text:
    Adelia Carr, Appellee, v. Melvin Carr, Appellant.
    Gen. No. 6,297.
    (Not to he reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldredge, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action in forcible detainer by Adelia Carr, plaintiff, against Melvin Carr, defendant, to recover possession of premises leased by plaintiff to defendant. From a judgment for plaintiff, defendant appeals.

      Abstract of the Decision.
    1. Landlord and tenant, § 19

      —when evidence is insufficient to show, promise to lease premises for life term. In an action of forcible detainer, evidence held insufficient to show any promise by plaintiff, lessor of certain lands, that defendant, lessee of such lands, should remain in possession' of the leased premises during the plaintiff’s lifetime, instead of during the term of the lease only.
    2. Forcible entry and detainee, § 24

      —when making of promise for life term is unavailable as a defense in action against tenant. A promise by the lessor of land that the lessee should occupy the premises for a life term which was made prior to or contemporaneous with the making of a written lease for a specified lesser term is unavailable as a defense in an action of forcible detainer for holding over after the expiration of the term of the lease.
    3. Landlord and tenant, § 441

      —what delay to regain possession of premises is insufficient to raise inference of new tenancy. The mere fact that a landlord took no steps for three weeks after the expiration of a lease according to its terms to regain possession of the leased premises does not raise an inference of a new tenancy.
    H. L. Bicholson and B. A. Green, for appellant.
    B. D. Mills, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    George J. Davidson, Appellee, v. Peoria & Pekin Union Railway Company, Appellant.
    Gen. No. 6,299.
    1. Master and servant, § 147

      —what is duty of employer to keep oars equipped with safety appliances. An employer’s duty under the Federal Safety Appliance Act to use even great diligence in keeping cars equipped as therein required and his liability for defects in required appliances of which he- has no notice and in the exercise of reasonable care could not have notice is absolute and imperative.
    2. Master and servant, § 98

      —what law governs as to employer’s duty and liability under Federal Safety Appliance Act. The question of an employer’s duty and liability under the Federal Safety Appliance Act is a federal question in which the decisions of the federal courts govern.
    3. Master and servant, § 147

      —what is liability of employer for injuries to servant resulting from unknown defects in appliances. A temporary defect and failure to work of an equipment required by the Federal Safety Appliance Act creates a liability in the employer for injuries to the servant and subjects him to the penalties and burdens of the act, even though it arises from some unknown defect which he could not, in the exercise of reasonable care, have ascertained and remedied.
    4. Master and servant, § 98

      —when defenses of contributory negligence and assumed risk are unavailable. Under sections 3 and 4 of the Federal Employers’ Liability Act, the defenses of contributory negligence and assumed risk are not available to an-employer against whom an action is brought to recover damages because of injuries sustained from defective appliances required by the Federal Safety Appliance Act, and an averment in the declaration of due care of plaintiff is surplusage.
    5. Master and servant, § 147

      —when evidence is sufficient to show that coupling appliance does not comply with Federal Safety Appliance Act. Evidence held sufficient to show that the coupling appliance causing plaintiff’s injury was, at the time and place of the injury, defective and not in compliance with the Federal Safety Appliance Act, 'and the verdict of the jury so finding was not against the manifest weight of the evidence, in an action by a railroad switchman to recover damages for such injury.

      6. Master and servant, § 147

      —what is extent of liability of employer for use of defective coupling appliance. Where a coupling appliance, required by the Federal Safety Appliance Act, was defective at the time and place of an injury to a switchman caused thereby, held that it would be immaterial how long before that it had been defective, or how soon after that the defect was removed, or that no want of care or intent to evade the law could be imputed to the employer, in an action to recover damages for sucn injury.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Rehearing denied October 5, 1916.
    Stevens, Miller & Elliott, for appellant.
    Weil & Bartley, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the. court.

George J. Davidson, the appellee, forty-six years old, between three and four o’clock in the morning of March 11, 1915, was in the employ of the appellant railway company as switchman in its yards near East Peoria, and while assisting the crew with whom he was working in making up a freight train for the Vandalia Railroad Company an automatic coupler failed to work by impact. He went between the cars attempting to fix it. His right wrist was caught and injured, resulting in a necessary amputation about five inches below the elbow. Appellant was engaged and appellee was then employed by it in interstate commerce. He brought this action to recover for that injury and it was tried on two counts of his declaration alleging that thé automatic coupler was in a defective condition,. and could not be coupled automatically by impact, and that he was then and there employed in interstate commerce, with other appropriate allegations to permit a recovery under the Federal Employers’ Liability Act for an injury resulting from the violation of the federal act requiring cars to be equipped with couplers coupling automatically by impact without the necessity of employees going between the ends of said cars. He had judgment on a verdict of $6,525,- from which this appeal is prosecuted and a reversal asked on the grounds that no negligence of the defendant is shown; that the coupler in question was in perfect order and that the court erred in refusing certain instructions offered by the defendant.

Appellee testified that two sections of the train were about to come together; that he was in position to see that a proper coupling was made; that the foreman of the crew, Hurley, was stationed some distance away and another switchman, Saunders, some distance beyond Hurley so that signals from appellee could be communicated through those two men to the engineer; that signals were given by lantern and that the engineer was entirely governed thereby; that, as the cars approached and were about to come together, appellee gave a signal to slow down, or ease up, and the cars came together properly without too much violence but did not couple automatically as they should have done; the pin that held the coupling in place did not drop. Discovering this, he gave a stop signal, which was obeyed. He then gave a go ahead signal and the cars to which the engine was attached pulled away about a car length and stopped on appellee’s signal. He then endeavored by shaking the lever to the coupler to cause the pin or lock to go down. This pin is so arranged on the coupler that when a coupling is about to be made the knuckle is opened and the pin, which works in a hole,' or slot, is held up. If working properly, the pin is jarred by the impact and falls down into the slot, locking the knuckle. It can be pulled up and the knuckle released by means of a lever on the end of the car so that it is not necessary for men to go between the ends in working it. He could not make the pin go down where it belonged by shaking the lever. He then went between the ends of the cars and tried to adjust it—tried to hammer it down with his brake club without success. Then using his right hand he put his fingers up underneath the coupler into the hole into which this pin is supposed to drop, endeavoring in that way to loosen the pin. This placed his hand under the coupler and left his wrist and forearm alone exposed. He says while in this position, without any warning or signal, the cars came back and came together, crushing- his wrist and forearm.

That the injury to the wrist and arm was inflicted because of appellee’s going between the cars to do something to the coupler is beyond controversy. But the two men before mentioned stationed to communicate the signals from appellee to the engineer, and the engineer and his fireman all testify that the cars were not moved forwards after the first impact; that the engineer got and obeyed the signal to back his section of cars down to the point of coupling, and that the next thing that came to their knowledge was the injury to appellee. Appellant’s theory of the accident, based on its testimony, is that when the cars came in contact the knuckles of the receiving coupler were not completely opened and that they were entirely closed by the impact without making connection,, and that appellee, seeing that the knuckles did not interlock, used the cut lever to try to open or pull up the lock pin again and put his hand in there to open the knuckles supposing he could do it on the separation and rebound that follows in coupling a long train, but that he was not quick enough and was caught in this effort; that couplers do not always work in the first impact, sometimes two or three efforts are necessary. The pin may not drop perhaps because the knuckles are not entirely open or there may be some rust or temporary defect that prevents the free passage of the opposing knuckles. This theory of appellant as to how the accident actually happened is plausible except for one thing. There is no question that appellee’s wrist and arm were injured and that his hand was not crushed, as it likely would have been if it had happened that way. This mute testimony strongly corroborates appellee’s statement of what he was doing and how he was doing it at the time of the injury. The wound was what would happen in an accident occurring as he says it did. It was a fair question for the jury. It appears that the coupler was in working condition shortly before and shortly after the accident. Appellant says it is therefore unreasonable to suppose that it was out of order just at the time of the accident. But it cannot be denied in any view of the testimony that there was an apparent failure of the coupler to work at just that time, and that appellee, who was an experienced switchman and entirely familiar with such matters, thought it was necessary to go between the cars to remedy the difficulty. If there was a temporary defect which caused a failure to work just then and there it was sufficient ground for this action and judgment.

