text:
    The Fred W. Wolf Company, Appellee, v. Monarch Refrigerating Company, Appellant.
    Gen. No. 15,462.
    1. Pleading—when recovery may he had under common counts. If nothing remains to be done but the payment of money pursuant to a contract for the delivery of merchandise, a recovery may be had under the common counts.
    2. Contracts—what acceptance of merchandise. Held, where merchandise was delivered under a written contract which contained certain provisions with respect to acceptance or rejection, that use and operation of a part of such merchandise implied an acceptance of that part, and that no right to accept a part being preserved by the contract, the acceptance was to he deemed as an acceptance of the whole. Held, further, that if a part of the merchandise so accepted was defective, a right to recoup damages for the defective part existed.
    Assumpsit. Appeal from the Circuit Court of' Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed April 13, 1911.
    Moses, Rosenthal & Kennedy, for appellant; Joseph W. Moses and Walter Bachrach, of counsel.
    Scott, Bancroft & Stephens, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This was an action brought by The Fred W. Wolf Company, hereinafter called plaintiff, against the Monarch Refrigerating Company, hereinafter called defendant, on the common counts and a special count for the recovery of a balance claimed to be due the plaintiff from the defendant on a contract. The special count set out the original and supplemental contracts between the parties, wherein the plaintiff agreed to furnish and erect in defendant’s building, in complete working order and condition, a refrigerating plant of 225 tons daily capacity. The contract provided for a ten days test and also, “At the end of the above mentioned ten days you shall accept or reject the plant; it being understood, however, that if it shall meet the requirements of this proposition, it shall be accepted. If rejected, you shall notify us in writing thereof, and hereby permit us to enter the premises and remove same without charge to you, and upon refunding to you whatever money has been paid us. An acceptance after the above mentioned period shall be in full discharge of agreements hereinbefore contained.”

It was further averred that the said refrigerating plant was furnished and erected in the premises described and was delivered to defendant, and defendant then and there accepted same, etc. The defendant pleaded the general issue. At the close of all • the evidence the court directed a verdict for the plaintiff for the sum of $13,844.57, and judgment was entered thereon.

If the defendant accepted the plant the plaintiff can recover under the common counts and the said special count. Spencer v. Dougherty, 23 Ill. App. 399, and cases there cited.

The defendant ably and vigorously insists there was no acceptance of the plant. The plaintiff did not deliver the plant within the time mentioned in the contract, but the evidence clearly showed that the defendant waived the terms of the contract as to the time of the delivery. The test provided by the contract was begun April 26,1904, and continued until May 26,1904, when the representatives of the plaintiff conducting the test were withdrawn. The testimony showed there was trouble with the engine, but no complaint as to other parts of the plant. On May 18th Mr. Knuth, representing the plaintiff and in charge of the tests, called on Mr. Frederick Espert, the secretary and treasurer of the defendant, and presented to Mr. Espert and asked him to sign a writing directed to plaintiff, and in part as follows: “Tour Engineer has been in charge of the operation of the plant for the required period and machinery and apparatus is working satisfactorily and you may treat this as a formal acceptance under such contract.” ■ Mr. Espert returned the paper and testified that he told Knuth, “I could not sign that; that we did not propose to accept the plant, and that I would so write his firm, put it in writing;” that he never understood that they were making a test run; there were so many repairs to be made; the engine was no good, the engine heated, the fly wheel was not true, the governor would not work, etc., detailing many objections. Mr. Knuth, in answer, said from his experience the bearings would wear smooth and the heat would cease, etc., and “to go ahead and run it, give it a chance to show itself.” “In reply to that I said, ‘Well, if that is your idea and if that is your request, we can let the boys run it further, try it out.’ ” The next day, May 19th, the defendant wrote the plaintiff the following letter, omitting address and signature: “Gentlemen: Referring to your letter of the acceptance left here by your representative yesterday, which relates to the contract dated Nov. 28, 1902, we have this to say; we decline to accept the steam engine, the same is not in accordance with contract and is unsatisfactory to us. Very truly yours.”

