text:
    August H. Wobbe, Defendant in Error, v. Johanna Schaub, Impleaded, Plaintiff in Error.
    1. Husband and wife—when former competent as witness for latter. If the subject-matter of the litigation concerns the separate property of the wife, the husband is competent either for or against her as to his or her acts or concerning any fact or circumstance pertaining to the case. He is not, however, competent as to admissions or conversations “made by him to her or hy her to him or by either to third persons except in suits or causes between such husband or wife.”
    2. Trust—when fund may he, traced and return awarded from specific property. If one knowingly permits the employment of trust funds in the purchase and improvement of property, the same, even though commingled with other money belonging to such person, may be traced and the return awarded out of the property purchased in part and improved in part by such trust fund.

      3. Interest—when awarded upon trust funds. A cestui que trust may recover interest upon trust funds employed by a trustee in his own affairs or employed by him in connection with the affairs of another with the knowledge of such other that the funds being so employed were trust funds.
    Bill in chancery. Error to the Circuit Court of St. Clair county;, the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    A. H. Baer, for plaintiff in error.
    Wise & McNulty and E. W. Eggmann, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

August H. Wobbe, defendant in error, filed his bill in the Circuit Court of St. Clair county charging that on the 29th day of December, A. D. 1891, his mother, Laura Wobbe, died leaving him and her husband, Henry Wobbe, beneficiaries under a certain certificate of insurance held by her in the American Legion of Honor, for the sum of $2,000 payable in the following proportions, to wit: To said Henry Wobbe, her husband, one-fourth, or the sum of $500, and to Henry Schaub, trustee for said August H. Wobbe, three-fourths or the sum of $1,500; that some two months later the amount called for by the certificate was paid by said association and the said Henry Schaub received $1,500 as trustee for defendant in error; that on August 29, 1896, said Henry Schaub purchased some ten acres of land of the Common Fields of Cahokia in St. Clair county, Illinois, stating at the time to the father of said August that he had paid $1,500 for the same and had invested part of the funds of August in the purchase thereof; that he used the balance of said trust fund for making improvements and betterments on said premises; that Johanna Schaub, his wife, had notice and knew that August’s money was being used in the purchase of said lands and in building houses thereon; that said August received assurances from his grandfather, the said Henry Schaub, that his money was invested in the purchase of said lands and the improvements made thereon and believed the title to the same was in his name or in the name of Henry Schaub as trustee for him, but since investigating the matter for himself had ascertained the title to said land was taken in the name of Johanna Schaub, the wife of said Henry; that the placing of said title in the name of Johanna was done through the fraud and connivance of said Henry and Johanna Schaub at the time of said purchase; that said Johanna has encumbered the premises by two mortgages held by Prosper J. Soucy; that said August arrived at the age of twenty-one years on September 4, 1906, and immediately demanded a settlement of the trust fund claimed to be due him as aforesaid, which was refused.

The bill made Johanna Schaub, Henry Schaub and Prosper J. Soucy defendants and asked that said August H. Wobbe be decreed to have a lien on said premises and improvements thereof, for the amount invested therein by said Henry J. Schaub as trustee for him; that said Johanna and Henry Schaub be ordered and decreed to pay the said sum together with interest thereon from August 29, 1896, within a time to be fixed by the decree and in case of failure so to do, the master in chancery of said court be required to sell the premises to satisfy said lien.

Johanna Schaub answered denying the allegations of the bill and stating the premises in question were purchased by her, belonged to her in her own proper person and that the deed to the same was rightfully made to her. The defendant Soucy answered denying certain of the allegations of the bill and setting up two mortgages held by him' upon said premises, amounting to the sum of $335. The bill was taken as confessed against the defendant Henry Schaub, who filed no answer. After the hearing leave was given the complainant below to amend his bill by averring directly that said Henry Schaub invested all or a portion of, • said trust fund in the purchase of said land and making said improvements and that said Johanna Schaub had notice of and knew that complainant’s money was being used for such purposes and also by asserting with more particularity the claim of complainant of a lien upon said premises for the amount of his money invested therein and the right to have said premises sold to pay the same.

The court below found that the averments contained in the bill were true and the complainant was entitled to a lien on said premises for the sum of $1,500 with interest thereon, at the rate of five per cent per annum for eight years, making a total lien against said premises of $2,100. It also' found the claim of said Soucy, which with interest aggregated the sum of $351.80, was a first and prior lien against said premises and that the lien of complainant was subject thereto. It ordered and decreed that Johanna and Henry Schaub or one of them, pay the complainant the amount found due him within sixty days and in default thereof said premises be sold by the master in chancery, with directions after paying all costs and expenses of the suit, to pay said Soucy the amount due him, then to pay the amount due complainant and to bring the remainder of the funds into court.

After the decree was rendered, but at the same term of court, plaintiff in error made a motion to set aside all orders entered in the cause and for a rehearing and supported the same by affidavit of herself and others tending to show that since the hearing new evidence bearing upon the case had been discovered.

The new evidence referred to tended to show that Henry Schaub had made statements out of court different in some respects from those made by him on the trial, but they were not of sufficient importance or of such character as to warrant a new trial and the court did not abuse its discretion in denying the motion.

It plainly appeared from the proofs that Henry Schaub received the $1,500 in question in 1891 from the benefit certificate issued by the American Legion of Honor to his daughter, Laura Wobbe, as trustee for his grandson, August Wobbe; that said trustee at first turned this money over or loaned it to a sister, Mrs. Bichman, living in St. Louis, Missouri, and that subsequently Mrs. Bichman paid all the money back to the trustee. It also appeared that in 1896 the mother of Johanna Schaub, who had been living with Johanna and her husband, Henry Schaub, died leaving a life insurance policy on her life of $1,000, payable in equal parts to Johanna and Henry Schaub; that this money was collected and subsequently on August 29, 1896, was used in the purchase of the premises in question here; that the total amount given for said premises was the sum of $1,500, $1,000 being paid in cash and a mortgage being given for $500; that for some reason which does not clearly appear from the proofs, the title to the premises was taken in the name of Johanna Schaub .alone. Henry Schaub, who was a witness in behalf of defendant in error, swore that the note for $500 secured by mortgage on the premises was paid by him with a portion of the trust fund, which was paid back to him by his sister; that he got the remaining $1,000 of the trust fund from his sister and used it in building a house on the premises in question; that the $1,000 so used by him was not sufficient to entirely pay for the house, its total cost being some $1,300, and the excess was paid by money made off the farm. Schaub also testified that his wife had no other property than the $500 that came to her from the life insurance on her mother’s life and that when he paid off the $500 mortgage he used the money belonging to defendant in error for that purpose. Defendant in error swore that he used to go over to Schaub’s quite frequently and that plaintiff in error told him half a dozen times, “Well, Gfus, you have got some money when you come of age and you can afford to be inde■pendent” and that she said his grandfather had the money. For some two years prior to .the trial of this case, Henry Schaub and his wife Johanna had not been living together.

Johanna Schaub denied that any of the trust fund in question belonging to August H. Wobbe was used in paying off the mortgage on the premises in question, or building the house thereon, claiming that all the money used for such purposes, except that obtained from the insurance on her mother’s life and represented by the defendant Soucy, was made out of the products of the place and other land rented and cultivated by her and their children. A son, George Schaub, testified to working on the place with his mother and also that he and a brother at times worked in a rolling mill and brought their money to their mother to pay off “that mortgage with.” He says however that he went to work in the rolling mill in August or September, 1897, when he was fifteen years old, while the testimony is that the mortgage of $500 upon the land was paid off in July, 1897, so he could not have intended to refer to the mortgage of $500 claimed to have been paid with money belonging to the trust fund.

