text:
    Fred Dettmer, Appellee, v. Donk Bros. Coal & Coke Company, Appellant.

      Verdicts—when set aside as against the evidence. A verdict will be set aside on review as against the weight of the evidence where it is clearly and manifestly so.
    Action in ease for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    Wise, Keefe & Wheeler, for appellant.
    C. H. Burton, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

The declaration in this case charges that on February 3, 1909, appellant was engaged in mining coal at Maryville, Madison county, Illinois, with various means and appliances, mules and machinery; that appellee was employed as a driver; that it was the duty of appellant to furnish him a reasonably safe mule, but that appellant, not regarding its duty in that behalf, furnished an unfit and unsafe mule called, “Bed,” which mule was wounded and had a severe sore on its tail bone and on account of said wounded condition when the mule was touched by the harness or appliances, with which it was hitched to said car, it would become vicious and dangerous and would kick and be unfit and unsafe for use by appellee, all of which appellant knew or could have known by the exercise of due diligence; that appellee was not informed of said condition of the mule and while in the exercise of due care for his own safety he was performing his duties as driver, a part of the harness or appliances touched said wound or sore and caused the mule to kick and severely and permanently injured appellee’s left leg and hip bone. Verdict and judgment in favor of appellee for $500.

Appellee, as it appears from the proofs, was employed as a mule driver, working nights, in appellant’s mine. On the night before he was injured, when he went to work, the name of the mule called “Red” was the only one left on the board where, according to the custom of the mine, the names of the mules to he used, were posted. He took Red and drove him until about 2 o’clock the next morning, when as he was coming from the bottom of the mine driving the mule, he, as testified to by him, stepped down from the car on to the tail chain to open a trap door and as he did so, the mule kicked him, knocking him down beside the car and causing the injuries complained of.

A witness for appellee testified that between the first and ninth of January, the mule Red had a sore place or bruise on the top of the tail bone and another stated that at the time of the injury, the mule had a cut or wound about one and a half or two inches long on the hip near the tail. The latter of these two witnesses swore that he reported the existence of the cut on the hip to the mine manager and his assistant, and also put a paper with a statement of it in what was known as the “pick book”. On the other hand four witnesses, who swore they went to the stable for that purpose, examined the mule all over and did not find any cut, swelling or bruise of any kind upon him. Another witness, who had driven the mule for a year and a half, up to within three weeks of the injury, testified that he never saw any sore on him. Still another witness testified that he noticed the mule nearly every night and that he did not have any cut or sore place on him that the witness knew of; that he never noticed any. Appellee himself testified, “I never noticed whether or not the mule was injured before he kicked me. I never looked at him.”

The charge. in the declaration was that the mule was wounded and had a severe sore on its tail bone. Only one witness for appellee appears to have sworn to such a condition, while another witness for appellee, they being only two witnesses testifying for him upon the subject, swore the wound was on the hip. To meet this testimony for appellee, six witnesses for appellant testified to facts which appeared to show that the mule had no wound or sore place at all. It would seem therefore that the overwhelming weight of the evidence was against the statement of the declaration that the mule was “wounded and had a severe sore on its tail bone.”

There was no proof whatever in the record that the mule was dangerous and vicious or that he had ever kicked before, nor was there any evidence whatever tending to show that a part of the harness and appliances by which he was hitched to the car came in contact with any wound or sore and caused the mule to kick. The material charges in the declaration do not appear to have been “sustained by the evidence, and the proofs, when taken together as a whole, show that the verdict of the jury was manifestly against the great weight of the evidence. Under such circumstances the judgment based upon that verdict, should not be permitted to stand. Donelson v. East St. L. and Sub. Ry. Co., 235 Ill. 625.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    Fred M. Pool, Appellant, v. Coal Belt Electric Railway Company, Appellee.
    1. Eminent domain—what recovery limited upon change of construction of road ted. If the original construction of a road bed was rightful the damages on account thereof accrued to the then owner of the property, and if after a change of construction in the road bed is made a change of title to the property has occurred, the new owner is restricted in his recovery to the damages occasioned to the property by such change.
    2. Eminent domain-—how question of damage arising from construction of road ted determined. Both the company and the' owner are entitled to such benefits as may accrue to the property in question from the general increase in real estate values and the owner’s damages must properly be determined from the conditions, in regard to the value of property and otherwise, existing at the time the injuries occurred.
    3. Instructions—when cannót he complained of. It is not permitted to a party to complain that the court has adopted the views of the law declared in instructions offered by him.
    Action in case. Appeal from the Circuit Court of Williamson county; the Hon. W. B. Scholfield, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    William W. Clemens, W. F. Slater and George W. Dowell, for appellant.
    William H. Warder and L. 0. Whitnel, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellant began this suit against appellee, on April 23, 1909, to recover damages to lots 8, 9 and 12 in block 2 of Stotlar’s first addition to the city of Herrin, Illinois, the charge in the declaration being, that appellee constructed, graded and equipped a certain line of railway track, along and near appellant’s said property and in doing so, wilfully and wrongfully erected an elevated grade near the same, for its railway line, thereby inflicting certain injuries upon said premises. Appellant obtained a verdict and judgment in his favor, for $200.

Park avenue in said city runs north and south and Ash street east and west. The lots in question were at the northwest corner of the intersection of said streets, being on the west side of Park avenue and north side of Ash street. Each lot had a frontage of twenty-five feet on Park avenue and extended back one hundred feet. In 1902 appellee built its track along Park avenue in front of these lots, coming from the north, until it reached Ash street, then turning west on Ash street south of lot Ho. 12, the comer lot. The track was elevated about 18 inches above the surface of the ground, for a distance of about 200 feet north from the corner. In the fall of 1907, appellee’s road bed was altered and raised in front of appellant’s property on Park avenue, to about three feet four inches above the surrounding level and extended in width until it occupied a space of from 16 to 18 feet. Park avenue was 100 feet wide and from a point 300 to 400 feet north of said corner sloped slightly to the south and west. Opposite the middle of lot 9, there was a tile under the roadbed', which carried the water from the east to the west side of appellee’s tracks and passed thence through a wooden box or culvert across the street into an open ditch, which carried it down to Ash street. It appeal's that when the track was elevated, a larger tile was placed under it at the point named and that more water came through it which overflowed and' otherwise injured appellant’s premises to a greater extent than they had been injured before.

Appellant became the owner of lots 9 and 12 December 26, 1902, after the original construction of defendant’s road bed, and of lot 8 on March 14, 1904. At the time appellant, purchased the lots, they were unimproved, but he subsequently improved the same by grading them and erecting a two story house and other buildings thereon. Some three or four months after this suit was brought, appellant sold lot Ho. 8. The original road bed and the alteration and elevation of the same all appear to have been constructed under proper ordinances of the city.

Appellant complains that the court erred in excluding certain evidence, offered by him and in passing upon the instructions.

His main objection to the action of the court in regard to the exclusion of evidence, is that the court refused to permit him to introduce evidence to show damages to the property in question, between the time he bought the lots and the elevation of the road bed.

The principle involved in this objection was considered by this court in the case of I. C. Railroad v. Lockard, 112 Ill. App. 423. The opinion in that case referred to the case of I. C. R. R. Co. v. Ferrell, 108 Ill. App. 659, saying, “We there held in effect that where a railroad company is authorized by its charter to construct and maintain its road, and in doing so erects its structures with reasonable skill and care, for proper railroad uses, they are not a nuisance that can be lawfully abated, although adjacent property may be thereby damaged. Such structures are neither wrongfully nor unlawfully made or maintained, but rightfully and lawfully, for the public good, and injuries resulting therefrom must be treated as permanent injuries. It is true that notwithstanding the lawful right to erect and maintain all such structures, still, just compensation must be paid to owners of property thereby injured; but such injuries are permanent, for which but one recovery can be had. The right to recover accrues to those who own the land or hold damageable interest therein at the time the cause of the injury is created, and the measure of damages in such case is the decreased value of the property, i. e., the depreciation in market value. The right of action for such damages is not appurtenant to the land and does not adhere to or run with the land. It is a personal right, and not transferable. It does not pass to a subsequent grantee of the owner.”