On May 25th Mr. Knuth again called and, Mr. Espert testified, asked if the engine ran any better, and gave him a letter, which letter Mr. Espert laid on the table without opening, and told him the engine still ran hot and repeated the objections made to him on the prior visit, and said, “We could not accept the engine. * * * He said it would be unfair to shut down the engine and he wanted to know what is to be done with it. ‘Why,’I says,‘take it out.-’ ‘Well,’he said, ‘that would be impossible,’ and I said sooner or later it would have to be taken out or it would blow out. * * * He said, ‘You go on and run it for a while; I am sure it will come out right.’ ”

The letter left by Mr. Knuth from plaintiff to the defendant was dated May 25th, and in part was as follows:

“We have furnished all the apparatus and performed all work required of us under the provisions of our contract of November 28th, 1902, and of the supplementary contract modifying such original contract ; and our man has been in charge of the operation of the apparatus for a considerable longer period than is provided in such contract. The apparatus is working perfectly and is performing the full duty guaranteed. No difficulties whatever have been experienced with the operation of this apparatus with the exception of certain adjustments of the governor, which adjustments were made ten days ago. Since that time absolutely no difficulty has been experienced except that which is directly and entirely attributable to lack of sufficient steam pressure. * * * We know that the engine which we have furnished you complied with the contract requirements in every particular. Knowing, as we do, that we have done each and every thing required to be done by us; that we have given you a plant complying in every respect with our contract, and that the time provided in such contract for you to accept or reject the apparatus has passed, we shall assume no further responsibility for its operation. ’ ’

Mr. Espert opened this letter the next day and answered it by writing plaintiff under date of May 26th as follows: “Gentlemen: Tours of the 20th is to hand. We have fully replied to this matter in our letter of the 19th to you. Very truly yours.” We find no letter in the record of the 20th referred to, and from the testimony it is clear that the date “20th” was a mistake and should have been the 1 ‘ 25th, ’ ’ for it was in answer to the said letter of the 25th left by Mr. Knuth with Mr. Espert. The attorneys for the plaintiff then wrote the defendant stating the position of plaintiff, asking for a prompt settlement, otherwise action would be brought. To this letter the defendant answered under date of May 28th: ‘1 Gentlemen: Inasmuch as you say the Fred W. Wolf Co. have placed in your hands all contracts and letters which have passed between us we would respectfully refer you to our letter written them dated May 19, 1904. This letter explains our position in this matter. We decline to accept the engine. You . can pursue such course as you see fit. Very truly yours.”

The testimony further shows that the defendant used and operated the plant, including the engine, continuously, or practically so, to the day of the bringing of this suit, July 14, 1904. The foregoing substantially states the material evidence on the question of acceptance, although there is testimony of other witnesses to the same effect and corroborating the testimony of Mr. Espert and also testimony conflicting therewith, especially as to the objections to the engine.

The only testimony tending to show an intention to reject the plant was the statement Mr. Espert said he made to Mr. Knuth May 18th: “We did not propose to accept the plant and that I would so write his firm, put it in writing.” He never did so write, but contented himself with writing rejecting the engine. Moreover, in further conversations and all subsequent correspondence his statement was unequivocal that the engine was rejected. Not a word further was spoken or written about the remainder of the plant being unsatisfactory. The evidence shows clearly and emphatically a refusal to accept a part of the plant—the engine. Should it be held that the rejection of the engine was a rejection of the entire plant 1

It was a contract for the furnishing and erection of a refrigerating plant of 225 tons refrigerating capacity daily. The specifications described more or less in detail an engine, a compressor, condenser, air coolers, gauges, pipes, etc. The consideration was $20,500, payable one-half on delivery of machinery on premises and one-half on completion of test run. There was testimony that “each one of those pieces or parts of machinery is essential to the running of the whole plant installed by the Wolf Company at that time.” We think that the contract was an entirety and was so regarded by the parties.

The defendant urges that the contract contemplated an express acceptance of the plant. The contract provided: “At the end of the above mentioned 10 days you shall accept or reject the plant; it being understood, however, that if it shall meet the requirements of this proposition, it shall be accepted. If rejected, you shall notify us in writing thereof.” While the manner of rejection is specifically stated, there is no manner of acceptance prescribed. The contract was evidently drawn with the view that use and operation would constitute an acceptance. The rule of law that where the contract is entire a party cannot affirm in part and rescind in part is so well established that the citation of”authorities seems unnecessary. It appears to us that in the application of this rule under the evidence and the terms of the contract, we are constrained to hold that a rejection of a part—the engine— was not a rejection of the entire plant, but the retention of the plant with a continuous use and operation of the same, without a written rejection thereof as provided by the terms of the contract, was an acceptance of the entire plant.

