text:
    Nick Romeo, Administrator, Appellee, v. The Western Coal & Mining Company, Appellant.
    1. Instructions—when upon applicability of assumed rish rule erroneously refused. Held, that an instruction was property refused which was to the effect that if it was the duty of the deceased and others to clean up falls and take down overhanging rock and slate and make dangerous places safe and that he was so engaged, then the rule of law which requires the master to use reasonable care to furnish the servant a reasonably safe place to work had no application and the servant assumed the risk of the dangers of the employment.
    2. Instructions—must be predicated upon evidence. A modification of an instruction material in character which is not predicated upon any evidence in the cause is erroneous.
    3. Damages—what recoverable in death case where next' of Join are collateral hmdred. “If the next of kin are collateral kindred of the deceased and have not been receiving from him pecuniary assistance and are not in a situation to require it, it is immaterial how near the relationship may be, only nominal damages can be given because there has been no pecuniary injury.”
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Williamson county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    William H. Warder and L. O. Whitwel, for appellant.
    William W. Clemehs and Behjamih W. Pope, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellee brought an action on the case against appellant to recover damages for negligently causing the death of appellee’s intestate, Bruno Gareffa.

The declaration with its several amendments contained three counts. • Each count avers deceased was employed in the coal mine of appellant, in the first count in removing coal dirt, rock, slate and other substances from an entry, in the second that he was employed to clean up falls of rock and other substances from rooms and entries and in the third count that he was employed in cleaning an entry, and removing therefrom certain substances which had fallen from the roof. Each count avers a duty upon appellant to have furnished the deceased a reasonably safe place to work, and for a breach of such duty it is averred that there were above and over the entry in which deceased was at work loose rock, slate and dirt, unsupported and dangerous, of which appellant had notice, and which were unknown to deceased.

Each count except the third further avers a negligent order to deceased by appellant to work in clearing up loose rock, etc., in such dangerous place in the entry, and further avers that while cleaning up the rock, slate and dirt which had fallen in said entry beneath said dangerous roof, in the exercise of care for his own safety a large amount of rock, slate and dirt fell upon the deceased from said roof and he was thereby killed.

Appellant’s contention" here is that the trial court committed error in giving and refusing instructions; in giving expression to improper and prejudicial remarks in presence of the jury, and that the damages recovered were excessive.

It is insisted it was shown by evidence that it was the duty of the deceased in the line of his employment to make dangerous places safe in appellant’s mine and that the court erred in ignoring this feature of the case in the instructions given for appellee, and refusing all instructions asked by appellant based upon such alleged duty.

The testimony showed that appellant had gangs of men whose duty it was, when a fall occurred in an entry, to clean up and remove the rock, slate and debris which had fallen in order that the entry might be made passable, and also to make the roof safe by taking down any loose overhanging material, or to timber up the roof to prevent further falls, or to do both if necessary to make the place safe for the passage of men and animals. The object of removing the debris and caring for the roof was to make the place safe. To accomplish this appellant had both rock men and timber men; the rock men to remove the fallen debris, and the timber men to put up the timber supports if necessary.

The deceased was one of the rock gang and had nothing to do with timbering and putting np supports, and while there seemed to have been a division of labor between the men who cleaned up and those who timbered, and put up the0 supports, the main purpose of both kinds of labor as the evidence tends at least to show, was to make the place where the fall had occurred safe.

The overhanging rock and material left in the roof in case of a fall was examined and tested by sounding and striking it with a pick and if found to be loose or in danger of falling it was taken down, or if it was not feasible to take it down it was supported by timbers. In this ease it was being sounded and examined by Buck who was the pit boss and who had control over the rock gang. At the time Buck was sounding it, it fell upon the deceased, who with others of the rock gang had for some minutes been cleaning up the fallen debris. The witness Dzytes was a timber man who testified that his business was to make safe the dangerous places, that on this occasion Buck directed the witness to go to the place and clean up the slate and to timber up afterwards and that he worked with the other men cleaning up, and was so working when the rock fell. There was evidence that when rock men went to a fall it was usual, customary and practical for them to sound the roof to see whether it was safe before cleaning up, or in danger of further falls, and if in danger of falling to take it down.

This evidence we are of opinion, shows that when a fall occurred in an entry it left a dangerous place which it became necessary to make safe, and to accomplish this it-was necessary to remove the fallen rock, slate and dirt- out of the passageway, take down the loose rock and slate overhead if possible, and then if necessary to support the roof by timbering, and it tends at least to show that all persons so engaged together, even if in different divisions of labor as rock men and timber men were engaged in the work of making the place safe. The evidence shows that some of .the rock men endeavored with sounding and picks to take down the loose rock.

As the evidence tended to show that deceased was so engaged in assisting to make the place safe at the time he was killed appellant had the right to have the court instruct the jury as to the question of its liability in such case.

The fifth refused instruction asked by appellant advised the jury in substance that if it was the duty of the deceased and others to clean up falls and take down overhanging rock and slate, and make dangerous places safe, and that he was so engaged, then the rule of law which requires the master to use reasonable care to furnish the servant a reasonably safe place to work had no application, and the servant assumed the risk of the dangers of the employment. To the same effect was the sixth instruction asked by appellant and refused.

These instructions were as we have said based upon the evidence; they stated a correct rule of law and it was error to refuse them. Fessenden v. Doan, 188 Ill. 228.

“When a piece of property is out of repair the men who are employed in making it safe take upon themselves whatever of added risk comes from the existing conditions of the place or work.” Bailey’s Personal Injuries relating to master and servant, Sec. 3022. “The rule which requires the master to use reasonable diligence to furnish a reasonably safe place for his employees to work has no application to those whose duty it is to make dangerous places safe.” Kelleyville Coal Co. v. Bruzas, 223 Ill. 595.

Instruction number one as asked by appellant instructed the jury that the burden was upon appellee to prove that appellant had knowledge of the dangerous condition, or by the exercise of reasonable care could have had; that the deceased did not know of the dangerous condition and did not have equal means of knowing with appellant. The instruction was modified by the court by adding “or was acting under a negligent order as explained in other of these instructions.”

We are of opinion there was no evidence of a negligent order upon which to base the modification. There was no order of any sort given to the deceased. The only evidence of any direction by Buck the boss was to the timber man TTzytes to whom he said: “They are going to clean up and you can go and timber up,” and further “Go ahead and clean up.”

There was evidence that the deceased stood by and watched his companions make an effort to pull down the overhanging rock and slate before it fell upon him; that there was a large fissure or crack in it, and that it was apparent it was in imminent danger of falling. This evidence tended to show he had full knowledge of the dangers, and with such knowledge the risk of remaining under it would be assumed unless excused by a negligent order. In the absence of evidence of any order to deceased there was nothing upon which to base the modification and it was erroneous. As a discussion of other instructions of which complaint is made would involve principles already considered it is not necessary to consider them.

It is not necessary to comment upon the remarks of the trial judge to which exception was taken, in view of the conclusions reached by the court in this opinion.

The court on behalf of appellee gave the following instruction on the measure of damages:

“You are instructed that the next of kin of Bruno Gareffa as shown by the undisputed evidence are his mother, sister and four brothers and on the question of damages if you should find for the plaintiff the law is that the relatives might reasonably expect to derive pecuniary benefit from the continuation of the life of the deceased and in arriving at the amount of damages you may take into consideration such reasonable expectation of benefits from the continuation of the life of the said Bruno Gareffa as far as the same appears from the evidence in the case.”

Except the mother, the relatives left by deceased were collateral kindred. He was twenty-seven years old and there is no evidence that the collaterals were dependent upon him or received any thing from him. The only evidence is that he sent his mother $25 or $30 each month. The statute makes the pecuniary loss of the widow and next of kin the sole measure of damages.

“If the next of kin are collateral kindred of the deceased and have not been receiving from him pecuniary assistance and are not in a situation to require it, it is immaterial how near the relationship may be, only nominal damages can be given because there has been no pecuniary injury.” C. & A. R. R. v. Shannon, 43 Ill. 338; North Chicago Street R. R. Co. v. Brodie, 156 id. 317; C. P. & St. L. R. R. Co. v. Woolridge, 174 id. 330; Rhoads v. C. & A. R. R. Co., 227 id. 328.

“It is only where the relation of next of kin are parent and child or husband or wife that the law presumes damages from proof of death caused by negligence.” C. & N. W. R. R. Co. v. Swett, Admr., 45 Ill. 197; Holton v. Daly, Admx., 106 id. 131; C., B. & Q. R. R. v. Gunderson, 174 id. 495.

It was not a presumption in this case that the collateral relations “might reasonably expect to derive pecuniary benefit from the continuation of the life of the deceased.”

