author: ■Mr. Justice Creighton

text:
    Joseph P. Wuller, Appellee, v. Chuse Grocery Company, Appellant.

      Corporations—right of minor to recover stock subscription. A minor who has subscribed tor and paid money on stock of a corporation may repudiate his contract and recover back the money so paid if he has received no benefit.
    Bill ip chancery. Appeal from the Circuit Court of St. Clair county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    L. D. Turner and L. D. Turner, Jr., for appellant.
    Dtt.t, & Peingsten and Schaerer, Farmer and Krueger, for appellee.
   ■Mr. Justice Creighton

delivered the opinion of the court.

This was a bill in chancery, in the Circuit Court of St. Clair county, by appellee, a minor, against appellant, praying for an accounting and decree for amount found due, and for the appointment of a receiver. The case was tried by the chancellor, on evidence produced and heard in open court, a decree was rendered in favor of appellee against appellant for $1,500, being the amount appellee had paid to appellant for fifteen shares of the stock of appellant company, “and that the certificate for said shares of stock be and is hereby canceled and held for naught.”

On the 12th day of May, 1905, appellant corporation was organized under the laws of this state, with a capital stock of $4,500 divided into forty-five shares, of $100 each. Appellee subscribed for fifteen shares of this stock and paid therefor $1,500, cash, he at that time being a minor only seventeen years and eight months of age. After the company was organized appellee worked for it at a salary of $12 per week for the first year and after that at $15 per week. He received no dividends or profits on the stock, and on the 23rd day of December, 1907, still being a minor, he filed his bill herein by Adam Karr, his next friend. In his bill he charges his co-stockholders with certain acts of mismanagement of the business and certain wrongful purposes with respect to the stock of the company and his rights therein, states that he is a minor of the age of twenty years and avails himself of the right given him by law to reject and refuse to be bound by his subscription for the fifteen shares of stock of appellant company, for which he had paid the sum of $1,500, and demands re-payment to bim of that sum.

The controlling questions as to the merits of this case are well stated by counsel for appellant in their reply brief. They say: “Can a minor who has subscribed for stock in a corporation for profit, organized under the law, recover the subscription price back from the corporation? And if so, can he make a binding selection of the right during his minority?” And they contend that a minor in such case cannot, under the law, recover back from the corporation, and that he cannot make a binding selection of such right during his minority. We cannot agree with counsel upon either of these propositions.

The general statement of the law, with respect to the right of such minor to recover back, is to the effect that any infant who has subscribed for and paid money on stock of a corporation of the character of appellant, may repudiate and recover back the money so paid, if no benefit has been received. This is the generally accepted rule and is supported by almost all the authority there is upon the question.

We think the confusion as to when a minor can make a binding selection of his right grows out of the fact that one rule applies as to real property and another as to personalty. The rule as to personal property 'is that when an infant has purchased and paid for an article of personal property, he can at any time during his minority, or within a reasonable time after he attains his majority, tender back the article so purchased and recover back the money paid for it. Stock of a corporation, such as that of appellant, is personal property in this state and we think the rule above stated is as applicable to a purchase of such stock as it is to any other article of personal property.

Finally, counsel contend that the “court had no authority to cancel this stock,” and that it is error for which the decree must be reversed.

The language of the decree is not as above quoted. The language is, “and that the certificate for said shares of stock be and is hereby canceled and held for naught.” The decree does not cancel the stock. The effect of it is to decree the subscription by appellee annulled, and to cancel the certificate which evidenced the subscription. The stock thereupon reverted to the corporation, appellant, and must be treated as a surrender thereof to appellant. As we understand the decree it does not “wipe out” the shares, nor “deplete the capital stock,” nor “prevent appellant from selling that stock to any one.” We think that upon annulment of the subscription of these shares of stock to appellee, it was the duty of the court to have the certificate which evidenced that sale surrendered and canceled.

We find no reversible error in this record. The decree of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    M. R. Sullivan, Administrator, Appellee, v. Corn Products Refining Company et al., Appellants.
    1. Master and servant—what negligence of former. Held, that the facts justified the jury’s finding that it was negligence for a foreman to order a servant to a place which was in fact dangerous without having in some way assured himself as to the presence or absence of danger.
    2. Master and servant—what not assumed rish. Held, under the facts, that a danger not shown to have been known to a servant who had but recently been employed and was performing a particular kind of work, at which he was injured, for the first time, was not an assumed risk as a matter of law.
    3. Witnesses—what does not render party in interest competent. Where the adverse party sues in a representative capacity a party defendant is not competent for his co-defendant even- though such proffered witness (1) was not a necessary party defendant to the action, (2) was joined therein for the express purpose of excluding his evidence or (3) expressly waived as to himself the benefit of his testimony.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. Charles T. Moobe, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.

      Thomas Stallings, for appellant; John A. Bloom ingston, of counsel.
    D. J. Sullivan, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This suit was brought by M. B. Sullivan, as administrator of the estate of Charles Metcalf, deceased, to recover damages for the death of his intestate, alleged to have been caused by the negligence of appellants.

The proof shows that at the time of the injury on September 6, 1907, appellant, Corn Products Befining Company, was engaged in the manufacture of food products in Madison county, Illinois, and that appellant, George Hendricks, was a foreman in its plant. There was one department, called the feed house, containing ten large iron cylinders, through which steam pipes ran, used to dry the product. They were called driers and one of them, where Metcalf was injured, was twenty-five feet long and six feet in diameter and the steam pipes in it stopped eighteen inches before they reached the lower end of the cylinder. There was an iron head in the cylinder at the end of the steam pipes and beyond at the end of the cylinder was a wooden head, so that there was formed between the two heads a compartment some six feet in diameter and eighteen inches deep. There was an opening eighteen inches in diameter in the head at the end of the cylinder, and one six inches in diameter in the inner iron head. In the inner opening was fitted an iron manhead held in place by bolts and on the inside of the manhead was a condensing chamber in which water, formed by the condensing steam, gathered and from which the water was discharged by a syphon.

■ Deceased was twenty-six years of age at the time of his death and for four or five days previous had been working for the company as a steam fitter. For three weeks prior to that time he had worked as a machine man and for ah out a year had worked for the company as a pipe cntter. On the day of the injury the foreman of the feed house informed appellant Hendricks, who was foreman of the steam fitters, that the drier in question was not working right and Hendricks thereupon ordered Metcalf and two others to repair it, Metcalf being ordered by the foreman to go into the eighteen-inch compartment and unscrew the iron manhead. While Metcalf was in the compartment the light which he was using went out and another was sent for, but in the meantime he proceeded to unscrew the taps that held the manhead, the foreman Hendricks standing just outside. When the manhead was unfastened the steam and boiling water suddenly burst out through the hole scalding Metcalf so severely that he died the next day from his injuries.

Appropriate pleadings were filed in this case and the trial resulted in a verdict and judgment for appellee for $1,860.

Appellants complain that the evidence does not sustain the verdict, the court erred in giving an improper instruction on behalf of appellee and in refusing to permit the appellant George Hendricks, to testify for his co-defendant the Com Products Refining Company, after he had waived any benefit of the testimony as to himself. In regard to the sufficiency of the evidence, we are of opinion the facts in the case as above set forth and concerning which there was very little controversy, plainly showed it was an act of negligence on the part of Hendricks to send Met-calf into the confined compartment at the end of the drier to loosen the manhead next to the steam pipes, without assuring himself either by giving the drier time to cool off or otherwise that there was no danger from escaping steam and hot water.

It appears to us that the only question as to the facts is whether or not the work he was ordered to do was so obviously dangerous that in doing it Met-calf must be held to have assumed the risk. We are of opinion however that as he had only been employed as a steam fitter some four or five days and it does not appear he had been called upon before to do work similar to that which caused his injuries, it cannot be said as a matter of law that the danger was so obvious and 'patent to him as to render it an assumed risk of his employment.

Only one instruction was given for appellee and that states in the proper and usual way a rule bearing upon the question of assumed risk. On the trial appellant, Corn Products Befining Company, offered its co-defendant, George Hendricks, as a witness with the statement made by consent of the latter that his testimony was to be considered only in behalf of the Corn Products Befining Company and not on behalf of the proposed witness himself. Objection was made by appellee that the witness was incompetent and the court sustained the same. The objection was based on that portion of section 2 chapter 51 of the Bevised Statutes, which provides that no party to any civil action, suit or proceeding or person directly interested in the event thereof, shall be allowed to testify therein of his own motion or in his own behalf, when any adverse party sues or defends as administrator of any deceased person, etc.