The defendant claims that even though it be held there was an acceptance of the plant, it was entitled to recoup its damages by reason of the defective engine, under Underwood v. Wolf, 131 Ill. 425, and the authorities there cited. We think that is true, and are inclined to the view that the greater weight of the evidence showed a defective engine, or at least it was a question of fact to be submitted to the jury, unless it be held that the defendant discharged its claim for damages under the terms of the contract when it accepted the plant. The contract provided: “An acceptance after the above mentioned period shall be in full discharge of agreements hereinbefore contained.” In Estep v. Fenton, 66 Ill. 467, the court said: “Unless the trustees accepted the property in full discharge of the contract, they could recoup damages sustained by reason of its performance in a manner different from the agreement, although they may have» done acts amounting to an acceptance.” If the defendant contemplating the work in question saw fit to waive by contract its damages, if any, upon its acceptance of the plant, we can see no reason for holding said_ waiver of no binding force. Suppose, when it became evident, as defendant said it was, that the engine did not work as warranted, the defendant had rejected in writing the entire plant, and demanded under the terms of its contract its money be refunded and the plant be removed; could the plaintiff have successfully complained of a great loss because the defendant stood upon its legal rights under the contract? So, if it be true that the defendant suffered damages by reason of the defective engine, which plaintiff denied, the defendant by its contract expressly discharged same upon its acceptance of the plant.

. The defendant also argues that if it be assumed that by the clause in the contract use and operation of the plant amounted to a discharge of plaintiff’s agreements contained therein, yet such clause was waived by plaintiff’s invitations to defendant to operate the plant and give it further trials. We do not think that argument sound under the circumstances of the case at bar. The invitations to continue the use of the engine were all prior to May 26th. On that date the representatives of plaintiff were withdrawn and immediately thereafter the plaintiff, by its attorneys, claimed the contract performed on its part, demanded full settlement and threatened legal action unless prompt payment was made. The defendant on May 28th, in answer, again declined to accept the engine, and stated that the plaintiff might proceed as it saw fit. The defendant thereupon continued the use and operation of the plant, including the engine, down to and on the' day suit was begun. We can see no theory on which we can properly hold the use and operation of the plant subsequent to May 26th was on the invitation of plaintiff.

From the view we take of the case and the fact that the court directed a verdict, we do not consider the rulings of the court on certain evidence admitted and testimony excluded, to which exceptions were preserved, reversible error.

The judgment of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    People of the State of Illinois ex rel. Mary E. O’Connell, Appellee, v. William Nason, Appellant.
    Gen. No. 15,562.

      Bastardy—when -finding set aside. A finding upon which a judgment of conviction of bastardy is predicated will he set aside where clearly and manifestly against the weight of the evidence.
    Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed April 13, 1911.
    A. D. Gash, for appellant.
    John E. W. Wayman and F. L. Barnett, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This was a prosecution under the statute upon a complaint for bastardy. A jury was waived and the cause submitted to the court, who found the defendant guilty. The only error here urged is that the finding was clearly and manifestly against the preponderance of the evidence.