The instruction upon the measure of damages was erroneous.

The judgment of the Circuit Court will be reversed and the Cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Shirley

license: Public Domain

text:
    George Hippard, Plaintiff in Error, v. J. Phillip Stiehl, Defendant in Error.

      Verdicts—when set aside as against the evidence. A verdict will be set aside on review as against the weight of the evidence where clearly and mainfestly so.
    Assumpsit. Error to the County Court of St. Clair county; the Hon. John B. Hat, Judge, presiding.. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    Winkelmann & Ogle, for plaintiff in error.

      R. W. Ropiequet and H. R. Hbimbebger, for defendant in error.
   Mr. Justice Shirley

delivered the opinion of the court.

Plaintiff in error Hippard brought his action to recover from defendant in error Stiehl the sum of $245.67 alleged to be due upon a store account for merchandise sold and delivered, and also the sum of $38.63 for coal sold and delivered.

Defendant in error claimed the account had been included in a settlement between the parties and was discharged.

We have examined the evidence and conclude it was sufficient to prove the sale and delivery of the goods and we agree with counsel for defendant in error Stiehl, that the vital question in the case was whether the account was included in a settlement as claimed. The jury in effect found it was, as they returned a verdict against Hippard upon which the court rendered a judgment, and the errors assigned are that the court denied Hippard’s motion for a new trial and rendered the judgment on the verdict.

During the time the merchandise was being purchased from Hippard the parties had a farm in partnership about which there was an unadjusted account between them. On April 28, 1909, they met at the office of Winkelmann and Ogle to settle. Each had a claim against the other arising out of their common ownership of the farm. After they had gone over these claims, Stiehl testified Ilippard said he had a store account against Stiehl for $245.67 and a coal bill for $38.63 and that Stiehl said if they made a settlement all should be included and Hippard said all right and they left the office; that the next day they met there again and that he, Stiehl, proposed that Hippard either take the farm land and pay off a mortgage on it or take some timber land they owned in common and pay off a mortgage on that and that it should be a full settlement between them and that thereupon Hr. Winkelmann drew a written agreement which was signed by the parties. The written agreement provided for quit claim deeds between them and the assumption of the mortgages as proposed the day before by Stiehl, but was silent as to the store account and store bill.

Hippard testified that on the first day when they were talking over the land settlement and had concluded the talk, he asked Stiehl what he was going to do about the store account and coal bill. Stiehl replied “he was not to be hanswaggled that way. Let the court settle it;” that they did not settle that day and on the next day met again and settled the differences about the land and the written agreement was made by Mr. Winkelmann as above stated. Hippard further testified, not a word was said about the store account and coal bill, that it was not mentioned, and was not included in the settlement.

Mr. Winkelmann who drew the agreement testified that the settlement included nothing except the land differences and that the account in controversy was not mentioned at the time, and had nothing to do with their partnership affairs. This testimony is corroborated by Mr. Ogle who was present in the office.

Upon a consideration of all this evidence including the written agreement of settlement it is manifest the verdict was against the decided weight of the evidence, and that plaintiff in error should, have recovered the amount of his store account and coal bill. The evidence, showed it was justly due him and had not been paid or discharged.

The court erred in not setting aside the verdict and granting a new trial and the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Jennie Maude Bailey, Appellee, v. Everett D. Bailey, Appellant.
    1. Coutbacts—what essential to sustain articles of separation. Articles of separation making a provision for the wife will be upheld by a court of equity only if it appears that the agreement was fairly and voluntarily entered into, and was free from any sort of fraud, coercion or duress; and, further, if the provision for the wife was fair and equitable in view of the property of the husband, the needs of the wife and their station in life.
    2. Divorce—what does not deprive court of equity of jurisdiction of children in cases of divorce. No agreement between the parties can deprive a court of equity of its power over the custody of children.
    Divorce. Appeal from the Circuit Court of Effingham county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Wright Bros. & Denton, for appellant.
    B. C. Harrah and S. F. Gilmore, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellee brought her bill for divorce charging appellant with extreme and repeated cruelty. In addition to her prayer for divorce she prayed for the custody of the children, and for alimony, and also for the annulment of an alleged prior agreement whereby she had released to appellant in consideration of one dollar all rights growing out of the marriage relation, including support, and also the custody of two of their three children.

Appellant answered, denying the acts of cruelty and filed his cross bill charging appellee had committed adultery and prayed for a divorce and custody of the children. Appellee having answered the cross bill and a jury being waived the cause was heard by the chancellor who found the equities in favor of appellee on the original bill and against appellant on his cross bill. A decree was accordingly entered dismissing the cross bill and granting appellee a decree for divorce and alimony and awarding to her the custody of the children, setting aside the alleged prior agreement, and ordering appellant to pay alimony at the rate of eight dollars per month, from which decree appellant brings the cause here by appeal.

The action of the court in granting appellee a decree and in dismissing the cross bill is assigned for error on the ground the evidence is insufficient to sustain the decree, and that the decree is contrary to the law and the evidence.

After an examination of the evidence contained in the transcript, we find it sufficient to sustain the finding of the chancellor that appellant was guilty of cruelty.

Appellee testified to numerous acts of physical violence. She says he began by slapping her when she did not act to suit him; that he whipped her with a switch leaving marks upon her person; that he struck her with his fist a violent blow which blackened her eye and she left him for several days, returning upon his promise he would not abuse her; that after her return he again mistreated and slapped her, and in January, 1909, upon his refusal to allow her to go to church with him, she started to a neighbor’s with the children and while on the way he overtook her and kicked her twice, and as she turned he kicked her in the side. She testifies that the result of this was a miscarriage shortly afterwards. Appellant admits that on this occasion he kicked her, and she is in some degree corroborated by other witnesses, as to some of the other acts of cruelty, who saw marks of violence upon her person.

To prove the issue made by the cross-bill appellant introduced a witness Oharles Babbs, also his wife Nellie. Both testified they were living at the home of appellant for a short time in December, 1908; that they occupied a room adjoin-, ing appellee; that between the two rooms there was an opening but no door; that Babbs arose early in the morning to go to the kitchen to build a fire; -that when he reached the opening he saw appellee in bed and in the same bed one Harry Robinson; that. Babbs told his wife Nellie, who then went to the opening and looked upon the same scene. Appellant testified that in February afterwards while Robinson was at his home appellant, after supper, pretended he was going to a lodge meeting and asked Robinson to go but he declined. Appellant testified he went out, but instead of going to the lodge went to the barn, remained there and in the yard until appellee went to bed; that he then went to the north side of the house; that Robinson went to appellee’s bed where he heard them talking and whispering, and heard the bed; that Robinson after a few minutes returned to his bed, and that appellee went back to the bam, threw down some hay, then went into the house and went to bed. Appellee denies these statements of the Babbs and the appellant.

The Babbs were relatives of appellant. They left there and went to Sangamon county without mentioning it to any one even to appellant. That appellee would engage in an act of adultery as she lay with her three children, and in a room next to the one occupied by the Babbs with an opening between, affects in some degree the probability of the testimony.

The probability of the statement of appellant is also affected by the fact as appears from the evidence, that after he claims to have heard Robinson and his wife together, he slept in the same bed with Robinson the same night. It further .appears he said nothing about it until ten days after-wards, and when Robinson was at the place soon after, appellee spoke of the accusation in the presence of appellant. What was there said by Robinson is a matter of dispute. Appellant testifies Robinson said he would have nothing to say in their troubles while appellee states that Robinson denied it. A number of witnesses testified to the good reputation of appellee for chastity, and as the trial judge saw the witnesses and heard them testify, we are of opinion he committed no error in finding the equities' with appellee upon the issues made by both the original and cross bills.

At the time of the separation of the parties on February 21, 1909, they entered into an alleged written agreement reciting they intended to live separately, and for the purpose of settling their property rights and the custody of the children, they agreed that in consideration of one dollar, and one-half of all the household goods and one cow, appellee discharged and released appellant from all rights and demands growing out of the marriage relation including the right cf support, and released him from all demands of whatever nature. It was further agreed appellee should have the custody of one of the children which she should support and educate at her own expense, and that appellant should have the custody and care of athe other two children. And each agreed to join in the execution of any deed or mortgage to any property then owned, or to be acquired by either of the parties.

Articles of separation making a provision for the wife would be upheld by a court of equity if it appeared the agreement was fairly and voluntarily entered into, and was free from any sort of coercion, duress or fraud, and it should further appear that the provision for the wife was fair and equitable in view of the property of the husband, the needs of the wife, and their station in life. In cases of divorce no agreement between the parties can deprive a court of equity of its power over the custody of children. By section 18, of chapter 40 of the Revised Statutes it is provided “the court may make such order touching the care, custody and support of the children or any of them as from the circumstances of the parties shall seem reasonable and just” and in making such order “the controlling consideration is the welfare of the child and not the gratification of either parent.” Umlauf v. Umlauf, 128 Ill. 379.