Whether the Federal Safety Appliance Act is complied with on the part of employers by using ordinary diligence or even great diligence in keeping their cars equipped, as therein provided, and whether employers should be held liable for defects in required appliances of which they have no notice, and in the exercise of reasonable care could not have notice, is no longer an open question. It is a federal question in which the decisions of the federal courts govern. The duty was held to be absolute in St. Louis, I. M. & S. Ry. Co. v. Taylor, 210 U. S. 281. That position was strongly at"tacked by counsel but reaffirmed by the court in Chicago, B. & Q. Ry. Co. v. United States, 220 U. S. 559, in which case the authorities are so thoroughly discussed and reviewed that we do not cite or refer to cases there discussed. In Chicago, R. I. & P. Ry. Co. v. Brown, 229 U. S. 317, 320 [3 N. C. C. A. 826], the two last mentioned cases are treated as settling the law, “That the failure of a coupler to work at any time sustains the charge of negligence in this respect, no matter how slight the pull on the coupling lever.” That the duty is imperative is recognized as the law in Luken v. Lake Shore & M. S. Ry. Co., 248 Ill. 377. In Erlinger v. St. Louis & O’Fallon Ry. Co., 152 Ill. App. 640, the court said that the law requires the equipment at all times so that when in use the necessity for going between the ends of the cars is avoided. The same court repeated and reaffirmed that statement in Steckstor v. Cleveland, C., C. & St. L. Ry. Co., 169 Ill. App. 40, 44. It seems, to follow from the federal cases that a temporary defect and failure to work of an equipment required by the Safety Appliance Act creates a liability and subjects the defendant to the penalties and burdens imposed by that act, even though- such failure arose from some defect unknown to the employer, which in the exercise of reasonable care he could not have ascertained and remedied. Under sections 3 and 4 of the Employers’ Liability Act neither the defense of contributory negligence nor of assumed risk is available to appellant. An averment in the declaration of due care of the plaintiff is surplusage. Lucas v. Peoria & Eastern Ry. Co., 171 Ill. App. 1.

The instructions to the jury were much more favorable for appellant than the law heretofore stated warranted. We conclude that there is sufficient evidence showing and tending to show that the coupling was at the time and place in question defective and not in compliance with the federal statute to forbid our disturbing the verdict on the ground that it is manifestly .against the weight of the evidence; that if the coupling was then and there so defective it is not material how long before that time it had been defective, or how soon after that time the defect was removed, and not material that no want of care or intent to evade the law can be imputed to appellant; that the instructions, as a series, were' much more favorable to appellant than it had a right to ask, and that there was no reversible error in giving or refusing instructions. No question is raised as to the action of the court in ruling on the evidence, and no error is suggested • not hereinbefore mentioned. The judgment should therefore be affirmed.

Affirmed.


author: Mr. Justice Dibell

text:
    The People of the State of Illinois, Defendant in Error, v. Louis Peck, Plaintiff in Error.
    Gen. No. 6,233.
    (Not "to he reported in full.)
    Error to the County Court of De Kalb county; the Hon. William L. Pond, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against Louis Peck, defendant, for violating the statute relating to anti-saloon territory (J. & A. If 4647 et seq.). From a judgment of conviction and-fine and imprisonment and abatement of the place described in the indictment, defendant brings error.
    Cliffs & Cliffs, for plaintiff in error.
    Lowell B. Smith, for defendant in error.

      Abstract of the Decision.
    1. Intoxicating liquors, § 140

      —when record need not be introduced to show description of premises where liquor is sold. On trial under an indictment for selling intoxicating liquor in anti-saloon territory, held that the legal description of the property on which the building wherein the intoxicating liquor was sold was located could be given by any one who knew it, and it would not be necessary to introduce the record.
    2. Intoxicating liquors, § 131

      —what evidence is admissible to show character of place in prosecution for sale in anti-saloon territory. Evidence that a witness had seen intoxicated persons come out of a place wherein it was charged that intoxicating liquors had been sold, held admissible in a prosecution for selling intoxicating liquor in anti-saloon territory.
    3. Intoxicating liquors, § 140

      —when certified copy of record of internal revenue collector’s office showing issuance of special stamp is admissible in prosecution for selling intoxicating liquor in onti-so-loon territory. A certified .copy of a record of the internal revenue collector’s office for the district within which intoxicating liquors were charged to have been sold, showing the issuance of a special stamp or license to carry on the business of a retail liquor dealer at a certain place for a certain period, held to be competent evidence without proof that it was posted in said place, in a prosecution for selling intoxicating liquor in anti-saloon territory.
    4. Criminal law, § 494

      —when accused cannot complain of alleged erroneous admission of evidence. Under an indictment against one Louis Peck charged with selling intoxicating liquor in anti-saloon territory, where defendant contended that error was committed by the trial court in permitting the State to prove that his full name was Louis E. Peck and that he was commonly known as L. E. Peck, held that there was no merit in such contention where it appeared such defendant’s counsel had called him L. E. Peck in examining his own witnesses and in an instruction given at his request.
    5. Intoxicating liquors, § 132

      —when statements of accused indicating guilt are admissible in prosecution for selling intoxicating liquor in anthsaloon territory. In a prosecution for selling intoxicating liquor in anti-saloon territory, evidence that the accused had told a witness he had sold whisky to parties named and that they did not dare expose him, and that he had tried to prevent a witness from testifying before the grand jury to the truth of the matter and to so shape his testimony that it would not include intoxicating liquor,' held properly admitted.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

6. Criminal law, § 212 :—when action of court in reciting portions of evidence in ruling upon objections is not erroneous. Where a judge, in ruling upon objections to evidence before the jury, in a criminal case recited or repeated portions of the testimony, held no error if he correctly stated the evidence, especially where no objection was made.

7. Intoxicating liquors, § 131 —when evidence as to place being quiet and orderly is properly excluded in prosecution for selling in anti-saloon territory. As the sale of intoxicating liquor in anti-saloon territory is a nuisance under the Anti-Saloon Territory Act (J. & A. If 46501, notwithstanding the place where it is sold may be a quiet and orderly place, held that there was no error committed by the court in refusing to permit a witness in a prosecution for violation of the act to testify that the place in question was quiet and orderly, particularly where the accused had testified-that he so kept it and no one had testified directly to the contrary.

8. Intoxicating liquors, § 158 —when instruction in prosecution for sale of in anti-saloon territory is not erroneous. Where the anti-saloon law was adopted in certain territory on April 7, 1914, held that such law became effective in that territory May 7, 1914, and that an instruction covering the period “after May 6, 1914,” would not be open to the objection that it covered one day before the law went into effect.

9. Criminal law, § 417 —when question of variance between proof and indictment may not first be raised on appeal. Where a nuisance count in an indictment for selling intoxicating liquor in anti-saloon territory déscribed the place where such liquor was charged to have been sold as “No. 123 South California street” and an internal revenue stamp in evidence described it as 123 California street, and there was no proof of any other 123 California street than 123 South California street, held no ground for reversal of a judgment of conviction where the variance was first suggested on appeal.

io. Intoxicating liquors, § 162 —when instruction in prosecution for sale of in anti-saloon territory is not reversibly erroneous. Even if an instruction in a prosecution for selling intoxicating liquor in anti-saloon territory was improper because covering a day before the law went into effect in such territory, the giving of such instruction is not ground for reversal where no sales of intoxicating liquor in the place charged were proved to have been made on the particular day.


text:
    Thede Brothers, Appellees, v. Newton Matthews, Appellant.
    Gen. No. 6,253.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 107

      —when telephone conversation is admissible. A telephone conversation is admissible in evidence if the witness identified the voice, and its force would depend on whether the jury believed the witness.
    2. Contracts, § 385

      —when evidence sufficient to show promise to pay for removal of building. Evidence held sufficient to sustain the finding of the court that defendant promised to pay plaintiffs the expense of moving a certain building from his land, in an action to recover for such expense.

      Appeal from the Circuit Court of Peoria county; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Rehearing denied October 5, 1916.
    Statement of the Case.
    Action by Thede Brothers, plaintiffs, against Newton Matthews, defendant, to recover fifteen dollars for moving a building from defendant’s premises. From a judgment for plaintiffs, defendant appeals.
    Kirk & Shurtleff, for appellant.
    Frank A. Hall, for appellees.

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

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

   Mr. Justice Dibell

delivered the opinion of the court.