The prosecutrix testified that at the time of the two acts of intercourse described she was sixteen years old; ’ she had known defendant seven years; on the evening of September 22, 1907, she was on her way to the grocery store and stopped at Nason’s and Mrs. Nason told her to bring her some things from the grocery. She returned to Nason’s about seven thirty and sat down on the front porch and the defendant was sitting there. “He got up and took me by the hand and said, ‘Come on, Cooney, if I don’t get you this evening I will some other evening,’ and led me around the house and' into the woodshed or chicken shed, and there had sexual intercourse with me on a large board or old door. We came out and I went home.” The other occasion she said was October 4, 1907. She was at Nason’s house again and sitting on the front porch about nine o’clock in the evening: Sam Eyan and Annie Nason were playing on the piano and singing in the front room. Tessie Nason was there. She and defendant were sitting on the front porch “when William took me by the hand and led me around the house and into the woodshed at the same place where we had sexual intercourse before and there had sexual intercourse with me again. The only thing he said to me at this time was: ‘If you get into the family way I suppose you will accuse me of it, ’ and I said to him, ‘Who else could I accuse?’ We came out and talked a little while and I went home.” She also testified that she never had intercourse with the defendant at any other time and never with any other person; was unmarried and the mother of a child born June 15, 1908. The defendant never escorted her any place or hugged or kissed her or made love to her. On the evening of June 13th, two days before the child was born, she went on a hay rack party with some young folks, among whom were Nason and his sisters; saw him on different occasions, but never mentioned the matter to him before or since the child was born. There was no other evidence offered on the part of the People.

The defendant denied having any relations with her and testified that he left the house on September 22nd about six thirty and did not return until about eleven that evening. His mother, brother and a neighbor also testified he was not home at the time prosecutrix was at the house. The prosecutrix and all the witnesses recalled the particular evening, because it was the Sunday evening Mrs. Nason’s mother-in-law came from Kentucky. Witnesses also denied the statements of prosecutrix as to the occurrences of the evening of October 4th. Eyan also testified that on the evening of September 20, 1907, he was watching tool cars for the Michigan Central Railroad, and walking along the track he heard some one talking inside a car. He stopped and waited and a man got out of the car and then helped the woman out. He did not know the man, but the woman was the prosecutrix and he spoke to her. Two other witnesses testified to seeing her with men late at night under suspicious circumstances. Anna Nason testified that she and Mary, the prosecutrix, worked at a hotel at Elsdon, Illinois, in October, 1907, and there the prosecutrix went with a man named Carter. She heard of the birth of the child and said: “I went to see her the next morning, Wednesday, and she said, ‘It belongs to your brother William,’ and I said, ‘Mary, how can this be? Do you remember the night you were in the prairie with Carter ? ’ and she said, ‘Anna, keep still. Do not let my mother hear you say that, for I told her that it was your brother, and she will kill me if she hears you say that.’ I went to the kitchen where her mother was and told her, but she said she believed Mary.”

The prosecutrix made no denial or explanation of this statement of Anna Nason or the specific charges as to other men. It may be some good reason appeared at the hearing, but none is shown by the record. It is also somewhat remarkable that, with all her opportunities, she never spoke to the defendant on the subject.

We appreciate the arguments that might be made pertaining to the defense, but from a careful consideration of the entire record, without further argument on the same, we think the finding clearly and manifestly against the preponderance of the evidence, and the cause will be reversed and remanded.

Reversed and remanded.


text:
    The City of Chicago, Defendant in Error, v. Henry Hiltwein, Plaintiff in Error.
    Gen. No. 15,669.
    1. Pleading—form of indictment where ordinance or statute forbids an alternative. In this case the court quotes with approval the holding in Blemer v. People, 76 Ill. 265: “Where a statute forbids several things in the alternative, it is usually construed as creating but a single offense, and the indictment may charge the defendant with committing all the acts, using the conjunction and where the statute uses the disjunction or.”

    2. Ordinances—when conviction of producing memorandum not result of actual weighing sustained. Held, that the conviction in this case which was for the violation of an ordinance prohibiting, among other things, the producing of “a false and fraudulent memorandum which was not the result of an actual weighing of the produce” delivered, was proper, and that the instructions given were not prejudicial.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 13, 1911.
    Robert H. Stoll, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff in error was prosecuted for making a delivery of a load of oats in the city of Chicago, having in his possession and producing “a false and fraudulent memorandum which was not the result of an actual weighing of the produce so delivered, ’ ’ in violation of an ordinance passed June 8, 1908, of the Revised Municipal Code of Chicago. He was found guilty and fined fifty dollars.