In the disposition of the children the court acted within its power and nothing appears here that such disposition was not a proper one.

We are of opinion that the court was warranted in annulling the agreement so far as the provision of the wife was concerned. Waiving the testimony of the wife that it was pro'cured by threats, the evidence shows she was ignorant of her rights and considering the amount of property owned by him, the provision for her was inadequate and unfair.

The decree of the Circuit Court was right and is affirmed.

Affirmed.


text:
    P. A. Stout, Appellee, v. Strait Coal Company, Appellant.

      •Negligence—what essential to establish liability. A defendant charged with negligence is only liable for those consequences which might have been reasonably foreseen and expected as a result of the act complained of.
    Action in case for personal injuries. Appeal from the Circuit Court of Perry county; the Hon. Lotos Berureuter, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed with finding of facts.
    Opinion filed August 5, 1910.
    Statement by the Court. This was an action to recover damages for an injury sustained by appellee caused by an alleged wilful failure on the part of appellant to comply with one of the provisions of the act in relation to mines and miners. There was a judgment in favor of appellee for the sum of $400.
    The declaration charged appellant with operating a coal mine at which it had an engine, drum, cables and other appliances, used for the purpose of hoisting coal, which were insufficient for the purpose; that frequently when a car of coal was being hoisted to the top it would stop short of the point where it was to be dumped and thereby the engineer was unable to know at what point such car was stopped, and sometimes had to further hoist the car, before it could be dumped, and thereby such car was likely to be moved when the top men were undertaking to dump it and injury result ; that this was an unsafe and dangerous condition which appellant could have known by - complying with the statute in relation to the examination of mines; that the mine examiner wilfully failed to examine said appliances and to post danger signals thereat and report his findings in a book kept for that purpose by means whereof while appellant was hoisting a car of coal by means of said cage, engine and appliances said cage stopped at the point where it was to be dumped, and the engineer by reason of the insufficient appliances not knowing where the c jge had stopped, proceeded to further hoist the cage and while doing so it tipped forward upon appellee who was in the employ of appellant as a dumper and injured him.
    There was no conflict in the evidence. At the time of the accident appellee had been employed at a mine about the top as a dumper and trimmer several months. In such capacity he assisted in running the loaded boxes off the cage which were hoisted from the bottom of the shaft. The boxes were three and one-half feet square and about two feet deep and when loaded held about 1150 pounds of coal. The boxes were hoisted by means of an engine operated by an engineer in an engine house about fifty feet from where the boxes were run off the cage. The boxes were pulled off the cage by a hook which the dumper would insert in the draw bar of the box. The loaded box rested on a track on the cage of the same size as the track upon the platform, and when the cage reached the top the engineer would raise it far enough, so that certain appliances called knees attached to timbers extending across the sides of the shaft, would adjust themselves beneath the cage so the cage would rest upon them. When the cage rested upon the knees it was the purpose that it should then be in proper position for the box to be pulled off the cage by the dumpers. Sometimes by reason of some defective condition the cage would, when landed, be an inch or two too low for the box to be run off the tracks on the cage to the tracks on the platform. When this happened the men dumping would call to the engineer to “hoist a little” and he would hoist to the proper level. This condition of having to hoist to a proper level occurred frequently, but at other times the cage would land right, and there was no difficulty in running the box of loaded coal off onto the tracks on the platform. Unless the cage did land right the box could not be pulled off on to the platform tracks.
    At the time of appellee’s injury he was assisting Eeuben Oressy in pulling the boxes off the cage. A loaded box of coal had been hoisted to the top and the cage had landed upon the knees. Appellee and Oressy were pulling off the box and had it partly off when a driver below (the shaft being about 85 feet deep) hallooed up to the men on top, and the engineer hearing it and mistaking it for a call from the top to lift the cage a little, he applied the steam and lifted the cage while the men were pulling the box off. The result of lifting the cage at that particular time was that the box of loaded coal was turned over on the platform upon the leg and ankle of appellee and he suffered a sprained ankle.
    W. O. Edwards, for appellant.
    Webb & Webb and A. E. Dry, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

The breach of duty averred in the declaration is that the mine examiner' wilfully failed to examine the defective appliance complained of, post danger signals thereat and report his finding in a book kept Tor that purpose. Before the appellee could recover under this declaration he should prove the wilful failure averred was the proximate cause of the injury.

It is undisputed the injury to appellee was not occasioned by any defect in the cage. The defective working of the cage which sometimes occurred and which required the engineer to “hoist a little” upon signal, was not present at the time. There is not only no evidence of such defective condition at that time but all the evidence shows the cage was at the proper place, and the car or . box was being pulled off on to the platform and was partly off when the engineer by a mistaken supposition that he had been signalled to raise it started the engine which resulted in overturning the box. The mistake of the engineer was the direct cause, and can it be said the act of the engineer was a consequence which followed in unbroken sequence, the failure of the mine examiner to put danger signals at the place, and report his finding.

The rule announced by elementary writers and by repeated decisions is that “Every defendant shall be held liable for all those consequences which might, have been foreseen and expected as the result of his conduct but not for those which he could not have foreseen - and was therefore under no moral obligation to take into consideration.” Parsons on Cont. Vol. 2, page 456, 1st Ed.; Fent et al. v. R. W. Co., 59 Ill. 349; Shugart v. Egan, 83 id. 56; Schmidt v. Mitchell, 84 id. 195; Braun v. Craven, 175 id. 401; Landgraf v. Kuh, 188 id. 484. “This is not to be understood as requiring that the particular result might have been foreseen for if the consequences follow in unbroken sequence from the wrong to the injury without an intervening efficient cause it is sufficient if'at the time of the negligence the wrongdoer might by the exercise of reasonable care have foreseen that some injury might result from his negligence.” “If therefore the wrong of appellant put in motion the destructive agency and the result is directly attributable thereto and there was no intervention of a new force or power sufficient to stand as the cause of the mischief the negligence of appellant must he considered the proximate cause of the injury if it could be foreseen by the exercise of ordinary care that injury might or would result from the negligence.” Pullman Palace Car Co. v. Laack, 143 Ill. 242. There is no rule in the application of which more difficulty lies in determining when the cause of an injury is to be considered as proximate or remote.

Without recurring to a discussion of the evidence which would be but a mere repetition we are of opinion the evidence in this case clearly shows the act of the engineer and the resulting injury were not a consequence which might have been foreseen and expected as a result of the wilful failure of the mine examiner as charged in the declaration, and that the act of the engineer in hoisting the- cage was the intervention of a new force sufficient to stand as the cause of the accident, and we reach this conclusion after a careful consideration of the evidence which tends to show that the occasional defective condition of the cage occasioned signals to the engineer to “hoist it a little” and that such signals to hoist might have been obviated, if the cage had been in such perfect condition no signals to hoist would have been required.

We find the wilful failure of appellant to comply with the mining act as charged in the declaration • was not the proximate cause of appellee’s injury and the judgment is reversed with such finding of facts.

Reversed with finding of fact.


text:
    Bertha Garland, Plaintiff in Error, v. P. C. Abell, Defendant in Error.
    Justice of the peace—when justified in not appearing to preside at trial. Sold, under the evidence, that the justice of the peace in question in this case was justified in failing to appear to preside at a trial and that he was not liable in a civil action for failure so to appear.
    Action in case. Error to the Circuit Court of Fayette county; the Hon. A. M. Rose, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.
    F. M. Guinn and Albert & Matheny, for plaintiff in error.
    Arthur Roe and Brown & Burnside, for defendant in error.
   Mr. Justice Shirley

delivered the opinion of the court.

This is a writ of error prosecuted by Bertha Garland to reverse a judgment against her for costs.

In her action against defendant in error she filed a declaration in which she charged that defendant in error was a justice of the peace in and for Fayette county; that she was an unmarried woman pregnant with child which when born would be deemed a bastard and that one Fred Williams was the father; that the child was bom and still living; that she went before defendant in error and made sworn complaint charging said Williams of being the father; that defendant in error issued a warrant for the arrest of Williams; that on August 1, 1907, Williams was arrested and taken before defendant in error, who required him to enter into bond conditioned for his appearance before him on August 8th at one o’clock P. M.; that Williams entered into such bond; that it was the duty of defendant in error to be at his office at one o’clock P. M. on August 8th; that Williams appeared at that hour and defendant not being unable on account of sickness or other cause to be present, negligently without legal cause absented himself and did not appear; that Williams remained an hour and then departed, and absconded leaving the state and so remained away.