3. Contracts, § 85 —when promise to pay for removal of building is based upon sufficient consideration. Where defendant had consented that a certain building should be placed on his land, held sufficient consideration appeared for his promise to pay for its subsequent removal.


text:
    Knight Light Company, Appellant, v. C. M. Morrison, Appellee.
    Gen. No. 6,301.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Nibhaxjs, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Rehearing denied October 5, 1916.
    Statement of the Case.
    Action in replevin by Knight Light Company, plaintiff, against C. M. Morrison, defendant, for possession of a soda fountain and'other goods. From a judgment for defendant, plaintiff appeals.
    Defendant gave plaintiff a written order, prepared by plaintiff for the goods in question to conform to certain plans and specifications prepared by plaintiff to defendant’s satisfaction and to be installed in defendant’s store, defendant to pay therefor $2,500, $100 with the order, $700 on receipt of the goods with bill of lading, and the remainder at stated times thereafter, and to execute notes and a chattel mortgage for the deferred payments when the goods were delivered and to procure and assign an insurance policy, title to remain in plaintiff until the chattel mortgage was executed and delivered and until the purchase money was paid in full, and the order to be subject to plaintiff’s approval, blank for which appeared on the order. The order was not formally approved by plaintiff’s signature thereto until two days before trial. The goods were in part manufactured by plaintiff after receipt of the order and in part obtained elsewhere, and were shipped to defendant, knocked down and crated, and installed in defendant’s place of business by plaintiff’s employees. Defendant paid the $800 called for by the order, but refused to execute the notes and mortgage or procure the insurance policy or make further payment, claiming the goods were not according to contract, but allowed them to be installed on assurances of plaintiff’s employees that when installed they would be according to contract. Defendant offered to return them upon return of the $800 paid by her. She gave forthcoming bond and retained the goods.
    Abstract of the Decision.
    1. Sales, § 19

      —what constitutes implied acceptance of order for goods. Where the defendant in a replevin action gave to the plaintiff a written order for certain goods subject to plaintiff’s acceptance of the order, on which a blank appeared for such acceptance held that the plaintiff by manufacturing, shipping and installing the goods ordered, impliedly accepted the order, although the written, acceptance thereof was not signed by plaintiff until after bringing of the action and delivery of the goods.

      Quinn & Quinn and Joseph P. Mahoney, for appellant.
    Page, Hunter, Page & Dallwig, for appellees.

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

   Mr. Justice Dibell

delivered the opinion of the court.

2. Sales, § 301 -—when replevin lies to recover goods sold under conditional sale contract. Where goods were sold on a contract which provided that title should remain in the seller until they were paid for, held that replevin by the seller would not lie for the goods unless the purchaser was in default or unless the seller first tendered back the money paid thereon.

3. Sales, § 301 -—when return of payments is condition precedent to recovery of goods sold under conditional sale contract. Where a party contracted to purchase goods of a specified kind and quality and the goods when delivered' were found to be not of such kind or quality, held that such party would not be in default in refusing to pay for same, and replevin would not lie by the seller of the goods without his first returning to such party what he had paid thereon.

4. Sai.es, § 296 —when purchaser is not estopped from complaining that goods do not comply with contract. A purchaser of goods is not estopped from complaining that they do not comply with the contract by having retained them after offering to return them upon return of the money paid thereon, in an action in replevin by the seller for such goods.


text:
    John B. Bartholomew et al., Appellees, v. Lura H. Bartholomew, Appellant.
    Gen. No. 6,310.
    1. Partition, § 72

      —what compensation should he allowed to those making improvements on land in partition suit. In a partition suit, where sale was had, those who had lawfully made improvements on the land would be allowed by way of compensation the actual increase of the price received at the sale in consequence of the improvements.
    2. ’Tenancy in common, § 5

      —right of one tenant to make improvements. A tenant in common may make proper improvements on the land without his cotenant’s consent.
    3. Partition, § 72

      —what compensation should he allowed in' partition suit to tenant in common making improvements on land.
      Where a tenant in common had so improved the land as to add to its value a certain sum, but at a sale of the land, in a suit for partition thereof, a sum less than- the aggregate of the original value and the added value was realized, held that the depreciation should be charged proportionately to both the original and the added value, and such tenant credited with the fraction of the sum found to be the enhanced value of the land which such tenant’s interest bore to the entire interest in the land.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehatts, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Rehearing denied October 11, 1916.
    H. Clay Calhoun and Sucher & Moore, for appellant.
    R. Radley, for appellees.

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

   Mr. Justice Dibell

delivered the opinion of the court.

Alhertus Y. Bartholomew died intestate leaving a widow and five children surviving him as his only heirs at law, and leaving a farm of about five hundred and twenty-two acres in Peoria county. John B. Bartholomew, one of his children, bought the interests in said farm of all the other children, except his sister Dura H. Bartholomew, and thereupon became the owner of four-fifths and she of one-fifth. Thereupon he made extensive improvement’s upon said farm and filed a bill in partition against his sister and others. There were incumbrances and questions of dower and matters of rent, all of which have been adjusted by the decrees of the court below and those matters are disposed of. The decree sought to compensate complainant for the improvements, which compensation was asked in the bill. His sister’s answer denied that he was entitled to any compensation for said improvements, because they did not increase the value of the premises and because she had never requested or consented to said improvements. She claims here that if any allowance should be made to him, the allowance which was made is grossly excessive. This is an appeal by her on that subject only.

From Louvalle v. Menard, 6 Ill. (1 Gilm.) 39 to Bayley v. Nichols, 263 Ill. 116, the rule prevailing in this State has been that in partition, where a sale is had, those who have lawfully made improvements upon the premises are allowed by way of compensation the actual increase of the price received at the sale in consequence of the improvement. It is also clear that a tenant in common in possession may make proper improvements without the consent of his' co-tenant. The real dispute here arises in the application of these principles.

The cause was twice referred to the master to report proofs and conclusions and he did make such reports, and the decree on this subject is based thereon. The reports are not set out in the abstract and we might very properly refuse to consider the question, hut we have concluded to pass upon the merits of the controversy. The court found that before the improvements were made the premises were worth $44,000; that the improvements increased the value of the premises $5,000; and that after the improvements were made the premises were worth $49,000. The farm brought at the sale $45,500. It is the contention of the appellant that this showed that the improvements only added $1,500 to the value of the farm and that she should pay to her brother only one-fifth "of that sum. She seeks to place the entire depreciation upon the improvements. The court below distributed the depreciation pro rata between the value of the farm before the improvements were made and the value of the farm afterwards, and held that the sale was for four hundred and fifty-five four hundred and ninetieths of the value as improved, and allowed the complainant to be credited with that fraction of the sum which it had been found that the premises were enhanced in valué by the improvements. That fraction of $5,000 would be $4,559.10, and $911.82 is one-fifth of that sum and is the amount which the court found the improvements had added to the selling price of her share. The proof is very clear that these improvements had added to the actual value of the farm, at least as much as the court found. There is nothing to indicate that the shrinkage at the sale from the values, which the court had found, was only in the improvements and not in the land itself. In Bradley v. Simpson, 93 Ill. 93, where a similar question was involved, it was held that as there was nothing in the case to indicate to the contrary it would be assumed that the depreciation was in the same proportion upon the land and buildings. ' We think the court justly followed that rule in this case. The decree is therefore affirmed.

Affirmed.

Mr. Pbesiding Justice Niehaus took no part.


author: Mr. Presiding Justice Niehaus

text:
    Albert Richard, Appellee, v. Brunner Foundry & Machinery Company, Appellant.
    Gen. No. 6,183.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 697

      —when evidence sufficient to show injury to servant by inexperienced coemployee. Evidence in an action by an employee for personal injuries, held to tend to show plaintiff’s injury was caused by improper or careless handling of a hammer by defendant’s employee and that he was inexperienced in that line of work.

      Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldbedge, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed October 12, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Albert Richard, plaintiff, against Brunner Foundry & Machinery Company, defendant, to recover damages for injuries to plaintiff’s right eye. From a judgment for plaintiff for $5,000, defendant appeals.
    Plaintiff was employed as a fireman in the boiler room of the St. Paul Coal Company, where defendant was engaged in putting in new flues in a boiler adjoining the one on which plaintiff was at work. Defendant’s employees were engaged in expanding a new flue by hammering on the head of a steel driftpin so as to, drive it into the expander. Plaintiff’s eye was injured by a piece of the head of the pin flying off when it was struck by the hammer in the hands of defendant’s employee.
    McDougall & Chapman and Howard H. Bayne, for appellant.
    Duncan & O’Conor, for appellee.

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

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

2. Damages, § 186 —when evidence as to possible results of injury is inadmissible. Evidence as to possible results of plaintiff’s injury to his right eye and its possible effect on his other eye, held incompetent and properly excluded in an action to recover damages for such injury.

3. Damages, § 244 —when admission of improper evidence is harmless error. In an action for damages for personal injuries, held that the improper admission of evidence as to the possible results of the injury was harmless error where there was nothing to show that the jury considered or were influenced by such evidence in finding for the plaintiff.

Cashes, J., dissenting.


text:
    E. Meers, Appellee, v. Edward J. Daley, Appellant.
    Gen. No. 6,244.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Will county; the Hon. Asthtjb W. De Selm, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 12, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by E. Meers, plaintiff, against Edward J. Daley, defendant, to recover fees for professional legal services. From a judgment for plaintiff for $2,000, defendant appeals.
    0 ’Donnell, Donovan & Brat, for appellant; J. L. O’Donnell, of counsel.
    Edward B. NTadelhoffer, for appellee.