On the trial of the cause plaintiff in error objected to the competency of Henry Schaub as a witness because he was the husband of his co-defendant, Johanna Schaub, but he was permitted to testify by the court.

The statute which provides that a husband or wife shall be incompetent to testify for or against each other, excepts the husband “in cases where the-litigation shall be concerning the separate property of the wife.”

In this case the deed of the property was taken in the name of the wife and became her separate property; consequently the husband was a competent .witness either for or against her as to his or her acts or concerning any fact or circumstances pertinent- to the case. Rev. Stat. (Hurd 1905), chapter 51 sec. 5.

The statute however further provides “that nothing in this section contained shall he construed to authorize or permit any such husband or wife to testify to any admissions or conversations of the other, whether made by him to her or by her to him or by either to third persons, except in suits or causes between such husband and wife.”

During the course of his examination Henry Schaub testified that at the time he paid the $500 mortgage, he had a conversation about it with his wife and was then immediately asked by counsel for plaintiff in error, “At the time you paid this $500 mortgage, did you tell your wife that you used August H. Wobbe’s money for that purpose?” And subject to the objection of plaintiff in error he answered “Yes, sir, I did.” The question and answer evidently referred to a portion of the conversation between the husband and the wife and was therefore incompetent under the statute. There is however sufficient competent evidence upon this subject in the record to sustain the finding of the court below that plaintiff in error knew the trust fund belonging to defendant in error was being used in payment of the mortgage and the erection of the house.

Where a trustee invests the money of his cestui qué trust in the purchase of land, taking the title to himself, a trust arises by implication in favor of the cestui que trust who may follow the money into the land and hold the land as trust estate. First National Bank v. Leech, 207 Ill. 215; Rice v. Rice, 108 Ill. 199.

It is a further rule of law that a purchaser with notice of a trust either express or implied, becomes himself a trustee for the beneficiary with respect to the property and his bond, in the same manner as the original trustee, from whom he purchased, and this even though he was a purchaser for a valuable consideration. First National Bank v. Leech, supra; I. I. I. R. R. Co. v. Swannell, 157 Ill. 616.

This doctrine which can be enforced even against a purchaser for a valuable consideration, must apply with even greater force in a case like this where the trust fund was invested in the premises and improvements thereon claimed by plaintiff in error, with her knowledge and without any consideration whatever moving from her therefor.

Plaintiff in error claims in order to establish the above rule, there are two essential elements necessary, both of which are lacking here. One of these elements is that the person in whose hands the trust fund has found its way, must have known at the time he acquired it of the character of such fund. From what we have above said it will appear that in our opinion the proofs in the case were sufficient to charge plaintiff in error with knowledge of the character of the fund in question here at the time she acquired it and therefore this question need not be further considered. The other element claimed by plaintiff in error to be essential is, that in order to pursue the trust fund into other hands, the fund must be susceptible of identification as distinct from other funds and not so mixed up with them that it can no longer be separated.

The theory of plaintiff in error is that there is no way of identifying that portion of the house which represents the $1,000 of the trust fund, claimed to have been used in its construction, nor that portion of the farm which enjoys the exclusive benefit of the release of the $500 mortgage.

Nearly all of the cases cited by plaintiff in error in support of her position were cases where it was sought to have money deposited in banks and mixed with the general funds, declared to be trust funds. In those cases the courts held that no trust existed but that the relation between the parties was simply that of debtor and creditor. In other cases like that of Lang v. Metzger, 101 Ill. App. 380, and Union National Bank v. Goetz, 138 Ill. 127, it was held, either that the parties sought to be charged had no notice of the character of the fund or that there was a failure to trace the trust fund into the property against which the lien was sought to be established. In this case there was no trouble whatever in identifying the property in which the fund in question was placed and it is immaterial, so far as plaintiff in error is concerned, that other money in addition to the trust fund was used in constructing'the house and in paying for the premises.

It clearly appeared that the trust fund belonging to defendant in error was used in paying off the mortgage and erecting a house upon the premises owned by plaintiff in error, and there is sufficient evidence to sustain the finding of the court below that this was done with her knowledge and consent. She is the sole owner of the premises in question and apart from the claim of plaintiff in error and said mortgagee, Soucy, no one else appears to have any interest in or claim to them.

This is a suit in equity and it would be manifestly inequitable to permit her knowingly to háve the use of the trust fund of defendant in error in paying off the mortgage and erecting the house upon her premises, and escape all liability therefor to the cestui que trust, for the reason that she had also used some of her own and her husband’s money in purchasing and improving the premises. The amount of the trust fund is accurately fixed, the premises and improvements thereon in which it was invested are definitely determined, and no equitable or legal reason appears why defendant in error should not be permitted to establish his claim against the premises and improvements thereon, for the amount due him.

Complaint is made by plaintiff in error that the court allowed interest upon the trust fund at the rate of five per cent per annum for eight years which would be from July 12, 1899, to the date of the decree. “It is universally held that a trustee employing the trust funds in his own business or for his own benefit is liable for interest thereon, upon the principle that he shall derive no gain, benefit or advantage from the trust fund, and whatever profit may be made therewith properly belongs to the trust estate.” 28 Am. & Eng. Enc. of Law (2nd Ed.) 1081, and cases cited.

When plaintiff in error knowingly permitted the trust fund belonging to defendant in error to be used for her own benefit, she in effect became a trustee de son tort and as such should be held to the same rule regarding the payment of interest, to which the trustee himself would have been held had he used the money for his own benefit, and the court did not err in requiring her to pay interest upon the fund at the rate named.

The decree of the court below will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    John W. Peebles, Appellee, v. O’Gara Coal Company, Appellant.
    1. Evidence—when question not leading. A question is not necessarily leading even though the answer “yes” or “no” may be given.
    2. Evidence—when objection as to qualification to give opinion waived. Specific objection as to qualification is essential to save for review the question as to whether or. not a witness stating an opinion with respect to a matter upon which opinion evidence is competent, is qualified to give an opinion.
    3. Evidence—whew, refusal to strike out unresponsive answer not ground for reversal. If no harm appears to have resulted it is not reversible error to refuse to strike out an answer technically unresponsive.
    4. Instbucttons—when giving of instruction authorizing recovery upon insufficient count will not reverse. If the jury by their verdict found the defendant guilty upon an insufficient cour$ and also upon a sufficient count, the fact that the court has given an instruction authorizing a recovery upon such insufficient count will not reverse.
    Action in case for personal injuries. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    Denison & Spiller, for appellant; M. S. Whitley, of counsel.

      Choisser, Choisser & Kane, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was an action of case brought by appellee to recover damages for injuries alleged to have been received by him while at work as a miner in appellant’s mine, in consequence of the wilful violation of certain provisions of the Mining Act, by appellant.

The declaration originally consisted of four counts, but the third count was withdrawn by appellee at the close of his case and the jury found defendant guilty only on the first and fourth counts.

The first count charged that appellant wilfully and knowingly failed and neglected to provide appellee with a sufficient supply of props, caps and timbers, after demand by him therefor, as nearly as possible in suitable lengths and dimensions for securing his working place, whereby a large quantity of rock and slate fell from the roof of said working place and injured him.

The fourth count charged that on the morning of the day appellee was injured, his working place was in a dangerous condition before he entered the mine to work; that appellant wilfully permitted, suffered and allowed him to enter his working place to work therein, without the directions or without being under the directions of the mine manager, before said dangerous place was made safe.

There was a plea of not guilty and a verdict in favor of appellee for $1,500. Motions for a new trial and in arrest of judgment were interposed by appellant, overruled by the court and judgment entered for the amount of the verdict.