This opinion cites a number of cases in support of the doctrine stated, and we have quoted at length from the same, because it seemed to us to dispose of two of the most important points involved in this case. Appellee’s railroad embankment as originally erected was rightfully made and lawfully maintained. It appears from the evidence to have been constructed with reasonable skill and care for the purposes for which it was intended and must be considered as permanent. The right to recover damages for its construcion, therefore, accrued at once when the structure was erected. Appellant did not acquire this property until after the construction of the original embankment, and was therefore limited in his right of recovery to injuries caused by the change subsequently made in the road bed. The court properly excluded all evidence of damages to appellant’s property, occasioned by the original construction of the road bed, as it existed at the time he purchased the property.

Appellant further complains that the court erred in admitting evidence, showing there had been a rapid increase in the value of real property in Herrin in the last few years from causes wholly independent of the construction and operation -of appellee’s railroad, on the ground that appellant would be as much entitled to the benefit of the same as though such increase had been made by expensive improvements placed on the property by him. We do not think this position taken by appellant is well founded. Both appellant and appellee were entitled to such benefit as might accrue from the general increase in real estate values, and appellant’s damages must properly be determined from the conditions, in regard to the value of property and otherwise, existing at the time the injuries occurred.

Appellant also complains that an instruction offered by him, which authorized the jury to consider injuries to the property occasioned by the original construction of appellee’s road, was refused by the court.

For the reasons above given in reference to the admission of evidence, we are of opinion that said instruction included an improper • element of damages and was properly refused. There could have been no error however, in refusing the same, for the further reason that appellant also offered an instruction which was given by the court, stating that if the jury found he purchased the lots after the original construction of the railroad, then he could not recover damages to the property occasioned by such original construction, even though the jury might believe that such original construction interfered with and obstructed the natural drainage of appellant’s property. It is not permitted to a party to complain that the court has adopted the views of the law declared in instructions offered by him. C. & A. R. R. Co. v. Harrington, 192 Ill. 9; I. C. R. R. Co. v. Anderson, 184 id. 294.

The court, however, refused to permit appellant to introduce evidence as to injury to lot Ho. 8 by the elevation of appellee’s road bed, on the ground that appellant had parted with title to the same before the trial. As we have above seen, the right of action for such damages, if any, as were occasioned to appellant’s property by the elevation of the track, accrued at the time such work was done and he had a right to bring suit and, if damages were proven, recover for the same. Said lot No. 8 was not parted with by appellant until after the elevation of the track and therefore, according to the authority of I. C. R. R. Co. v. Lockard, supra, the right of action was a personal right not transferable and did not pass to a subsequent grantee of the owner. It was an established right of appellant and, if he could make proper proof, he was entitled to recover for the same in this suit.

For the error of the court below in refusing to permit appellant to make proof of damages to said lot No. 8 occasioned by the elevation of appellee’s railroad track, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    William W. Harter, Appellee, v. Fred J. Wells, Appellant.

      Instructions—must be predicated upon the evidence. An instruction which assumes an interest in the controversy which does not in fact exist or which is not established by the evidence, is erroneously given.
    Assumpsit. 'Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    McCarthy & Arnold, for appellant.
    Bradbury & Gaines, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee brought suit in assumpsit, to recover $3000 claimed to be due him from appellant on a contract of sale of certain interests in oil leases on lots in Oblong, Illinois, and recovered a judgment for $1,500.

It appeared from the proofs that J. A. Libby and appellant, Fred J. Wells, of the state of Few York, doing business under the firm name of Libby, Wells & Company, were oil prospectors, engaged in taking leases and producing oil and gas in Crawford county, Illinois, in May, 1909, and had appellee and G. It. McGranahan, who were associated together in the business of drilling wells, working for them. About that time Libby ordered the drilling outfit to be moved on to some lots in the village of Oblong in said county. After the change had been made and the drilling begun on the lots, Libby received word that the other members of the firm were not satisfied with the change and he so informed appellee. An agreement was thereupon entered into between Libby on the one part and appellee and McGranahan on the other, by the terms of which the former was to retain one half interest in the lease, while each of the latter was to receive one-fourth interest therein. The interest received by appellee and McGranahan was to pay them for drilling wells and under this arrangement, five oil wells were drilled. When the work had proceeded thus far with some success, appellant became interested and proposed to buy appellee’s interest in the lease. Appellee testified that appellant said to him, “I will give you $5500 for your interest and I will pay all the indebtedness on this quarter section from the beginning,” and that this proposition was accepted. Appellant testified that he said to appellee, “Mr. Harter I will give you $5,500 for your quarter interest in these leases including assets and all that goes with them. I will pay you cash and you turn over everything to me,” and that Harter said “All right.” Subsequently a written assignmnt of his interest to appellant, was executed by appellee. This assignment states that for the purported consideration of one dollar, appellee sells and transfers to appellant all his “equal undivided one-quarter interest in and to all certain leases,” describing them; “and also all assets of these leases including oil run in pipe line.” It also contains the following provision: “Both parties agree that terms and prices of this lease shall be kept confidential.” The written instrument is therefore of very little assistance in determining the actual agreement between the parties.

Appellee claims that under the agreement, appellant should pay him his share of the cost of drilling the five wells, which had been contracted to be drilled, at eighty cents a foot; that he made out a bill for the same, which amounted to about $2500 and presented it'to appellant, who assented to it; that he also paid out about $1000 on the indebtedness connected with the drilling, at the request of appellant.

Appellant denied both these .statements and alleges that he paid some $600 to McGranahan to apply on the debts connected with the drilling, which was sufficient to cover all his liability under the contract and that he owed appellee nothing thereon.

The judgment in this case cannot be permitted to stand on account of errors on the part of the trial court in the modification of certain instructions offered by appellant, but we have made the above statement at some length in order that the contentions of the parties may be considered in connection with said instructions.

The first of the instructions above referred to, as modified by the court, read as follows, the modification being shown in italics:

“Although you believe from the evidence that defendant was to pay certain outstanding indebtedness in addition to said sum of $5,500 for plaintiff’s interest in the property, yet if you further believe that plaintiff accepted said sum of $5,500 as full compensation to him for his interest in the property, and also for his own work in dmlling wells on the premises he cannot charge up to defendant for his own work and labor in drilling wells on said property.”

The fifth instruction as modified by the court is as follows:

“You are instructed if you believe from the evidence that plaintiff Harter sold certain interests in oil leases on lots in Oblong, Illinois, to defendant Wells and was to receive as the purchase price therefor the sum of $5,500 for all his rights, title and interest therein including plaintiff’s claim for drilling wells on said premises, and if you further find from the evidence that said sum was paid by defendant to plaintiff and accepted by plaintiff as full compensation for said property and for plaintiff’s claim for drilling wells on said premises, then your verdict should he for the defendant, as to plaintiff’s claim for drilling wells on said premises.”

The modifications of the above instructions made by the court, plainly indicated to the jury that plaintiff was, by the contract, to receive pay for his own work in drilling wells on the premises in addition to compensation for his interest in the property.

The evidence showed that appellee and McGranahan were to receive their interest in the wells for drilling the same. If therefore appellee owned the one-fourth interest in the wells which he sold to appellant, he must have paid for the same by his share of the work in drilling them. The cost of drilling the wells was not an indebtedness against the firm for it was paid for as the wells were sunk, by the interest in the same given to the parties doing the drilling. Appellee could have had no interest in the wells to sell to appellant, unless he had paid for it by the drilling. He and McGranahan could not, by any construction of the contract with Libby, have retained their interest in the wells and also have recovered from Libby the cost of sinking the same. The court therefore erroneously assumed in the instructions named that appellee could have an interest in the wells, which he was to pay for by drilling and still have a claim for drilling the same.

For the errors contained in the modification of said instructions the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


text:
    C. H. Downs, Appellee, v. Michigan Commercial Insurance Company, Appellant.
    1. Evidence—when offer of compromise competent. An offer of compromise while it may be incompetent for the purpose of showing an admission of liability, may none the less be admissible as tending to establish a waiver by an insurance company of a provision of a policy requiring immediate notice in writing of loss sustained.
    2. Pleading—when waiver need not he specially pleaded. Waiver of a condition in a policy of insurance in regard to furnishing proofs of loss need not be specially pleaded.
    3. Instructions—must not ignore issues. An instruction is properly refused which ignores one of the principal issues in the cause.
    4. Insurance—when defense of non-ownership does not lie. The company cannot interpose as a defense the fact that the insured was not an owner in fee as stated in the policy if it appears that through its agent it had full knowledge of the actual state of the title of the insured.
    5. Insurance—what insurable interest. A party in possession under a bond for a deed has an insurable interest in the premises.
    Assumpsit. Appeal from the Circuit Court of Williamson county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.
    E. E. Fowler and Denison & Spiller, for appellant.
    Pillow, Smith & Stone, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee brought this suit upon a policy of insurance issued to him by appellant, for the amount of $550, of which amount $400 was placed upon a one story frame building and $150 upon the household goods contained therein, both house and contents having been destroyed by fire.