      Abstract of the Decision.
    1. Attorney and client, § 134

      —what weight should he given hy jury to testimony of experts as to value of professional services. The opinion of attorneys testifying as experts as to the value of professional legal services rendered by an attorney should be considered as merely advisory to the jury in an action to recover for such services to aid them in forming their own judgment concerning the amount properly to be allowed for such services, and they should use their own knowledge and judgment based upon all of the evidence as to what would be reasonable compensation thérefor.
    2. Instructions, § 87

      —when on preponderance of 'evidence deemed not erroneous. An instruction that a slight preponderance only of the evidence in favor- of the plaintiff would be sufficient to warrant a finding in his favor, held proper-and not misleading, in an action to recover fees for professional legal services wherein several attorneys testified as experts and the finding of the jury was less than the amount testified to by such witnesses.
    3. Attorney and client, § 135

      —when verdict in action for legal services is not excessive.' In an action to recover fees for professional legal services rendered, where plaintiff was retained as solicitor for defendant in a suit against defendant and others to set aside a will disposing of an estate valued, at $150,000, under which defendant was the principal beneficiary, in which suit plaintiff had leading charge of the defense litigation, and performed valuable and successful service, and which resulted in a settlement quite favorable to defendant’s interests, and on account of which services plaintiff had received $500, held that a judgment for $2,000 was not excessive.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Me. Pbesiding Justice Niehaus Mr. Justice Carnes

text:
    William Lostutter by Margaret Lostutter, Appellant, v. Brown Shoe Company, Appellee.
    Gen. No. 6,317.
    1. Workmen’s Compensation Act, § 4

      —what minors are included within. The second paragraph of section 5 of the Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, j[ 5475(5)], including within that act “minors who are legally permitted to work under the laws of the State,” includes only minors who can legally perform the work under the laws of the State, and does not include a minor who cannot legally perform work under the Child Labor Act.
    2. Statutes, § 152

      —when statute deemed not to repeal conflicting statute by implication. The repeal of a statute by implication is not favored, and where two acts of the Legislature come in question unless they are clearly inconsistent with and repugnant to each other, or unless in the later statute some express notice is taken of the former plainly indicating an intention to repeal it, the later statute will not be considered as operating to repeal the former by implication.
    3. Workmen’s Compensation Act, § 1

      —as not repealing any part of Child Labor Act. No legislative intent is anywhere apparent in the provisions of the Workmen’s Compensation Act to repeal or abrogate any part of the Child Labor Act, nor any conflict in the legitimate operation of both acts, and the object and purpose for which each act was passed can be fully effectuated by allowing both acts to remain in full force.
    ,4. Master and servant, § 22

      —how Child Labor Act should be construed. The Child Labor Act was passed to prevent absolutely the employment of children in the prohibited occupations named therein, and such construction should be given it by the courts as will effectuate such purpose if it can consistently be done.
    5. Master and servant, § 22

      —what is duty of employers as to employment of children within Child Labor Act. Those who are liable under the provisions of the Child Labor Act are bound at their peril to see that children are not employed contrary to its provisions.
    6. Workmen’s Compensation Act—what are rights of minors illegally employed within Child Labor Act to compensation under. Compensation for injuries received by a minor while engaged in work contrary to the provisions of the Child Labor Act is not recoverable under the Workmen’s Compensation Act.
    Cashes, J., dissenting.
    Appeal from the Circuit Court of Lee county; the Hon. Oscab E. Heabd, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed October 12, 1916.
    John P. Devine, for appellant.
    W. GL Shockey and Clyde Smith, for- appellee.

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

   Me. Pbesiding Justice Niehaus

delivered the opinion of the court.

This suit was instituted by Margaret Lostutter as next friend of the appellant, William Lostutter, who is a minor under sixteen years of age, to recover damages for personal injuries received by him while employed in the factory of appellee, the Brown Shoe Company, alleging such employment to be in violation of the provisions of the Child Labor Act. It is alleged in the declaration, which contains two counts, that appellee was operating a certain shoe manufacturing establishment; and that it unlawfully employed the appellant, he being a minor under the age of sixteen years, to work and operate a machine known as a leveling machine, which is propelled by steam power; that the work of operating this leveling machine was dangerous employment, and that the appellant’s life and limbs were thereby endangered; that while he was thus operating the machine in question his left thumb came in contact with a part of the machine, and was drawn into it, and that it was thereby lacerated, and compound dislocation of the first and second joints were caused thereby; and that by reason of the injuries the minor suffered the loss of the use of the thumb, and his damages are laid at $3,000.

The appellee entered a special appearance in the case and moved the court to dismiss it for want of jurisdiction; and the motion was sustained, and the court ordered the cause dismissed, and rendered judgment against the appellant for costs of suit, from which order and judgment the appellant prosecutes this appeal.

Section 11 of the Child Labor Act (J. & A. [f 5317), prohibits the employment of a child under the age of sixteen years, in any employment that may be considered dangerous to its life or limbs, or where its health may be injured or its morals depraved. It is contended by appellee that the appellant, William Lostutter, who is conceded to be a minor over fourteen and under sixteen years of age, was at work in its factory, under the provisions of the Workmen’s Compensation Act of 1913; and that by virtue of the provisions of paragraph 2 of section 5 of that Act [Cal. Ill. St. Supp. 1916, ¶ 5475(5)], he could lawfully be employed to perform the labor at which he was engaged at the time of his injuries.

The question therefore involved in this appeal, and presented for our decision, is whether the Workmen’s Compensation Act was intended to, and did in effect, by the language employed in the paragraph mentioned, repeal or abrogate the- provisions of the Child Labor Act, to the extent that children under the age of sixteen, who were over the age of fourteen, could be legally employed at work is considered dangerous to their lives or limbs. If children who come within the age limit mentioned may thus be employed, by virtue of the Workmen’s Compensation Act, then the judgment of the court below in dismissing the case for want of jurisdiction is correct, and the compensation to which the appellant is entitled for the injuries received should have been fixed by and in accordance with the provisions of the Workmen’s Compensation Act; if, however, the Compensation Act does not legalize appellant’s employment, then it is well settled that a canse of action accrued to appellant under the allegations of the declaration, and.the court had jurisdiction of the subject-matter of the suit. (Purtell v. Philadelphia & R. Coal & Iron Co., 256 Ill. 110; Beauchamp v. Sturges & Burn Mfg. Co., 250 Ill. 303; American Car & Foundry Co. v. Armentraut, 214 Ill. 509.)

The language of the second paragraph of section 5 of the Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, [¶] 5475(5)], under which it is claimed by appellee that the minor in question could be employed, is as follows: “Every person in the service of another, under any contract for hire, express or implied, oral or written, including aliens and minors who are legally permitted to work under the laws of the State, who for the purposes of this act shall be considered the same, and have the same power to contract, receive payments and give acquittances therefor as adult employee * * It is contended by the appellee that the clause “minors who are legally permitted to work under the laws of the State,” in the foregoing paragraph, should be construed to mean that minors over the age of fourteen years, because they are legally permitted to work at some kind of employment, come within the class of minors which is considered as embraced within the provisions of the act. While this may be true, in regard to work which such minors are permitted to perform under the laws of the State, it does not follow that they may be considered as coming within its provisions with reference to work which the law prohibits.

The clause “legally permitted to work under the laws of the State” must necessarily have reference to the work which the minors are to perform under the Compensation Act; in other words, it must be considered as including the minors who can legally perform_ the work under the laws of the State, at which they are employed, under the operation of the Compensation Act. It does not appear reasonable that minors, because they are legally permitted to work at some kind of work, under the laws of the State, that therefore under the provisions of the Workmen’s Compensation Act, they may also be employed at work which is unlawful under the Child Labor Act.

It is not claimed that there is a direct repeal of the provisions of the Child Labor Act in question. If there is a repeal or abrogation of any part of the act, it must therefore be by implication. The repeal of a statute by implication is not favored; and unless, where two acts of the Legislature come in question, they are clearly inconsistent with and repugnant to each other, or unless in the later statute some express notice is taken of the former, plainly indicating an intention to repeal it, the later statute will not be considered as operating to repeal the former by implication. (Holton v. Daly, 106 Ill. 131; Village of Ridgway v. Gallatin County, 181 Ill. 521.) Under this rule of construction, even where statutes which are seemingly repugnant, the later statute is not regarded as operating to repeal the former, unless the provisions of the later one be clearly inconsistent with the former, and plainly indicate an intention to repeal it.

No legislative intent is anywhere apparent in the provisions of the Workmen’s Compensation Act, to repeal or abrogate any part of the provisions of the Child Labor Act; and the legitimate operation of the Workmen’s Compensation Act does not necessarily interfere with the operation of the Child Labor Act; and there is therefore no conflict between the two acts; the object and purpose for which each act was passed can be fully effectuated by allowing both acts to remain in full force.

