the car was kicked in without such, then this was a fact that might be considered by the jury in passing upon these questions. The Supreme Court has said: “It is true there is no averment in the declaration charging that the firing of the shot was negligent because fired in violation of the established custom of the mine, but there is an averment in this declaration which.the evidence had a tendency to prove. The appellee averred, and it was incumbent upon him to prove, that he was in the exercise .of due care for his own safety at the time of the injury, and as bearing upon this question it was proper to prove that in view of the usual custom of the mine appellee had no reason to expect that a shot would be fired in the entry at the particular time in question.” Donk Bros. Coal & Coke Co. v. Thil, 228 Ill. 233. We are of the opinion that the evidence was admissible for the purpose of showing due care and caution, and also for the purpose of enabling the jury to determine whether or not, under all the circumstances, the appellee assumed the risk.

It is next insisted that appellee cannot recover in this case because of the doctrine of assumption of risks. It is contended by counsel for appellant that the rule as to assumed risks requires a servant to not only assume the risks incident to the business, but the, negligent acts of a master as well where they are known to the servant; upon the other hand, it is contended by counsel for appellee that under the decisions of the Federal Courts the servant does not assume the risk of the negligent acts of the master. Without differentiating as to the various cases referred to, we feel that even under the rule as laid down by the Supreme Court of Illinois and invoked by the appellant, that under the evidence there was testimony tending to show such facts as would exempt appellee from having assumed the risk, and that it became a question of fact to be determined by the jury. The doctrine of assumed risk as announced by the Supreme Court is “that an employee assumes all hazards which are obvious and apparent and which are known to him, although such conditions are produced as the result of the master’s negligence, if he continues in his employment without a promise to remedy such defects.” Kath v. East St. Louis & Suburban Ry. Co., 232 Ill. 126. And again it is said “the risks assumed by a servant are such, only, as cannot be obviated by the employment by the master of reasonable measures of precaution. Risks that are unreasonable or extraordinary or that arise from the master’s negligence are not assumed.” Chicago & G. T. Ry. Co. v. Spurney, 197 Ill. 471. We feel that we can safely say that a servant does not assume the risks of the negligent acts of the master that are unusual or extraordinary and not known to the servant. There was evidence in this case tending to show that it was not usual or customary» to kick a car in on track 16 without a brakeman thereon to control it and without a light, when the inspector was engaged in the work of inspecting the drag train. Several of the witnesses introduced on behalf of plaintiff testified to substantially this state of facts, and while upon cross-examination some inconsistent statements were made by the witnesses, they were not of a character that would warrant us in saying that they were not endeavoring to tell the truth about it. A witness introduced by the defendant also states: “They did not kick cars down there when the inspectors were doing work on either side.” It is true that the testimony of some of the witnesses offered on behalf of the appellant tended to show that there was no custom with reference to this matter, yet, when the testimony is all considered," there is evidence tending to show that when the inspectors were at work upon this train it was not usual or customary to kick a car in on track 16 without a brakeman thereon to control it, and the evidence in this case shows an effort upon the part of the brakeman, whose duty it was, to get aboard this car at the time it was kicked in, and for this purpose attempted it, but owing to the rapid motion of the car was unable to get upon it. We believe that under the circumstances as disclosed by this record, that it was a question of fact for the jury to determine whether or not the appellee assumed the risk, and we cannot say that the conclusion, arrived at by them is manifestly against the weight of the evidence. The jury were plainly told by appellant’s eleventh instruction that if “prior to the time of plaintiff’s injury, it was not customary in kicking a car on track 16 to have a man ride on the car kicked and carry a lantern or light, then and in that case the defendant would not be liable for failure to have a man ride the car so carrying a lantern or light.” We do not feel that we would be justified in disturbing the verdict on this account.

It is next insisted by counsel that the negligence charged is “for kicking it without a man riding the car, and in kicking it at all without knowledge that plaintiff was in a place of danger,” and then follows1 with an argument that the kicking of the car in without a switchman thereon could not be the proximate cause. The question of proximate cause is one of fact usually to be determined by the jury, unless there arises out of the evidence such a state of facts as all reasonable minds would agree, that the facts so proven did not constitute the proximate cause. We do not regard the negligence charged in this declaration to be limited as above contended for by counsel for appellant.