Appellant filed the general issue and also nine special pleas. The first three special pleas stated as a defense that the interest of appellee in the dwelling house was not truly stated in the .policy; that he was not the unconditional or sole owner of the property covered by the policy and did not own the real estate in fee simple; the fourth that appellee swore falsely as to the value of the house; the fifth, sixth, seventh, eighth and ninth that appellee failed to give notice and proof of'the loss at the time and in the manner required by the terms of the policy. Appellee replied to the first three special pleas stating that his true interest in the property was stated to appellant’s agent at the time the policy was issued and if the policy did not state the interest correctly, it was the fault of appellant; that the papers showing appellee’s interest in the - premises were placed in the hands of appellant’s agent at the time he issued the policy. To the other pleas a general traverse was filed. There was a verdict in favor of appellee for $400, for which amount judgment was rendered.

The proofs show that on November 20, 1908, appellee occupied premises in the suburbs o-f JMarion, Illinois, which he had purchased a few months before from C. J. Owens, to whom he gave other property valued at $200 and delivered his five notes of $50 each, the first note being payable January 1, 1909, and one of the rest each year thereafter until all were due; that Owens gave him a bond for a deed to the property, conditioned upon the payment of the notes; that about the date above mentioned, appellee caused a local agent of appellant to look at the property with the view of insuring it; that subsequently the agent asked appellee for a description of the property, so that he could write up the policy which had been agreed upon; that appellee said he did not know the description but had a bond for a deed which he would bring him; that afterwards appellee gave the bond to the agent who took the description of the property therefrom, issued the policy above mentioned and received from appellee the premium of $5.50 provided for by the same; that on December II, 1908, the house and contents were destroyed by fire; that the morning after the fire appellee notified the agent who issued the policy and the latter promised to inform the company at once; that on January 8, 1909, appellee notified the company by letter and a week later, appellant’s general adjuster "wrote appellee that the matter had been referred to its state agent at Peoria, Illinois; that later appellant’s state agent called upon appellee and told him he would pay $150 on the contents of the house but could only allow him $100 on the house; that on February 3, 1909, appellee made out and swore to his proof of loss and mailed the same to appellant; that on March 25, 1909, the general adjuster wrote appellee that his “so called proof of loss” had been received, the causes leading up to the fire and circumstances with reference to the issuance of the policy had been investigated and that if the information so ascertained was true there was no liability under the policy, closing with the following statement, “Waiving however, none of our defenses, we leave you to take such action as you see fit.”

Appellant claims that the court committed reversible error in permitting appellee to testify that the agent of appellant before suit was brought upon the policy, called on him and offered him $150 the full amount of his policy for his loss on household goods and $100 in settlement of the loss on the house, because an offer to settle if not accepted, has no binding force and is not admissible in evidence to affect the merits or claims of the party making the offer. This evidence however while it would not have been proper for the purpose of showing that appellant recognized a right of recovery on the part of appellee, was proper as bearing upon the question whether there was a waiver of that provision of the policy which required that if fire occurred the insured should give immediate notice of any loss thereby in writing to the company.

Appellant further claims that even if the evidence referred to could be held to be proper under a replication setting up a waiver, yet" it was wholly inadmissible under the general traverse of the plea. It is not always easy to determine when waivers of conditions imposed by policies of insurance must be specially pleaded.

This court in the case of Merchants’ National Ins. Co. v. Pearce, 84 Ill. App. 255, where an insurance company pleaded a breach of condition in a policy against keeping or using gasoline on the premises insured and the insured who brought the suit filed only a traverse, held that the court below erred in admitting testimony tending to show that the agent of the company knew the fact at the time the policy was issued, that gasoline was so kept and had given the insured permission to keep it, saying, “If appellee relied upon waiver or consent, he should have raised such issue in some proper way in his pleadings.” A different rule however has been applied by our courts in regard to the pleadings, whore waiver of a condition in a policy in regard to furnishing proofs of loss is in question. In such case the waiver is held to be in the nature of estoppel in pais and as such need not be pleaded specially.

In German Fire Insurance Company vs. Grunert, 112 Ill. 68, where this question was before the court, it is said in the course of the opinion: “As to the plea that the plaintiff did not furnish proofs of loss etc. it might undoubtedly have been replied that such proof was waived etc.; but it was not indispensable that it should have been so replied to authorize admission of the proof of waiver. The doctrine of waiver in this connection is in substance and effect that of estoppel in pais (May on Insurance, sec. 505) and estoppels in pais, at common law, need not although they might, be pleaded especially. Here the evidence that plaintiff did not furnish proofs of loss within time etc., is rebutted and overcome by evidence that such proofs were waived,—i. e., in legal effect the fact was admitted and the proofs dispensed with.”

We are of opinion that the court below did not err in admitting proof of the waiver of the provision of the policy in regard to giving immediate notice of loss, notwithstanding the fact there was no special replication setting it up.

Appellant further insists that the court erred in refusing instructions 7, 9 and 10 offered by it. Instruction No. 7 referred to the provision, that if fire occurred the insured should give immediate notice of loss in writing to the company, and told the jury if they found from the evidence, appellee did not give such notice, they should find the issues for appellant. This instruction was improper as it wholly omitted any reference to the question of waiver of notice on the part of appellant, which was one of the principal issues in the case.

Appellant’s refused instructions No. 9 and 10 appear to have been fully covered by other instructions given by the court for appellant. Some objection is made to certain instructions given for appellee, but an examination of them shows that they state propositions of law substantially correct as applicable to the facts in this case.

Appellee seems to have been a man of little or no education, testifying on the trial that he could not read type writing and was “a bad scholar.” He appears to have correctly informed appellant’s agent of the condition of his title and to have given him the bond itself, from which to write the description in the policy. The agent having been fully informed upon the subject of the title such knowledge must also be attributed to appellant, and the latter, having accepted the premium which appellee in good faith paid for his policy, cannot now be permitted to avoid its liability urpon the ground that the interest which appellee had in the premises, was not that of an owner in fee. That appellee had an insurable interest in the property in question is well settled.

In Home Ins. Co. v. Mendenhall, 64 Ill. App. 30, it is said “the facts as to his (Mendenhall’s) interest were stated to the agent through whom the insurance was effected and he was not misled as to the condition of the title. The plaintiff had entire possession with the exclusive use and enjoyment and a reasonable expectation of becoming the owner in fee. This very clearly gave him an insurable interest.” And in the same case in the supreme court (164 Ill. 458) the court quotes approvingly from Wood on Insurance, where it is said: “It is not necessary that the insured should have either a legal or equitable interest or indeed any property interest in the subject matter insured. It is enough if he holds such a relation to the property that its destruction by the peril insured against involves pecuniary loss to him or those for whom he acts. The interest need not be vested. It is sufficient if it exists at the time of the insurance and loss, though contingent, and liable never to attach or be perfected by occupancy or possession.” Said case also quotes approvingly the language of Mr. Justice Gray in the ease of Eastern R. R. Co. v. Relief Fire Ins. Co., 98 Mass. 420, where it is said: “By the law of insurance any person has an insurable interest in property by the existence of which he receives a benefit or by the destruction of which he will suffer a loss, whether he had any title in or lien upon or possession of the property itself.”

It has also been directly held in another jurisdiction that a party in possession of premises under a bond for a deed has an insurable interest therein. Clapp v. Farmers Mut. Fire Ins. Assn., 126 N. C. 388.

Appellee in view of these authorities, plainly had an insurable interest in the property described by the policy. Some question is raised by appellant as to the value of the house and its contents, and it is claimed that the amount of the loss as fixed by the jury was too high. There was evidence however placing the loss at such figures as fully warranted the jury in fixing the damages at the amount named by them.

The judgment of the trial court will be affirmed.

Affirmed.


text:
    Frank Donaldson, Administrator, Appellee, v. Village of Dieterich, Appellant.
    1. Collateral attack—Row title to office cannot he quéstioned. While the title of a de facto village attorney may be questioned by quo xoarranto, it is not a proper subject of a collateral attack.
    2. Notices—when failure to comply with act concerning suits at law for personal injuries, tars recovery. If such a notice as is required by the statute is not filed in the office of the de facto village attorney, a recovery against the village will not be sustained.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Effingham county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed.
    Opinion filed August 5, 1910.
    Wood Bros. & Bickelman and S.. F. Gilmore, for appellant.