Our Supreme Court has repeatedly expressed the legislative purpose in the passage of the Child Labor Act of 1903 (J. & A. ft 5307 et seq.), and emphasized that it was passed to prevent, absolutely, the employment of children in the prohibited.occupations named therein and that such a construction should be given this act by the courts as will effectuate its purpose, if it can consistently be done. (Purtell v. Philadelphia & R. Coal & Iron Co., supra; American Car & Foundry Co. v. Armentraut, supra.) Those who are liable under the provisions of the act referred to are bound, at their peril, to see that children are not employed contrary to its provisions. (Strafford v. Republic Iron & Steel Co., 238 Ill. 371; Beauchamp v. Sturges & Burn Mfg. Co., supra.) As was said by Justice Carter in Purtell v. Philadelphia & R. Coal & Iron Co., supra: “It is the child’s working that is prohibited by the statute and not his hiring.”

Adopting the rule of construction universally adhered to by the courts of review in this State, we must hold that both of the statutes in question remain in full force and operation and that minors, though they may be considered as having adopted the provisions of the Workmen’s Compensation Act, concerning the work they are legally permitted to perform, cannot be considered as having adopted it for the purpose of performing work which is prohibited by law; and, therefore, compensation for injuries which they receive while engaged in the unlawful work cannot be recovered under the provisions of such act.

We are aware that the Supreme Court of Wisconsin has placed a somewhat different construction upon similar language concerning minors ’ employment, under the Workmen’s Compensation Act of that State; but the construction there adopted appears to us to be contrary to the well-recognized rule of construction prevailing in this State, and clearly in conflict with the legislative purposes embodied in the Statutes under consideration.

The judgment is therefore reversed and the cause remanded for further proceedings in conformity with the views herein expressed.

jReversed and remanded.

Mr. Justice Carnes

dissenting. The only case directly in point that has come to my attention is Foth v. Macomber & Whyte Rope Co., 161 Wis. 549. The conclusion of that court that their Workmen’s Compensation Act applied in a similar case under similar statutes is not based on the repeal of one of the statutes. I do not understand that a question of the repeal of our Child Labor Act is involved in this case. I am of the opinion that in the absence of other direct authority we should follow the reasoning of the Wisconsin case and affirm the judgment and permit the parties to obtain the decision of the 'Supreme Court on the controlling question, which is one of great general importance, without incurring the necessary expense and delay of a jury trial.


text:
    Fred Meixner, Appellant, v. Western Live Stock Insurance Company, Appellee.
    Gen. No. 6,259.
    (Not to be reported in full.)
    Appeal from the County Court of Peoria county; the Hon. Cuestes F. Barnett, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 12, 1916.
    Statement of the Case.
    Action by Fred Meixner, plaintiff, against Western Live Stock Insurance Company, defendant, to recover one hundred and fifty dollars, part payment of plaintiff’s subscription of five hundred dollars to defendant’s capital stock. From a judgment on a directed verdict for defendant, plaintiff appeals.

      Abstract of the Decision,
    1. Fraud, § 18

      —when fraudulent representations are actionable. Fraudulent and deceitful representations relied on must be concerning an existing fact or facts to furnish a ground of action.
    2. Sai.es, § 411

      —what does not constitute actionable false representation. Where an agent for the sale of the capital stock of a company made a sale thereof upon his promise to resell within a certain time for the first purchaser’s benefit, which he did not do, held that even if he did not intend when he made .such .promise to keep it, it was not such a false representation as would furnish ground for an action of fraud and deceit by such purchaser to .recover money paid on the purchase.
    3. Con tracts, § 63

      —when promise is unsupported by consideration. The fact that there was a motive for a promise does not supply the necessary element of consideration to make it enforceable.

      Plaintiff subscribed for twenty-five shares of defendant’s capital stock, amounting to five hundred dollars, through a subagent upon the latter’s solicitation and statement that he himself owned some of the stock and had all he could get from the company, and if plaintiff would subscribe for twenty-five shares and advance one hundred and fifty dollars thereon this agent would sell it within sixty days and pay back to plaintiff the one hundred and fifty dollars with interest and a profit in addition. Plaintiff subscribed accordingly for five hundred dollars of the stock and paid this subagent one hundred and fifty dollars, which the latter forwarded to defendant, and defendant sent one hundred dollars thereof to the agent under whom the subagent was working as his commission and retained the remainder.
    Eagleton, Stone & Islet, for appellant.
    Miles & Fuller, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

4. Contracts, § 69 —when moral obligation is insufficient consideration. Where an agent for the sale of the capital stock of a company made a sale of the stock upon his promise to the purchaser to resell within a certain time for the purchaser’s benefit,' which he did not do, held that there would be no legal obligation upon the company to refund the money paid by such purchaser and no sufficient moral obligation to furnish a consideration for the company’s promise to refund it.


text:
    Vera Thompson, Appellant, v. J. D. Thompson Carnation Company et al., Appellees.
    Gen. No. 6,271.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Will county; the Hon. Dobbance Dibell, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 12, 1916.
    Statement of the Case.
    Suit by Vera Thompson, complainant, against the J. D. Thompson Carnation Company, Helen T. Fish, Charles M. Fish, Fannie T. Quintero, P. W. Peterson, B. Wunderlich and Frank M. Fairfield, defendants, to recover six and one-half shares of the capital stock of the defendant company. From a decree finding the title to five shares of the stock to be in the defendant, Helen T. Fish, complainant appeals.
    The bill claimed title to one and one-half shares of the stock under an agreement set out therein, and the decree found title to those shares to be in complainant, to which no cross error was assigned. The other five shares were claimed by complainant by purchase from her brother John D. Thompson during her father’s lifetime, and were claimed by her sister Helen T. Fisli under a contract dated August 10, 1908, between herself, her father, who then owned the five shares, and her husband Charles M. Fish, all of whom were stockholders in the defendant company, the capital stock of which was nearly all owned by complainant, Helen T. Fish and Charles M. Fish. The father died intestate January 15, 1912, leaving as his only heirs at law complainant, Helen T. Fish and John D. Thompson. There had been no administration on his estate. The chancellor held that the contract was valid and enforceable, that it was not a testamentary disposition of property, and that the legal equitable right and title in and to the five shares vested in Helen T. Fish at the death of her father, subject to the payment of dividends and of a certain sum of money to complainant, as provided in the contract.
    Abstract of the Decision.
    1. Corporations, § 172

      —when agreement between stockholders is not void as against public policy. Where three holders of stock in a corporation entered into a written agreement to vote for each other and for no others as directors and that they should be elected to certain offices in the corporation, and one of said holders of stock, owning five shares thereof, further agreed in such agreement that in his absence or on his death a certain other of said holders should vote the shares and on his death should pay the dividends thereon and one-third of the par value thereof to his daughter, and another one-third of the par value thereof to his son, and the agreement provided further that it should not be changed or terminated except by the unanimous consent of the signers thereof and should be binding on their heirs, executors, administrators and assigns, held that such agreement was not void as against public policy.

      Howard W. Hayes and Church, Shepard & Day, for appellant; Howard W. Hayes and Clyde L. Day, of counsel.
    Clin & Laraway, for appellees.

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

   Mr. Justice Carnes

delivered the opinion of the court.

2. Corporations, § 172 —when contract for pooling of stock is valid. A valid, irrevocable contract by the owner of corporate stock passing title upon the death of the original owner, based upon a sufficient consideration, and not a testamentary disposition of such property, is created where the three owners of the stock in such corporation enter into a written agreement to vote their respective shares for each other for directors, and no other purposes, and such agreement provides that they shall be elected to specified offices and one of such stockholders agreed that in his absence or on his death a certain other of the parties to the agreement should have the voting of the stock standing in his name and that on his death the dividends on the shares should be paid to the other party, as well as one-third of the par value of the stock and another one-third of the par value thereof to his son, and the agreement further provides that it should not be changed or terminated except by the unanimous consent of the signers thereof, and should be binding on their heirs, executors, administrators and assigns.