Appellee, as the proofs in the case show, was a coal miner forty-nine years of age, earning three dollars a day, and had been employed in appellant’s mine from September, 1905, to the time of his injury, which occurred on August 13, 1906. The coal was mined by being cut loose with a machine and then shot down with three shots, one in the center called the break-down shot and one on each side. The evening before the injury, appellee fired three shots, which had been put in by himself and his son but could not see the condition of the roof on account of the smoke. When he went to work the next morning, he found the shots had knocked the'coal down on the right and left sides, but that the center shot was standing against the roof, and a piece of loose hanging draw slate extended about three .and a half feet out into the room. He took a pick and'tried to pull, the loose slate down, but could not move it. After loading the coal that had been knocked down, appellee about two o’clock in the afternoon attempted to mine or take coal from the center shot, standing at the right side of it. He only struck one' blow with his pick when the center shot dropped down and the slate from the roof swung around and fell on him. His left leg was broken and he was so bruised and im jured that 'he had been able to work only about two weeks from that time to the time of the trial some thirteen months later. Three or four days before the injury, appellee ordered cap pieces and six and a half foot props from the mine manager, and a day or two later ordered the same from the driver, but none were furnished him, though a- load of seven-foot props was brought, which he testified he tried to set up, but could not use on account of their length. Six and a half foot props and cap pieces were necessary to prop up the slate until the coal was mined away from it.- On the morning of the day of the injury he ordered cap pieces from the acting manager and was informed by him there were “none' on the job.’’ Afterwards on- the same day he ordered cap pieces' from the driver,- but they were- not furnished him. There were no danger marks of any kind placed in appellee’s room before or after he went to work. The mine examiner testified that he visited appellee’s room that morning; that he saw the draw-slate was loose as it always is. óver a standing shot; that he did not get within five or six feet •of the face as there was loose coal that prevented him from getting closer; that he examined the roof and sounded it and it was all right; that back from where the coal was, some two or three feet, there was some loose slate; that he did not place any danger mark in the room but marked with chalk on the roof, the date of the examination.

No question is made by appellant in its brief or argument as to the sufficiency of the evidence to sustain the verdict, but it claims the judgment should be reversed solely on account of errors of the court in its rulings in ■regard to the evidence and instructions. Upon the trial appellee was asked by his counsel: “Q. Now you ■may tell the jury whether or not if you had any cap pieces and props of proper length if you could have propped that piece of rock?” To which he answered, “Yes, sir; that was what I wanted with cap pieces.” He was then asked, "Q. You may tell the jury whether or not in your opinion as a miner if there had been a prop and cap pieces under the slate in question, it would have fallen?” And answered, “No, sir.”

Objections were made to these questions and overruled by the court. Appellant here insists that these questions were leading and suggestive and that they called for his opinion upon a matter upon which he had not qualified. While it is true these questions could be answered by “yes” or “no,” yet they do not appear to us to be leading or necessarily suggestive. The testimony of appellee showed that he was a miner of experience having been engaged in mining coal ten •years, presumably competent to testify upon the subject concerning which he was asked, and appellant did not at the time object that appellee had not qualified to testify upon the subject. The court therefore properly overruled the objections. It also appears that there were a number of other witnesses, all practical miners, who testified substantially to the same thing. Appellee was also asked whether or not any mine manager on the morning in question gave him instructions or directions in regard to his work in that room, and replied, “Well, sir, he never told me to stay out or anything about it; he never told me the place was in bad condition.” Counsel for appellant objected to the last part of the answer and moved to strike it out, but the objection and. motion were overruled. This answer was not strictly responsive to the question and the latter part of it might well have been excluded by the court on motion, but the answer as a whole practically amounted to a statement that appellee was not given any instructions or directions by the mine manager, which was a proper.subject of inquiry and the form of the answer was not sufficiently erroneous to be material.

It is also objected that Valley Peebles, the son of appellee, was permitted to be asked whether or not the shot of coal or any part of it fell upon his father, which question he answered, “No, sir, there wasn’t any fell on him; there wasn’t nothing but the slate.” One of the questions being investigated was whether or not appellee was injured by a fall of coal, or of slate. This question bore upon that subject directly and seems to us to have been entirely proper. Besides there were other witnesses testified to the same fact and it was practically uncontradicted that appellee’s injuries were caused by a fall of slate. Several witnesses were asked whether there were any other props scattered around over the room. These questions were objected to as leading and appellant now insists that the court erred in permitting them to be answered.

The subject-matter of the questions was one which was being investigated by both sides, was entirely proper, could not well have been asked in any other form than the one in which they were put and seem to us to be wholly unobjectionable.

A more serious question raised by appellant is that the court refused proper evidence offered by it, upon the objection of appellee. Appellee had been permitted to prove that he had ordered props and caps from the driver; that the miners usually orderedprops from the drivers, which was a practice in that mine.

Appellant asked Thomas Lawson, the mine manager, the following question: “Now what is your custom and practice in this defendant’s mine in reference to props and cap pieces being delivered by drivers whenever they are ordered by the miners; that is, has the driver a certain route he goes over?” and he answered, “Well it is the rule of the company to order the props from the mine manager.” Appellee objected to the answer as to the rules of the company and the objection was sustained.

Appellant’s contention is that the question.and answer tended to prove a rule of the mine in reference to ordering props and cap pieces which was a proper subject of proof, especially as appellee had been permitted to testify as to the custom of the mine in that regard. The vice of the answer was however that it was not responsive to the question. The question was in fact a double one and the answer was not responsive to either part of it. It is evident however that counsel for appellant had in mind simply the last portion of the question, that is as to whether the driver had a certain route to go over, which question had nothing whatever to do with the custom referred to. That counsel for appellant had in mind the latter portion of the question only, is evidenced by the question immediately following, which was, “I am asking you this question, have drivers certain routes they go over” which was answered without objection, “Yes, sir, they usually have a certain run.”

It thus appears that the question appellant sought to have answered was really answered without objection. It is further to be said however that the proof showed that appellee not only ordered props and caps of the driver but also of the manager Lawson, and of the acting manager Armstead.

The above objections urged by appellant to the rulings of the" court upon the evidence refer almost wholly to proofs relating=to the first count of the declaration. Appellant in his reply brief insists, that it was not shown the- failure to furnish the props was the proximate cause of appellee’s injury and that the real cause of the injury was the wilful act of appellee in striking the standing shot with a pick and thus causing the slate to fall. We are of opinion'that the questions so. "raised were for the jury and that there was sufficient evidence to support a finding upon those questions in favor, of appellee.

Appellee’s seventh instruction set out the charge against appellant contained in the fourth count of the declaration, and told the jury if they believed from the evidence plaintiff had proven his case • as charged in said count, etc., they should find the defendant guilty under said count. Appellant insists that this instruction was erroneous because the fourth count as- a matter of fact set out no case upon which there could possibly be .a recovery. This count charged that appellant wilfully permitted plaintiff to enter its ■ mine, etc., before ■ a dangerous condition alleged- to exist, had been made "safe, and is based upon- section 18 of the act in relation to Mines and Miners.

.Without going into a discussion of the matter it is sufficient to say we are of opinion the fourth count lacked elements necessary to constitute a-good cause of action and that the instruction based upon it was erroneous. The sixth and eighth instructions also presented propositions of law which could only arise under the fourth count and were erroneous.

In Schillinger Bros. Co. v. Smith, 225 Ill. 74, it is said, “The court gave an instruction at the request of the plaintiff which authorized the jury to find for him if he proved the allegations contained in his original declaration or the additional counts or any of said counts, by a preponderance of the evidence. * * * In this case the second count of the declaration did not state any cause of action and if it did not appear that the verdict was not based on that count, the giving of the instruction would be serious error.” In that case the jury returned a special finding showing that they did not base their verdict on the second count. In this case the jury returned a verdict finding defendant guilty as charged both in the first and fourth counts of the declaration. The-.fourth count not stating a cause, of action, and the instruction permitting a recovery based upon it being erroneous, a verdict could not be sustained in favor of appellee upon that count. The first count, however,- was based upon a different section of the statute and the proof was sufficient to support the verdict in favor of appellee which the jury gave upon it. The injuries for which appellee sought to recover were identical under the two counts so there could be no difference in the measure of damages which appellee could legally recover, whether he recovered ón one count alone or upon both. The fact therefore that the verdict could not be sustained under the fourth count, does not render erroneous or affect the verdict in favor of appellee upon the first count.