The evidence and agreed statement of facts submitted to the jury showed that Hiltwein on the day in question had his load of oats weighed at the C. M. & St. P. railway tracks, and received a ticket from the weigher. He then drove to his employers’ place and handed in said ticket, and his employers issued him another ticket on their stationery, showing the same weight to be delivered to the purchaser, but this ticket Hiltwein did not take with him. On bis way to make the delivery he recalled that he had left the ticket. He said, “Of course I had been in a couple of saloons and had a few drinks, and I made out a ticket in the saloon.” He had in his pocket a blank Wisconsin Central Railway ticket and he filled out same with a car number, gross, tare and net weights,— as he said, “What I thought was about right.” Inspectors had followed him to the place of delivery and, demanding his ticket, it showed a net weight of 8,440 pounds—1,150 pounds more than he actually had.

The ordinance is in part: “Any driver of a wagon * * * who shall have in his possession or who shall, upon request, produce or deliver any false or fraudulent memorandum or any memorandum which is not the result of an actual weighing of the produce so being delivered, shall be fined,” etc. Counsel for plaintiff in error admits “the proof showed the ticket was not the result of an actual weighing,” but insists very vigorously that the charge being in the conjunctive it was necessary “to prove each ingredient of the charge by a clear preponderance of the evidence,” and that the proof did not show the ticket was false and fraudulent. The court instructed the jury “that the burden is on the city to show by a clear preponderance of the evidence in this case that,” etc.

Bishop on Criminal Procedure, Yol. 1, sec. 436, says: “It is common for a statute to declare, that, if a person does this, or this, or this, he shall be punished in a way pointed out. Now, if, in a single transaction, he does all the things, he violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore an indictment upon a statute of this kind may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction and where the statute has or, and it will not be double and it will be established at the trial by proof of any one of them.”

In Blemer v. The People, 76 Ill. 265, the court said, p. 272: “Where a statute forbids several things in the alternative, it is usually construed as creating but a single offense, and the indictment may charge the defendant with committing all the acts, using the conjunction and where the statute uses the disjunction or.” Clifford v. State, 29 Wis. 327; State v. Kerr, 3 No. Dak. 523; City v. Marvin, 16 Minn. 91.

It is argued that although the ticket was not a correct or true ticket, it was not a false ticket, in that there was no evidence of intentional wrong and Hiltwein thought it “was about right.” ' The court instructed the jury on the meaning of a false ticket as requested by plaintiff in error, and the jury might properly conclude that on being detected Mr. Hiltwein, who was an experienced driver, might naturally think the weight “was about right,” and under all the circumstances find it was a false ticket. It follows that plaintiff in error could not have been prejudiced by the refusal of the court to give the instruction defining “fraudulent,” and the judgment will be affirmed.

Affirmed.


author: Per Curiam.

text:
    The People of the State of Illinois, Defendant in Error, v. Orra F. Havill, Plaintiff in Error.
    1. Appeals and ebbors—when ruling upon application for change of venue not saved for review. In order to save for review the ruling of the court upon an application for a change of venue, the motion, the affidavits in support thereof and the ruling thereon must all be certified in the bill of exceptions. A certificate of the clerk that such a motion was made is not a substitute, nor is the omission cured by the filing of copies of such documents etc. in the Appellate Court.
    2. Slander and libel—what competent upon question of malice. In an action for criminal libel, another writing than that made the basis of the prosecution is competent upon the question of malice.
    Error to the Circuit Court of Wabash county; the Hon. William H. Green, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910.
    Rehearing denied March 30, 1911.
    George B. Hazelton, for plaintiff in error; E. H. Knowles, of counsel.
    Theodore G. Risley, for defendant in error; P. J. Kolb, of counsel.
   Per Curiam.

An indictment for libel "was returned against plaintiff in error by the grand jury of Wabash county, at the April term, 1908, of the Circuit Court. It contained hut one count and charged that plaintiff in error was the publisher of a certain newspaper in the city of Mt. Carmel in said county, known as “ Havill’s Every’Morning;” that he wrote and caused to be published therein a certain false, scandalous and defamatory libel in the form of a letter purported to have been written by him to Hon. Enoch E. Newlin, the presiding judge of said court, concerning the acts of George P. Ramsey in his official capacity as state’s attorney for said county. The letter was headed “An open letter to Judge Newlin” and so far as the charges in the indictment are concerned or it is necessary to refer to here, contained the following statements :

“The people of Wabash county have for years charged that the prosecuting attorney’s office in this county has been a position of graft. They now ask that you, as circuit judge, appoint a special prosecutor to investigate these charges. * * * The Lacer case was badly bungled or bought. Two thousand and five hundred dollars changed hands. Common talk says a state’s attorney got $500 of it. * * * The office of state’s attorney during the terms of M. H. Mundy, George P. Ramsey and Peter J. Kolb has been rotten. Will you as circuit judge give the taxpayers a chance to show you that it has? The people- of Wabash county believe that you are honest. They don’t want to change that opinion unless you force them to.”