3. Property, § 2 —what is. Property is strictly speaking that dominion or indefinite right of user and disposition which one may lawfully exercise over particular things or objects.


text:
    Pontiac Mutual County Fire & Lightning Insurance Company, Appellee, v. W. M. Sheibley, Appellant.
    Gen. No. 6,272.
    1. Insurance, § 518

      —what is extent of recovery where compensation received from wrongdoer causing loss. A contract of insurance is for indemnity, and if the insured receives satisfaction or part satisfaction for his loss from a wrongdoer who caused it, the amount so received should be applied in full or partial discharge of the policy.
    2. Insurance, § 520

      —when insurer is entitled to subrogation. If an insured fire loss is not satisfied by the wrongdoer causing it and the insurer pays the loss, he is entitled to equitable subrogation to the claim of the insured against such wrongdoer to the extent the insurer has paid.
    3. Insurance, g 522

      —what is right of insurer as to action against wrongdoer causing loss. An insurer paying a loss cannot bring an action in his own name against the wrongdoer causing the loss, but has an enforceable right to participate in an action brought by the insured.
    4. Insurance—what are rights of insured upon compromising of judgment against wrongdoer causing loss. Where an insured recovers a judgment against a wrongdoer who caused the loss Which was insured, he cannot compromise such judgment without consent of the insurer without incurring liability to the insurer to the amount paid by the latter, but where the insured compromises such judgment with the insurer’s consent on condition that he pay the insurer a certain portion of the insurer’s claim, the insured is bound by such terms.
    5. Appeal and error, § 864

      —when court will not examine record for matters not abstracted. Reviewing courts will not examine the record for matters not abstracted to find some reason for reversing a judgment.
    Appeal from the Circuit Court of Livingston county; the Hon. George W. Ration, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 12, 1916.
    Arthur EL Shay, for appellant.
    Bert W. Adsit, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

A bam and other buildings and property belonging to appellant, W. M. Sheibley, were destroyed by fire claimed to have been set by the Chicago & Alton Bail-road Company. . The barn was insured for $800 by appellee, County Fire Insurance Company. Appellant collected the amount of his policy from appellee, and at about the same time presented a claim against the railroad company for the entire loss. Appellee, by agreement with appellant and on his statement that it was interested in the claim against the railroad company to the extent of $800, employed counsel and actively assisted in the prosecution of a suit against the railroad, which resulted in a verdict and judgment of $4,000 for appellant, that amount presumably being what the jury found was the total loss of property occasioned by the fire. The railroad company moved for a new trial, which was successfully resisted by appellant. It obtained orders for an appeal to this court and filed its appeal bond, then suggested a settlement with appellant. Negotiations for a settlement were participated in by appellant, appellee and the railroad company, and afterwards appellant accepted $3,000 in compromise of the judgment. Appellee did not advise the settlement, but told appellant he had the greater amount at stake and could do as he thought best about compromising the claim. If he did compromise for three-quarters of the judgment appellee would take three-quarters of its claim, or $600, and if he did not compromise it would furnish counsel to assist in the trial on appeal as it had in the lower court. There is no controversy about the facts except two witnesses for appellee testified that appellant made no response to the suggestion of appellee that it would take $600 in case of settlement, and two witnesses for appellant testified that he then said he would not pay $600. It is proved without contradiction that he after-wards talked with an officer of appellee about the compromise and was told that he would not advise him about that, but if he did compromise it would take $600. Appellee brought this action of assumpsit to recover that sum of $600, and had judgment on a verdict for that amount, from which this appeal is prosecuted. The court below tried the case on the theory that the total loss by fire was fixed at $4,000 by the judgment in the case against the railroad company in which the parties to this suit both participated, and refused evidence offered by appellant to the effect that the total loss was $4,800, and that the evidence introduced in the railroad ease conclusively showed it was $4,800. The jury were instructed, at th¿ instance of appellee, that by reason of the undisputed facts (reciting them) it was entitled to recover $800 of the appellant unless the parties had agreed that in case of such settlement appellee would take $600, in which event it was entitled to recover only that amount; and refused instructions offered by appellant conflicting with that theory of the law. It also refused to admit evidence offered by appellant that he had expended $460, in attorneys’ fees and expenses in and about the prosecution of his claim against the railroad company. In short, the loss of appellant was at least $4,000. His recovery from the wrongdoer and insurance company was $3,800, and deducting his expenses leaves his net recovery $3,340. He received $660 less than full indemnity for his loss. The court practically directed the verdict. If appellee was not entitled to a directed verdict the judgment should be reversed.

The general rule, we think, is that the contract of insurance is for indemnity» and if the insured receives satisfaction or part satisfaction for his loss from a wrongdoer who has caused the loss, the amount so received will be applied in full or partial discharge of the policy. (19 Cyc. 891.) If the loss is not satisfied by the wrongdoer, and the insurance company pays it, it is entitled to equitable subrogation to the claim of the insured against such wrongdoer. 19 Cyc. 893; Peoria Marine & Fire Ins. Co. v. Frost, 37 Ill. 333; American Exp. Co. v. Haggard, 37 Ill. 465; or, as said in Chicago & A. R. Co. v. Glenny, 175 Ill. 238, in such cases the insurer, after paying the loss caused by a wrongdoer, stands in the position of a surety, and becomes subrogated to the rights of the insured to the extent it has paid.

In the present case appellee, after paying the $800, had an interest in the claim against the railroad company, but it could not bring an action in its own name against the wrongdoer. (Peoria Marine & Fire Ins. Co. v. Frost, supra.) It had a right to participate in the action brought by appellant. That right was recognized by the parties- and acted upon. If appellant had refused to recognize appellee’s rights in bringing and conducting the suit, he would in some proper proceeding have been compelled to recognize them. (Hartford Ins. Co. v. Pennell, 2 Ill. App. 609.) Still, it is very likely true that appellee’s interest in the claim against the railroad company was primarily limited to any excess that appellant might receive from both the railroad company and itself over full indemnity for his loss. It is argued by appellee that this rule is changed by the fact that it participated in the suit against the railroad company with the understanding and implied contract between the parties that its interest was $800 in the amount recovered. There is much force in this suggestion, but we do not think the decision of the case necessarily turns on its validity. We are of the opinion that if appellant had compromised the judgment without the consent or knowledge of appellee, he would by that act have become liable to appellee in the full amount paid by it; that he did compromise with the consent of appellee that he might do so if he paid it three-quarters of the amount it had paid. He had no consent to compromise on any other terms, and we conclude that when he accepted the compromise with the railroad .company he became bound by the conditions imposed by appellee, and this regardless of the question whether he had ever expressly or impliedly agreed to pay that amount, or had expressly said he would not pay it.

The only direct authority we have found on the effect of appellant’s compromise is the late case of Fire Ass’n of Philadelphia v. Schellenger, 83 N. J. Eq. 144. The insured had recovered from a wrongdoer the full amount of his loss, $6,000, and afterwards, without the knowledge or consent of the insurer, compromised the claim for $3,000. It was a case of hardship on the insured, as the court said, because he very likely settled with the wrongdoer under the belief that he was not liable to the insurance company. But the court said, without citing authorities, that there could not be the slightest doubt touching the law that the insurance company was subrogated to the rights of the assured to the amount of its payment; that' the insured became a trustee of the insurer to the amount of its payment in the event of future collection from the person primarily liable for the loss; that when the loss should be paid by the wrongdoer to the assured he would of necessity become trustee for the insurance company to the amount it had paid under its policy of insurance; that the insurance company occupied the position of an equitable assignee of the rights of the assured to the extent of the payment; that when the assured brings a suit against the wrongdoer, the fact that he has received payment of the amount for which the insurance company was liable cannot be utilized by the wrongdoer as a defense or partial abatement ofr1 the claim; therefore any recovery against the wrongdoer is not affected by the fact that the insurance has been paid prior to that time. Any suit that is brought must be in the name of the assured. The railroad company is entitled to be protected against two suits. The assured cannot sue for the balance which is due to him over and above the insurance, and the insurance company bring another simultaneous suit in the name of the assured for the amount of insurance which has been paid. The railroad company is entitled to protection against the claim being split and two independent suits prosecuted, although the rights of the insurance company and the assured are essentially independent rights. When the assured brings a suit against the wrongdoer it necessarily includes, and must include, the amount that the insurance company would be entitled to receive back by reason of insurance which it had paid; that when the assured assumes, without the knowledge or consent of the insurance company, to make a compromise settlement, he necessarily assumes to settle the claim of the insurance company. The assured had no right to settle or discharge the lien of the judgment without the co-operation, or at least an opportunity of co-operation, upon the part of the insurance company in that settlement. If he did so, he necessarily assumed the liability to repay to the insurance company the amount that had been paid to him; that the insurance company had rights in the judgment as well established, and as well settled, and as clearly defined, as the insured.

We are cited to no controlling authority in this State. The reasoning of the New Jersey court seems to us sound, and it seems to necessarily follow if appellant could not compromise the judgment without the consent of appellee without incurring a liability to pay appellee the full amount of $800, that, when he did get the consent .of appellee to compromise for three-quarters of the judgment on condition that he pay appellee three-quarters of its claim, he was bound by the terms so imposed.

If we are right in the view of the case above expressed, it is immaterial whether the amount received by appellant from both the railroad company and appellee was $200 or $1,000 less than his loss, or whether the expenses incurred by him in prosecuting the suit against the railroad company should or not be taken into account in determining whether he had received full indemnity for his loss. Whatever may be the answer to those questions, the verdict was properly directed for appellee.

This disposes of the questions urged here except it is argued that the court erred in refusing appellant’s application for a change of venue. That action of the court is abstracted as follows: “Petition for change of venue. Notice of application for change of venue. Order denying petition for change of venue,” referring to pages 13, 16, 18 and 32 of the record. Reviewing courts have so many times said that they would not examine the record for matters not abstracted to find some reason for reversing a judgment that it is not necessary to cite the cases. The action of the court in that regard is not before us.