■ Objections made to certain other .of appellee’s instructions are not of a serious nature and do not appear to us to be well founded.

Complaint is made by appellant that the court erred in refusing four .of the first instructions offered.by it. We are of opinion however that the twenty-eight instructions given for appellant by the court fully covered the law applicable to its theory of the. case and that appellant has no just cause, of complaint, in that regard. The .verdict of the jury in favor of appellee upon the first count of the declaration was sufficient to warrant the judgment of the court below in.his favor, and such judgment is accordingly affirmed..

Affirmed.


text:
    Media Glasco et al., Appellees, v. M. R. Fakes et al., Appellants.
    Dram-shop Act—when action under section 9 abates. Immediately upon the death of any plaintiff in an action instituted under section 9 of the Dram-shop Act, the same abates, and it is error for the court without abating the action as to the deceased plaintiff to permit the jury to proceed and assess ■ the damages as to all of the parties, including such deceased plaintiff.
    Action in case. Appeal from the Circuit Court of Union county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    P. E. Hileman, R. J. Stephens and W. W. Barr, for appellants.
    James Lingle and H. R. Buckingham, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit under the Dram-Shop Act, brought by Media Glaseo and her three minor children, by her as next friend, to recover damages by reason of their loss of means of support, against M. B. Fakes and 0. B. Phillips, appellants, who on December 19, 1905, being then the owners of a saloon in Cobden, Illinois, sold, as it is alleged, intoxicating liquors to Jesse Glaseo, Jr., the husband of Media Glaseo and father of said children, which he drank and in consequence thereof became intoxicated, fell into an open cistern and was killed. •

Upon the trial it was shown by the evidence that Flossie Glaseo, one of the minor children of deceased and a plaintiff in the suit, had died. The suit however proceeded as before without abatement as to her and the verdict of the jury was “We the jury find the defendants M. B. Fakes and O. B. Phillips, guilty as charged in plaintiff’s declaration and assess plaintiff’s damages at $2,500.”

A motion for a new trial was made by appellants, stating among other grounds in support of the same, that it appeared from the uncontradicted testimony, Flossie Glaseo, .one of the plaintiffs, had died since the bringing of the suit and that suit had not been dismissed as to her. The court overruled the motion for a new trial, but ordered that the suit be abated as to the plaintiff, Flossie Glaseo. Appellants thereupon made a motion in arrest of judgment upon the ground that four parties were named in the declaration, while the evidence showed that only three were in existence, and that the verdict was rendered in favor of one who was at that time deceased. The court, however, overruled this motion and rendered judgment in favor of appellees and against appellants f.or the amount of the verdict, and the latter have brought the case here for review.

On December 19,1905, at about 8 o’clock a., m., Jesse Glaseo, Jr., as it appears from the proofs, came into Cobden from his home some four or five miles distant, and soon afterwards appeared at a saloon owned by appellants and was in and out of the saloon several .times during the morning. Neither of the appellants seems to have been present at their saloon, which was in charge of two bartenders. There were two other saloons in Cobden, both of which were visted by Glaseo and at one of which he purchased a half gallon jug of whisky, which he put in a paper sack and took to appellants’ saloon and had put behind the counter. Appellants’ two bartenders swore they sold Glaseo no intoxicating liquor of any kind on that day, while Henry Pygett, a witness for appellees, testified that he and Glaseo drank together in appellants’ saloon that morning and witness paid for the drinks. About noon Glaseo went home, Pygett going with him, and prepared to proceed with the work of repairing a cistern, which he had started the day before, although his wife protested against his doing so on account of his drunken condition. Soon afterwards Pygett, who was mixing mortar for the work nearby, heard a noise, turned around and failing to see Glaseo went to the cistern, looked in and saw him lying’ in the bottom with his head turned slightly under his body. Glaseo was dead when removed from the cistern and an examination disclosed that his neck had Been Broken.

It - is insisted By appellants that neither they nor their barkeepers sold or gave Glaseo on the day in question any intoxicating liquors, and that therefore they did not contribute in any manner whatever to cause his intoxication. Also that the evidence failed to show that Glaseo’s intoxication was the proximate cause of or contributed in any manner to bring about the injuries which caused his death. As the case must go back for another trial, we express no opinion upon the facts further than to say it was a very close question whether the evidence was sufficient to sustain a finding for appellees.

We are of opinion however the judgment must be reversed for another reason. It appeared from the evidence upon the .trial that Flossie Glaseo, one of the plaintiffs named in the declaration, was dead at the time of the trial and that fact was again called to the attention of the court in the written motion for a new trial but nevertheless the verdict was in favor of all the plaintiffs named in the declaration and the court afterwards abated the suit as to Flossie Glaseo and gave judgment upon the verdict for the remaining plaintiffs.

Section 9 of the Dram-Shop Act upon which this suit is based, provides: “Every husband, wife, child * * * of other person, who shall be injured in person or property, or means of support * * * in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part * * * and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parent, guardian or next friend, as the court shall direct.”

In Stetcher v. The People, 217 Ill. 348, our Supreme Court under this section of the statute, upheld the right of children to recover damages for the death of the father, caused by a person who was intoxicated, notwithstanding the fact that the widow, their mother, had been defeated in an action based upon the same cause. ' The fact that the statute says every child shall have a right of action, indicates that the right is several or individual as to each child, which shall .be injured in person, property or means of support. Therefore, notwithstanding the fact the suit may be brought jointly, or by all the parties injured, yet it must be presumed that in assessing damages, the jury take into consideration the damages alleged to have been sustained by each one of the plaintiffs named in the declaration. In this case they were instructed by the court, if they found for the plaintiffs they should assess their damages at such sum as the jury should believe from the greater weight of the evidence, they, the plaintiffs, had reasonably sustained, etc., and the verdict of the jury found the defendants guilty as charged in plaintiffs’ declaration and assessed plaintiffs’ damages at $2,500. .We think the suit should have been abated as to Flossie Grlasco as .soon as it was discovered she was deceased, and as that was not done, the court should have set aside the verdict in favor of all the plaintiffs named in the declaration and granted a new trial.

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

Reversed and remanded.


text:
    The People of the State of Illinois, Appellee, v. Joe Moore et al., Appellants.

      Recognizance—when service does not confer jurisdiction to enter judgment upon. The court is without jurisdiction to enter judgment upon a recognizance where it appears that the return, of the sheriff upon a scire facias was made on the sixth .day before the term at which judgment was rendered; the return should not be before the fifth day.