      R. C. Harrah and Zimmerman & Rinehart, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit brought by Frank Donaldson, administrator of the estate of John Donaldson, deceased, to recover damages for the next of kin by reason of his death, alleged to have been caused by the negligence of the village of Diéterich, in the construction of a culvert across one of its streets.

It was clamed by appellee that on December 7, 1906, while said John Donaldson, then a man 78 years of age, was crossing said culvert, with a load of wood, the front wheel of the wagon on which he was riding, broke through the crust of earth over the tile composing the culvert, letting the wheel fall to the tile below and throwing him into a ravine by the side of the crossing and causing his death.

There was a verdict in favor of appellee for $500 followed by a judgment for the same amount.

Appellee filed a declaration in the usual form which was afterwards amended to allege that within six months of the date of the injury, appellee filed with the clerk of said village, a statement signed by him, setting forth the nature and character of the injuries of said deceased, the day and about the hour when, and the facts concerning the manner in which, the injury occurred and giving the residence of the deceased and stating that there was no city attorney of the said village of Dieterich at the time he filed said statement with said clerk. The question whether or not the village had an attorney was sharply contested by-the respective parties and upon a solution of that question in his favor, depended in a large degree the right of plaintiff to recover.

It appeared from the proofs that one Charles A. Field, a resident of the village for nine years, had been acting as village attorney since 1904, down to and including November 7, 1907, that during all of said time he was recognized as village attorney by the village trustees and prosecuted offenses against the village ordinance before the police magistrate. On the other hand it was shown that Field was not a licensed attorney; that he was not elected to the office of village attorney but was first appointed thereto by the village council, on May 2, 1904, and again appointed on May 6, 1907, and May 3, 1909. There was evidence also tending to show that he had neither taken the oath nor given the bond provided by law.

While Field’s title to the office might have been successfully challenged by proceedings instituted in a proper manner, yet nevertheless he was undoubtedly the village attorney d& facto. A de facto officer is distinguished on the one hand from a mere usurper of an office and on the other hand from an officer de jure. He is one who is in actual possession of an office under the claim and color of an election or appointment and is in the exercise of its functions in the discharge of its duties. In State ex rel. Corey v. Curtis, 9 Nev. 325, it is said In order to make a person an officer de facto the law requires that he should in some way be put into the office and that he should also have secured such a holding, thereof as to be considered really in peaceable possession and actually exercising the functions of an officer.’ ” Waterman v. C. & I. R. R. Co., 139 Ill. 658.

“An officer de facto is defined to be one who has the reputation of being the officer he assumes to be in the exercise of the functions of the office, and yet is not a good officer in point of law. The official acts of such an officer are always regarded as worthy of full faith and credit.” Barlow v. Standford, 82 Ill. 298.

The title of such officer cannot be. inquired into or attacked in a collateral way. People v. Weber, 86 Ill. 283; Town of Lewiston v. Proctor, 23 id. 483; People v. Ham, 73 Ill. App. 533.

As Field was clearly and obviously the village attorney de facto, it was necessary for plaintiff as a condition precedent to a right of recovery, to file in his office the notice required by section 2 of the Act of 1905 concerning suits at law for personal injuries against cities, villages and towns. In regard to such notices our supreme court has said in Walters v. City of Ottawa, 240 Ill. 259, “The giving of the notices required by the statute, has been made a condition precedent to the city’s liability and constitutes an essential element of the plaintiff’s cause of action. The statute expressly declares that if the required notice is not given, any suit brought shall be dismissed and the plaintiff barred from further suing. The city has no power to waive the notice and is under no liability until it is given.”

There is no proof in the record nor is it claimed by appellee that the notice required by the statute, was ever filed in the office of Field, the de facto village attorney, and such being the case, appellee was not entitled to recover.

The judgment of the court below will be reversed.

Reversed.

Finding of facts to be incorporated in the judgment:

We find as ultimate facts that at the time of the occurrence of the injuries which resulted in the death of appellee’s intestate, John Donaldson, and for more than six months thereafter, Charles A. Field was village attorney de facto of the said village of Dieterich and that no notice such as is required by section 2 of the Act of 1905, concerning suits at law for personal injuries against cities, villages and towns, was filed in the office of said city attorney within said six months.


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    Joseph Fuchs, Appellee, v. Consolidated Coal Company, Appellant.
    Mines and miners—scope of Act. The words “any dangerous condition” -used in the Miners Act are not limited to the dangerous conditions expressly specified in the act or to those of the same kind as those specified; the Act is broad enough to cover dangerous conditions existing at the top as well as at the bottom of a mine.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.

      Wise, Keefe & Wheeler, for appellant.
    Webb & Webb, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

By this appeal appellant seeks to reverse the judgment of the circuit court of St. Clair county, in favor of appellee for damages on account of injuries received by him, while working for appellant in its coal -mine in Madison county, Illinois, on July 20, 1907. On the trial the following facts were shown: The shaft to appellant’s mine in question was some 18 feet square and was sunk to a depth of 185 feet. There were up-right timbers extending from the bottom of the mine to the surface in each comer of the shaft opening, and similar timbers in the middle of the north and south sides of the same. To the latter, extending from one to the other were attached cross timbers eight to ten inches square and some twelve inches apart, called bunting. The partition created by the bunting divided the shaft into two parts called the east and west chambers. In each one of these chambers a cage was carried up and down between the bottom of the shaft and the top of the tipple some fifty feet above the surface, where there was a coal chute, and between the buntings, which were arranged in order one above another, spaces were left in order to allow air to pass from one chamber to the other as the cages ascended and descended. At the bottom of the shaft under each cage landing, was a hole six to ten feet deep called the sump, into which water drained. The bottoms of the cages were platforms, which extended to about three inches of the sides of the chambers and upon them were tracks for the coal cars. Above the platforms some ten feet so that they would be over and out of the way of the loaded cars, were iron hoods to the cages, the purpose of which was to protect the men below from anything falling down the shaft. These hoods did not extend as close to the walls of the chambers as the platforms, but left spaces of from six to twelve inches at the sides. In the operation of the cages it was so arranged that while one of them was being hoisted the other would be descending. At the top of the tipple was a device by which the contents of a loaded car would be automatically unloaded into the coal chute. . In the operation of unloading the car, a catch would raise the back of the platform pitching the car forward and emptying it through the door into the chute. While this was going on men at the bottom of the shaft would be engaged in pushing a car onto the cage in the other chamber of the shaft. Above the surface of the ground the cross timbers formed a division wall between the two chambers of the shaft until a point was reached near where the coal was dumped from which place the partition was constructed as a solid wall. This wall extended a few feet below the place where the coal was dumped and was higher than the top of the coal car, the object being to prevent coal from falling from one chamber into another while being dumped. There was however an opening between the side of this wall and the cage, about eight inches wide and eight feet long, through which coal frequently fell, while the car was being dumped. The most of the coal so falling, would go straight down the shaft into the sump under that chamber of the shaft in which the car was being emptied, but often large pieces would strike the cross wall at the surface, go down on the other side of the partition and pass between the iron hood and the side of the shaft, to the platform of the empty cage, then being loaded.

On the day of the injury, appellee, who was a laborer at the bottom of the mine, had temporarily taken the place of a eager, and while he was engaged in assisting to push a car on a cage in the east chamber of the shaft, a large piece of coal fell from the cage which was being unloaded above, crossed over into the shaft where he was engaged, struck him upon the arm, which it broke, and inflicted permanent injuries.

The seven counts of the declaration charged appellant with a wilful disregard of the provisions of the Miners Act, in failing to mark the bottom of the mine as clangerons or display a danger signal there; in permitting appellee to enter the mine until all conditions had been made safe; in not placing a danger mark at the tipple; failure on the part of the mine examiner to examine the working places and make a record of the condition of the mine and -in omitting to go into the mine before men were permitted to enter and place a conspicuous mark at all unsafe places; failure on his part to observe the dangerous condition of the shaft and tipple, and failure to keep the top of the shaft so that material from it would not fall therein to the -bottom and injure the miners. General issue pleaded, verdict and judgment for appellee for $832.08.