We conclude that on the admitted facts in this case appellee was entitled to the judgment it obtained; that the court, in effect, directed the verdict and did not err in so doing. The judgment is affirmed.

Affirmed.


author: Mr. Justice Carnes Mr. Presiding Justice Niehaus

text:
    George Randall, Administrator de bonis non of the Estate of Philip Krummel, Deceased, Appellee, v. Crescent Coal Company, Appellant.
    Gen. No. 6,273.
    1. Mines and minerals, § 117

      —when assumed risk and contributory negligence are unavailable as defenses. Under the Mining Act neither assumed risk nor contributory negligence is available as a defense to an action for damages caused by a wilful violation of the provisions of that act.
    2. Mines and minerals, § 82

      —when provision of Mining Act that mine manager shall prohibit men from returning to an unsafe mine is complied with. It is not necessary that sec. 20-8 of the Mining Act (J. & A. 1f 7494), should be literally followed, in its provision that the mine manager shall prohibit the men from returning to an unsafe mine, hut it is sufficient if any officer of the mine owner in authority performs some act to accomplish that purpose.

      3. Mines and minerals, § SO

      —when employer furnishing unsafe place is liable for death of employee. A mine owner’s liability on account of the death of an employee must rest on some neglected duty to such employee, and it is not enough that such owner had an unsafe place, but the deceased must have been rightfully there before liability attaches to such owner.
    4. Mines and minerals, § 133

      —when master is not liable for death of employee disobeying orders. In an action to recover under the Mining Act for the death of defendant’s employee, where the deceased, after going some distance into his employer’s mine, by-order of his employer, to look for two men who had preceded him in search of two others who had failed after an explosion to reach the surface, received an order by telephone from his employer to return to the surface, but he continued in search of the two men who had failed to reach the surface after the explosion and was overcome by gas and killed, held that such employee lost his life because of his wilful disobedience of an express, reasonable and proper order of his master, and the latter would not be liable in such action.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehatjs, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed with finding of facts.
    Opinion filed October 12, 1916.
    Judgment vacated and former opinion refiled December 6, 1916.
    Quinn & Quinn and Weil & Bartley, for appellant ; Frank J. Quinn, Joseph A. Weil and John E. Dougherty, of counsel.
    J. L. Murphy, for appellee; Sucher & Moore, of counsel.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

Philip Krummel, while in the employ of the appellant, Crescent Coal Company, at its mule barn outside of its coal mine, lost his life by going into a part of the mine where, because of an accident to the fan, there was a dangerous condition of air caused by the lack of circulation. Appellant, having elected not to provide and pay compensation under the Workmen’s Compensation Act, appellee brought this action to recover for the death, relying upon an alleged wilful violation of the Mines and Miners Act, chapter 93, Bevised Statutes, and especially section 20-8 (J. & A. ft 7494), requiring in case of accident to fan or machinery by which the air currents are stopped or materially obstructed, that the mine manager shall at once order the withdrawal of the men from the mine and prohibit their return until the required ventilation has been ré-established. And section 23-6-d (J. & A. ft 7497), requiring rules to be posted at some conspicuous point at the entrance to the mine. There was judgment on a verdict of $5,000 against the coal company, from which it prosecutes this appeal.

There is little controversy about the controlling facts. January 15, 1913, about 3:30 p. m., there was an explosion in the mine which suspended the circulation of air. The miners were at the time on their way out, and all except two shot firers reached the surface in safety! Koepple, the assistant mine manager, went back into the mine with one Cannon. After Koepple and Cannon had entered the mine Case, an officer of appellee authorized to so act, ordered Krummel by phone to go into the mine to look for Koepple and Cannon. Krummel did so, taking Bead, a mule driver, with him. Appellant had a telephone system consisting of one in the mine office, one in the mule barn, and one at the “parting” about 1,500 feet in on the main entry of the mine. When Krummel and Bead reached the “parting” Bead testified the telephone bell was ringing, and Krummel talked back to the office, and then told him that Koepple and Cannon were out of the mine; that the message was to come, out of the mine; not to go in any further; not to run any danger, but that he was going on any way. Bead says he tried to induce Krummel not to go further because of the danger of bad air, bnt that Krummel insisted on going on to look after the two shot fixers. They went into the mine several hundred feet further where Krummel was overcome by the bad air, and Bead so much affected by it that he only succeeded in getting back to the “parting” where he was found in a state of semiconsciousness. Krummel1 was dead when the rescuing party reached him.

Appellant does not concede that Krummel was ordered into' the mine by an officer in authority, but appellee insists the officer had that authority, the evidence tends to prove it, and we accept it as the fact. There is no question that Krummel was ordered out by the same man that ordered him in. Appellee says it was not an imperative order, but the testimony of Krummel’s companion, Bead, and other witnesses who knew of the sending of the order, leaves no doubt that it was a direct order to return, and there can be no question that Krummel so understood it. Appellee suggests that Krummel may have been in a dazed condition at the time he received the order and for that reason may not have understood it. There is no ground in the evidence for this contention. There was no considerable danger from bad air at the “parting,” or from the “parting” to that entrance to the mine where Krummel came in. There is no question but Krummel might have returned from the “parting” in safety. It follows that he lost his life in a dangerous part of the mine where he was expressly ordered not to go.

If, as matter of law, a servant cannot recover of his master for an injury occasioned by his wilful disobedience of a reasonable order, then, without regard to other questions raised in this case, the judgment should be reversed. Appellant cites numerous authorities on the proposition that such violation of an order by a servant bars his right of recovery on the ground of contributory negligence and assumed risk. It is said in 26 Cyc. 1271: “A servant cannot recover for an injury caused or contributed to by Ms failure to regard a proper warning or signal.’’ There are a great number of cases cited in Cyc. in that connection. Many cases are collected in the note to 24 L. B. A. 657, but in most of the reported cases that we have examined it is said either that the servant assumed the risk or was grnlty of negligence in acting in disobedience to his orders. In this State the cases of Simmons v. Chicago & T. R. Co., 110 Ill. 340; Jorgenson v. Johnson Chair Co., 169 Ill. 429; Illinois Cent. R. Co. v. Houck, 72 Ill. 285; Chicago & W. I. R. Co. v. Flynn, 154 Ill. 448; and Keeley v. Cleveland, C., C. & St. L. Ry. Co., 158 Ill. App. 237, all denying the right of the servant to recover for an injury that he received because of his disobedience of a valid rule or order, leave it at least doubtful whether that rule as there announced was not regarded as resting on the doctrine of contributory negligence or assumed risk, or both. It has long been settled in this State that under the Mining Act neither assumed risk nor contributory negligence is available as a defense to a suit for damages caused by wilful violation of the provisions of the act. (Streeter v. Western Wheeled Scraper Co., 254 Ill. 244, 258 [1 N. C. C. A. 828].) Therefore it is necessary to consider whether in the absence of those defenses a servant can recover for an injury that he receives in going into a dangerous place against the express order of Ms master. The provision of the Mine and Mining Act relied on by appellee recognizes just such a danger as existed in the present case, and provides that the mine manager shall prohibit the men from returning into the mine until a condition of safety is re-established. It is not necessary that this statute should be literally followed. It was said in the late case of Arkley v. Niblack, 272 Ill. 356, 362, in discussing a portion of the act requiring a dangerous place to be marked, that “if the plaintiff in error had failed to mark a dangerous place, the failure was not beyond his power to correct.” In the present case it may be said on the authority of that case that it was not necessary that the mine manager, although expressly named in the statute, should prevent the men from returning into the mine, but that it was sufficient if any officer of appellant in authority performed some act to accomplish that purpose. The statute was enacted for the safety of employees, and must be substantially, if not literally, complied with. If an officer of appellant in authority had attempted to prevent any miner from reentering the mine, and that miner, from his desire to save his fellows in danger or some other worthy motive, had overcome the officer and entered the mine in spite of his efforts to keep him out, it would occur to no one that the mine owner had incurred a liability for any injury that resulted from such action of the miner. We see no difference in principle between the supposed case and the present one. Assume that appellant ordered deceased into the mine and in so doing violated the statute—as in Arkley v. Niblack, supra, the defendant violated the statute by not marking a dangerous place. We think the action of appellant in this case in violating the statute was, as said in the ArTdey case, not beyond its power to correct, and that it did correct it by ordering Krummel not to proceed into the place of danger but to return to a place of safety, which he might have done.

We have been referred to no authority and have found none where under statutes abolishing the defense of contributory negligence and assumed risk the question before us has been discussed. But we see no reason why, with those defenses excluded, it should not still be true that appellant owed deceased no duty to protect him in a place of danger where he, in the course of his employment, had no right to he. Appellant’s liability, if any, must rest on some neglected duty to the deceased. It is not enough that appellant had an unsafe place. It must also appear that deceased was rightfully in that place before liability attaches to appellant. This seems too plain a principle to require the support of authority. ' The cases of Mackey v. Northern Milling Co., 210 Ill. 115; and McAndrews v. Chicago, L. S. & S. E. Ry. Co., 222 Ill. 232, forcibly illustrate the application of this rule.