The indictment contained proper averments showing that the charges above mentioned were intended to refer to said George P. Ramsey. While the letter contained other charges, they appear to have been directed against the other two persons named in connection with the office of state’s attorney and were not referred to in the indictment. The fact that plaintiff in error wrote said letter was not contested and upon the trial he was found guilty by the jury and was sentenced by the court to a term in the county jail and to pay the costs.

The proofs in the case were snch as to warrant the conviction, but counsel for plaintiff in error in his argument contends that the court erred in refusing a motion for a change of venue presented by plaintiff in error and also in rulings upon the evidence. He says: “Many reasons might have been assigned for a reversal of this case, but the refusal to grant defendant a change of venue as prayed, is so palpable an error, I see no reason to elaborate.” Whatever may be the merits of the motion for the change of venue, we are not at liberty to consider them, for the reason that neither the motion nor the affidavits in support thereof, nor the ruling of the court upon the same is preserved by the bill of exceptions. It is true that in that portion of the record outside of the bill of exceptions, the clerk certifies that the defendant filed a motion for a change of venue from two of the judges of the circuit, who are named, and that the same was denied; and also that what purports to be a copy of the motion and affidavits not made a part of the bill of exceptions, was filed in this court, after the filing of the original record, but all this is not sufficient.

In Brewer v. Boddie, 80 Ill. App. 353, the rule is declared to be “Alleged error in refusal to allow a change of venue cannot be reviewed upon appeal, unless the motion and affidavits in support of it appear in the bill of exceptions.”

In Bennett v. Baird, 67 Ill. App. 422, it is said: “It is assigned as error that the court refused a change of venue asked by Bennett and Green. It does not appear from the bill of exceptions that any notice of the application was given. The clerk has copied among the order and files of the case a paper purporting to contain such notice and service thereof, but it cannot be so preserved.”

It is a general rule well established that affidavits not incorporated in the bill of exceptions and certified to by the trial judge, are not a part of the record for the consideration of courts of appellate jurisdiction. Anderson Transfer Co. v. Fuller, 174 Ill. 221; C. R. I. & P. Ry. Co. v. Calumet, 151 Ill. 512.

In regard to the evidence plaintiff in error complains that he was not permitted to show what “the common talk” was concerning the charge that “a state’s attorney got $500.” We fail to find in the record any place where this question was propounded in reference to the prosecuting witness Bamsey and an objection sustained to the same. The court properly refused evidence of alleged misconduct of other incumbents of the office not in any manner connected with the charges made by plaintiff in error against Bamsey.

Upon the trial another letter published by plaintiff in error under his name and directed to another judge of the same circuit, and containing references to the prosecutor’s office, as “rotten,” somewhat in the same vein as the letter above referred to, was admitted in evidence on the part of the prosecution, over objection of plaintiff in error. This letter however was offered in evidence only for the bearing it might have upon the question of malice upon the part of plaintiff in error and was properly admissible for that purpose. Sheen v. Peoria Journal Co., 53 Ill. App. 267.

It was necessary for the state to show that the publication named in the indictment was maliciously made and the instructions given for the state so told the jury. The publication of a second article of a similar nature, would necessarily have some bearing upon that question.

We have examined the instructions given in the case and find that the jury was properly instructed in regard to the law governing both sides of the case and that there was no error in the rulings of the court in that regard.

The judgment of the court below will therefore be affirmed.