The proofs show, and appellant does not deny, that appellee was injured without fault on his part; .that the place where he was injured was dangerous and unmarked, and that the dangerous point on the tipple, where the coal was dumped, was also unmarked. It is insisted, however, by appellant, that the proofs failed to show a wilful, or any, violation of the statute and also failed to show that a. wilful violation of the statute was the proximate cause of the injury. It is further contended by appellant, that all self-dumping cars would lose some coal in the process of being emptied; that such loss was unavoidable; that it was not practicable to make the iron hoods on the cages fit closer to the sides of the shaft than they did; that the tipple was constructed in the usual manner in general use where self-dumping cars were employed; that the equipment and material of the tipple were first class in every respect; that a self-dumping cage could not be used that would positively prevent coal from falling to the bottom of the shaft; that the timbering of the shaft was done in accordance with the best known methods of timbering shafts and that it was impossible to have a solid partition in the shaft from the surface of the ground to the pit bottom; that the whole question of the construtcion of the tipple and the placing of the bunting, was not a question of fact to be submitted to a jury, but was an engineering or mechanical question; that it was the duty of the court to take the case from the jury on a motion of appellant and direct a verdict in its favor.

Appellee sought to controvert some of the positions taken by appellant, by introducing evidence tending to show that the hoods over the cages might be made wider so as to leave less space next to the sides of the shaft and also that the construction of a solid partition from the top of the shaft to connect with the solid wall in the upper part of the tipple would not interfere with the operation of the cages and would be an element of safety.

Appellant to sustain its position that the question was an engineering or mechanical question, and that having used well known processes of construction in general use among mine operators, for like purposes, it should not be held liable, relies upon C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330, and other cases, where it is held that certain methods of construction and operation of railroads are engineering questions and not subject to the review of a jury, and other cases which hold that the employment of methods of construction in general use in business, tends to rebut a charge of negligence, growing out of such use.

The question of the negligence of appellant is not at issue here however, and therefore we do not think the cases referred to are applicable. The charge in the declaration is the wilful violation of certain provisions of the Miners Act, and failure to comply with the same was clearly shown by the proofs in the case, and does not appear to be contested by appellant. The falling of coal from the top of the tipple made the place where appellee was injured dangerous and continually subjected the men employed there to serious injury. The dangers of the situation were known to appellant and it should have provided for the safety of its employes in the manner set forth in the statute, unless it can be said the Miners Act does not apply to cases like this.

The Supreme Court of this state have, however, held that the words “any dangerous condition” used in the Miners Act, are not limited to the dangerous conditions expressly specified in the act or to those of the same kind as those specified and also that the act is broad enough to cover dangerous conditions existing at the top as well as at the bottom of the mine. Dunham v. Black Diamond Coal Co., 239 Ill. 457; Spring Valley Coal Co. v. Greig, 226 Ill. 511.

We conclude from the authorities just mentioned, that the circumstances relied on by appellee and shown to exist by the evidence in this case, were such as to render the provisions of the Miners Act applicable.

The evidence in the case also shows facts from which the jury might reasonably find that the' failure of appellant, to comply with the provisions of the law as charged in the declaration, was the proximate cause of the injury to appellee.

The judgment of the trial court should be, and it accordingly is, affirmed.

Affirmed.


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    J. A. Boller, Appellee, v. Charles B. O’Connor et al., Appellants.
    1. Vebdicts—iohen set aside as against the evidence. A verdict will be set aside on review as against the weight of the evidence where it is clearly and manifestly so. ,
    2. Practice—section 54 of Act construed. By virtue of section 54 of the Practice Act the plaintiff is not required to adduce proof of the joint liability of the defendants to make out a prima facie case, unless a plea in abatement or denying joint liability is filed, but a failure to file such a plea or pleas does not preclude the defendant from taking advantage of such defense.
    Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    Parker & Eagleton, for appellants.
    Osarles B. McCoy and McCarthy & Arnold, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee brought suit in assumpsit against Charles B. O’Connor, W. 0. Martin, Frank Hammer and three other persons, for labor and material furnished by him in drilling a well for oil in Crawford county, Illinois, and obtained a judgment against said O’Connor, Martin and Hammer for $900.27, there having been no service of summons on the other defendants. An appeal was taken by the three parties against whom the judgment was rendered and the cause brought to this court for review.

It appears from the record in this case that on July 15, 1908, said O’Connor, Martin and Hammer, and three other persons, owned certain oil and gas leases on a large body of land in said Crawford county and on that day O’Connor for himself and the other owners of said leases entered into a written agreement, transferring an undivided half interest in a gas lease on one hundred acres of said lands to appellee, in consideration of which appellee agreed to drill a test well on said tract. Appellee proceeded under the contract to drill a well which he sunk to the depth of 1003 feet but failed to strike either oil or gas. A new agreement was then made, under which appellee drilled the well about 420 feet deeper at a cost for labor and material of $1929.55, but neither gas nor oil was discovered and the work was then abandoned.

Appellee claims that by the new agreement, which was not in writing, he was to bear one half of the expense of the additional drilling and that O’Connor agreed for himself and the other owners interested in the leases with him," that they would pay the other half.

On the other hand it is claimed on behalf1 of appellants, that O’Connor had no authority to enter into the second agreement for any one except himself, and that he did not in fact make any agreement or contract for them.

Only two witnesses were examined upon the trial of the case, appellee and O’Connor, and their testimony was in many respects conflicting. Appellee testified that when he proposed to O’Connor to bear half the expense of the additional drilling, the latter said “He did not know whether he had the authority to do that or not but he studied a little and said ‘yes sir’ he would.” O’Connor testified that appellee told him his half of the additional cost would not be over $200 and that he then said to appellee-: “All right I will agree for myself but not for the others, because I have no authority to enter into any contract for these other parties without seeing them, but for myself, personally, I will stand the $200.” O’Connor further said that he was to pay nothing unless oil was struck. There was an entire absence of direct proof in the evidence that O’Oonnor had any authority to make the additional contract on behalf of the other owners interested with him in the undivided one-half of the lease on the tract of land in question.

The evidence in the case appears to us to be wholly insufficient to warrant a judgment against the appellants Martin and Hammer. It is contended by appellee, however, that as there was no plea filed denying joint liability on the part of the defendants, they are not in position to avail themselves of that defense in this case.

Section 54 of the Practice Act provides, that proof of the joint liability of the defendants shall not in the first instance be required, to entitle the plaintiff to judgment unless such proof shall be rendered necessary by a plea in abatement or a plea in bar denying the joint liability, verified by affidavit. We understand that by this provision of the statute the plaintiff is not required to adduce proof of the joint liability of the defendants to make out a prima facie case, unless a plea in abatement or denying joint liability is filed, but we do not understand that a failure to file such a plea or pleas precludes the defendant from taking advantage of such defense. The effect of filing such plea is simply to cast the burden of proving the joint liability upon the plaintiff.

In Powell v. Finn, 198 Ill. 567, it is said: “It is well settled that, even in the absence of a plea denying joint liability, the evidence must show such liability as to all the defendants in order to entitle plaintiff to a judgment.” To the same effect are the cases of Heidelmeir v. Hecht, 145 Ill. App. 116; United Workmen v. Zuhlke, 129 Ill. 298; Martin v. Trainer, 123 Ill. App. 474; Martin v. Nelson, 53 App. 517.

The judgment in this case was therefore erroneous as to the defendants Martin and Hammer, but the judgment is a unit and being erroneous as to one of the defendants, is erroneous as to all. Sup. Lodge K. of H. v. Goldberger, 175 Ill. 19; Larsen v. Ditto, 90 Ill. App. 384.

For the reasons above given the judgment of the court below will be reserved and the cause remanded.

Reversed and remanded.


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    The People of the State of Illinois, Defendant in Error, v. J. L. Spain, Plaintiff in Error.
    1. Evidence—what conviction of crime affects credibility of witness. In a criminal case the credibility of a witness is not affected by proof of conviction of any other than an infamous crime.
    2. Evidence—how proof of conviction of crime must be made, in criminal cases to affect credibility of witness. Such proof can only be made by the introduction of the record of conviction.
    3. Instructions—when in criminal case upon quantum of proof required erroneous. An instruction upon this subject is erroneous which authorizes conviction upon proof of facts and circumstances from which guilt might reasonably and satisfactorily be inferred.
    Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Eranklin county; the Hon. Thomas J. Myers, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    Moneyham & Seeber and Thomas J. Layman, for plaintiff in error.
    G. A. Hickman,, for defendant in error,
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a criminal prosecution against plaintiff in error upon an information containing ten counts, filed by the state’s attorney of Franklin county, charging him with having sold intoxicating liquor in anti-saloon territory, in said county.