In offering the testimony, counsel for the Corn Products Befining Company stated that he did so because Hendricks’ testimony was competent as he was not a necessary party to the suit, and it appeared that he could only have been made a party for the express purpose of preventing his testifying for the benefit of .his co-defendant. Had the Corn Products Befining Company been sued alone, Hendricks would have been a competent witness for it notwithstanding the fact he may be said to have been indirectly interested in the event of the suit. I. C. R. R. Co. v. Waldron, 52 Ill. 290; Feitl Admr. v. C. C. Ry. Co., 211 Ill. 279.

But even if it had been clearly shown that Hendricks was made a defendant in order to prevent him from testifying in behalf of his employer, yet the purpose for which he was so joined could have no bearing upon the case, if appellee in fact had a right, as it did, to make him a defendant. Deere v. C., M. & St. P. Ry. Co., 85 Fed. Rep. 876; Moore v. L. A. Iron & Steel Co., 89 id. 73.

If Hendricks had testified in the case he would necessarily have had the benefit of his own testimony, notwithstanding his offer to waive any such benefit for himself. The plain reading of the statute referred to forbids a defendant from testifying in his own behalf and that rule properly applied disqualified Hendricks from being a witness in this case.

We find no error in the record calling for a reversal of the judgment in this case and the same will therefore be affirmed.

Affirmed.


text:
    Michael Torni, by his next friend, Appellee, v. American Car & Foundry Company, Appellant.
    1. Master and servant—who are fellow-servants. Servants engaged together in the moving of car wheels are fellow-servants as a matter of law.
    2. Master and servant—liability for concurring negligence. If an injury results from the negligence of the master combined with that of a fellow-servant, and the injury would not have happened had the master observed due care for the safety of the injured • servant, the master is liable.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison, county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Wise, McNulty & Keefe, for appellant.

      N. G. Lyrla, for appellee; Walter Diehm, of counsel.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellant is engaged in- manufacturing cars in Madison county and has a wrecking yard where old cars are received and dismantled. There is a track some four or five hundred feet long in the yard upon which the old cars are brought in. In dismantling the cars it is the custom to first remove the car bed and then all the iron parts, leaving the wheels with axles still on the track. These wheels attached to the axles are then rolled down the track to an anvil or machine for knocking the wheels off. A pair of wheels with an axle would weigh from 1,400 to 1,500 pounds.

Appellee, then seventeen years of age, was on May 8, 1907, and had been for two weeks prior thereto, employed by appellant in wrecking cars, assorting iron and moving wheels on the track to the anvil. It was the custom that two men should be employed in moving each pair of wheels and prior to the date mentioned, appellee had been assisted in so doing by a helper. On a portion of the track on their way to the anvil, the wheels would run by themselves, by gravity, and on other portions they had to be pushed. At the time in question appellee’s helper had stepped aside from the work and appellee was waiting for him to return before attempting to move a pair of wheels. Appellee testified that while so waiting his foreman, A. J. McDonald, told him to “hurry up,” and when appellee said he was waiting for Ms partner, the foreman said, “I don’t care for your partner, go ahead, push up the wheels.” The foreman McDonald denied giving such orders but appellee was corroborated by two other witnesses who said that McDonald used an oath, as he commanded appellee to hurry up. In obedience to this order, as claimed by appellee, he got between the two rails of the track and pushed the wheels. When appellee had reached a point about fifteen steps from the anvil, where it was hard for him to move fast on account of a curve in the track, two men who were pushing a pair of wheels rapidly behind him, in some manner let the axle slip out of their hands. They shouted a warning to appellee but before he could get out of the way, he- was struck by the axle attached to the wheels the others had been pushing, and his leg was broken. He was taken to a hospital some sixteen days after he was injured and remained there twenty-nine days.

Appellee brought suit by Mary Torni his next friend and recovered a judgment for $184.

Appellant’s contention is that the verdict is against the weight of the evidence and that the injuries received by Torni were the result of the carelessness or negligence of the two men who were rolling the wheels immediately behind him and that they were fellow-servants with him. It is evident that the two men who were rolling the wheels, which caused the injury, were fellow-servants of appellee. It is a well-recognized rule of law however that if the injury resulted from the negligence of the master, combined with that of a fellow-servant, and the injury would not have happened had the master observed due care for the safety of the injured servant, the master is liable. Armour v. Golkowska, 202 Ill. 144; C. & N. W. Ry. Co. v. Gillison, 173 Ill. 264; Pullman Palace Car Co. v. Laack, 143 Ill. 242.

A preponderance of the evidence shows that the facts connected with the injuries were as above stated to have been claimed by appellee, and warranted the jury in finding that the same would not have occurred but for the negligence of the master, through its foreman McDonald. The verdict was small as compared with the injuries suffered by appellee. There is no complaint of the manner in which the ease was tried or of the law announced by the court below, and its judgment will be affirmed.

Affirmed.


text:
    Emily Cole, Appellee, v. City of East St. Louis, Appellant.
    1. Negligence—erroneous instruction with respect to use of street in action for injuries resulting from being injured while driving upon an alleged defective street. It is error in instructing the jury with respect to the care to be ■ exercised by the plaintiff to limit the observance of such care “to the circumstances surrounding the plaintiff at the time” 'of the injury, as the negligence of the plaintiff might have consisted in the act of driving upon the street knowing its condition.
    2. Appeals and errors—what questions may be raised. A question which might properly have been argued under the points specified, in the written motion for a new trial may be urged upon appeal if the bill of exceptions does not show what was presented in the argument upon the motion.
    3. Notices—when failure to prove notice required by section 2 of “An Act concerning suits at law for personal injuries and against cities, villages and towns.” If service of notice as required by the statute is alleged, proof thereof must be made, and the absence of such proof is fatal, even though the question be first raised on motion for new trial under the specification of insufficiency of evidence to support the verdict.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    Maurice V. Joyce and Wise, McNulty & Keefe, for appellant.
    W. M. Vandeventer and B. P. & O. B. Williams, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

On the evening of August 28, 1907, appellee was injured by being thrown from a buggy in which she was driving along Ninth street in the city of East St. Louis. She brought suit for damages against the city and the jury returned a verdict in her favor for $8,333.33. A remittitur of $2,333.33 was entered by her and judgment rendered for $6,000.

During the spring and summer of 1907 the city was engaged in grading, curbing and paving with brick Ninth street, from St. Clair avenue to the northeasterly limits of the city. As the work progressed, barricades were placed across Ninth street and at every cross street, by putting in posts and nailing boards to them to prevent traveling on the street. At the barricades were placed printed notices stating that the street was closed by order of the mayor. Work on the block between Natalie and Lake avenues, some six blocks northeast of St. Clair avenue, was commenced in June and the usual barricades erected. Shortly prior to the time appellee was injured, persons not connected with the city had removed the greater portion of the barricades across Ninth street in said block, so that only two posts and a pile of rock remained in the street. On one of these posts was the usual notice that the street was closed by order of the mayor. Thereafter one side of the street appears to have been used to a greater or less extent by persons having occasion to drive through there. On the day in question at about 7:30 p. m. appellee, in company with an elderly lady and two children, drove into Ninth street at Exchange avenue some three blocks east of St. Clair avenue and thence out Ninth street to Lansdowne, a suburb just east of the city. They made the trip out in safety but on their return along the same street the buggy struck one of the posts remaining in the street between Lake and Natalie avenues and appellee was thereby thrown out and received the injuries complained of.

There was a sharp conflict in the evidence concerning the facts necessary to entitle appellee to recover and, so far as we can judge from the record, appellee appears to have failed to show by a preponderance of’ the evidence that she was in the exercise of ordinary care for her own safety in entering upon and driving" along Ninth street, under the conditions shown to have existed on the evening she was injured. In such case it is especially important that the law bearing upon the questions in issue, should be correctly stated to the jury in the instructions by the court.

The third instruction given for appellee was as follows :

“The jury are further instructed that the reason-: able care and caution required of plaintiff as mentioned in these instructions, means that degree of care and caution which might reasonably be expected from an-ordinarily prudent person under the circumstances surrounding the plaintiff at the time of the alleged injury. ’ ’

This instruction is misleading for the reason that the jury might well have inferred from it that the care and caution mentioned as required of plaintiff, applies only to the time of the alleged injury, which would not be a true rule of law as applied to the facts in this case. Her negligence, if any, may have consisted in the fact that she drove into the street in the dusk when she knew its condition, having just passed over it on her way out of the city. She herself said, speaking of her return trip and the place in question: “We watched the road then because it was awful dark and there were two red lights one on each side of the street and we desired to keep right in the middle of the street to be safe, and there were stones all the way down and all of a sudden the buggy struck something and it stopped still and the next moment I felt myself pulled" etc.