It is further alleged plaintiff in error was thereby hindered and prevented from prosecuting Williams and had the sole responsibility of caring for the child without any help from Williams, whereby she was damaged, etc.

Defendant in error pleaded the general issue and special pleas that he was unable to be present on account of sickness and other cause, and that he had in writing requested another justice to attend and hear the cause.

A trial by jury being waived the cause was tried by the court and resulted in a finding of not guilty, and judgment was entered upon the finding.

There was, on the trial, no dispute as to the material averments of the declaration except the averment charging the defendant in error with negligently absenting himself without legal excuse from the place where the complaint was to be heard on August 8th, at which time and place Williams had been recognized to appear. The defendant in error was not there, and the question to be determined was whether there was legal excuse for his absence, and about this there is no material controversy about the facts.

Section 56, Chapter 79 Revised Statutes provides: “When a justice of the peace before whom an action is pending is unable on account of sickness or other cause to attend at the time and place fixed for trial, any other justice of the peace in the town or precinct may at his request made in writing attend at the time and place fixed for trial and hear the cause and make any necessary orders instead and in behalf of the justice calling him; and the judgment so entered shall have the same force and effect as if rendered by the justice before whom the action is pending.”

It appears that .after Williams was required to give bond for his appearance on August 8th, defendant in error, had a son very ill, suffering from rheumatism and other serious ailments. The attending physician, Dr. Shelton, and another physician decided the son would die unless taken to Hot Springs and on August 5th told the father with whom the son was then living he would have to take him to the springs, and the quicker he got him there the better, and advised the father to go with him, as he understood his condition better than any one else and had been waiting on him.

Defendant in error in view of the physicians’ advice arranged to take the son as soon as possible and left with him on the morning of the' 6th of August. Before leaving, he testified, he sat up until midnight examining the law to find out his duty so he might comply with the law. The result was he wrote a letter to a neighboring justice, W. B Hicks, of the same town asking him to attend at the time and place and hear the cause. Hicks was ill and unable to respond but this fact was unknown to defendant in error when he wrote the letter, or at any time before he left for Hot Springs.

This state of facts was sufficient cause under the provision of the statute quoted, to justify defendant in error in calling upon the other justice and in not being present himself. When he called upon him he did it in the manner provided by statute, and there was ample cause for his inability to attend.

With this view of the evidence that defendant in error was not in fault, we are not called upon to determine whether the action of the defendant in error was ministerial or judicial, or whether the justice has the exclusive right to determine himself when he is too ill, or has other cause sufficient to excuse his attendance at the time of the trial, and there was no error in the trial court refusing to hold a proposition that the act of calling another justice was ministerial and not judicial. In this case whether calling another justice was a ministerial or judicial act was not controlling. It might be either and yet the defendant in error might have had good cause to absent himself as we hold he did and not be liable.

We find no error in the record and the judgment will be affirmed.

Affirmed.


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    Ralph Gordon, Appellee, v. P. H. Murphy, Appellant.
    1. Master and servant—when doctrine of assumed risk applies. If a servant in operating machines knows the risks incident thereto and the dangers arising therefrom, the doctrine of assumed risk applies and he cannot recover for an injury occurring to him while operating such machine, and the fact that he received no instruction from the master does not alter the case if such instructions would have added nothing to the existing knowledge of the servant.
    2. Master and servant—when doctrine of assumed risk does not apply. There is an exception to the doctrine of assumed risk when a servant is ordered by the master to do certain work attended with danger of which he is not fully cognizant and he relies upon the order as an assurance that he may safely perform the task. It is only when the servant has been misled by the order that the exception exists.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court" at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    Wise,. Keefe & Wheeler, for appellant.
    T. 0. Smith, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment of $2,000 recovered by appellee against appellant.

The amended declaration contained five counts. The court on its own motion took the first two counts out of the case by an instruction to the jury to disregard them and the cause was submitted on the third, fourth and fifth counts.

Appellee’s injuries were caused by getting his hand caught between the upper and lower dies of a machine he was operating, by means of which he suffered the loss of his thumb and two fingers of the right hand.

It was charged in the third count of the declaration that appellee was employed by appellant as a laborer; that it was the duty of appellant to furnish reasonably safe appliances, and a reasonably safe place to work; that it negligently had a machine which was dangerous and difficult to operate, and which required an experienced person to manage it. The breach of duty alleged is that appellant took appellee away from his work well knowing he had no knowledge of, or experience with the machine and without instructing him ordered him to use it, and to use his hand in its operation, which was a dangerous and unsafe method unknown to appellee, and well known to be unsafe by appellant.

The fourth count is substantially the same, except the breach of duty alleged aside from a failure to give appellee instructions, was a negligent order to run the machine faster, and that in attempting to do so he was injured.

The fifth count avers a failure to give appellee instructions in operating the machine by means whereof and while attempting to perform the service he was injured.

Appellant was engaged in the business of making roofs for cars, and in its manufacturing plant it had different machines designed to make the different parts or pieces of the roofs." Among the several pieces so made was one called a cap piece or corner cap. It was made of galvanized iron which had been cut by another machine to the size of six inches square; they were then pressed into the desired shape by the machine complained of in thé declaration. This machine had been recently placed in the plant, and while it operated in such way that if not used with care it was dangerous, yet it was very simple in its operation and- all its parts were in plain view. It had two dies, between which the corner pieces were pressed, the lower die was stationary, the upper one was moved up and down, the down stroke pressing the piece into shape, and was operated and controlled by a pedal. When the upper die was raised it was caught by a clutch and held until released by placing the foot upon the pedal. The manner of operating it was also simple. The operator standing before the machine would have a pile of the unpressed pieces at his right hand. With his hand he would place a piece upon the lower die, press the pedal with his foot and the upper die would descend, press the piece and then raise. The piece would then be taken out and the operation repeated. The upper die was operated entirely with the foot and the only danger was in pressing the pedal when the hand was between the dies. The operator would have to watch the operation of the pedal with care so as not to press it at the wrong time. This did not require any particular knowledge, but simply a knowledge of how to operate the pedal when the hand was not between the dies. This appellee in operating the machine well knew. He had operated it in the usual way for three days and had pressed some 4000 pieces. He was fully cognizant of the dangers of operating the machine, and the only instruction his employer could have given him was not to press the pedal when his hand was exposed, but as the result of pressing it was as well known to him as he admits,'as to his employer, any instruction given him would have added nothing to his knowledge of the dangers, and if so, the failure to instruct was not, and could not be, the proximate cause of the injury. Jones v. Roberts, 57 Ill. App. 56; Ward v. Daniels, 114 Ill. App. 374. When the danger is obvious and is fully known to the servant he assumes the risk as one of the ordinary incidents of the service. Ward v. Daniels, supra.

It is alleged in the third count that the master ordered appellee to use his hand to place the caps between the dies,— and he testified that on the second day he was using a stick to get the pieces out of the die, after they were pressed, and he was told by the foreman to throw away the stick as he could not get the pieces out with the stick fast enough, and he further says he could not get them out as fast with the stick as with the hand. In the fourth count it is. averred the foreman negligently ordered him to run faster, and that in obedience to the command he had his hand caught.

The evidence does not relieve appellee from the assumption of risk in obeying the alleged negligent order of the foreman to use his hand instead of the stick, with the knowledge he had of the dangers already adverted to.

• There is an exception to the doctrine of assumed risk when a servant is ordered by the master to do certain work attended with, danger of which he is not fully cognizant, and he relies upon the order as an assurance that he may safely perform the task. It is only when the servant has been misled by the order that the exception exists. Republic Iron Co. v. Lee, 227 Ill. 246.

The same reasoning applies to the alleged negligent order to get the work out faster; besides it is clear from the testimony of appellee that such order had no connection with the injury. The accident happened twenty or thirty minutes after the alleged order and so far as the testimony shows the injury was not attributable to the order.

There is some evidence tending to show the upper die would descend at times without pressing the pedal but there is no count in the declaration which such evidence supports. A defective condition of the machine was averred in the first count which the court sua, sponte instructed the jury to disregard.

It is true there are no cross errors assigned and while there is no sufficient evidence to support the counts of the declaration upon which the cause was tried, we are of opinion it should be reversed and remanded and it is done accordingly.

Reversed and remanded.


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    The People of the State of Illinois, Defendant in Error, v. William E. Pryer, Plaintiff in Error.
    Appeals and errors—effect of failure to assign errors upon record. Notwithstanding the abstract may contain what purports to be an assignment of errors, if no errors are in fact assigned upon the record, the writ of error or appeal will he dismissed.
    Error to the County Court of Eayette county; the Hon. 'John H. Webb, Judge, presiding. Heard in this court at the March term, 1910.
    Dismissed.
    Opinion filed August 5, 1910.