A jury found plaintiff in error guilty on the first count and judgment was entered in accordance therewith, the court imposing a fine of $100 and costs and a jail sentence of thirty days.

Upon the trial plaintiff in error was a witness in his own behalf and was compelled, on cross examination, to testify against his objection, that he had been convicted at a previous term of said court, of selling intoxicating liquors. It is provided by section 6 division 13 of our criminal code that “Ho person shall be disqualified as a witness in any criminal case or proceeding, by reason of his interest in the event of the same as a party or otherwise, or by reason of his having been convicted of any crime; but such interest or conviction may be shown for the purpose of affecting his credibility.’-’ The object of this statute-was to remove the common law disability, which prohibited a person convicted of an infamous crime, from being a witness, but it was not designed to permit proof of conviction of an offense not infamous and therefore legally presumed to affect his credibility. Further, while proof that a witness in a criminal case has been convicted of an infamous crime may be shown for the purpose of affecting his credibility, this can only be done by introducing the record of his. conviction. Bartholmew v. The People, 104 Ill. 601; Kirby v. The People, 123 Ill. 436; McKevitt v. The People, 208 Ill. 460.

The trial court therefore erred in compelling plaintiff in error to testify concerning his former conviction of selling intoxicating liquors contrary to law.

The people’s instruction Ho. 3 told the jury that the guilt of the defendant might be established by proof of facts and circumstances from which it might be reasonably and satisfactorily inferred. This instruction was palpably erroneous as there could be no conviction unless there was proof of the defendant’s guilt beyond a reasonable doubt.

For the errors above mentioned the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


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    The People of the State of Illinois, Defendant in Error, v. Nick Doschio, Plaintiff in Error.
    1. Dram-shops—when indictment sufficient. An indictment charging the selling of intoxicating liquor in anti-saloon territory is sufficient notwithstanding it does not negative the exceptions referred to in the statute.
    2. Dram-shops—what competent to establish territory as anti-saloon. The town record showing the particular territory is anti-saloon, is competent to establish such fact.
    3. Appeals and errors—when remarles of trial court not subject to review. ¡Remarks complained of are not subject to review in the absence of exception having been preserved thereto.
    Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding. Heard in this court -'at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.
    Honeyham & Seeber and Thomas J. Layman, for plaintiff in error.
    G-. A. Hickman, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

At the November term of the circuit court of Franklin county, an indictment of two counts was returned by the grand jury against Nick Doschio, plaintiff in error, charging him with selling intoxicating liquor in anti-saloon territory in said county, contrary to the form of the statute in such case made and provided. The court overruled a motion to quash the indictment and upon the trial the jury returned a verdict of guilty under the first count of the indictment. Motions for a new trial and in arrest of judgment having been overruled, the court sentenced Doschio to thirty days in the county jail, and to pay a fine of $100 and the costs of suit.

Plaintiff in error contends that the indictment should have been quashed for the reason that it failed to negative that portion of the dram-shop act of 1907, which provides, “Nothing in this act shall be construed to forbid or prevent the sale within anti-saloon territory by druggists to whom permits or licenses therefor have been duly granted in the manner provided by law, of liquor for medicinal, mechanical, sacramental and chemical purposes only” etc. Rev. Stat. (Hurd 1908) chap. 43 par. 42.

We are of opinion it was not necessary for the indictment to negative the exception in the law above referred to and have' hitherto so held where the same question was raised under a similar indictment. People v. Evoldi, 152 Ill. App. 658.

Plaintiff in error further asserts as reasons' why the judgment should be reversed, that the court made remarks upon the trial prejudicial to his case,'that improper evidence was admitted, that certain instructions given for the people were erroneous and the evidence did not sustain the verdict.

Winstead, the principal witness for the people, when asked by one of the attorneys for the defendant, “Who else did you see drinking in there besides,” another person named, started to answer but was interrupted by the court with the remark, “Tell him right, don’t make any difference who they are if yon have seen the mayor and city council drink in there tell it right out” and the witness thereupon answered, “I have seen some of the city council drink in there.” The remark of the court cannot be commended or approved but even if it could be considered materially prejudicial under all the circumstances of this case, plaintiff in error cannot avail himself of it here for the reason that no objection was made to the remark at the time.

The criticism in regard to the evidence, is that the court improperly admitted the record of the town clerk tending to show that the place where the liquor was said to have been sold, was in anti-saloon territory, on the ground that it was not such a record as required by the statute. It is provided by the statute referred to (Rev. Stat. Hurd 1908, chap. 43, par. 31) that “the clerk shall record in a well bound book to be kept in his office by himself and his successors, the result of the vote upon said proposition and such result may be proved in all courts and in all proceedings by such record or by the official certificate of the clerk and in cases where such a record or certificate shows that a majority of the legal voters voting upon said proposition voted ‘yes’ the same shall be prima facie evidence that the political subdivision to which such vote was applicable has become anti-saloon territory.” The record referred to, which was said to be the town record of the town of Frankfort in said Franklin county, appears from the evidence to have been produced on the trial, but it is not included in the record made up in this case and as we have no opportunity of inspecting it, we cannot say whether or not it was such a record as was contemplated by the statute in question.

Page 29 of the record however was admitted and read in evidence and is contained in the record. The only objection made to it was that the town record of which it was a part, was not such a record as was required by statute. Said page as read, contains a statement of the result of the vote upon the question of “anti-saloon territory” which seems to have fully satisfied the requirements of the statute.

The objections to the instructions • given on behalf of the people are of minor importance and do not seem to us to be well founded. As to the sufficiency of the proof, one witness, Winstead, formerly the village marshal, swore positively to a number of violations of the statute as charged in the indictment. On the other hand the defendant testified that he had some four or five months prior to the finding of the indictment in this case pleaded guilty to the same charge before a justice of the peace, been fined and paid his fine and since that time had not sold beer or whiskey to anybody. Other evidence was introduced which tended to contradict said witness for the people, in some of the details testified to hy him, but it was for the jury to say where-the truth lay and upon a consideration of" all the facts and circumstances in the record, we think the verdict was fully justified.

The judgment of the court helow will accordingly be affirmed.

Affirmed.


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    The People of the State of Illinois, Defendant in Error, v. Fred Steinhauer, Plaintiff in Error.
    1. Dram-shops—-what constitutes unlawful selling of liquor in anti-saloon territory. By virtue of the act of 1907 the talcing of orders for the sale and. delivery of intoxicating liquor within anti-saloon territory is an unlawful selling within the meaning of the statute.
    2. Dram-shops—what instructions properly refused in prosecution for unlawfully selling intoxicating liquor in anti-saloon territory. An instruction is properly refused in such prosecution which is not in accord with the statute.
    Prosecution for unlawful sale of intoxicating liquor. Error to the County Court of Eayette county; the Hon. John H. Webb, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.
    John A. Bingham and E. B. Spurgeon, for plaintiff in error.
    Will P. Welker and Albert & Matheny, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

The state’s attorney of Fayette county filed an information, containing four counts, against plaintiff in error, Fred Steinhauer, charging him with a violation of the law in relation to anti-saloon territory. He was found guilty by a jury under the first two counts of the information, which charged him with the sale of intoxicating liquors in said territory, and sentenced by the court to the jail of the county for twenty days and to pay a fine of $100 and the costs.

At the trial the proofs showed that Steinhauer kept a saloon in Altamont and that he shipped intoxicating liquor by express to customers at Vandalia, which is admitted by both sides to be located in anti-saloon territory; that one day in the summer of 1909, Steinhauer was on a train at the depot in Vandalia, starting home, when Charles Kurtz, a resident of Vandalia gave him a dollar and told him to send over a half gallon of whiskey, and that on the same or the next day Kurtz received the whiskey at the express office in Vandalia; that in October, 1908, Floyd Miller, also a resident of Vandalia, had a conversation with Steinhauer in Vandalia in which Miller ordered a half gallon of whiskey; that Miller afterwards received the whiskey by express at Vandalia and later paid Steinhauer for the same.

Section 12 of the Act of 1907 in relation to anti-saloon territory, provides that “whoever shall by himself or another, either as principal, clerk or servant, directly or indirectly, sell, barter or exchange any intoxicating liquor in any quantity whatever, within the limits of any political subdivision or district of this state, while the same is anti-saloon territory” shall be subject .to fine or imprisonment or both. Section 13 of the same Act provides, that the taking of orders within anti-saloon territory for the sale or delivery of any intoxicating liquor, shall be held to be an unlawful selling.