In the Village of Lockport v. Licht, 221 Ill. 35, the trial court gave an instruction, stating certain conditions necessary to be found to exist, to entitle the plainiff to recover, concluding, “and if the jury believe from the evidence that the plaintiff at the time of the injury-' was driving along and over said State street, as alleged in the declaration or some one count “ thereof, and was in the exercise of ordinary care for his own safety, then you will find the defendant guilty.” The Supreme Court in passing upon this instruction said: “This instruction as applied to the facts in the case was misleading. It told the jury that if they believed from the evidence that the plaintiff ‘at the time of the injury’ was driving along the street as alleged in his declaration, etc., and was in the exercise of ordinary care for his own safety, they should find the defendant guilty. This could mean nothing else than that if the plaintiff was using ordinary care at the very time of attempting to drive along the street and at the moment of the accident the verdict should be for the plaintiff even though the jury may have believed that the plaintiff was grossly negligent in loading his wagon and driving upon a street which he knew to be out of repair.” See also North Chicago St. Ry. Co. v. Cossar, 203 Ill. 612; C., M. & St. P. Ry. Co. v. Halsey, 133 id. 248; C., B. & Q. Ry. Co. v. Sack, 129 Ill. App. 60; I. C. Ry. Co. v. Hicks, 122 Ill. App. 349.

Section 2 of “An Act concerning suits at law for personal injuries and against cities, villages and towns” in force July 1, 1905, provides, that any person who is about to bring a suit against an incorporated city for damages on account of a personal injury, shall within six months from the date of the injury, or when the cause of action accrued, either by himself, agent or attorney file in the office of the city attorney, if there is one, and also in the office of the city clerk, a statement in writing giving certain information therein designated; and section 3 of the same act provides, that if such notice is not filed as so provided, then any such suit brought against such city, shall be dismissed and the person to whom any such cause of action accrued for, any personal injury, shall be forever barred from further suing. Appellee in her declaration alleged the giving of such a notice and therein set out the same in full.

Upon the trial however no proof was made of the service of the notice nor do we find ánything in the record to show that the question of the service of the notice was in any way referred to.

Appellant here insists that the omission to prove compliance with the statute was fatal to a recovery, while appellee on the other hand contends that as compliance with the statute was fully set out in the declaration and no motion made for dismissing the case, and the question of the service of the notice not raised in the court below, appellant cannot properly raise the question in this court. We find however, that among the reasons set out by appellant, why the verdict should be set aside in appellant’s motion for a new trial, were that the verdict was not sustained by sufficient evidence, that it was contrary to the evidence in the case, contrary to the law in the case and against the law and the evidence in the case. Under these allegations of the motion for a new trial, it would have been proper for appellant to have raised the question that appellee did not prove service of the notice set out in the declaration. The record does not show what points were raised in the argument upon the questions presented by the motion for a new trial and such being the case we are not at liberty to infer or assume what was or was not said on that occasion.

Appellant also filed a motion in arrest of judgment which, as well as its motion for a new trial, was overruled. In its assignment of errors, appellant alleges among other things that the court below erred in overruling appellant’s motion for a new trial and in arrest of judgment. As the record does not show whether the question of the service of the notice was or was not presented to the court under the motion for a new trial, and as that question could have been properly raised under those allegations of that motion above referred to, we are of opinion the question can be raised by appellant here under its assignment of errors.

Appellee relies on the case of the City of Waukegan v. Sharafinski, 135 Ill. App. 436, to sustain her position that the question of notice cannot be raised here. In that case the declaration contained no averment of service of the statutory notice. On the trial however the plaintiff offered in evidence two notices, one served on the day the suit was begun and the second just before the trial. It is there stated by the court: “Appellant objected to the introduction of the notices but did not specifically object because the notice was served on the day suit was begun. The statute above quoted seems to contemplate that the remedy, if proper notice has not been given, is to have the suit dismissed which is apparently by motion addressed to the court and not by submitting the matter to the jury. Appellant did not move to dismiss nor did it seek to obtain any direct ruling of the court on that question. * * * No ruling was asked of the court upon the right of plaintiff to maintain this action under these notices. No motion to dismiss was made nor any instruction offered directly on the subject and we are of. the opinion that the motion appearing in the record at the close of all the evidence, asking for an instruction that the jury find a verdict of not guilty, did not raise this question.”

It is to be observed that in the above case there was no averment of service of the statutory notice in the declaration and the question raised in the Appellate Court was as to the sufficiency of the notice offered in evidence, upon which no ruling was asked of the court below, while in this case the giving of the notice was alleged in the declaration, but there was a failure to make proof of that allegation which was á substantial and material one.

In the case of Erford v. City of Peoria, 229 Ill. 546, where the above mentioned statute in reference to the giving of notice was under consideration, it is said: “If a party having a claim for personal injuries may wait until the six months have about expired and then sue without giving any notice, the law might as well be repealed. Statutes of this character are mandatory and the giving of the notice is a condition precedent to the right to bring such suit and the giving of the notice must be averred and proved by the plaintiff to avoid a dismissal of his suit. This instruction is in harmony with the holdings of other states where similar statutes exist.”

The above case seems to establish the doctrine that the giving of the notice is a condition precedent to the right of bringing the suit and must both be averred and proved by the plaintiff. It is "true the court speaks of the dismissal of the suit, in case the giving of the notice is not averred and proved, but in that very case the city of Peoria took advantage of the failure of the party suing to aver in his declaration and prove the giving of such a notice, not by a motion to dismiss the suit, but by a motion that the court instruct the jury that there was not sufficient evidence to support a verdict, which the court sustained and judgment was rendered in favor of the city upon a directed verdict. It appears, therefore, that the right of the city to take advantage of the failure to give the notice is not confined to a motion to dismiss the suit. In this case appellant made a motion at the conclusion of plaintiff’s evidence to exclude the evidence of plaintiff and for an instruction to the jury to "find the defendant not guilty and again renewed its motion at the close of all the evidence. In its motion for a new trial it assigned as a reason why a new trial should be granted that the court erred in refusing to grant each of said motions.

We are of opinion that the court below erred in refusing to grant appellant’s motion for a new trial and the judgment herein will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    William Atkiss, Appellee, v. The New Staunton Coal Company, Appellant.
    1. Negligence—substitution of gasolene for coal oil. It is negligence for an agent of a dealer to deliver gasolene upon an order for coal oil.
    2. Appeals and errors-—what not subject to review. Admission in evidence of a list of articles lost in a fire is not ground for reversal if not copied into the bill of exceptions nor shown thereby to have actually gone to the jury.
    Trespass on the case. Appeal from the County Court of Madison county; the Hon. J. E. Hillskotter, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Williamson & Snell and W. P. Early, for appellant.
    E. Breese Glass and E. G. Hill, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellant, a coal mining company, had a store at Livingston, in Madison county, Illinois. Appellee, a coal miner lived with his wife and two children in one of the upper rooms of a house situated about a block and a half distant from the store. On December 4, 1905, appellee’s wife sent their 12 years’ son, with a coal oil can to appellant’s store for coal oil. The can was taken by a clerk at the store and filled from a tank in an adjoining shed. Upon the son’s return home his mother filled a lamp from the can and after-wards lighted it, when it immediately exploded arid the house, together with appellee’s furniture and clothing were destroyed.

This suit was brought by appellee to recover the value of his household goods and wearing apparel, upon the ground that the company’s agent negligently filled the can with gasoline instead of coal oil. There was a jury trial and a verdict and judgment for $425 in favor of appellee.

No instructions were offered by either party, except one offered by appellant at the close of all the evidence, requesting the court to instruct the jury to return a verdict of not guilty, which was refused.

Appellant here asks that the judgment be reversed for the reasons, as alleged, that the verdict is not supported by the evidence, and the court committed reversible error in the admission and exclusion of evidence.

The evidence produced by appellee which was in no wise met by the single witness introduced by appellant, showed plainly appellee’s son was given gasoline by mistake for coal oil, by the agent of appellant and that the gasoline when placed in a lamp and lighted, exploded and the resulting fire caused the destruction of appellee’s property. The evidence was not only sufficient to sustain the verdict, but was so conclusive that the jury could not have properly found a verdict for appellant.

The uncontradicted evidence also established the fact that appellee sustained damages to the amount found by the jury.

Complaint is made that a memorandum containing a list of articles lost in the fire, was admitted in evidence after a witness had stated the total, which he said he had ascertained by use of an adding machine. While the court overruled an objection to the admission of the list, yet the list itself does not appear in the bill of exceptions and there is nothing to show that it really went to the jury, so the complaint cannot be considered.

There were indeed some irregularities in the rulings of the court in regard to the evidence but they were not of sufficient importance to constitute reversible error in a case like this, where the evidence as a whole established so plain and obvious a right of recovery.

The judgment of the court below will accordingly be affirmed.