      John A. Bingham and E. B. Spurgeon, for plaintiff in error.
    Will P. Welker, for defendant in error.
   Mr. Justice Shirley

delivered the opinion of the court.

The abstract of the record contains what purports to be an assignment of errors but no errors are assigned on the record.

By rule 15 of this court the plaintiff in error shall in all cases assign errors at the time of filing his record and on failing to do so the case may be dismissed.

“An assignment of errors in this court performs the same office as a declaration in a court of original jurisdiction. The omission cannot be cured by attaching an assignment of errors to the abstract of the record.” Wilcox v. Moore, 44 Ill. App. 293, and cases cited.

By reason of the omission the writ of error will be dismissed.

Writ dismissed.


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    Henry B. Kennedy, Appellant, v. Margaret Borah et al., Appellees.
    1. Evidence—what part of res gestee. Reid, in this case, that certain evidence of acts and declarations tending to show a contemplated marriage was competent as part of the res gesta;.

      2. Specific pebfobmance—what essential to enforcement of ante-nuptial contract. A proceeding for specific performance to enforce an ante-nuptial contract being an equitable remedy, the granting of the relief rests in sound judicial discretion, exercised upon a consideration of all the circumstances in the case, and to enforce performance of such a contract it must be fair and just, and not affected by any inequitable feature, and it must have a consideration to support it.
    Bill in equity. Appeal from the Circuit Court of Wayne county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.

      Richard L. Boggs and Thompson & Templeman, for appellant.
    Qreighton & Thomas, for appellee, Margaret Borah.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a proceeding in equity in the Circuit Court of Wayne county instituted by appellant against appellees, wherein a decree was entered dismissing the bill.

Appellant was the surviving husband of Rebecca C. Kennedy, who died intestate December 1, 1905, at Fairfield leaving surviving her the appellee, Margaret Borah, a daughter by adoption, and the appellant, her only heirs at law, and leaving a personal estate of the value of $31,409.87.

Appellant by his bill and amendments thereto averred his marriage to the deceased Rebecca; and that prior thereto at Fairfield in July and August, 1905, he had several interviews with her about becoming married but that appellant did not consent to become married, and no agreement to marry was made; that he left Fairfield and went to Madisonville, Kentucky, to which place she wrote him a letter dated August 28, 1905, and relying upon the promises contained in the letter and in consideration thereof, he accepted the proposition of marriage, and the promise contained in the letter, and entered into an agreement with deceased to marry her and that under such agreement, and in reliance upon such promise, he did marry the deceased on the 25th day of October, 1905.

The letter of August 28, 1905, alleged to contain the proposition of marriage and the promise was as follows:

“Fairfield, Ill. Aug. 28 1905

Dear Friend

I will now answer your letter i received this morning i am not feeling very well dident sleep good last night was thinking about you these people hear ar doing lots of talking but i tell them it is my business as i am going to do as i please and if i want you to have my property they havent got any right to say what i shall do i have just bin down to see Mr Binard and toled him i was going to git married he said if it was a business matter he could advise me but about marrying a stranger i ought to be careful i told him i wanted you to have all my property and Mr. Kennedy if you and me are married this fall i agree to leave you all my personal property when i die i told Mr. Binard that if i wanted you to have all my property that it was nobodies business and i had a right to do what i wanted for it was mine I am still taking my meals at the Fairfield house and she is your friend Lottie told me if i wanted to marry you and give you my property it was nobodies business Fred Smith brought me your letter from the post office my niece laughed at me about answering your letter so quick when will you get through so you can come over to see me if you will write me when youl be in shawneetown Beulah and me will meet you down their what day will you be in shawneetown Joe Hanly thacs my boy that i toled you about he dont like it because i talk to you but i toled joe it was my business and i was going to do as i pleased hurry up and get Mr. Crawford or your company to let you have a week lay off tell him that i am anxus to see you and i believe he do it write me often let me hear from you as i am anxus to get your kind letters.

your sincere friend

Mrs B 0 Barrickman”

The bill further avers that by virtue of the contract alleged to be contained in the foregoing letter and its acceptance by appellant and his marriage, the personal property of deceased descended to appellee, Adam Binard, who was appointed administrator of the estate of deceased, in trust for appellant; that by a partial distribution of the estate $14,000 of the personal estate had been distributed to appellee, Margaret Borah, without notice to appellant, by the order of the Probate Court, and that she took and holds the same subject to the right of complainant and in trust for him; that appellant was by virtue of the contract aforesaid entitled to all the personal estate, and the bill prays that said order of distribution be declared null and void, and that it be decreed that said Borah holds the personal property distributed to her in trust for appellant, and that appellees Binard and Borah be ordered and decreed to turn over to appellant all the personal property of said estate.

The answer of appellee Borah is a general denial of the alleged agreement set forth in the hill and the letter of deceased, or that appellant relied upon such letter, or any pretended promise therein contained when he entered the marriage relation. The answer further avers that the sole considerations for the contract to marry were the mutual promises of the parties to marry each other, which mutual promises were made, and such contract to marry was entered into long prior to the date of said letter.

The answer of appellee Binard admits the distribution of the personal property by order of the Probate Court, in which it was ordered that two-thirds thereof he paid to Margaret Borah and one-third to appellant, and that in obedience to such order he did distribute to Margaret Borah $14,054.80 and to appellant the sum of $7,000 and that there is still remaining for distribution the sum of $12,530.47; that at the time the order for distribution was made he acted in good faith, and was ignorant of any claim of appellant other than such as the statute gave him as the surviving husband.

The answers of both also set up matters of defense interposed and alleged to be by way of estoppel.

The. main question presented by the record arises upon the third assignment of error, in which it is urged the court erred in finding the equities with appellee Margaret Borah.

Appellant’s claim to all the personal estate of the deceased wife is based alone upon the letter, of August 28, 1905, which he insists is an offer to give him all her personal estate at her death, in consideration that he will marry her in the fall, and that in consideration of such offer, and upon no other consideration he married her, and having so married her he has performed on his part and is entitled to have the property. If such an agreement could appeal to the conscience of a court of equity it devolves upon appellant to prove it; and to do so it must he shown the marriage was consummated in consideration of an offer contained in the letter.

In the summer of 1905 Rebecca C. Barrickman lived at Fairfield where she boarded at a hotel. She was sixty-eight years old and was childless, except the adopted daughter, Margaret Borah, from whom she had been estranged many years. She was the widow of Dr. Barrickman, who upon his death .had left her a considerable property consisting of some real estate, and the personal estate hereinbefore mentioned.

Appellant was a traveling salesman forty-one years of age and resided in the Indian Territory. During the summer of 1905 he came to Fairfield a stranger in the community and a stranger to Mrs. Barrickman. He became acquainted with her after his arrival, visited her at her home, and as early as some time in August of that year it was rumored that she was to marry him.

Evidence was introduced of acts and declarations of Mrs. Barrickman tending to show that prior to the date of the letter she contemplated marriage with appellant, and during the time intervening between appellant’s going to Kentucky and his return to Fairfield she was making arrangements to marry.

It is urged that some of these declarations being against his interests were inadmissible. We-are of opinion they all formed parts of the res gestee and were competent.

The letter itself shows at the time it was written, that she expected to marry appellant. She writes—“I have just been down to see Mr. Rinard and told him I was going to get married. He said if it was a business matter he could advise me but about marrying a stranger I should be careful,” and in this connection she continues: “I told him I wanted you to have all my property and Mr. Kennedy if you and me are married this fall I agree to leave you all my personal property when I die.”

We think the letter not only shows she expected to marry appellant but when considered in connection with the other evidence it shows that there was then an existing agreement to marry. She writes she had told Mr. Rinard she was to be married, and further writes that the “friend Lottie” had said to her if she wanted to marry appellant, and give him her property it was “nobodies business.” She had evidently told “Lottie” she was to be married to appellant. These declarations "would not probably have been made by her and repeated in the letter to appellant, in the absence of an existing agreement to marry.

It is difficult to believe from the evidence in this record that when the marriage relation was entered into by appellant it was solely in reliance upon the promises in the letter to leave him her personal property as alleged in his bill, and that as further alleged there had been no consent to marry before, and that after an interview with her on the 9th or 10th of September, relying upon said promise, he consented to accept the proposition and promise in the letter, and that then for the first time a contract of marriage was made. There is evidence tending to show appellant in entering into the most sacred of domestic relations was actuated by base and mercenary motives; that he was a fortune hunter, ready and willing to traffic and sell himself at the altar for gain. It is in evidence by one witness that appellant in August was making inquiry about a rich widow in Fairfield and when the name of Mrs. Barrickman was mentioned as one he said “Mow that is what I am looking for.” This conversation is denied by appellant but the position assumed by him now, and the averments in his bill lend some color to the truth of the statement. This witness further testifies that about the middle, or the latter part of August, appellant told him he was going to marry Mrs. Barrickman. This was prior to the letter of Mrs. Barrickman of August 28th.