The proofs showed beyond a reasonable doubt, the two instances of the sale of intoxicating liquors by Steinhauer in anti-saloon territory, above referred to.

It is contended however by plaintiff in error that the sale of an article contemplates also the delivery and that the delivery in this case should be held as having taken place at Altamont, where his saloon was located and where he delivered the liquor to the express company. The argument of plaintiff in error is almost entirely devoted to the question of the place of delivery and many authorities are cited by him upon that subject. Whatever the common law might be upon this subject, or whatever may have been held in this state or other jurisdictions under other statutes, is immaterial, however, and not necessary for us to consider here.

This prosecution js brought under the anti-saloon territory Act of 1907 and the act itself provides, as above stated, that the talcing of orders for the sale or delivery of intoxicating liquor within such territory, shall be held to be an unlawful selling. In this case the order for the liquor was taken and the money paid in anti-saloon territory, which clearly constituted the transaction a sale under the provisions of the statute.

Plaintiff in error complains of the refusal of his instruction Ho. 4 which told the jury that there could be no conviction unless they believed from the evidence beyond all reasonable doubt, that Steinhauer both sold and delivered the intoxicating liquor in the town of Vandalia. This instruction wasi properly refused for the reason that it is not in accordance with the statute, under which this information was filed.

The criticism made by plaintiff in error of the instructions given for the people is also based upon the theory that they failed to define a sale of liquor in prohibited territory as including a delivery thereof in the same territory which, as we have above seen, is not required under the statute in question.

The evidence in this case required the jury to render a verdict of guilty. There was no reversible error committed in the trial of the cause and the judgment of the court below will therefore be affirmed.

Affirmed.


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    J. L. Smith, Appellee v. The Hartford Fire Insurance Company, Appellant. J. L. Smith, Appellee, v. The American Central Insurance Company, Appellant.
    Consolidated for Hearing.
    1. Reformation—how must he obtained. Reformation of documents can only be had in a court of equity and cannot be accomplished by evidence adduced at law.
    2. Insurance—effect of cancelation. If policies of insurance have been canceled and cancelation receipts executed and delivered, a recovery will not be sustained.
    Assumpsit. Appeal from the Circuit Court of Franklin county; the Hon. William II. Green, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed August 5, 1910.
    Barcley, Fauntelroy, & Cullen, W. H. Williams, Thomas J. Layman, and Barger & Hicks, for appellants.
    W.' S. Cantrell and Denison & Spillee, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

The issues in the two cases above named were the same and it was agreed in the court below that the two should be tried by the same jury at the same time, and that said jury might return a separate verdict in each case. The evidence in the two cases was practically identical and the jury returned a verdict in favor of appellee in each case for the sum of $3,000.

The record discloses the following facts: On Hay 10, 1906, appellee took out a fire insurance policy on a brick store building in West Frankfort, Illinois, in each of appellant companies for three years. The amount of the insurance in each policy was $3,000 and the premiums were the same in each. The policies were identical in terms and each contained among other provisions one that it might be canceled by the insurance company upon giving five days’ notice and returning the unearned portion of the premium.

On January 1, 1909, L. C. Dorris, the local agent of both companies, received a telegram from the Hartford Fire'Insurance Company saying, “Kindly cancel immediately policy 809, Smith. Present occupancy prohibited.” On the same day Dorris called upon appellee and told him he wanted to cancel the policy. Appellee told him the policy was in a safety box at the bank and the same was produced. After Dorris had figured up the amount of the unearned premium for the unexpired time on that policy, he stated to appellee that the American Central Insurance Company would also want to cancel its policy and asked appellee to get it so that the matter could be disposed of at that time. Appellee thereupon produced the latter policy and it being found upon examination that both policies were issued on the same day for the same period and for the same premium, it followed that the amount of the unearned premium on each would be the same. The amount due to appellee on each policy was calculated by the agent to be $16.45 and the latter thereupon gave appellee his check for double that amount, to wit, $32.90, to cover the unearned premiums on both the policies for the period from January 1, 1909, to the date of their expiration May 10, 1909. In return, appellee signed a cancellation receipt indorsed on the back of each policy and delivered the policies to Dorris who returned them to the respective companies. The cancellation receipt upon the policy of the Hartford Fire Insurance Company, was as follows:

“Cancellation receipt, $16.45. In consideration of the sum of sixteen and 45/100 dollars to me paid by L. C. Dorris agent of the Hartford Fire Insurance Company of West Frankfort, this- policy is hereby acknowledged canceled and surrendered to the said company.

Dated 1/1 1909.

J. L. Smith.”

The cancellation receipt indorsed on the back of the policy issued by the American Central Insurance Company was substantially the same as that above given, but it contained the additional words “Policy ¡No. 1705285 canceled and surrendered Jan. 1, 1909.”

The property in question, which was shown to have been worth $9,000 to $10,000, was afterwards, on January 3, 1909, destroyed by fire. It appeared that a former fire had damaged the same building and that by reason thereof both appellants had paid appellee insurance upon the same policies here in question, but the amount paid is not shown by the record. Appellee, through his attorneys, gave notice of the loss under date of January 18, 1909, to each of appellants and some twelve days later, forwarded to them the sworn statements in proof of such loss. The respective companies refused! to pay the loss for the reason that the same had occurred after the cancellation of the policies. ¡Nothing more appears to have been done in reference to the matter until April 3, 1909, when appellee sent a letter to the home office of each company, stating he had just discovered that the agent had made a mistake in computing the amount of the return premium and had paid him 62 cents .too much in each case, which amount appellee remitted to the respective companies. Six days later appellee brought suits on the policies and notified the companies to produce them. To the declaration appellants filed the general issue and also a special plea, setting up and relying upon the cancellation receipt, the payment of the unearned premium and the surrender of the policies. In reply appellee alleged that the policies contained a provision they should be canceled by the company, by giving five days’ notice of cancellation and that appellants did not give him five days’ notice thereof before the happening of the fire; that by mistake the agent figured the unearned premium from January 1st to the expiration of the policies instead of from January 5th, as he should have done; that appellee did not know of such mistake and believed that his policy would continue in force and effect for a period of five days from the date on which he was notified by the agent of the cancellation; also that the consideration of $16.4-5 mentioned in the receipt was a mutual mistake of the parties; that the true consideration was $15.83, the unearned premium on the policies from January 5, 1909, which was after said loss hy fire and that appellee received no consideration for any waiver of his right to the five days’ notice.

A number of reasons appear from the record why this judgment cannot be permitted to stand but it will be sufficient for us to refer to one only as that appears to .us to dispose of the case.

It does not appear from the evidence, nor is it contended by appellee that any fraud whatever was used by. Dorris, the agent, in obtaining the cancellation receipts. These receipts, as they stand, offer a complete bar to actions upon the policies. ISTo reason is shown why the receipts should be treated as void. The court below admitted testimony which had it been competent, could only at most, have tended to correct and reform the instruments so as to make them take effect at a later date, after the fire had occurred. The reformation of the cancellation receipts, had there been evidence to sustain it, could only have been brought about in a court of equity and could not be accomplished in a suit at law. Mercantile Ins. Co. v. Jaynes, 87 Ill. 199; Chicago v. Sexton, 115 id. 230 (243); Cunningham v. Wrenn, 23 id. 62.

The judgment in the two cases here considered must he reversed and as the cancellation receipts indorsed upon the policies, introduced by appellee in evidence, were given for a valuable consideration, and there is no proof or claim of fraud concerning the obtaining or execution of the same, they present in their present condition a complete bar to the actions, the causes will not be remanded.

Reversed.

Findings of facts to be incorporated in the judgment.

We find that the cancellation receipts introduced in evidence in the above causes, were obtained and executed without fraud and for a valuable consideration,' and that they constitute a bar to the right of action claimed by appellee in both cases.


author: Mr. Justice Shirley

text:
    G. P. Springfield, Appellee, v. City of Granite City, Appellant.

      Evidence—competency of admissions against interest. Evidence which is material and relevant and tends to contradict a party as to the extent of injuries claimed to have been received, is competent, and its exclusion is ground for reversal.
    Action in case for personal injuries. Appeal from the Circuit Court of6,Madison county; the lion W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    M. E. Sullivan, for appellant.
    J. H. Bandy, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

The declaration consisted of one count charging that appellant wrongfully permitted B street in its city to he unsafe for travel; that it permitted a large rock to he and remain in said street and that appellee while running after some hoys in the exercise of due care ran over the rock, fell and was injured.