Affirmed.


text:
    William Guianios, Administrator, Appellee, v. DeCamp Coal Mining Company, Appellant.
    1. Negligence—failure to provide bralces. Held, under the facts, that it was negligence to permit a loaded car to start down a track from a tipple without providing for its control by brakes or in some other manner and thus prevent possible injury by collision with other cars or otherwise.
    2. Contributory negligence—when not established. An employe engaged at his regular work upon a railroad track, held, under the evidence, not guilty of contributory negligence when injured by being struck by a loaded car coming down such track not under control, it not appearing that he knew that the car had been started down the track or that he saw it or had heard the warning given.
    3. Evidence—what proof to rebut negligence properly excluded. Proof which tends to rebut negligence not charged or relied upon is properly excluded.
    4. Variance—what does not constitute. If the declaration alleges that the defendant “negligently, carelessly and wilfully” did the things complained of, the absence of proof of wilfulness is not fatal.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. J. E. Dunnegan, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    C. H. Burton, for appellant.
    George I. Haight and D. H. Mudge, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee under the statute, to recover damages to the next of kin, by reason of the death of Gust Antonopoulos, who was killed through the alleged negligence of appellant. At the time of his death Antonopoulos was in the employ of the Wabash Railroad Company, as a member of the section crew at. Worden, Illinois, and this suit was originally brought against appellant and the Wabash Railroad Company. After the jury was called a non-suit was taken by appellee as to the railroad company and the suit proceeded against the mining company alone.

The declaration charged that Antonopoulos was ordered to help move a coal car on a track at appellant’s mine and that while he was do doing appellant negligently, carelessly and wilfully caused and permitted a certain other coal car to be placed upon a track running alongside of the one where decedent was ordered to work, without setting the brakes on said car or otherwise securing the same so that it would not roll and collide with the car decedent was ordered to work at; that by reason of the failure to secure said oar on the track next to the one where decedent was working, said ear struck a third car which was thereby set in motion and caused to collide with the car at which decedent was at work; that decedent was caught and crushed between the colliding cars and sustained injuries from which he in a short time subsequently died. There was a plea of general issue. Verdict and judgment in favor of appellee for $2,000.

At the time of the injury, as it appeared from the proofs, appellant operated a coal mine between Worden and Staunton, in Madison county, Illinois. The Wabash Railroad had tracks over which it delivered cars to and received them from the mine. West of the main track at the mine were four coal tracks which were numbered from the west 1 to 4. These tracks had a downward grade south and passed over a sub-switch track onto the main switch track and thence to the main track. On the morning of September 14, 1907, the railroad company sent three crews of section hands, to one of which Antonopoulos belonged, on the wrecking car to replace a car that had left the switch track and repair the track where it was derailed. After this work was accomplished the men were placed at repair work at the switch track. To do this work it became necessary to move a car of slack, which was then set at the switch with its north trucks on track No. 4, back on to the said last named track. At that time there was also a loaded car standing just north of the switch on track-No. 3, the south end of which was just west of the north end of the car to be moved on to said track No. 4. The tracks where the two cars were placed converged, so that if the car on No. 3 should be pushed toward the switch, it would strike the southwest corner of the other car. For the purpose of moving the car on track No. 4 the men were distributed along its sides, some with pinch bars and others to push. Antonopoulos was placed on the west side of the car with two men to the south of him and one to the north. He had his shoulder to the car pushing and occupied such a position that his view up track No. 3 was obstructed by the car located thereon. While the men were so working and had moved the car five or six feet, another car of coal was started south from the tipple down track No. 3. A servant of appellant was on the car and tried to set the brakes but they would not hold. He then got down and tried to stop it by putting blocks of wood on the track under the wheels but they also failed to stop the car and it rolled down onto and struck the other car on the same track with such force as to start it also to moving south. As a result, Antonopoulos was caught between the last named car and the car at which he was working and received the injuries which caused his death. After the car got beyond his control, the man in charge of it cried out a warning to the men at work with decedent some of whom heard the cry, but Antonopoulos gave no indication that he heard it. It was shown to have been the custom to “bump” a loaded car from under the tipple, by letting another car down against it; that ordinarily the brakes would hold the car after it was started, but not always, and that when the brakes would not hold, blocks of wood were used for that purpose but they did not always prevent the car from rolling down.

The facts regarding the manner in which the injury occurred are practically undisputed and the only questions arising upon them are: was appellant guilty of negligence in permitting the loaded car to be started down the track from the tipple, without providing for its control by brakes or in some other manner and thus prevent possible injury by collision with other cars or otherwise, and was deceased at the time of and just before his injury in the exercise of ordinary care for his own safety 1

It was shown by testimony introduced by appellant itself, that when the loaded cars were bumped out onto the down grade, as was the custom and as this one was done, neither the brakes nor the blocks used would always hold them under control, and under the circumstances it was clearly within the province of the jury to determine from the evidence whether appellant was negligent in failing to furnish some other and safer way of controlling and stopping the loaded cars. The preponderance of the evidence appears to us to justify a finding that appellant was guilty of negligence in the respect named. As to the other question of fact it clearly appears that appellee’s intestate was working in the presence of and under the express direction of the road supervisor of the railroad company and was engaged in the work which it was the duty of the railroad company to do. There is no proof that he knew the car had been started down the track or saw it or heard the warning given, and we cannot discover that he was guilty of any negligence which contributed to bring about his injuries.

The declaration in this case charges that appellant “negligently, carelessly and wilfully” did the things complained of as having caused the death of Antonopoulos. There was no proof that the'act was wilfully done and appellant claims that for that reason there was a variance between the proofs and the declaration and that its motion made at the close of the plaintiff’s evidence for an instruction to find the defendant not guilty, should have been given. We do not think this point however well taken, and this court has held in E. St. L. Connecting Ry. Co. v. Reames, 75 Ill. App. 28, that while a declaration averring two causes of action in one count may be bad on demurrer for duplicity, yet when the general issue is filed the plaintiff is entitled to prove either cause of action alleged. In that case the declaration alleged that the defendant negligently and wantonly caused the injury and a general verdict in favor of the plaintiff below was sustained, notwithstanding the fact there was a special finding by the jury that the defendant “did not wilfully or wantonly injure” the plaintiff, it being held that if defendant negligently caused the injury as alleged in the declaration, it was liable although the injury was not caused wantonly.

Appellant urges as error that the court refused to permit it to make proof that at various times before the accident the railroad company had made repairs and alterations on the track in the yard in the vicinity of the mine and that, while said work was going on, the mine was not required to cease work but continued in operation, and also excluded an answer which stated it was not usual or customary for the mines to cease work when work was being done by railroad men on the tracks. The charge in the declaration was not that the continued operation of the mine, while work on the tracks was being done, but that the manner in which a part of it, to wit, the moving of the car mentioned down the track from the tipple without securing it from getting beyond control, was conducted, caused the injury. It was not the continued operation of the mine and the movement of cars that is complained of, but the negligent manner in which the cars were moved; consequently there was no error in excluding evidence tending to show it was the custom of the mine to operate while tracks were being worked upon by railroad employes.

Complaint is also made by appellant that the court erred in the giving of appellee’s instruction in regard to the measure of damages. We find however that this instruction is substantially the same as one approved in Calumet v. Van Pelt, 173 Ill. 70, and C., B. & Q. Ry. Co. v. Payne, 59 Ill. 534, and is not in any way objectionable.

The judgment of the court below will be affirmed.

Affirmed.


author: Me. Justice Higbee

text:
    People of the State of Illinois, Appellant, v. A. A. McMurray, Appellee.
    1. Statutory law—rule of construction. A provision or exception in a law relates only to the paragraph or distinct portion of the enactment which immediately preceded it unless a different construction be necessary to carry into effect the evident intention of the legislature in passing it, as such intention appears from the whole act.
    2. ' Counties—paragraph 5 of section 26 of act construed. Paragraph 5 of section 26 of chapter 34, which refers to the making out, posting and publication of an annual report, construed to require the making out and posting regardless of expense but to authorize the non-publication of such report if the expense of so doing would be unreasonable.
    Action of debt. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    B. B. Fowler, for appellant; George W. Young, of counsel.
    Neely, Gallimore, Cook & Potter, for appellee,
   Me. Justice Higbee

delivered the opinion of the court.

This was an action of debt brought in the name of the people under section 41 of chapter 34 Hurd’s Rev. Stat. 1905, against appellee, to recover a penalty from him for his alleged wilful neglect of duty, while he was acting as chairman and member of the board of county commissioners of Williamson county, Illinois.