But whatever his motives in entering into the marriage, we are of opinion that it can be inferred that the letter and the statement contained in it that she would leave him her personal property was not the inducement. If his purpose was purely sordid and venal he would naturally expect to profit without a contract. He knew Mrs. Barrickman had property. He had no knowledge of the adopted daughter, Margaret Borah, and he might well have expected to come into a considerable estate, upon the death of his wife who was nearly thirty years his senior.

If he had already agreed to marry which as we have said the evidence, including the letter, shows, we think that the letter was a mere voluntary expression of an intention to leave him her personal estate and was without consideration to support it.

This is a case praying for specific performance of an alleged ante-nuptial agreement. It is an equitable remedy resting in sound judicial discretion, and exercised upon a consideration of all the circumstances of each particular case. To enforce performance of such a contract it must be fair and just, and not affected by any inequitable feature, and it must have a consideration to support it.

As we have already said, the chancellor was justified in finding the letter was not the inducement for the marriage, and the marriage was not the consideration for the alleged promise in the letter, and we are also of opinion that the evidence on behalf of appellant does not show that character of case, which should appeal to the conscience of the chancellor.

We deem it unnecessary to consider the other errors assigned. The decree of the Circuit Court will be affirmed.

Affirmed.


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    International Filter Company, Appellant, v. The Crystal Ice & Cold Storage Company, Appellee.
    1. Contracts—when parol evidence incompetent as tending to affect a written agreement. If a written order for merchandise is a contract as well and purports on its face to include all conditions agreed upon, parol evidence is incompetent to vary or add to its terms.
    2. Sales—when warranty does not exist. If an order for merchandise is made in writing and it purports to express all of the conditions connected with the transaction, where no warranty is expressed or referred to therein, no warranty exists as a matter of law.
    3. Instructions—must he predicated upon the evidence. An instruction not predicated upon any evidence in the case should not be given.

      Assumpsit. Appeal from the Circuit Court of White county; the Hon P. A. Pearce, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    Claude O. Ellis, for appellant; Seitz, Bryah & Wilber, of counsel.
    Keeu & Pearce, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

On the 19th of September, 1907, the appellant being engaged in the manufacture of filters and filter discs in Chicago, received the following order from appellee which latter company was engaged in manufacturing ice at Carmi:

“Order No. 391 Sep. 18, 1907. Ship to Crystal Ice and C. S. Co. at Carmi, Ill., Via. Big 4, Terms, net cash, May 1, 1908 days. Prices f. o. b. Chicago.

1-5 International Filter, Co. Cav. $250.00

6-5 Spec. cloth discs 6.00

100-5 C. S. discs 5.50

2343 Sep. 19, 1907 International Filter Co.

It is understood that this filter and unused discs are to be returned for credit in good condition to International Filter Co. at Chicago within thirty five days from date of shipment, if directions for use are followed and the results obtained are not satisfactory. Get reports Dun. D. G. WLB Dg 9/19/07. All conditions are expressed herein. Bo verbal agreements will be recognized. All orders subject to acceptance by International Filter Co. at its office in Chicago.

B. F. Kokaluang.”

On September 27th following, appellant sent appellee the following acceptance:

“2343 Sept. 27, 1907.

Crystal Ice & O. S. Co. Carmi, Ill.

Gentlemen: As per your order of Sept. 18, given our Mr. G. H. Brown, we are this day sending you one of our 5 International Filters Iron Galv., as per memorandum enclosed. You will note that this filter is sent with the understanding that it is to be returned to us within thirty five days from this date, if the results obtained are not satisfactory. We beg to assure you, however, that there is no reason why the filter should fail to give you the usual good satisfaction. If you encounter any difficulty in obtaining the desired results, it will only be due to some slight error in the handling of the filter, which we will readily.be able to rectify when we are acquainted with the matter; therefore, we would be pleased to have you write us as soon as any obstacle is encountered. Give us full particulars and we shall take great pleasure in giving you proper directions. Thanking yon for your kindness in this matter, and trusting that we may have the pleasure of receiving your favorable reports in the near future, we are,

Tours Very Truly,

International Filter Co. See’y.

S. O. T.—0—20.”

The filter and discs were shipped on September 27th, received by appellee in due course of transportation and placed in its plant. On November 2nd, following, appellee wrote it had the filter in operation and that it filtered the water good but not fast enough and suggested it had some error in .fitting the cloth and disc and asking information as to how they should be fitted as it desired to give it a fair trial.

In reply to this letter on November 5th, appellant wrote recommending an arrangement of discs, advising how to use them, and submitting a number of questions relative to the plant, and asking for a sketch of it, showing position of storage tank, filter, freezing tank, etc., and stating that any difficulty experienced in the operation of the filter would be due to some slight error in its handling which appellant would be able to rectify when acquainted with the matter, and further stating it was ready to be of all possible assistance to appellee and would take pleasure in giving proper assistance.

On May 4, 1908, appellee wrote it had not been able to give the filter a fair trial; that it had not placed it in proper position; that it would soon run steady and give the filter a perfect test; that it filtered nicely but very slow, and it would locate it differently expecting it to flow faster.

On May 5th, appellant drew its sight draft upon appellee for $261.50, amount claimed to be due May 1st, and notified appellee the trial period of thirty-five days had expired by about six months, and requesting payment of the draft.

Appellee failing to honor the draft, appellant again requested payment on May 18th, whereupon on May 26th, appellee wrote a letter in which it stated the filter had never given satisfaction; that it could not get capacity out of it; that the agent of appellant had been so informed that spring and he recommended some change which appellee made without better results, and that the only way it could get capacity was to change cloths every five hours which took up too much time, and asking advice in regard to making the filter work.

This letter was answered May 28th, stating the filter could only become clogged by suspended matter present in the water and the greater the amount of such matter, the sooner it would clog; that the quicker it clogged, the greater benefit was derived and that the changing of the discs every five hours should not prove objectionable as the operation required but four or five minutes.

June 26th, appellee again wrote appellant the filter did not give satisfaction; that it was not the kind they should use; that a charcoal filter would be best for their use on account of the kind of water; offering to settle by paying for the use of the filter and the cloths and discs used and return the filter, freight prepaid, which proposition was declined by appellant.

In addition to the order and acceptance and the correspondence above set forth, oral testimony was heard and resulted in a verdict and judgment for appellee, from which appellant brings the cause here for review.

The action of the trial court in admitting improper evidence offered by appellee and in giving and refusing instructions, are the errors relied upon to reverse the judgment.

The court over the objection of appellant admitted parol evidence of the terms of a contract between the parties, and witnesses were permitted to state that prior to the order, the agent of appellant who took it, guaranteed that the filter would filter thirty-five tons of water in twenty-four hours which it had failed to do; that appellee wanted a filter of that capacity and that after a fair test only about twenty-two tons could b6 filtered without greater pressure than the plant furnished; and that the agent at the time knew the capacity of the plant and the kind of water used.

This line of testimony was admitted upon the theory the agreement was a verbal one, and that the written order of appellee was not a contract but a mere order, and that the agreement rested in parol.

It will be observed the so-called order embodied more than a mere order. In addition to an order for a filter and discs, it recites it is understood they are to be returned for credit in good condition within thirty-five days from date of - shipment if directions for use are followed and the results obtained are not satisfactory. It further recites that all conditions are expressed in the order and no verbal agreements would be recognized.

In our opinion the language employed in the order when accepted, as it was here, constitutes a contract of sale upon a condition subsequent and not a mere order for the filter and discs. The price was fixed; the goods delivered; the purchaser reserved the right to rescind the purchase after a test of thirty-five days in which time it was to determine whether the filter and discs proved satisfactory, if directions for use were followed and if not so satisfactory, the goods were to be returned for credit.

“An option to purchase if the buyer likes, is essentially different from an option to return a purchase if he should not like it. In one case the property will not pass until the option is determined; in the other the property passes at once subject to the right to-rescind and return.” Am. & Eng. Ency. of Law, Vol. 6, page 463.

“When goods are sold and delivered on a written order what is used to be accounted for and the balance returned. title to the whole passes on delivery and parol evidence of a contrary understanding is inadmissible.” Hotchkiss v. Higgins, 52 Am. Rep. 582.

It will be further noticed the order not only does not contain a warranty of quality, but expressly excludes it by reciting that “all conditions are expressed herein,” and “no verbal agreements will be recognized.”