      Scire facias. Appeal from the County Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    Hart & Williams, for appellants.
    William P. Seeber, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

At the May term, 1904, of the Circuit Court of Franklin county, one Joe Moore was indicted for selling intoxicating liquors and the cause was afterwards certified to the County Court of said county, for trial, where bail was fixed at the sum of $100. Afterwards on February 1, 1905, in said County Court, said Moore entered into recognizance in the usual form for said amount with appellants, Charles Little • and Charles Cazaleen, as sureties, which was approved by the sheriff of said county. At the February term, 1906, of said court, Moore appeared in court, went to trial and was convicted, but left the court before sentence was pronounced upon him. On March 21, 1906, Moore not having then appeared for sentence, default was entered against him and his sureties upon the bond. Afterwards it appears that Moore was apprehended and sentenced by the court to jail, where he served out his sentence. Subsequently on February 9, 1907, a scire facias was issued, directed to said Moore and his sureties, reciting the previous proceedings in the case and commanding them to appear before said County Court at a term to be begun on the 18th day of February of said year, to show cause why said judgment of forfeiture should not be made absolute and execution issued thereon. On February 12, following, the sheriff returned the scire facias with the following indorsement: “I hereby return the within writ, the within named defendants, Joe Moore, Charles Little and Charles Cazaleen not being found in my county.” On March 1, 1907, judgment was entered against Moore and his sureties for $100 and costs and execution awarded. On March 14, being one of the days of the same term at which the judgment was rendered, the sureties Little and Cazaleen having ascertained that judgment had been entered against them, filed a motion to set aside the orders of the court made in said cause, to quash the scire facias and for leave to plead. The motion was supported by the affidavit of the surety Cazaleen, made on behalf of himself and his co-surety, which stated a portion of the facts above set forth and also alleged that Cazaleen and his co-surety had caused Moore to be arrested and delivered to the sheriff of said county and that he was afterwards sentenced by said court to jail and served out his sentence; that at the time affiant surrendered Moore to the sheriff, he called on the state’s attorney and asked him if affiant was released and that the state’s attorney told him he was and said there was nothing more for affiant to do and he could go home; that relying on such statement he went to his home in another county and never knew that further steps had been taken against him until March 12, 1907, when tie was informed that a scire facias had been issued and that the court had made some order thereon. This motion and subsequent motions made by the sureties for a new trial and in arrest of judgment were overruled by the court and the sureties appealed.

If the statements made by appellant Cazaleen in his affidavit are true he and his co-surety were deceived into believing that no further steps would be taken against them after the return of Moore to the custody of the sheriff and the court below might well have granted their motions for the purpose of investigating that matter. ■ But regardless of the question whether the affidavit states the true facts or not, the judgment in this case should have been set aside for the reason that, the court had no jurisdiction of appellants at the time it was entered.

The statute provides that, “when any person who is accused of any criminal offense, shall give bail for his appearance, and such person does not appear in accordance with the terms of the recognizance, the court shall declare such recognizance forfeited, and the clerk of the court shall thereupon issue a scire facias against such' person and his sureties, returnable on the first day of the next term of the court, to show cause why such judgment should not be rendered against such person and his sureties for the amount of the recognizance,' which scire facias shall be served by the sheriff of the county where the court is held, upon such person and his sureties, by reading the same-to-the defendants named in such sdre facias, at least five' days before the first day of the term to which the same is returnable; and in case the person aforesaid cannot be found by the sheriff, he shall make return of that fact to the court. The court shall thereupon enter judgment by default against the defendants for the amount of the recognizance, unless defendants shall appear and defend such cause,” etc. Rev. Stat. chap. 38, sec. 17, par. 310 (Hurd 1905).

If appellants could have been found in said county; the sheriff could have served them five days before the first day of the term and such service would have given jurisdiction. He, however, made return six days before the first day of the term, the defendants as shown by his return, not being found in his - county. It might well have been that while the' defendants could not have been found in his county from the time the writ was issued until the 12th day of February, 1907, yet notwithstanding that fact they might have been in the county on the next day and if so and the sheriff could have found them on that day, it was Ms duty to serve them and such service would have been in time. If the sheriff could properly make such return on the 12th day of February, he could just as readily have made it on the 9th day of February, when the writ was issued. It was his duty to serve defendants, if possible, in his county at any time between the issuance of the writ and the expiration of the fifth day before the first day of the term, and as the return does not show that he could not find them in Ms county on the fifth day, before the first day of the term, it did not give the court jurisdiction to enter judgment against them.

The jurisdiction of both the subject-matter and of the person is essential to the validity and binding force of a judicial sentence. If either of these judicial facts is wanting then the sentence or decree of the court is void. In such a case the whole proceeding is coram non judice; and it may be successfully resisted in that or any other court in a direct or collateral proceeding. Campbell v. McCahan, 41 Ill. 45; Gardiner v. Bunn, 132 Ill. 403.

The judgment of the court below will be reversed and the cause remanded with directions to sustain the motion of appellants and set aside the judgment rendered against them upon the scire facias, for the reason that it is void for want of jurisdiction.

Reversed and remanded.


author: Mr. Justice Creighton

text:
    C. F. Eblin, Administrator, Appellee, v. American Car and Foundry Company, Appellant.

      Instructions—form of upon assumed risk approved. An instruction upon this subject as follows is approved:
    "The court instructs the jury that the servant only assumes the usual and ordinary risks incident to the business, and such risks as are known to him or which might have been discovered tiy him by the exercise of ordinary care. But the servant does not assume extraordinary or unusual risks, nor risks due to the master’s own negligence unless the servant had notice of such perils, or by the exercise of ordinary care should have had notice thereof.”
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    Wise & McNulty, for appellant.
    J. M. Bandy and D. J. Sullivan, for appellee.
   Mr. Justice Creighton

delivered the opinion of the -court.

This was an action in case, in the Circuit Court of Madison county, by appellee against appellant, to recover damages, sustained to the next of kin by reason of the death of appellee’s intestate, alleged to have been caused by negligence on the part of appellant while intestate was in the service of appellant as a car finisher, on one of its “shipping tracks.” Trial by jury. Verdict and judgment in favor of appellee for $1,900.

Counsel for appellant insist 'that the judgment in this case should be reversed and not remanded, on the ground that the intestate was killed as a result of his own negligence, and on the further ground, that if there was negligence other than his own which contributed to his injury and death, it was negligence of fellow-servants for which appellant was not liable. They also insist as grounds for reversal, that the trial court admitted improper evidence on behalf of appellee and rejected proper evidence offered on behalf of appellant, that the court gave to the jury an improper instruction at appellee’s request, and that the verdict is against the weight of the evidence.

Appellant was operating an extensive plant for the manufacture of railroad cars, at Madison, Illinois. In connection with its business it maintained shops, and a large yard adjacent thereto, equipped with numerous railroad tracks. The shop men constructed the cars in the shop. When they had done their work upon them the cars were then run out of the shop and placed on certain tracks in the yard, to be completed by the “finishers.” The tracks set apart for this work were two tracks, from a quarter to a half mile in length, designated “tracks No. 5 and No. 6.” They were also called the "shipping tracks. ’ ’ After the cars were placed on these tracks, each one had to be gone over carefully. “The nuts, screws, bolts and everything in the car were put on there and the entire work examined and overhauled so as to see that the car was in perfe.ct order.” While doing this work the men were required to be under and between the cars. There were about 125 men engaged in this department of the business, among them appellee’s intestate. These men were in charge of a foreman and three assistant foremen.

In carrying forward its business appellant maintained locomotive engines and switching crews whose duty it was to haul material to and from the shops, in and out of the yards, move cars from place to place in the yards, and when new oars were fully completed, inspected and received, to take them from these-finishing or shipping tracks and deliver them to the Terminal Railroad Association. These switching crews were under the direction of a yard master.

“The custom was, when a switching crew received notice to remove cars from these finishing tracks during working hours, that is when men were working on the cars, the engine would back in to the first or end car and the switchmen would then go along the track and inform all persons under the cars that the cars were going to be switched and to get out and take out their tools from under them”—“would pass down along the string of cars upon that track and continually call out in á loud voice: ‘All out on track No. -giving the number of the track upon which the engine was about to run.”

The injury to intestate occurred on a Saturday, and on Saturdays the men were given but half an hour off for dinner, from 12 o’clock to 12:30. The whistle would blow at 12, and the men would leave their work and go to eat their dinner. At 12:20 the whistle would blow to notify the men that they must be at their places with their tools ready to go to work again in ten minutes, and at 12:30, it would again blow for them to commence work.