The particular neglect of duty charged against appellee was the failure of the board of which he was a member to make out, post and publish at its meeting in September, 1906, a statement of receipts and expenditures for the preceding year as provided for by the fifth paragraph of section 26 of said chapter 34 of our statutes, and this suit involves a legal construction of said paragraph which is as follows:

“To make out at its meeting in September, annually, a full and accurate statement of the receipts and expenditures of the preceding year, which statement shall contain a full and correct description of each item, from whom and on what account received, to whom paid, and on what account expended, together with an accurate statement of the finances of the county at the end of the fiscal year, including all debts and liabilities of every description and the assets and other means to discharge the same; and within thirty days thereafter to cause the same to be posted up at the court house door, and at two other places in the county, and published for one week in some newspaper therein, if there is one, and the same can be done without unreasonable expense.”

It appeared on the trial that appellee was a member and chairman of the county board at the September meeting, 1906; that at said time the county was from fifty to sixty thousand dollars in debt and had no funds on hand; that the question of making, posting and publishing a statement as provided by the statute above mentioned was discussed by the board and the same was omitted for the reason that in the opinion of the board the county in its embarrassed condition was not able to bear the expense necessary to be incurred in doing the things contemplated by the statute.

It was the theory of the court below and the jury were instructed, that it was not necessary for the county board to make, post and publish the annual report, unless such work could be done without unreasonable- expense; that the phrase “unreasonable expense” applies to the making out and posting of the report in like manner as it does to the publishing the same. It is apparent from a reading of the statute that the county board can omit the publication of the annual report in a newspaper, if in its judgment the publication cannot be made without unreasonable expense, and the question submitted to this court for decision is, "does a proper construction of the statute also authorize the board to omit the making out and posting of the report, if in its opinion the same cannot be done without unreasonable expense.

It is a general rule of law that a provision or exception in a law relates only to the paragraph or distinct portion of the enactment which immediately precedes it unless a different construction be necessary to carry into effect the evident intention of the legislature in passing it, as such intention appears from the whole act. 26 Am. & Eng. Ency. of Law (2nd Ed.) 679 and 680. State v. Conklin, 34 Wis. 21; Hart v. Kennady, 14 Abb. Pr. (N. Y.) 432.

We are of opinion that the reasonable and obvious interpretation to be given to the fifth paragraph above referred to, is that the phrase “and the same can be done without unreasonable expense” qualifies and is limited in its application to that which immediately precedes it, viz.: 1 ‘ and publish for one week in some newspaper therein, if there is one.”

The punctuation of the statute seems to forbid that the proviso of limitation regarding expense should apply to the making out of the annual report. That portion of the fifth clause which provides for making out the report and directs what it shall contain is fully completed in the part which precedes the semi-colon; that portion which follows the semi-colon is devoted to giving instructions as to the manner in which the contents of the report shall be made public. Two ways of giving notice to the public are provided for, one by posting the report at the court house door and two other places in the county, and the other by publication for one week in some newspaper of the county if there is one. It might be said in reason, that the legislature could not have anticipated that there would have been an “unreasonable expense” attending the performance of so small a duty as the posting of the report at the court house door and two other places in the county, but, waiving that question, it appears to us that the ordinary and plain construction necessary to give full effect to that portion of the paragraph after the semi-colon, demands that the proviso or exception in regard to reasonable expense, should be held to apply only to the publication and not to the posting of notices.

It is also a reasonable inference that the legislature intended that if by reason of the large extent of the report or for some other good reason, the board was of the opinion that the same could not be published without unreasonable expense, such publication might be omitted, but it certainly could not have been intended by the legislature that the officers whose duty it is to disburse the money belonging to the county, should for any such reason be excused from reporting to the people of the county whose agents they are, the manner in which they have expended the money belonging to the county; and the fact that the county is largely in debt and the funds thereof exhausted, as was permitted to be shown in this case, instead of -excusing the proper officers of the county from making and posting their report, is a greater reason why the people of the county should be informed of the manner in which the revenues have been paid out.

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

Reversed and remanded.


text:
    Amanda L. Shrader, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.

      Damages—when railroad company liaMe upon construction of approaches. A railroad company which in order to effect a compromise with a municipality undertakes to construct approaches to a bridge over its tracks, as it lawfully might, is liable for resulting injury to adjacent real property.
    Action on the case. Appeal from the Circuit Court of Lawrence county; the Hon. Jacob R. Creighton, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Jambs Vause, Jb., for appellant; L. J. Hackney, Andrews & Vause, Conger & Conger and Gee & Barnes, of counsel.
    George P. Bamsey, George W. Lackey and W. S. Wilhite, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee to recover damages to her real estate, caused by the construe- • tion by appellant of approaches to a viaduct or bridge over its railway, on a public street of St. Francisville in Lawrence county. Appellee recovered a verdict and judgment for the sum of $500 and the record in the case is brought here by the railroad company for review.

Upon the trial no witnesses were sworn on behalf of defendant though it introduced in evidence certain ordinances and documents and there was no dispute concerning the facts in the case, which were substantially as follows:

At the time of the occurrence of the injuries to her property complained of by appellee, she owned and occupied as a residence, a lot in said village at the corner of Eleventh and Clark streets. Eleventh street ran north and south along the west side of the lot and Clark street east and west along the north side. Prior to the erection of the bridge and approach thereto her lot was comparatively level but drained west across Eleventh street and there was a tile placed across that street for drainage purposes. Appellant’s track at this point is just west of and nearly parallel with Eleventh street, bearing a little towards the east. Where it crosses Clark street a short distance northwest of appellee’s lot, it is about 15 feet below the natural surface of the ground. At that point the railroad company built and constructed an overhead public crossing at right angles to the track so that in a degree the crossing was opposite the northwest corner of her lot and could be reached by approaches from both Eleventh and Clark streets. These approaches were built by appellant of earth, in which there was considerable sand, down toward and along appellee’s property on both streets. As first constructed they came within about four feet of her fences but afterwards by erosion, the earth was carried down to and in places covered up a portion of the fence. At the time the approaches were put in appellant took out the drain across Eleventh street and made no provision for the escape of water from appellee’s lot. That appellee’s property is damaged in the several ways and to the extent claimed by her, there can be no question from the proofs nor is the fact of the damage seriously contested by appellant.

Appellant sought to justify its acts and free itself from liability, under an arrangement made with the village and an ordinance passed in pursuance thereof, whereby appellant was authorized to erect approaches for the village and it claims that by virtue of such agreement and said ordinance, the city alone became liable for all injuries done to appellee’s lot in question.

While a number of questions are raised by counsel for appellant in their exhaustive and painstaking brief, yet all but a few pages are devoted to a discussion of the proposition as stated therein in different forms that “appellant in constructing the approaches to the viaduct over its tracks in Clark street, acted in obedience to the ordinance offered in evidence” and that in yielding obedience to such orders appellant “cannot be held liable to appellee for its acts so done” but that for any damage resulting to appellee’s property from the change of grade in Clark street, as provided by the ordinance “the village alone and not appellant” is liable to appellee. Counsel for appellant cite many cases where the liability of municipal corporations for damages caused to abutting property, by reason of a change in the grade of a street for viaducts and subways, has been fully recognized, but the question presented here is not whether the city is liable for the injuries to appellee’s property nor whether it is jointly liable with appellant, but whether the railroad company, which through its ■ agent, constructed the approaches, is liable for the injuries, so that the cases above referred to throw little light upon the question before us.

Counsel for appellant insist that the case of Culbertson & Blair Packing & Provision Co. v. Chicago, 111 Ill. 651, is decisive of this ease. That was a case brought by appellants therein against the city and the Pennsylvania Company for damage to its property occasioned by the construction of a viaduct in Eighteenth street, Chicago, over the tracks of the Pittsburg, Ft. Wayne & Chicago Railway Company, leased to the Pennsylvania Company, where judgment was rendered in the trial court in favor of appellant, against the city of Chicago alone. The viaduct was constructed by the board of public works under an ordinance of the city but prior to the passage of the ordinance, the Pennsylvania Company had made a proposition to the city, that in consideration of the building of the viaduct, it would contribute the sum of $14000, and this proposition was agreed to and provided for in the ordinance which further provided that the viaduct should be built under the joint superintendence of the department of public works and the chief engineer of said railway company in accordance with plans and specifications on file in the office of the department of public works, and that all expenses in excess of said $14000 should be borne by the city of Chicago; also that said city of Chicago should save-the railway company harmless for any claim for damages by any person injured through the erection of said viaduct. In that case the following instruction was given: “The jury are instructed that they should not permit the fact that the Pennsylvania Company is a co-defendant with the city in this case in any way to prejudice their minds against the city. ’ ’ Then followed a reference to thát portion of the ordinance providing for the contribution of $14000 towards the work by the railroad company. The Supreme Court said in reference to this instruction, “The instruction given at the instance of appellees correctly says that the jury should not permit the fact that the Pennsylvania Company is a co-defendant with the city in the case to prejudice their minds against the city. The balance of the instruction should in our opinion have been refused as irrelevant, but it is impossible that giving it can have prejudiced appellant because there is no hypothesis sustained by the evidence upon which the Pennsylvania Company can be held liable—and so, in effect, the court ruled in giving appellees’ instruction.” And it was further there held that as there was nothing in the contract itself necessarily illegal and no evidence outside of the contract to show any illegal motive or purpose in either of the parties, that the company could not be held liable as a tort feasor for merely contributing material aid to the execution' of a work not unlawful in itself and not unnecessarily attended with injury to private rights.