Construing the order as a contract, it follows the court erred in admitting parol evidence of representations and guaranties made by appellant’s agent which would alter, vary or change the terms of the written order.

The court instructed the jury at the instance of appellee that the thirty-five days mentioned in the order meant thirty-five days from the date the appellee received the filter. The order expressly provided the goods should be returned for credit in thirty-five days from the date of shipment if results were not satisfactory and the instruction was clearly erroneous.

The seventh instruction given for appellee told the jury that to entitle appellant to recover it must satisfy the jury by a preponderance of the evidence that the filter did operate, or work to the satisfaction of the defendant in the trials and tests, or that .appellee waived such trials and accepted the filter without testing it.

This instruction was erroneous. Under the written agreement there was no such burden upon appellant. It was the duty of appellee to return the filter as agreed in the written order unless such return within the time limited was waived and the burden was upon appellee to prove a waiver if there was one.

By the second instruction for appellee the jury were told that before they could find for appellant they must be satisfied by a preponderance of the evidence, first: that the filter was furnished without the condition it would do the work satisfactorily; second, that a trial or test was made which was satisfactory to appellee, and third, that appellee agreed to return the filter within thirty-five days from its receipt, if not satisfactory.

There was no competent evidence upon which to base the first proposition. The written agreement contained no such provision and parol evidence of such was not admissible. The same was true of the second proposition and we have already considered the third proposition, that it was the duty of appellee to return it in thirty-five days from the date of shipment. This instruction was erroneous.

The fifth instruction for appellee instructed the jury that if the time in which to return the filter was waived by appellant, the appellee would have the right to return it after-wards if it did not work as guaranteed provided there was a warranty.

The agreement contained no warranty and there was no competent evidence upon which to base an instruction upon a warranty.

The fifth and sixth instructions asked by appellant and refused were in harmony with the view herein expressed and should have been given.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


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    Illinois Terminal Railroad Company, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    Debtor and creditor—how relation established. One party cannot voluntarily make himself the creditor of another. A payment made for the benefit of another is voluntary unless made upon the request of such other or unless there has been a subsequent express promise to repay it.
    Assumpsit. Appeal from the City Court of Alton; the Hon. J. E. Dunnegan, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed August 5, 1910.
    Warnock, Williamson & Burroughs, for appellant.
    Henry S. Baker, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This was an action in assumpsit by appellee to recover damages from appellant for the cost of repairing an injury to an interlocking plant, and the tracks of the railway of appellee, caused by the derailment of a train of the Chicago and Alton R. R. Co. Appellee had judgment, and one of the controverted questions was whether there could be a recovery in this form of action.

According to the evidence, about which there is no dispute, the appellee operated a railroad from Alton to Edwardsville and on its line it crosses at grade the tracks of a traction company, the Chicago and Alton R. R. Co. and the tracks of appellant, all of which are parallel and near together. At the point of crossing these tracks appellee maintained an interlocking plant for the control of trains passing over either of said tracks. The plant was operated by the employes of appellee by means of signals.

The tracks of appellant and of the Chicago and Alton Co. are used by both of said companies. The trains of both using the westerly or Chicago and Alton tracks going south, and the easterly or appellant’s track going north. This method of use resulted from some arrangement between the companies the nature of which does not appear.

On the morning of July 11, 1908, a north-bound freight train of the Chicago and Alton R. R. running over appellant’s tracks was derailed at or near the crossing resulting-in damaging the interlocking plant to the extent that it was put out of service and had to be repaired. The chief engineer of appellee immediately made arrangements to put the plant in repair, ordered the necessary material and repaired ■ it. The cost amounted to $1,354.85.

After the accident, the appellee notified appellant of it by letter July 11th; and again on July 14th appellee wrote appellant that inasmuch as the train was operating over appellant’s tracks appellee would expect it to pay the total cost of damage, and asking authority to bill on appellant company accordingly. Eeceiving no reply to the letter appellee on August 4th wrote again calling attention to its claim, and on August 25th received the following letter:

“August 25, 1908.

Mr. H. H. Ferguson

Referring to your letter of July 24th and tracer of August 4th regarding derailment of C. & A. extra 458 at Wood River July 11th, I am in receipt of advice from J. W. Mulhern, Supt. 0. & A. under date of August 21st that he will accept your bill for the damage.

Hadley Baldwin.”

II. H. Ferguson was the general manager of the appellee company and Hadley Baldwin the superintendent of appellant.

On January 18, 1909, appellee again wrote appellant that the' 0. & A. declined to pay the bill and requested payment. Other correspondence followed in which liability to pay was claimed by appellee and denied by appellant.

When appellee put in its crossing and erected its interlocking plant there in 1899, the parties entered into an agreement concerning its installment and operation in which was the following provision: “If any losses or damages occur at said crossing it is mutually agreed and understood that each party shall bear its own losses or damages according as it shall be found liable therefor.” ■

We are unable to find any evidence in this record of' any express contract or agreement on the part of appellant to pay the damages claimed. The provision in the contract above set forth does not contemplate it. This was an agreement that each should bear its own losses to itself or third parties and not to each other. But as we understand appellee’s position, liability is not claimed to arise from this provision, but from the letter of appellant of August 25 herein-before set forth. As we read that letter there is no admission of liability in it nor is there any promise or any expression used from which a promise could be implied so that' if there can be a recovery it must be, that assuming appellant liable in tort (which is not here decided) can appellee waive such tort and sue and recover in assumpsit.

The declaration contains two special counts and the common counts. There was, as we have said, no express promise and therefore no evidence to support the special counts, and it was sought to recover on the common count of indebitatus assunnpsit for money paid for the use of appellant at its request either express or implied.

We are of opinion there was no relation of debtor and creditor established between the parties arising out of any implied obligation. It is a familiar principle that one party cannot voluntarily make himself the creditor of another. Such payment must either be made upon request or there must be a subsequent express promise to repay that which in equity and good conscience ought to be paid to warrant a recovery in an action of indebitatus assumpsit, neither of which is present in this case.

There are cases in which a party may in the absence of a promise waive the tort and sue and recover damages in assumpsit, but so far as we are advised such cases only arise where goods have been wrongfully taken and converted into money, or money’s worth. In such case the injured party may sue in trespass or trover, or he may affirm the sale by the wrongdoer and recover in assumpsit, upon the principle that the wrongdoer has received money to the use of the injured party which in equity and good conscience he ought not retain; hut unless so converted the tort cannot he waived. Morrison v. Rogers, 3 Ill. 318; Deverill v. Salisbury, 61 id. 316; Creel v. Kirkham, 47 id. 344; Webster v. Drinkwater, 17 Am. Dec. 238.

Assumpsit did not lie to recover damages in this case and the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Duncan

text:
    T. E. Tate, Appellee v. Missouri Pacific Railway Company, Appellant.
    1. Practice—ichen special finding cannot he complained of. If a special finding is not objected to, it cannot be questioned on review.

      2. Appeals and errors'—what not equivalent to objection to special findings. To assign as a special ground for a new trial that the verdict is against the weight of the evidence applies only to the general verdict. Such procedure does not raise any question with reference to special findings.
    3. Appeals and errors—when special findings cannot be complained of. If a party in the trial court has made a motion for judgment upon the 'special findings by the jury, by so doing he has treated such findings of the jury as correct and he cannot thereafter be heard to say that any of them are erroneous or not based on the weight of the evidence.
    4. Common carriers—burden to establish limitation of liability. The burden is upon the carrier to show the assent of the shipper to the terms of the contract limiting its common law liability.
    5. Common carriers—when act of God does not relieve liability. A common carrier is not exempt from liability by a loss occasioned by an act of God if such carrier has been guilty of any previous negligence which brings the property in contact with the destructive force or unnecessarily exposes it thereto.
    6. Common carriers—when guilty of negligence. A carrier is guilty of negligence in accepting stock for shipment when it knows or ought to have known that it could not handle the stock to destination within a reasonable time.
    Action in ease. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed August 5, 1910.
    L. 0. Whitnel, for appellant; Martin L. Clardy, of counsel.
    Kramer, Kramer & Campbell, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

This is the second 'appeal in this case to this court hy the Missouri Pacific Railway Company from the circuit court of St. Clair county. The judgment from which this appeal is taken is for the sum of $1,370 and for costs of suit. A full and comprehensive statement of the case as it appeared in this court on the first appeal will be found in the decision of this court in the case in 143 Ill. App. 289. After the cause was reversed and remanded to the circuit court the issues remained the same except that plaintiff, by leave of court, filed an additional replication to the defendant’s second plea, replying that the appellant negligently and wrongfully accepted the shipment of horses with knowledge that it was impossible to transport the same to destination within a reasonable time by reason of the extraordinary rains and floods mentioned in said plea having washed away and impaired the trestles, tracks and bridges of appellant between Council Grove and destination; and negligently carried said horses a great distance of the way and away from Council Grove into said floods and washouts, from which they could not be further carried, until repairs were made, and thereby contributed to the delay and damage and injury complained of, etc. In the last trial before the Circuit Court the jury upon interrogatories submitted by defendant made five special findings, to wit:

(1) The rain which fell from the 15th to the 20th of September, 1905, in the states of Kansas and Missouri along defendant’s line was an extraordinary and unprecedented rain in that locality; (2) defendant’s roadbed and tracks were so damaged by said extraordinary rain and flood as to prevent appellant moving trains over the same during the time intervening from the 16th to the 20th days of September, 1905; (3) the defendant used diligence in repairing its tracks and roaAhed and moving said stock forward after such repairs were made; (4) the plaintiff, T. E. Tate, did not enter into and assent to the contract in evidence without the use of fraud or artifice on the part of the defendant or its agents; (5) the plaintiff did not serve notice in writing on defendant’s agent, of claim for damages within twenty-four hours after the delivery of said stock at destination.