Appellee says that the certified mine manager was absent at the time'in question; that no rules were posted, as required by the act. And it is true that there was a failure to literally comply with the act; but what we have before said disposes of that consideration.

Appellee with much feeling calls our attention to the heroic action of deceased in his attempt to save the lives of the shot fixers. If it is true, as we think it is, that he risked his own life that he might save others, his memory is entitled to that homage and respect which mankind always pay to the victims of their own courage and unselfishness. But that consideration affords no ground for the judgment in this case.

We assume that the admitted facts in the record before us could not be made to differently appear on another trial, and being of the opinion that they preclude! a recovery, the judgment is reversed without' remanding the cause.

Reversed with finding of facts.

Mr. Presiding Justice Niehaus

took no part.

Finding of facts. We find that deceased lost his life because of his wilful disobedience of an express, reasonable and proper order of appellant, his master.


text:
    Ferdinand Leynaud, Appellee, v. Village of Cherry, Appellant.
    Gen. No. 6,286.
    1. Municipal corporations, § 892

      —how street grade may be established. A street grade may be established by user.
    2. Municipal corporations, § 1114

      —what is liability for abandoning street grade and allomng surface waters to follow former course. After the establishment by a municipality of a street grade by user or ordinance, such grade cannot be abandoned and surface waters returned to their natural course without incurring liability for damages occasioned abutting owners.
    3. Municipal corporations, § 1114

      —what is liability of for diverting surface water from streets. A municipality is liable in damages for diverting surface waters upon premises of a lot owner in the proper construction of its streets.
    4. Municipal corporations, § 1116

      -—what is duty as to repair of gutters and grades of streets. Where a municipality has built gutters and grades of streets, it becomes its duty to abutting owners to keep them in repair.
    5. Municipal corporations, § 1114

      —what is liability of city for overflow of land due to building culvert returning surface waters to former course. Where a municipality built a certain culvert which carried waters from their natural course across certain lots elsewhere and so maintained the drainage for six or seven years, and in the meantime plaintiff purchased said lots and built a dwelling house thereon, and thereafter the municipality built a second culvert which returned the waters to their natural course over plaintiff’s lots, held that the condition prior to the building of the second culvert had lasted long enough so plaintiff had a right to assume the municipality would not attempt to return the waters to their natural course, and he would be entitled to substantial damages, in an action for damages for such overflowing of his lands by reason of the second culvert.
    6. Pleading, § 32

      —what constitutes surplusage. In an action against a city to recover damages for overflowing of plaintiff’s lands, held that an allegation in an amended declaration that the waters complained of did not flow in a natural water course was surplusage where the allegation in the original declaration and the proof showed the defendant’s liability.

      Appeal from the Circuit Court of Bureau county; the Hon. Job A. Davis, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed October 12, 1916.
    J. L. Spaulding, for appellant.
    J. L. Murphy, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Appellant, Village of Cherry, was organized in 1905. Appellee, Ferdinand Leynaud, owns lots five, six and seven in block thirteen in Myrick’s First Addition to the village. He purchased lot seven in June, 1906, and lots five and six in August, 1910. Six is a corner lot fronting south on Cherry avenue and west on Second street. Five joins it on the north and fronts on Second street. Seven fronts on Cherry avenue and is across an alley east from lot six. Appellee had a store on lot seven, and built a dwelling house on lot six in 1911. He brought this action on the case to recover damages for injury to said real estate and some personal property there kept caused by a flow of water across lots five and six, in some counts of his declaration basing his right of recovery on an alleged depreciation in market value and permanent injury to his real estate caused by the necessary improvement of Second street. He had a verdict and judgment for two hundred dollars which is not excessive if he was entitled to substantial damages. The village brings the record here for review.

It appears that in a state of nature there was a natural depression in which the water drained from the northwest across what is now Second street over lots five and six and across what is now Cherry avenue; that there was a low spot on a part of the land where lots five and six are now located making a swale there in wet weather. Before the organization of the village there was a public highway where Second street now is. Within a year after the incorporation of the village a wooden culvert was placed in the natural water course somewhat diagonally across Second street, and not the entire width of the street. This culvert was not of sufficient capacity to take all the water from the northwest that came in that direction in a wet time, and some of it flowed down the west side of Second street, some down the east side, and in times of high water some of it across lots five and six in the old natural course. Appellant built a concrete culvert clear across Second street in 1913, so. that none of the water reaching Second street from the northwest would be discharged upon that street, but would be conducted across it and discharged on lot five to flow in the old natural depression as it had not all theretofore done in the preceding six or seven years. It is this flow of water that appellee complains of. In his declaration he charged the wrongful turning of water upon his lands. During the trial he amended by adding the averment that the water complained of did not flow in a natural water course. The court refused appellee’s instructions to the effect that he might recover damages if the water did flow in a natural water course after having been so diverted from that course by appellant for six or seven years, and instructed the jury that there could be no recov-ery if the flow was in a natural depression or water course. Appellee assigns cross errors on this action of the court.

The evidence leaves little, if any, doubt that the water complained of flowed in a natural depression, or water course, except as it had been slightly changed across lots five and six by appellee’s grading on those lots. There was some evidence as to an increase of flow and damage at a particular time complained of because of a dam that had been constructed by a coal company in the water course some distance northwest of the culvert, and some evidence that the natural course of the water had been obstructed by operations of a railroad company some distance southeast of the place in question. (Appellant had constructed another culvert across Cherry avenue to take care of the water after it had crossed lots five and six.) If it is true as matter of law that appellant had the right to disregard the diversion of the water caused by its street and wooden culvert in 1906 and seven years later return it to its old water course across appellee’s premises, the evidence furnishes no ground for the recovery of substantial damages. But we are of the opinion that no such right existed. It does not appear that appellant had by ordinance established any street grade, but we think a grade may be established by user, and that a municipality after establishing a grade of its streets by user or ordinance cannot be permitted to abandon that grade and return surface waters to their old natural water course without incurring liability for damages occasioned abutting owners.

It is well settled in this State that a municipality is liable in damages for diverting surface waters upon the premises of a lot owner in the proper construction of its streets. (City of Aurora v. Reed, 57 Ill. 29; Nevins v. City of Peoria, 41 Ill. 502; City of Aurora v. Gillett, 56 Ill. 132; City of Dixon v. Baker, 65 Ill. 518; City of Elgin v. Kimball, 90 Ill. 356.) And that when a municipality has built gutters and grades of streets it becomes its duty to abutting owners to keep them in repair. (City of Alton v. Hope, 68 Ill. 167; City of Shawneetown v. Mason, 82 Ill. 337; Stack v. City of East St. Louis, 85 Ill. 377; Tearney v. Smith, 86 Ill. 391; City of Chicago v. Seben, 165 Ill. 371.)

In some States the municipality is not held liable for casting water upon the abutting lot owner in the proper improvement of its streets, as will be seen by reference to cases cited in 36 Cent. Dig. “Municipal Corporations,” sec. 1784. Therefore expressions in the opinions of courts of those States must be read remembering the radical difference in holdings from this and other States as to liability resulting from damages occasioned by proper street improvements.

Appellee purchased his premises and built a dwelling house thereon when the condition of Second street was such as not to precipitate all of the natural drainage across his land. A substantial part of it went down Second street and turned east on Cherry avenue instead of going diagonally across his lots. We are of opinion that such condition had lasted long enough so he had a right to assume that the village was taking care of a portion of the surface water in this way, and would not attempt to change it back to its natural course across his lot; therefore, that he was entitled to substantial damages when it did so. Appellant in this proceeding has acquired the permanent right to discharge this flow of water across appellee’s premises. That is a substantial benefit relieving it of expense and burden in taking care of Second street. This benefit has been obtained at so small a cost that the judgment ought not to be disturbed, unless the law imperatively requires it.

Appellant argues that appellee should be held to his allegation in his amended declaration that the water complained of does not flow in a natural water course, and that the proof, failing to establish that fact, he should not be permitted a recovery on the present condition of the pleadings. We think that averment may be treated as surplusage. The material facts under our view of the law were stated in the declaration, and proven on the trial. Appellee did not prove this added averment. We regard his case complete without it.

It is argued that the court erred in excluding certain evidence of the admission of appellee as to there being a natural water course across Ms lots. If tills was error, and we do not hold it was, it did not harm appellant because there was no question as to that fact. We are of the opinion that the only substantial error in the record was in holding, in substance, that appellee could not recover if the water complained of was flowing in an old natural water course, and as this error was in favor of appellant the judgment is affirmed.

Affirmed.