In the case before us however, the conditions are reversed for here the railroad company undertook in order to compromise and settle certain controversies with the city, to construct the approaches to the bridge over its track, as it might lawfully undertake to do, and the same reasoning which would make the city liable for the work done by it in the case above referred to, would in a measure in this case, make the railroad company liable for the damages occasioned by the work done by it.

The ordinance of the village of St. Francisville recited in effect that, whereas, there was a controversy and dispute between the municipal authorities of said village and the Cairo, Vincennes and Chicago Railway Company (under which appellant now claims) as to whether the branch or cut-off of said railway as now located and being constructed, is within the corporate limits of said village, and whereas the village and the railway company were desirous of avoiding litigation over the question of the right of the railway company to construct and maintain its tracks and operate its railroad through said claimed additions, and also over the question of the number and character of the crossings that should be constructed and maintained by said railroad company, therefore it was ordained that in consideration of the acceptance of the ordinance and the undertaking by the railroad company to comply with the provisions of the same, authority was granted it, its successors, lessees and assigns, to construct, maintain and operate a single or double track railroad over and across all roads, streets, alleys or other public grounds now crossed by its branch or cut-off from the main line, etc. The permission, authority and privileges granted were stated by the ordinance to be upon the express condition that the said railway company should erect and permanently maintain a viaduct or overhead bridge and the approaches thereto, over its tracks at the public highway running east and west on the south side of Drs. Bryan and McMurray and A. B. Lackey’s claimed addition to the village of St. Francisville. It also provided for the construction of a viaduct and overhead bridge and approaches thereto, over the tracks of the railway at another place. It stated the grade ,or slope at which the approaches should be constructed, and provided that they should continue to the bridges on both sides, and that there should be a vertical clearance between the top of the railroad track and the bridge of not less than 21 feet; also, that in consideration of the construction and maintenance of the viaducts or overhead bridges mentioned, and the further consideration of the payment of the sum of $500 by said railway company to the village within 30 days from the passage, approval and acceptance of the ordinance as provided therein, the village would forever relieve the company from constructing and maintaining' any other or further crossings or providing safeguards therefor either overhead or at grade over the tracks of said railway company at any other places within the corporate limits of said village, including the platted additions through which said branch or cut off was then located. Appellant accepted this ordinance, constructed the viaducts or overhead bridges and approaches thereto and paid to the village the sum of $500 as provided for therein.

The 5th clause of section 20, chapter 114, of the Revised Statutes (Hurd 1905) provides, that every railroad corporation shall have the power to construct its railway across any street or highway which the route of such railway shall intersect or touch but such corporation shall restore such street or highway thus intersected or touched, to its former state or to such state as not unnecessarily to have impaired its usefulness and keep such crossing in repair. At the point where the railroad crossed Clark street it made an excavation and laid its tracks 15 feet below the natural surface of the ground and it became necessary for it under the law to restore the crossing so as not to impair the usefulness of the street. The bridge or viaduct over the road had under the ordinance to be constructed at least 21 feet in the clear above the rail and as so constructed it stood some distance above the natural surface of the ground, and in order to restore the street or highway so as not to impair its usefulness, it was necessary for appellant, not only to construct the viaduct, but also the approaches thereto and it did not require an ordinance of the village to compel the company to do so. The effect of the ordinance was simply to relieve appellant from constructing and maintaining more than two crossings in the village, in consideration of which it paid the village $500 and constructed the crossings of a width and the approaches at a grade, prescribed by the ordinance. In constructing the approaches along appellee’s premises appellant was only doing what it was required by law to do and in so doing it was its duty to so construct them as not to damage or injure appellee’s property for the uses to which it was devoted. A. T. & S. F. Ry. Co. v. Pratt, 53 Ill. App. 263.

By taking up the tile across the road-bed,. through which the water had formerly been carried from appellee’s premises and in failing to make any outlet under the approach through which the water could be carried away and by permitting the material out of which the approach was constructed, to fall down and remain against appellee’s fence, her property received injury for which she was rightfully entitled to recover and the amount recovered was warranted by the evidence. The judgment of the court below will be affirmed.

Affirmed.


text:
    John F. Lence, Appellee, v. Insurance Company of North America, Appellant.
    1. Instructions—must not ignore defenses. An instruction is erroneous and should be refused which authorizes a recovery in disregard of a valid defense supported by evidence tending to establish the same.
    2. Instructions—must not submit questions of law. An instruction is erroneous which leaves to the determination of the jury the question whether there has been at a particular time a legal transfer of the title to real estate.
    Assumpsit. Appeal from the Circuit Court of Jackson county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in, this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    W. W. Barr and R. J. Stephens, for appellant.
    W. A. Schwartz and Colp & Ferrell, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought this suit on an insurance policy issued by appellant upon a dwelling house owned by him to recover for its loss by fire. The pleadings so far as they are necessary to be considered here were as follows:

A declaration containing a special count setting out a copy of the insurance policy in haec verba and the loss of the property by fire; also the common counts. Appellant filed a plea of the general issue and two special pleas, the first of whicn alleged that it was provided in the policy, the same should be void in case of any fraud or false swearing by the insured, touching any matters relating to the insurance or the subject thereof, whether before or after the loss; that prior to the loss appellee conveyed the property by warranty deed, divesting himself of any interest therein and afterwards in the proof of loss wilfully made an affidavit that he was the owner in fee of the property at the time of the loss, when in fact he had no interest therein and that by reason of such false affidavit, the policy became void. The second special plea set up as a defense a change of ownership by reason of the warranty deed above referred to, without the knowledge or consent of appellant, and that by reason thereof, according to the terms of the policy, the same become void. The plaintiff filed two special replications; the first alleged that the deed in question was delivered to a brother of appellee to negotiate a sale of the ■ property upon certain conditions; that he in turn delivered it to another person, not the grantee, for inspection and examination, upon condition the title should not pass until all said terms and conditions were complied with; that none of said terms and conditions had been complied with at the time of the fire and that appellee was not then divested of his- title to the property. , The other special replication also set out said conditions and stated they had not been performed at the time of the fire, and further that the agent of appellant was fully advised of the negotiations for the sale of the property and, as the same progressed, consented thereto. Verdict and judgment for appellee for $368.75.

It appeared from the proofs that appellee owned the premises at the time the policy was taken out and that during the period covered by the same the dwelling-house was burned; that his brother, Daniel L. Lence, was negotiating- a sale of the premises for him to Mrs. A. A. McGinnis; that with this sale in view appellee executed and left with his brother a warranty deed conveying the premises to her; that in consideration of such conveyance it was agreed Mrs. McGinnis should deliver to appellee a horse, pay him either $15 or $30, the amount being in dispute, and assume $300 of a $1000 mortgage given by appellee and his father on this and other property to the Anna Building- & Loan Association, it being also agreed that she was to have a proportionate number of shares of said association assigned to her; that Brett McGinnis, the son of the proposed purchaser, who was acting as her agent delivered the horse to Daniel Lence, paid him $15, and subsequently delivered the deed to his mother; that Daniel L. Lence called upon the secretary of the association, who was also agent for the insurance company, to make the arrangement as to the division of the loan and the transfer of the shares of stock, but at the time of the fire nothing had been done in regard thereto; that after the fire Brett took the deed back to Daniel L. Lence who paid back the $15 but kept the horse, paying therefor a sum of money in cash.

Upon the question of the conditions attending- the delivery of the deed by Daniel L. Lence to Brett Mc-Ginnis and the circumstances attending the same, there was a controversy in the evidence, it being contended on the one hand that the deed was delivered simply for examination and that an additional sum of money was to be paid, and on the other that no more money was to be paid and that the delivery was final. As however two juries have decided the question of fact involved, in favor of appellee, we would not disturb the judgment in this case were it not for what we consider reversible error in the giving of certain instructions to the jury by the court below. The second instruction given for appellee was as follows:

“The defendant sets up as a defense to plaintiff’s right to recover in this suit that the plaintiff, John F. Lence, divested himself of title to said property before the building in question burned without the knowledge or consent of defendant insurance company, and the court instructs the jury that it devolves upon the defendant to prove by a preponderance of the evidence that the plaintiff did divest himself of the title to said property without the knowledge or consent of defendant, otherwise you must find for the plaintiff.”