It is insisted by appellant that the general verdict of the jury is inconsistent, and irreconcilable with the special findings of the jury; and that the court erred in overruling defendant’s motion for judgment in its favor on the special-findings of the jury. Appellant also insists that the special finding No. 4, that the plaintiff did not assent to the contract in evidence, etc., is manifestly against the weight of the evidence, and that it should be considered here as if appellee assented to the terms of the agreement he signed at the time of the shipment of the stock, that is to say that the defense set up in the third and fourth pleas of the defendant are established, and the right of 'appellee to recover in this suit is barred. The record discloses that there is ample evidence to sustain the jury in their finding as to this, fourth special interrogatory. The defendant made no objection to this finding in the court below; and, therefore, it is not in any position to object to or question this finding of the jury in this court. A special finding must be held conclusive on appeal where it is not attacked in the written motion for a new trial specifying grounds therefor. Assigning as a special ground for a new trial that the verdict is against the weight of the evidence applies only to the general verdict. It does not raise any question with reference to the special findings. Keither does the assignment that the general verdict of the jury is inconsistent and irreconcilable with the special findings of the jury raise any question or objection as to the correctness of the special findings. The attitude of the defendant in the lower court was rather to the effect that the special findings of the jury were all correct and that the general ver.dict of not guilty was wrong and irreconcilable with the special findings; and that it was entitled to a verdict upon the special findings, notwithstanding the general verdict of not guilty. The defendant in fact made a motion for judgment upon the special findings by the jury, and having treated these findings of the jury in the lower court as right, it cannot be heard to say in this court that any of them are erroneous or not based on the weight of the evidence. Avery v. Moore, 133 Ill. 74; Empire Machinery Co. v. Brady, 164 Ill. 58; Voigt v. Anglo-American Provision Co., 104 Ill App. 423 and 202 Ill. 462; Pittsburgh C. C. & St. L. Ry. Co. v. Bovard, 121 Ill. App. 49; The Penn. C. Co. v. Kelley, 156 Ill. 9.

The defendant being bound by the finding of the jury on the fourth special interrogatory to the effect that the special contract signed by the appellee and limiting the liability of the appellant, was not consented to by appellee, it must be held that the appellant has failed to make good its third plea. The burden is upon the carrier to show assent of the shipper to the terms of a contract limiting its common law liability. The fact that appellant had two kinds of contracts and two different freight- rates, and that the appellee signed the “Shippers risk” contract, could avail appellant nothing in this case, unless notice thereof had been brought home to appellee. C. & N. W. Ry. Co. v. Chapman, 133 Ill. 96; Wabash R. R. Co. v. Thomas, 222 Ill. 337; The Erie Ry. Co. v. Wilcox, 84 Ill. 239; Balt. & O. S. W. R. R. Co. v. Fox, 113 Ill. App. 180.

For the same reason the defense set up in appellant’s plea hTo. 4, with reference to the failure of appellee to give written notice of his claim for damages to be served on appellant within one day after the delivery of the stock at destination, etc., must fail. The special finding of the jury is to the effect that appellee did not assent to the contract. Wabash R. R. Co. v. Thomas, 222 Ill. 337.

We think the jury were clearly warranted in finding for the plaintiff. The jury made special findings that the rains along the defendant’s lines were extraordinary and unprecedented and that the defendant’s roadbed and tracks were so damaged thereby as to prevent its moving trains over the same during the time intervening from the 16th to the 20th days of September, 1905. The evidence supports this finding and the defendant concedes it. The evidence also shows that the defendant had full notice of this fact when it billed and shipped this stock at 8:20 o’clock A. M. of September 17th. The steel bridge across Lamine Eiver at Otterville, Missouri, east of Kansas City, and two hundred feet long, washed down stream two hundred feet at five o’clock A. M. on September 17th, more than three hours before the stock were shipped from Council Grove. The water was running over the deck of this bridge eight hours before the horses were shipped. J. W. Brooks, a witness for the defense, testified that the washout of the dump and steel bridge there was near a half mile long, and that the last train that undertook to cross there failed and had to back away from the washout about four o’clock on Sunday morning, September 17 th. The evidence also clearly shows that the defendant’s train dispatcher had notice of the impassable condition of its road long before the stock were shipped from Council Grove. J. W. Stewart, one of appellant’s foremen, received notice of the washout between four and five o’clock of the morning of the 17th, and he was one hundred and fifty miles east of Kansas City. F. D. Hausgen, appellant’s superintendent of bridges, who was two hundred and fifty-seven miles east of Kansas City, was notified thereof at 7 o’clock of the 17th. Council Grove was a telegraph station, and the train dispatcher and the superintendent of the road, although fully informed of the condition of this road for hours before the stock were shipped, failed to notify the agent at Council Grove and prevent the shipment of stock or other such freight and save it from being exposed to these impassable floods and washouts. The common carrier is not exempt from liability for the loss occasioned by an act of God if the carrier has been guilty of any previous negligence which brings the property in contact with the destructive force or unnecessarily exposes it thereto. Wald v. P. C. C. & St. L. R. R. Co., 162 Ill. 545; Schwartz, etc., v. Adsit, 91 Ill. App. 576; Sandy v. Lake St. E. R. R. Co., 235 Ill. 194.

Appellant was guilty of negligence in accepting the stock for shipment when it knew or ought to have known that it could not handle the stock to destination within a reasonable time. G. W. Ry. Co. v. Burns, 60 Ill. 284; I. C. R. R. Co. v. Cobb Christy & Co., 64 Ill. 128; T. W. & W. Ry. Co. v. Thompson, 71 Ill. 434.

“A common carrier is an insurer for safe delivery of live stock, and as such answerable for every loss which can not be attributed to the act of God, the public enemy, or to the natural or proper vices of the animals themselves, and, as in case of loss by the act of God or public enemy, the burden is upon the carrier to show exemption from liability, so also it is in the case of loss or death resulting from the nature or vice of the animal. In other words, proof of delivery to the carrier of stock, in live and good condition, and its injury or death while in the custody of the carrier, makes a prima facie case against it, which may he rebutted by evidence that it provided all suitable means of transportation, and exercised that degree of care which the nature of the property required.” B. & O. S. W. R. R. Co. v. Fox, 113 Ill. App. 180.

The foregoing states the correct rule as to the carriers responsibility and the burden of proof in all the cases wherein the liability is not limited or changed by special contract. The appellee proved the first count of his declaration. The appellant failed to establish any defense to this count and the proof thereunder, and the general verdict of the jury was not inconsistent with the special findings, even conceding that such findings are ultimate facts. The fact that the plaintiff failed to prove the second count of his declaration does not interfere with his right to recover on the first count.

What we have said in the foregoing fully answers all of the objections to appellee’s given instructions. They are in accordance with our interpretation of the law and they are based on the evidence. We think the jury were fully and correctly instructed as to when and under what circumstances they would be warranted in finding that the plaintiff assented to the special contract relied on by the defense, and in view of the fact that the jury found that he did not assent to it, and that the defendant is bound thereby, we do not think the defense is prejudiced by the refusing of any of its offered instructions.

Under the evidence in this case we could not hold that the damages are excessive. While they are more than double the amount, found by a former jury, yet taking the lowest estimate of the damages by the plaintiff’s witnesses, they will be found to be $1,370, the'sum awarded by the jury. We can find no reason for saying that these witnesses were unfair, or that they were not well informed as to the values of the stock.

Finding no reversible error in this record, the judgment of the lower court is affirmed.

Affirmed.