On. the occasion of intestate’s injury he had been working under a car on track No. 5. When the whistle blew for noon, he and his father took their lunch and went inside an enclosure near by and there ate together. After the 12:20 whistle blew intestate left his father and went to his working place, and about one or two minutes before 12:30, he went under the car with his hammer and chisel, to his place at the forward truck and took position astride one of the rails, ready to strike when the whistle should blow; and a number of the other men were also in place under that car and under other ears in the same string, when suddenly, without any notice or warning the switching crew threw a cut of cars in upon.that track instantly killing the intestate and one other man, and injuring many. It is not claimed that the usual custom with respect to notice was complied with on that occasion, nor that any notice of any kind was given at the time.

Appellant’s position with respect to this feature of • the case is, that on the day of the injury at about half after eleven o’clock in the forenoon, the foreman and the three assistant foremen went down the track and notified the men “that the cars on track No. 5, were to be moved during the noon hour,” and that they specially remember speaking to the intestate and “telling him to take his tools from under the ears, that they were going to make a switch during dinner time.” The foreman and all the assistant foremen testified to this state of -facts. Many witnesses who were under cars on this track and others who were working along track No. 6, but a few feet away, testify that they did not hear any such notice.

As we view the case, it is not very important whether this notice was in fact given or not. Assuming that the intestate did receive such notice, he could not have understood that the “noon hour” or “dinner time” included the ten minutes between the sounding of the second and third whistles, and especially, the last minute or two of that time. It was the duty of the men upon hearing the second whistle to go to their respective places of work and to be ready to go to work by the time the third whistle should sound. And further, the evidence shows that the practice was, when switching was done during the “noon time,” it was done before the sounding of the second whistle, and not during the ten minutes in which the men were required to go to their places and get themselves and their tools ready to commence work; and this was a safe and sane practice.

With respect to the purpose of sounding the second whistle, counsel argue that the only purpose of it was to notify the shop men to oil their machinery, and the engineer to start the engine, so that all would be in readiness to start when the third whistle should blow. This position is not sustained by the evidence. The men who worked in the yard did not so understand. In fact in counsel’s statement of the case they say: "The men who are working about the place know that this whistle is ten minutes before they go to work, and generally consider this a notice to them to get ready so they can go to work when the last whistle blows.” The foreman of these 125 car finishers, who worked on the shipping tracks, testified: This “whistle is blown so as to give the men ten minutes notice to get ready. The men might be inside the plant who are working on the shipping tracks when the last whistle would be blown, and they wouldn’t be at their work in time and for that reason that whistle is blown. When the last whistle is blown he is expected to go to work. ’ ’

The rulings complained of as to the admission and rejection of evidence, were made with respect to the testimony of witnesses concerning the alleged notice given to intestate by the foreman and his assistants, on the forenoon of the day of the injury. As appears from what we have said above, we do not consider this feature of the case of sufficient importance to call for discussion; we do not, however, find any material error in the rulings of the court complained of.

The instruction complained of is as follows:

“The court instructs the jury that the servant only assumes the usual and ordinary risks incident to the business, and such risks as are known to him or which might have been discovered by him by the exercise of ordinary care. But the servant does not assume extraordinary or unusual risks, nor risks due to the master’s own negligence unless the servant had notice of such perils, or by the exercise of ordinary care should have had notice thereof. ’ ’

And counsel say: “The Supreme Court in Kath v. East St. Louis Suburban Ry. Co., 232 Ill. on page 133, condemn such an instruction, for the reason that the jury are informed that the deceased did not assume risks due to the master’s negligence.” The instruction here complained of contains a clause not appearing in the condemned instruction in the same connection that it appears in the one under consideration here. The clause is, “unless the servant had notice of such perils, or by the exercise of ordinary care should have had notice thereof.” This clause, in the connection that it is used in the instruction in this case, cures the vice for which the instruction in the case cited was condemned. It will be observed that in this case the clause above quoted follows and qualifies the statement that the servant does not assume ‘‘ risks due to the master’s negligence,” while in the condemned instruction that part of it was wholly unqualified, and it was condemned on that ground alone.

There is, in our opinion, no warrant in this record for the contention that “the intestate was killed as a result of his own negligence.” And in our judgment the question of fellow-servant is not involved in the case. The duty that rested upon appellant was one that could not be delegated.

We regard this case as wholly meritorious and free from substantial error, and we think the judgment of the Circuit Court should be affirmed.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mb. Justice Creighton

text:
    George Robertson, Appellee, v. Donk Bros. Coal & Coke Company, Appellant.
    1. Mines and Minees Act—what “landing” within meaning of Act. The bottom of the shaft where the cage stops to let men off who are being lowered into the mine for the purpose of going to their respective places of work is a “landing,” within the meaning of the Mines and Miners Act.
    2. Mines and Miners Act—who entitled to protection hy provision requiring sufficient lighting of landings. Paragraph B of section 28 of the Mines and Miners Act providing for the sufficient lighting of landings was designed not only to protect those coming to the bottom from their working places for the purpose of leaving the mine, hut also those coming to the bottom for the purpose of going from there to their working places in the mine.
    3. Mines and Minees Act—what evidence competent upon question of wilfulness.. The charge being that the landing was insufficiently lighted, evidence is competent upon the question of wilfulness to show conditions upon previous occasions with respect to the matter of lighting.
    4. Statutory law—general rule of construction. In the interpretation of a statute the purpose of the statute must be borne in mind. Where the language used .will at all admit of it, it should be given meaning in harmony with the purpose.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    Wise & McNulty, for appellant.
    C. H. Burton, for appellee.
   Mb. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Madison county, by appellee against appellant, to recover for a personal injury sustained by appellee while in the service of appellant, as a miner in one of its coal mines. Trial by jury. Verdict and judgment in favor of appellee for $850.

The declaration is based upon paragraph (b) of section 28 of the Mines and Miners Act. The paragraph is as follows:

“Wherever the hoisting or lowering of men occurs before daylight or after dark, or when the landing at which men take or leave the cage is at all obscured by steam or otherwise, there must always be maintained at such landing, a light sufficient to show the landing and surrounding objects distinctly. Likewise, as long as there are men underground in any mine, the operator shall maintain a good and sufficient light at the bottom of the shaft thereof, so that persons coming to the bottom may clearly discern the cage and objects in the vicinity.”

It is charged in the declaration that on the occasion of appellee’s injury, appellant had wilfully violated this statute; and it is averred that appellee descended to the bottom of the shaft to go to his work; and that by reason of such violation he fell over a block of' wood, at the bottom of the shaft, and broke his leg and injured his thigh.

Appellee was in the service of appellant as a coal miner, and the means provided for going to his place of work in the mine was to descend through the shaft, on a cage, to the bottom. The evidence tends to prove, and the jury was warranted in finding, that when the cage upon which appellee was being let down came to the bottom, the light was not burning, and that it had not been burning that morning, from the time the first cage load of men reached the bottom up to the time appellee was injured, and that when the cage carrying appellee came to the bottom it was so dark there that a person could not discern objects in that vicinity. One witness in describing it says: “The men leaving the cage at the bottom landing had to feel their way off and around with their feet as best they could.” Another said: “I was only a few feet behind Robertson when he fell. He stumbled over the block right ahead of me and fell. After he fell he got up and got a light and saw what he fell over. It was dark where he fell; when he fell he didn’t have a light on his pit lamp, nor I on mine.” The jury was also warranted in finding that the object over which appellee fell was in the vicinity of the bottom of the shaft. The witnesses who estimate the distance, place it from eight to ten feet from the cage. One witness in describing the situation says: “There was a ‘bumping block’ at the bottom and in stepping off the cage, a man not seeing where he was going was liable to run into it any time.” “This block was from a foot to eighteen inches” high. The fact that appellee was injured in the respects stated in his declaration is not in dispute. It also appears from the evidence that the condition as to light at the bottom of the shaft had been bad for some length of time; sometimes the lamp was not burning, and sometimes it was so smoky and dirty that it did not make sufficient light. Complaints had been made by the pit committee to the mine manager on two occasions, not long previous to appellee’s injury.