This instruction confines plaintiff’s defense to the matters set up in the two special pleas and ignored altogether the general defense to plaintiff’s suit contained in the plea of non-assumpsit. Under the plea of non-assumpsit plaintiff was at least required to make out a prima facie case, while this instruction requires nothing of plaintiff, but improperly authorizes a recovery unless defendant has proved the defense set up in its special pleas by a preponderance of the evidence.

The fourth instruction stated certain things which the jury might consider “In determining whether the title of the property in question passed from John F. Lence to Mrs. A. A. Mediums,” and concludes, “and if after considering all of the facts and circumstances in evidence regarding the trade, you believe that the title to said property had not passed at the time of the fire in question, then you will find for the plaintiff and against the defendant on said second and third additional pleas.” This instruction was erroneous in that it authorized the jury to determine the question whether the title to the property had passed at the time of the fire, which was a question of law and not of fact. The jury might wiell have determined what the true facts were concerning the transfer of the deed including the intention of the parties at the time, but whether these facts and that intention constituted a legal transfer of title was a question of law for the court and not a question of fact for the jury. The instruction was also informal if not actually misleading in that it apparently assumed that negotiations between the parties were pending at the time of the fire, when it was claimed by appellant they had been wholly completed prior to the time of the fire and evidence tending, to support that contention had been introduced by it.

"What is here said concerning the fourth instruction applies with equal force to the fifth instruction given for appellee.

For the errors in instructions above noted the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


text:
    Mary Brennen, Appellee, v. Chicago & Carterville Coal Company, Appellant.
    1. Evidence—when jury may consider instinct of self-preservation. In an action hy a personal representative of one deceased to recover damages, the jury may consider the natural instincts which prompt one to the preservation of life and the avoidance of injury.
    2. Evidence—when allowance of latitude in cross-examination not error. The allowance of considerable latitude in cross-examination is not error if no information was elicited which was not obtained from other witnesses.
    3. Instructions—need not repeat. The trial court may properly refuse an instruction the substance of which is contained in another given.
    4. Instructions—must he predicated upon evidence. An instruction should be refused which is not supported by any evidence in the cause.
    5. Mines and Miners—how damages in action hy widow ascertained. While the widow in an action instituted under the Mines and Miners Act is, in any event, entitled to nominal damages, in a proper case, yet the amount of those damages must necessarily depend on the real, actual pecuniary injury to her, caused by the death of her husband, and this cannot be fully determined without ascertaining the amount of pecuniary assistance, by support or otherwise, she has actually been deprived of by the death of her husband.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Dehisoh & Speller, for appellant.
    Hartwell & White and E. T. Cook, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought under the act in relation to Mines and Miners, hy appellee to recover damages for the death of her husband, Peter Brennen, which occurred in appellant’s mine in Williamson county, Illinois, under the following circumstances, as disclosed by the proof: z

On the date of his death, October 26, 1906, and for some two years prior thereto, Brennen was employed by appellant in its said mine as a pumpman. There was a main entry leading south from the bottom of the shaft and a short distance from where it left the shaft two entries, parallel with each other and a short distance apart, called the first and second east entries, were driven in an easterly direction, from said main entry about 2100 feet. An artificial air current was maintained by forcing the air into the second east entry,, where it turned from the south main entry, thence along that entry to the face of the entry, and thence through a cross cut in the partition wall, between the entries, to the first east entry, hack through it to the main entry and thence to an air shaft. For this purpose, different openings or cross-cuts had to be made between the two entries, which were closed and new ones made as the entries were driven further in towards the east, as it was necessary to carry the air current with the entries, for the safety of the men working in them. The east cross cut was made 59 feet from the east end of the first entry, and 49 feet from the east end of the second and beyond the cross® cut, deleterious and dangerous gases would form and accumulate for the reason that there was no air circulating at that portion of the entries.

In March, 1906, there had been a squeeze in the two east entries which compelled their temporary abandonment and they had partially filled up with water. Nothing was done towards placing them in working order until the following June, when a pump was installed in room 39 of the first east entry, which was connected with a pipe leading eastward some 320 feet to room 47, where there was a sump or depression, into which the water was collected and from whence it was pumped out of the mine. ■ It was Brennen’s duty, and the regular routine of his daily work required him, to visit all the places in the mines where there were pumps and also all sumps into which pipes extended from the pumps and keep the pipes clear and the pumps in operation. It therefore became necessary for him to go east every day through the first east entry as far as room 47, where the pipe ended at the sump. At the time Brennen received the injuries which caused his death, and shortly prior thereto, the water being practically out of the mine, other employes of appellant were at work, clearing up these entries and preparing them for the resumption of work. In "the prosecution of their work such employes took out the stopping at a former cross cut between the two entries near room 41 of the first entry. As a result of this action the current of air, which formerly went east to near the face of the entry as above described, turned through the cross cut where the stopping was removed and thence back out through the first entry making a short current. Those portions of the two entries east of said cross cut being largely deprived of their usual current of air, thereafter partially filled with foul air and deleterious and dangerous gases. It was about 160 feet east from the open cross cut to the sump in room 47, which was a portion of the route necessary for Brennen to travel daily. Brennen appears to have had personal knowledge of the existence of dangerous gases at the face of the entries and it was also shown by the evidence that the mine manager, James Gruiney, and one of his assistants repeatedly told Brennen of the existence of such gas and that it was dangerous to go to the face of the entry. Brennen had also been expressly instructed to stop any one he might see about to go up these entries. On October 26, aforesaid, after the men had stopped work, it was discovered that Brennen and an Italian miner named, Spesia, were missing. A searching party was sent into the mine and the dead bodies of the two missing men were discovered near the end of the first east entry, Brennen’s body being found about 77 feet and Spesia’s about 50 feet from the face of the entry. Their clothing was torn and burned by an explosion which had occurred in the entry and occasioned their death.

The first two counts of the declaration filed in this case charge the wilful violation of section 18 of the Miners Act, providing for the inspection of the mine by a mine examiner, the noting of the date of his inspection upon the working places, placing of conspicuous marks at places where dangers existed, the reporting of the findings of the examiner to the mine manager, the recording of the condition of the mine in the daily record and the prevention of entrance into the mine by any one until all conditions were made safe. The third count charged a wilful violation of that portion of section 19 of said act which imposed upon defendant the duty of maintaining currents of fresh air throughout said mine for the health and safety of all men employed therein, and of forcing said currents of air in every working place throughout the mine, so that all parts of the same should be reasonably free from standing powder smoke and deleterious air of every kind. The last count charged the wilful violation of that portion of said last named section of said statute, which' provides for the construction of cross cuts at certain distances apart, and also for stopping the same in a substantial manner.

The general issue was filed and the trial resulted in a verdict and judgment in favor of appellee for $4000.

Appellant asserts as reasons why the judgment should be reversed, that the verdict was not warranted by the evidence; and that the court erred in the matter of the instructions and in admitting improper evidence on behalf of appellee.

Appellant presented peremptory instructions at the close of appellee’s evidence and again at the close of all the evidence, which raised the question whether there was a right of recovery under the evidence in the case.' It contends the court erred in not giving a peremptory instruction to find the defendant not guilty, for four reasons: (1) because appellee failed to prove that deceased was engaged in the performance of his duties or was in a part of appellant’s mine where his duties required him to be when he was killed; (2) because the evidence shows affirmatively that when he was killed he was in a part of the mine which was and had been for several months abandoned for use and where appellant owed him no duty to inspect and ventilate; (3) because the evidence shows, at the time Brennen was killed he was himself wilfully violating certain provisions of section 31 of the mining act, in that he had entered a portion of the mine against caution and against the orders and instructions of the mine manager; (4) and even if it should be conceded that appellant did violate the statute as alleged, still Brennen would not have been killed had it not been for his own independent, wrongful and illegal act in entering an abandoned part of the mine against caution and the instructions of his mine manager; that his own, wilful violation of the statute was the proximate cause of his death.

It is conceded that the mine examiner placed no mark of danger at or near room 47 on the first east entry, nor did he place any mark in any portion of said entry to indicate there might be danger from accumulations of gas therein. Neither did he make report of the finding of any accumulations of gas or other dangerous conditions in said entry to the mine manager, nor record the same in the book in which he made his daily record.

Counsel for appellant assert that the mine operator owes the men at work in the mine no duty to inspect, ventilate and otherwise keep reasonably safe, any portion of a mine except that part where the duties of the men require them to work and to pass in going to and returning from their work. They further rightfully claim there was nothing connected with Brennen’s employment which under any circumstances required him to go beyond room 47, where the intake pipe ended. Their argument is based upon the theory that Brennen was east of room 47 when the explosion occurred, and fails if that was not the case.