Upon a plea being filed traversing the declaration the cause was submitted to a jury and resulted in a verdict and judgment for appellee for the sum of $1,000.

The alleged errors relied upon for a reversal of the judgment are, that the court erred in overruling a motion for a new trial; in giving and refusing instructions and in excluding proper evidence offered on behalf of appellant.

Taking the instructions as a series we think they fairly present the law. We are of opinion, however, the court erred in excluding proper and competent evidence offered by appellant.

The circumstances made the question of the reasonable care used by appellee, as well as the extent of his injuries resulting from the alleged fall and in what manner he received them and the credit to be given his testimony, very material.

The appellee testified in chief that he was at the time employed on the police force of appellant and in the line of his duty was running to overtake several boys whom he had caught in the act of meddling with a street light, when he fell over a stone that had been left in the street several months, and as a result of the fall he had a serious rupture which had incapacitated him and from which he had not recovered; that the stone was a foot and a half thick, a foot wide and two feet long; that it was on a street within his beat, where he had frequently seen it and knew its location, that the accident occurred about nine P. M. with a street light 125 feet away, and that he received his injury the same evening of the day he had returned from Kentucky where he had been on a visit.

On cross examination he was asked if within a day or two after he returned from Kentucky he had not stated to Kobert Martin, one of the fire chiefs of Granite City, that he did not get back from Kentucky until a day late for the reason that he met a woman in St. Louis and stayed all night with her and that he had intercourse with her all night and the" next day, and that on his return to Granite City the next day he found there was something wrong with his sexual organs. Appellee denied making this statement. Appellant called Martin as a witness and offered to prove by him that appellee did make such statement and in addition thereto that appellee complained of an injury about the scrotum and stated it was occasioned by his sexual intercourse the night before. This proposed testimony was objected to by appellee and the objection sustained. The question to Martin comprehended something more than the question asked appellee in laying the foundation for impeachment, and was objectionable on that ground for the purpose of impeachment, and the objection-was properly sustained. Appellant then offered to prove these alleged facts by the witness Martin which was objected to and the objection sustained.

We think this testimony was relevant. It tended to contra-diet the witness as to the extent of his injuries received from the alleged fall.

The testimony being relevant and material it was admissible if not by way of impeachment then as a statement or admission made by a party to the suit.

To exclude it in this case ivas highly prejudicial to appellant, and the judgment should he reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    James Dangerfield, Administrator, Defendant in Error, v. George Hope, Plaintiff in Error.
    1. Evidence—effect of admissions. Evidence of admissions and declarations is not as a rule the most satisfactory; verbal statements are liable to be misstated or distorted and in cases of the statements of deceased persons they are liable to abuse.
    2. Instructions—must not single out particular evidence. An instruction should not single out any evidentiary facts which with other facts go to prove the main and controlling fact; such instructions are in the nature of arguments from the court and should not be given.
    3. Appeals and errors-—when remarles of counsel not subject to review. In order to review remarks of counsel alleged as improper an objection should be made thereto and a ruling obtained upon such an objection and an exception preserved to such ruling if adverse.
    Assumpsit. Error to the Circuit Court of Williamson county; the Hon T. M. Harris, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.
    Pillow, Smith & Stoke, for plaintiff in error.
    ' ¡Neely, Gallimore, Cook & Potter, for defendant in error.
   Mr. Justice Shirley

delivered the opinion of the court.

Defendant in error, James Dangerfield, as administrator of the estate of Hannah L. Dangerfield, brought an action in assumpsit against plaintiff in error, George Hope, to recover moneys alleged to have been loaned to plaintiff in error by the intestate in her lifetime.

Upon a trial there was a verdict and judgment against Hope for the sum of $733.65, to review which this writ of error is prosecuted.

A number of errors are assigned upon the record but the brief of plaintiff in error complains only of some of them and they will be considered in their order.

First. It is contended the verdict was against the evidence, as the weight of the evidence showed the money claimed by the administrator was a gift. It appeared.that the intestate was a widow leaving at the time of her death six sons and three daughters. Among her daughters was Eliza Hope, the wife of plaintiff in error, who with her husband resided at Johnston City, in Williamson County, and the intestate resided and made her home with them.

Prior to Hannah Dangerfield’s death which occurred August 14, 1908, she sold some land, and after discharging a mortgage upon the land, she had left of the purchase money $1,950. Of this money she placed in the bank at Johnston City on March 14, 1908, $1,454. What became of the balance of the money she had does not appear. Afterwards she expended about $400 bn a small house and lot.

After her death the administrator found no money among her effects and upon a citation being issued to plaintiff in error he testified in the probate court.

It appeared from the evidence and it is admitted by plaintiff in error that during her lifetime and shortly prior to her death the intestate paid a building association a note secured by a mortgage upon the property of plaintiff in error, thereby releasing the property from the lien. The amount paid was the sum of $733.65, being the same amount recovered in this case and which it is claimed was a gift.

Aside from the admitted fact that the deceased did pay the amount of the note and satisfy the lien of the mortgage, the evidence as to the character of the transaction rests in alleged statements and declarations made by her concerning her intentions and her relations to her children, and of alleged admissions made by Hope that he had borrowed the money from her and expected to pay it back with interest. Evidence of admissions and declarations is not as a rule the most satisfactory; verbal statements are liable to be misstated or distorted and in cases of the statements of deceased persons they are liable to abuse.

“Evidence of alleged admissions by a deceased person should be received with great caution as such evidence is the most dangerous that can be admitted and the most liable to abuse.” Bragg vs. Geddes, 93 Ill. 39; Laurence v. Laurence, 164 id. 367.

Ozment was the cashier of the bank where deceased kept her money and his testimony was that when she checked out the $733.65 she told him she was clearing the property up and giving it to plaintiff in error.

Pillow, the secretary of the building association to whom she made the payment, testified that she said Eliza, her daughter the wife of plaintiff in error, had helped her make what she had, that she was paying off the debt for her, was giving it to her, and thought she should have it, and the witness Felts testified he heard her say she gave her daughter and son-in-law the money to pay a mortgage on their place, and Delia Kinser stated the deceased had told her that she intended her daughter Eliza to have what she had.

It was testified hy several witnesses that in a citation proceeding in the probate court involving this matter plaintiff in error testified there that he borrowed the money from the deceased and agreed to pay her the same interest- the bank paid. This was the testimony of Edwin, Thomas and James Dangerfield, and also of J. L. McKay who were present at the hearing. Thomas Dangerfield further testified plaintiff in error had told him repeatedly the same thing. Plaintiff in error denied these statements and was corroborated by others witnesses, but if they were true the transaction was not a gift. It was a matter for the jury who heard the witnesses and saw them to determine, and their finding, although the testimony disclosed other circumstances which tended to show a disposition on the part of the deceased to make the gift, such as making her home with plaintiff in error and allowing him to freely check upon her account in the bank, will not be disturbed.

Second. It is urged there was error in giving on behalf of defendant in error the following instruction:

“You are instructed that though you may believe from the weight of the evidence that Eliza Hope, wife of the defendant, by her service to her mother, Hannah L. Dangerfield, did in some degree contribute to the acquiring of this money mentioned in this suit yet this fact alone would not raise for her such an interest in the estate of said Hannah L. Dangerfield as can be settled in this suit.”

It is true that assistance of the daughter Eliza in acquiring the money was not such an interest in her as could be settled in this suit. It was a mere evidentiary fact based on some of the evidence. The court might have refused it for the reason that an instruction ought not to single out an evidentiary fact which with other facts go to prove the main or controlling fact. Such instructions are in the nature of arguments from the court and should not be given.

We do not agree the instruction virtually told the jury to disregard such evidence, and in effect it was harmless.

Third. Complaint is made of the remarks of counsel for defendant in error in his closing argument to the jury.

As there was no objection to the remarks and no ruling of the court thereupon to which exception was or could be taken, the question is not presented by the record in this court. Holloway v. Johnson, 129 Ill. 367. Where a gift is claimed it should be established by clear proof.

“The law requires that a gift whether direct or in trust shall be established by clear proof and no uncertainty shall exist either as to the subject or object of the gift.” Barnum Exr. v. Reed, 136 Ill. 388.

We are of opinion no reversible error appears in this record and the judgment will be affirmed.

Affirmed.