Counsel for appellant contend that the trial court should have directed a verdict in favor of appellant, because the place where appellee was hurt was “not ‘a landing’ within the meaning of the first part of paragraph 'b;’” and appellee “was not ‘coming to the bottom’ within the meaning of the second part of this paragraph.” And counsel further contend that the facts of the injury do-not bring the case within the statute, because the statute “was designed to prevent employes from falling into the sump or being injured by the cage. ’ ’

We do not understand the statute to mean as counsel contend. We are of opinion that within the scope, purpose and fair meaning of the statute, the bottom of the shaft, where the cage stops to let men off who are being lowered into the mine for the purpose of going to their respective places of work, is “a landing.’’ In section 16, e, the bottom of the shaft, with respect to the operation of the cage, is termed a “landing, ’ ’ and that paragraph requires that the mine manager shall know “that sufficient lights are maintained at the top and bottom landings, when men are being hoisted and lowered.” In section 2, b, the bottom of the shaft is referred to as a “landing place.” We think counsel’s second and third positions, that the statute was intended to protect only persons coming to the bottom from their working places for the purpose of leaving the mine, and not to protect persons coming to the bottom for the purpose of going from there to their working places in the mine, and that the statute was designed only to prevent employes from falling into the sump or being injured by the cage, are too narrow.

In the interpretation of a statute the purpose of the statute must be borne in mind, and where the language used will at all admit of it, it should be given meaning in harmony with the purpose. The constitution of 1870 provides that “it shall be the duty of the general assembly to pass such laws as may be necessary for the protection of operative miners,” and the title and general structure of the Act discloses that the legislature was moved not only by the letter but by the spirit of the constitution as well. Persons coming to the bottom for the purpose of going to their various places of work in the mine are as much imperiled by darkness at that place as persons coming to the bottom for the purpose of leaving the mine, and we think are as much within the purpose and meaning of the Act. And to our minds there is nothing in either the language or purpose of the Act that warrants the conclusion that “the statute was designed only to prevent employes-from falling into the sump or being injured by the cage. ” We think it was designed to protect them from the perils of darkness, while entering and leaving the mine, with respect to all “objects in the vicinity” of that particular place—the bottom of the shaft.

Counsel complains of the action of the trial court in the giving of each and all the instructions given at the instance of appellee, and the refusing of certain instructions asked by appellant. The action of the court, both in the giving and refusing of instructions is in entire harmony with our view of law as above expressed. The remaining questions pertain to the rulings of the trial court with respect to the admission and rejection of evidence.

During the progress of the trial the court permitted appellee to prove that on a number of previous occasions the lamp gave little or no light, sometimes because it was not burning and sometimes because it was so dirty that the light would not shine through; and that complaints had previously been made to the superintendent with respect thereto. Counsel insist this was error, and say: “We were trying the issue of the light on this morning. ’ ’

It is true they were trying the issue as to whether there was proper and sufficient light there on the particular morning of the injury, but they were also trying the issue as to wilfulness. The evidence tended to prove and we think the jury was warranted in finding that the lamp was not making any light there on that particular morning, and it was material to appellee’s right to recover that he prove such facts as would properly raise or strengthen the inference of wilfulness. For this purpose the evidence challenged was properly admitted. In Joseph Taylor Coal Co. v. Dawes, 122 Ill. App. 389 (396-397), we discussed this character of evidence quite fully. In that case, among other things we said: ‘ ‘ Other acts or instances of misconduct or default cannot be admitted in evidence for the purpose of proving the acts, misconduct or default upon which the suit is based. This is a rule of universal application as to proof of the mere acts, but where it is necessary to prove purpose, intent, guilty knowledge or any other state of mind in order to give to the mere act actionable character, then the rule is otherwise. In such cases while other acts cannot be admitted to prove the commission of the act upon which the suit is based, they are admissible for the purpose of proving the state of mind necessary to give to the act upon which the suit is based, actionable character. * * * '"While there is no presumption that one did an unlawful or improper act, charged against him, yet when the doing of the act has been proved, then unless the circumstances of the particular case warrant some inference to the contrary, some presumption arises that the person acted intentionally or consciously; and this presumption is greatly strengthened by proof that such person at other times had done the same act under the same or similar circumstances.” Our holding upon this question was affirmed by the Supreme Court in Taylor Coal Co. v. Dawes, 220 Ill. 145.

In describing the conditions at the bottom of the shaft at the time of the injury, a number of witnesses spoke of the presence of steam. Counsel insist this was error, and say: “There is no averment in the declaration that, at this place there was any steam.” It is true the action is not based upon the presence of steam, and it is not mentioned in the declaration. Its presence or absence was an incident, a circumstance; it was a part of the environment and might properly have been proved as such. The entire environment in such cases is usually proper to be proved. In this case, however, wholly independent of the general rules with respect to the propriety of admitting such evidence, a line of defense adopted by appellant was, that although there might not have been any light maintained at the bottom by appellant as required by the statute, still, if the light from the lamps of such of the miners as had lit their lamps and remained in the vicinity, “was suEcient to show the landing and surrounding-objects distinctly,” then appellee could not recover. This feature of the defense went through the whole case, from the beginning to the end, and appellant obtained an instruction from the court submitting it to the jury. This made the presence of steam, or any other agency, or condition, that might obscure such light as a miner’s lamp or a number of such lamps, in the hands or on the caps of the men standing or walking around there would afford, directly material, without any reference to the declaration.

The judgment of the Circuit Court is afirmed.

Affirmed.


text:
    Emma Stevenson, Appellee, v. Avery Coal and Mining Company, Appellant.
    1. Peactice—when refusal of special interrogatory not error. It is not error for the court to refuse a special interrogatory as follows: "If the jury find their verdict for the plaintiff, they will please state under which count or counts of the declaration they so find.”
    2. Evidence—what competent as tending to show unlawful attempt to influence witness. A letter written to a prospective witness by an attorney for one of the parties, if properly identified and proven, is competent if it contains substantially an offer of a contingent interest in the litigation.

      3. Evidence—competency of pleadings. One may properly introduce his adversary’s pleadings in evidence against him, and the fact that they have been condemned on demurrer, superseded by others, or withdrawn from the issues, does not affect either their competency or their relevancy.
    4. Instruction—when instruction does not authorize consideration of abandoned counts. An instruction which refers to the “plaintiff’s declaration or some count thereof” does not authorize consideration by the jury of counts abandoned.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Perry county; the Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    Percy Werner, for appellant; B. W. Pope and Wise & McNulty, of counsel.
    Webb & Webb and A. R. Dry, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in ease in the Circuit Court of Perry county, by appellee against appellant to recover damages sustained by reason of the death of appellee’s husband, in an explosion alleged to have been caused by wilful violation of the Mines and Miners Act, by appellant, while the deceased was in its service as a shot-firer, in one of its mines. Trial by jury. Verdict and judgment in favor of appellee for $2,000. .