The first count charges negligence in kicking in the car in general terms. It is true it also alleges that they had notice that the car would strike the plaintiff, and, as we view it, if the negligence in kicking in the ear was proven and no facts shown to justify or excuse the negligent act and the plaintiff was shown to have been in the exercise of due care, then proof of such negligent acts, even though all the acts of negligence alleged were not proven, would create a liability, and as we have before said, the jury were warranted in finding that the kicking of the car in under the circumstances was of itself a negligent act and would tend to create a liability, besides there was proof tending to show notice of the position in which appellee was at the time, and the jury were warranted in finding not only that the defendant acted negligently, but that it had notice of the position in which appellee was placed at the time. At all events we think the question of the proximate cause was a question of fact to be determined by the jury.

Objection is made to instruction No. 4, which, after defining the relation between the Wabash Railroad and the Chicago & Western Indiana Railroad Company, conclnded by saying: “If you find the defendant, Edward B. Pryor, receiver as aforesaid, liable to the plaintiff in this case, you are at liberty to find the defendant, Chicago & Western Indiana Railroad Company, also responsible to the plaintiff for the negligence of said receiver or receivers, if you believe any such negligence has been proven in this case.” The gist of this instruction was not as to the liability of the Wabash Railroad Company, but was limited to the circumstances under which the Chicago & Western Indiana Railroad Company would be liable, and the objection urged is that it did not limit the negligence to that charged in the declaration. It does say that said railroad company would be responsible for the negligence of the receivers but does not pretend to determine under what circumstances the receiver would be liable. There were other instructions defining under what circumstances such liability would exist and limiting it to the averments of the declaration.

It is also said that instruction No. 5 was erroneous in this that it was an instruction directing the jury as to the amount of damages that plaintiff was entitled to receive and what matters were to be taken into eonsideration. The first objection is that there is no evidence in this record upon which to base any damages for future suffering and loss of health. It does appear from the evidence that appellee still suffers pain and also from the testimony of the physician that he will in all probability have to have a further amputation of the limb before he can regain his health, and we think the instruction fairly limits his loss of time and ability to work after he arrived at his majority. A further criticism is made upon this instruction which we think is well taken, and that is, that the instruction fails to inform the jury that under the Federal Employers’ Liability Act, the plaintiff’s damages, if any, would have to be diminished to the extent that the plaintiff contributed to the injury by his negligence. This is clearly the law and should have been embodied in the instruction, and were it not for instruction No. 7, given at the request of appellant, would work a reversal of this case, but instruction No. 7 tells the jury that, “in each count of the declaration the plaintiff has alleged that at the time he was injured and immediately prior thereto he was in the exercise of ordinary care and caution for his own safety. This is a material allegation of the declaration and each count thereof, and if the plaintiff has failed to prove it by a preponderance of the evidence, then you should find the defendants not guilty no matter what your opinion might be concerning any other fact or issue in the case.” The instructions must be taken as a series and in the reading of this in connection with the others if the jury found that the plaintiff was not in the exercise of due care and caution for his own safety, then he could not recover, and if the jury had found such to be the fact the verdict would have been for the defendant. If we assume, as we are bound to do, that the jury followed the instructions as given by the court, we must arrive at the conclusion that if found the plaintiff was not guilty of contributory negligence, and, if so, there would be no reason for a diminishing of the damages. While we believe that this instruction as given on behalf of appellant was erroneous, yet it was such as to cure the error of appellee’s instruction, and we are not inclined to reverse the case upon the account of this error.

It is also claimed by counsel that the verdict is excessive. There is nothing in this record to show that the jury were influenced by passion or prejudice, or any other cause than that of rendering fair and just compensation to the plaintiff for the injury sustained, and under such circumstances the Supreme Court of this State has repeatedly held that a reviewing court would not have any right to disturb the verdict on account of excessive damages. The injury here sustained is a serious one, renders the appellee a cripple for life, liable to be retarded in the prosecution of any vocation he may choose to pursue, probably resulting-in the further loss of a portion of his limb, and impeding his progress in life in many ways, and we cannot say that the jury were unduly influenced or that the verdict is excessive. From a careful consideration of this record we cannot say that the vérdict is manifestly against the weight of the evidence, or that any errors that may' have been committed require a reversal of the case, and the judgment of the lower court is affirmed.

Affirmed.