Brennen’s body was found some 267 feet east of room 47, and counsel for appellant therefore infer that Brennen must have been east of room 47, at a place where his duties did not call him, at the time the explosion occurred. This however was a question of fact for the jury to determine from all the proofs and circumstances of the case. The proofs show that the explosion was a violent one in that portion of the mine. It appeared from the damage done that the explosion extended down the entry from three to four hundred feet. A loaded car, weighing more than a ton, was thrown off of the track west of the newly opened cross cut near room 41, a two-inch water pipe broken at the mouth of room 47 and brattices, or stoppings in the cross cuts, between the two entries were blown out and timber and other debris thrown across the roadway. It was proved that the first force of an explosion in a' mine is usually against the air; that it goes out to meet the air, but that the reaction back towards the face of the entry is a greater moving force than the first explosion and carries an object in its path further; that it is impossible to determine from the position a body or other object occupies after an explosion has occurred, the place it was located at the time of the explosion or the direction from whence it came. It was also proper under the circumstances of this case for the jury, in determining the location of Brennen at the time of the explosion, to take into consideration, with the fact that he knew there was danger beyond room 47, having been warned of it, the natural instincts which prompt one to the preservation of life and the avoidance of injury. D. R. I. & N. W. Ry. Co. v. De Yeager, 112 Ill. App. 537, and cases cited.

Under the facts as shown, we are of opinion the jury could reasonably find, as they must be assumed to have done, that Brennen was at the time the explosion occurred, in that portion of the mine where his duties required him to go, and such being the case he was undoubtedly entitled to the full protection of the provisions of the act in regard to Mines and Miners. The fact that the brattice or stopping at the cross cut near room 41 was out, was known to appellant, its manager and the examiner, and it was further known to them that there was foul air and dangerous gases at the east end of the first east entry and that since the said stopping had been taken out such foul air and dangerous gases were extending down said entry. As the examiner failed to post notices of danger where such gas had accumulated or to make record of the same, and Brennen having continued, under the direction of the mine manager, to do his accustomed work, which required him to visit a point of danger, it was also proper for the jury to find that appellant had violated the provisions of said act.

While appellant complains that the court refused many of its instructions, we find 'that nearly all of such refused instructions restated in many different forms the same principles of law laid down by its given instructions.

Instruction No. 3, however, was on a different line and told the jury, “a person having a certificate authorizing him to act as mine manager in this state, is also authorized to act as mine examiner and if you believe from the evidence that the defendant’s mine manager, James G-uiney, on the morning of October 26, 1906, held a certificate authorizing him to act as mine manager in this state, then under the statute, he was also authorized to act as mine examiner.” The instruction stated the law correctly but was properly refused, for the reason that Mr. Guiney in his testimony did not claim to have made an examination or record of the condition of the mine, nor is there any evidence in the case that he did so.

The fourteen instructions given by the court for appellant, some of which were of considerable length, seem to have fully covered every phase of the theory upon which appellant’s defense was based. The modification by the court of two of appellant’s instructions, appears to us to have improved in form the instructions so modified ’without changing the rules of law stated.

The declaration charged that appellee by the death of her said husband had been deprived of her means of support and the services and expectations of pecuniary aid and support from the deceased. Six of the instructions given for appellee submitted to the jury the question whether she sustained direct damages to or had been injured in her means of support. Appellant .contends that these instructions were erroneous for the reason that under the statute appellee could only recover damages for the pecuniary injuries sustained by her through the death of her husband and that in determining such injuries it is improper for the jury to take into consideration the effect of his death upon her means of support. The Miners statute provides that a right of action shall accrue to the widow of a person killed under the circumstances therein mentioned, for the recovery of damages for the injuries sustained by reason of such loss of life. It cannot be that the pecuniary injury sustained under such circumstances, would be the same for all widows, regardless of the question of support or receipt of pecuniary aid from the deceased in his lifetime or that it is sufficient to prove that the plaintiff is the widow of the deceased and that the entire measure of damages must depend upon the earning capacity of the deceased, leaving out of question the fact that he did or did not contribute any of his earnings to the support of the widow. In order to give meaning to the law and show to the jury what actual pecuniary loss has been sustained by the widow, it must be necessary to show whether she did as matter of fact receive any support or pecuniary aid, or had reason to believe that she would thereafter receive such, from the deceased; and while the widow would in any event be entitled to nominal damages, in a proper case, yet the amount of those damages must necessarily depend on the real, actual pecuniary injury to her, caused by the death, and this cannot be fully determined, without ascertaining the amount of pecuniary assistance, by support or otherwise, she has actually been deprived of by the death of her husband.

We are aware that there is a line of authorities which, under what is known as the Injuries Act, hold that the damages to be recovered by lineal descendants is not affected by the fact that the deceased supported his family or by the number supported; and also that it has been held that the rule as to the measure of damages under the Injuries Act and under the act in relation to Mines and Mining, is the same. That rule however does not seem to be inflexible. This court in the case of Consolidated Coal Co. v. Dombroski, 106 Ill. A.pp. 641, which was a suit brought under the Miners Act, where the plaintiff had averred in a replication that she, the widow of the deceased, was dependent upon him and a demurrer to that replication had been overruled and exception taken, and where evidence was introduced showing the deceased had repeatedly sent his wife money, amounting in all to seven or eight hundred dollars, affirmed the judgment of the court below in her favor.

In Donk Bros. Coal Co. v. Stroff, 200 Ill. 483, our Supreme Court sustained a verdict in favor of a widow, in a suit brought under the Coal Miners’ Act, where it was alleged in the declaration that she had been deprived of her means of support.

In the case of C. & A. R. R. Co. v. May, 108 Ill. 288, which was a suit under the Injuries Act, it was said: “Upon the trial appellee was permitted to prove, against the objections of appellant, that the deceased in his life time supported appellee and her children. In a case of this character, where the action'is founded solely upon the hypothesis that the plaintiff, by reason of the husband’s death has been injured in her means of support, such evidence is not only admissible but highly proper, indeed almost indispensable, and there is nothing in the cases referred to, sustaining- a contrary view.”

The opinion in the case of Penn. Co. v. Keane, 143 Ill. 172, quotes approvingly-from the case of C. & A. R. R. Co. v. May, supra, and states the rule deducible from the authorities to be “that it is not competent to show what the pecuniary circumstances of the widow, family or next of kin are, or have been since the decease of the intestate, but that it is competent to show that the wife, children or .next of kin were dependent upon him for support before and -at the time of his death."

In St. L. P. & N. Ry. Co. v. Dorsey, 189 Ill. 251, it is said: ‘ The contention of appellant that it was error to permit the widow to testify that she was supported by the deceased, her husband, is fully answered by the cases of C. & A. R. R. Co. v. May, 108 Ill. 288,” and other cases mentioned.

In the case of I. C. R. R. Co. v. Baches, 55 Ill. 379, it was held that the support the widow and minor would have been likely to receive, had deceased -not been killed, is a fair and no doubt controlling element to be considered in fixing the pecuniary loss sustained. It is the loss of that support which more largely produces the pecuniary injury than any other and hence it is eminently proper that it should be considered.

Under these authorities which we think state the true rule of law, there was no error in giving the instructions complained of, which related to the support received by the widow from her husband in his lifetime. Other objections raised to other instructions given for appellee are of minor importance and do not appear to us to be well founded.

The principal complaint of appellant, concerning the ruling of the court in regard to "the evidence, is, that plaintiff was permitted to testify over its objections, that Peter Brennen, the deceased, supported his family with his wages, and that he was a good provider. The evidence on that line stopped right there however, -and there was no proof in the evidence tending to show that he left any children or that there was any surviving member of his family but his widow. The case differs from that of St. L. P. & N. Ry. Co. v. Rawley, 90 Ill. App. 653, cited by appellant, where the widow was permitted to testify that deceased supported her and her children, followed by a detailed statement of the number and ages of the children. What we have above said however in regard to the line of authorities upon substantially the same question raised by the instructions, will apply to the objections here made to the evidence in regard to the support, and for the same reasons we think there was no error in permitting the questions above mentioned, to be asked and answered.

Objection is also made to certain questions permitted by the court to be asked by counsel for appellee on cross-examination of James Guiney, a witness for appellant, for the reason that they were foreign to the examination of said witnesses in chief. It is true that considerable latitude was allowed by the court in this cross-examination, but as the questions and answers elicited no information which was not derived also from other witnesses and as the matter was largely within the discretion of the court, it cannot be said that there was any serious error eom‘mitted in permitting the examination to be so conducted.

Upon the whole case we are of opinion there was evidence sufficient to sustain the finding of the jury and that no reversible error was committed in the trial of the cause.

The judgment of the court below will therefore be affirmed.

Affirmed,