The declaration originally consisted of seven counts,. each charging a wilful violation of certain pro.visions of the Mines and Miners Act. The first charged violation of the provision with respect to furnishing sufficient air currents; the second charged the opening up of rooms in advance of the air current and a failure to maintain cross-cuts; the third charged failure to sprinkle, spray or clean the roadways; the fourth charged failure to sprinkle the hauling roads; the fifth charged failure to give proper instructions to the miners with respect to keeping their powder in metallic boxes, at proper distance from the track, and from each other; the sixth charged that appellant allowed blasting powder to be stored in one of the entries; and the seventh charged that appellant allowed the miners to keep their powder exposed in an entry. At the opening of the trial appellee withdrew the fifth, sixth and seventh counts, and at the close of appellee’s evidence in chief, the court excluded the first count. The trial proceeded to a conclusion on the' second, third and fourth counts.

Counsel in due time and in due form moved the court to direct the jury to return a verdict in favor of appellant. The court denied their motion, and counsel insist this was error. They base this contention upon three propositions: That a shot-firer employed under the Act of 1905, providing for “Shot-Firers in Coal Mines” does not come within the protection of the general mining act; that the deceased had violated “the statute' under which he was acting thereby contributing directly to his own injury,” and that the violation of the statute charged in the declaration was not the proximate cause of the injury and death of deceased. We regard all three of these propositions as conclusively settled, against the contentions of appellant, by the very recent decision of our Supreme Court, in the case of Davis v. Illinois Collieries Company, 232 Ill. 284 (290).

Counsel further insist that the court erred in refusing to exclude the second count of the declaration, and in this same connection it is urged that the court erred in refusing to submit to the jury,, as a special interrogatory, the following: “Interrogatory 1. If the jury find their verdict for the plaintiff, they will please state under which count or counts of the declaration they so find.” Neither of these grounds, in our judgment, is well based.

As we understand counsel’s contention, their motion for an instruction directing the jury to disregard the second count of the declaration is based on section 50, chapter 110, Starr & Curtis’s statutes, 1896, on the ground that the count was “faulty,” as counsel contend, and did not state a canse of action. We hold as above stated, that a shot-firer does not come within the protection of the Mines and Miners Act, and we are of opinion that count states a case under that Act.

And with respect to the alleged special interrogatory, we do not understand the proposition presented to be an interrogatory within the meaning of that term as used in the Practice Act. It is nothing more than a request for an instruction directing the jury, in case they find for the plaintiff, to state in their verdict under which count or counts of the declaration they so find. As we understand the practice in this state, a court may, in its discretion, give such an instruction under some circumstances, but it is never error to refuse to give it.

During the trial appellant produced a witness who identified a letter apparently .written upon a sheet of letter paper of one of appellee’s attorneys. At the top of the sheet was printed the name, business and address of the attorney, and his name was signed to it. The witness testified that he had received the letter in .due course of mail. In the letter was a statement as follows: “I will also say as their attorney, that I will .personally stand good for your expenses and in case we win I will see that you are well paid for your time and trouble.” Appellant offered this letter in evidence, under the rule that any proper evidence tending to prove that a party or his agent had attempted to suborn or corrupt a witness may be given against him. To the introduction of this letter counsel for appellee objected, the court sustained the objection, and excluded the letter. Upon what ground the court sustained the objection does not appear, for the objection was a general one, and the court gave no reason in support of the ruling. The statement in the letter, we think, might well have been understood by the party who received it to be a direct offer of a contingent interest in the result of the suit, as an inducement to him to appear as a witness and testify favorably to appellee. We are of opinion that the letter tends to prove an attempt to corrupt the witness, and if it had been properly identified it should .have been admitted in evidence, subject, of course, to any proper explanation. However, the letter was not properly identified. There was no attempt to prove the handwriting or signature, nor who placed it in the mail, nor any other fact connected with it, except what is above disclosed.

In an introductory statement we have noted, that “at the opening of the trial appellee withdrew the fifth, sixth and seventh counts of her declaration.” Appellant offered these withdrawn counts in evidence, and the court, upon appellee’s objection, excluded them. This we think was error. We understand the law and practice in this state to be, that one may properly introduce his adversary’s pleadings in evidence against him, and the fact that they have been condemned on demurrer, superseded by others, or withdrawn from the issues, does not affect either their competency or their relevancy. They go in under the rule as to admissions and subject to any and all proper explanations, as in other cases of admissions.

Counsel challenge appellee’s 6th instruction. Our opinion as to the objections raised to this instruction fully appears in what we have stated above with respect to the application of the statute to this class of cases, the conduct of deceased, and proximate cause. That is, in substance, that appellant’s propositions are all foreclosed by the decision of the Supreme Court in Davis v. Illinois Collieries Co., above cited.

Counsel contend that appellee’s 9th instruction is erroneous, because it refers to “plaintiff’s declaration or some count thereof, ’ ’ and they say: ‘ ‘ The jury was here authorized to find a verdict under the abandoned counts, and the count, excluded by the court.” This position is not warranted. The “abandoned counts” were withdrawn at the commencement of the trial and did not go to the jury, nor is there anything in the record to indicate that the jury ever knew that such counts had been filed; and as to the count excluded by .the court the jury were instructed as follows: “The court instructs the jury that there is no evidence to support the first count of plaintiff’s amended declaration, and you will therefore disregard it in arriving at your verdict. ’ ’

For the errors above noted the judgment of the Circuit Court is reversed and the cause is remanded.

Reversed and remanded.


text:
    Delia Naughton, Appellee, v. Frank Lochiel et al., Appellants.
    Dram-shop Act—when award of exemplary damages justified. Held, under the evidence in this case, that an award of exemplary damages was justified in an action instituted for loss of support under the provisions of the Dram-shop Act.
    Action in case. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908. .
    Wise & McNulty, for appellant.
    F. C. Smith, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, under the Dram-Shop Act, in the City Court of Bast St. Louis, by appellee against appellants, to recover for injury and loss of support alleged to have resulted to appellee in consequence of the intoxication of her husband, caused by liquors sold and given to him by appellant Lochiel. Trial by jury. Verdict and judgment in favor of appellee for $300.

The declaration charges in substance that intoxicating liquors were sold and given to appellee’s husband by appellant Lochiel; that such liquors caused her husband to become and be intoxicated, and that in consequence of such intoxication she was personally mistreated by her husband and deprived of her means of support; and that appellant Central Brewing Company was the lessee of the building and premises in which the liquor was furnished; and permitted appellant Lochiel to occupy the same with knowledge that intoxicating liquors were to be sold therein by said Lochiel.

The evidence fully proves the declaration in every material respect.

Counsel insist that the suit was for exemplary damages and therefore the court erred in refusing to direct a verdict in favor of appellants. The suit was not for exemplary damages but for actual damage— for being physically driven from her home in her night clothes, and for loss and damage to her means of support for months. The feature of exemplary damage, to the extent that it is involved in this case at all, is a mere incident.

We think, under the evidence, the jury might properly have found as actual damages a sum in excess of what they did find. But if it may be assumed that the verdict does contain something in excess of the actual damages, and that the jury added this excess as exemplary damages, it was entirely proper. It is true in this case that exemplary damages alone could not be recovered; but it is also true that actual damages being proved, exemplary damages may be added if the evidence warrants it, and the evidence does clearly warrant it. Appellee’s husband had been an excessive drinker, had been sent to the sanitarium once on account of his drinking, and appellant Lochiel lmew that. At the time complained of he had been drinking to the extent that he had not been entirely sober for two years, and was frequently very drunk, and appellant Lochiel knew that. Appellee repeatedly asked and notified Lochiel not to sell her husband any more drink, and Lochiel as often disregarded these requests and notices, continued to sell him liquor, and at times when he was already intoxicated. This state of case is clearly within the rule allowing the addition of exemplary damages.

The record discloses this to be a meritorious case; the amount of the verdict and judgment is clearly not excessive; and we find no error in the record that in our judgment either did, or might, have misled the jury to the prejudice of appellants.

The judgment of the City Court of East St. Louis is affirmed.

Affirmed.