Affirmed.


author: Mr. Presiding Justice Shirley

text:
    Richard Thompson, Appellee, v. O’Gara Coal Company, Appellant.
    1. Statutory law—how act of revision construed. Different parts of a revisory act which relate to the same subject-matter, being passed at the same time, are to be construed together as though they were parts of the same enactment.
    2. Mines and miners—sections 28 and 28 of act construed. Held, that the top and bottom man provided for in section 23 are the same as those referred to in section 28 and the times fixed for them to be at their respective posts of duty is governed by said section 28, and that such times are at least thirty minutes before the hoisting of coal commenced in the morning and at least thirty minutes after the hoisting of coal.has ceased at night.
    Action in case for personal injuries. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed December 7, 1910.
    M. S. Whitley, for appellant; Mastin & Sherlock, of counsel.
    H. Robert Fowler and John L. Thompson, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This was an action to recover damages for an injury received by appellee while employed in the coal mine of appellant. His injury was received about two o’clock on the morning of February 18, 1910, and the hoisting of coal had ceased several hours before then, or at about 4:30 f. m. of the previous day, and there had been no hoisting of coal between that time and the time of appellee’s injury.

The declaration upon which the case was submitted to the jury contained two counts, the second and third, the second count averring a wilful failure to comply with the mining statute in not having at the time a competent man at the top and bottom of the shaft charged with the duty of attending signals, preserving order and enforcing the rules governing the men on the cage, by means whereof the injury was occasioned. The third count charged the appellant had a code of signals used in the hoisting and lowering of cages by signalling the engineer from the bottom man to the top man and engineer; that the engineer had been notified that appellee was going into the sump and it was the duty of the defendant not to lower the cage until signalled by the bottom man; that the defendant wilfully lowered the cage without receiving a signal from the bottom man whereby appellee was injured.

One of the errors relied on here is that the court refused to direct a verdict at the close of the evidence and it is argued that the evidence without dispute, showing the accident occurred several hours after the hoisting of coal ceased, there was no evidence tending to prove the declaration. This involves an interpretation of the provisions of the statute upon which the counts are based; whether the operator should have stationed a man at the top and bottom of the shaft of the mine which was operated by steam power charged with the duty of attending signals, at the hour when appellee was injured.

The act of 1899 was entitled “An act to revise the laws in relation to coal mines and subjects relating thereto and providing for the health and safety of persons employed therein.” It contained thirty-four sections.

Section 23 provided for communicating signals from the bottom man to the top man and engineer and then prescribed the signals and what they signified. This section contains a proviso that the operator might with the consent of the inspector add to the code of signals in his discretion, for the purpose of increasing its efficiency or of .promoting the safety of men in the mine,' and that such code should be conspicuously posted.

Section 28 provided for the top and bottom man and prescribed their duties as follows: “At every shaft operated by steam power the operator must station at the top and bottom of such shaft a competent man charged with the duty of attending to signals, preserving order and enforcing the rules governing the carriage of men on cages. Said top man and bottom man shall be at their respective posts of duty at least a half hour before the hoisting of coal begins in the morning, and remain a half hour after hoisting ceases for the day.”

The sections above quoted were parts of the revision passed at the same time relative to the same subject-matter and are to he read together as though they were parts of the same enactment. Endlich Int. of Statutes, sec. 45.

With some additions in. the revision, both these sections were incorporated in the same section at the time of their first enactment. See section 6, act entitled “Mines and Miners” Session Laws 1887, where the top man and the bottom man are provided, and a code of signals between them prescribed. . Wé are of opinion therefore that the top man and bottom man provided in section 23 are the same provided for in section 28, and that the time fixed for them to be at their respective posts of duty in section 28 governs in both sections.

Section 28 above quoted is not free from ambiguity. The original act of which section 28 is a revision required the top man and bottom man should be at their respective posts of duty at least thirty minutes before the hoisting of coal commenced in the morning and remain at least thirty minutes after the hoisting of coal has ceased at night. Sec. 6, supra. It will be noticed the words “of coal” have been left out of the present statute and the words “at night” have been changed to read “for the day.” While section 28 of the present statute is ambiguous we are of opinion it should read as it did originally, and that the law maker either changed it unintentionally, or he regarded it as so apparent the words “after hoisting ceases for the day” referred hack to the last antecedent “coal,” it was not necessary to repeat it. We think section 28 means what it originally said that the bottom man and top man should remain at their posts at least thirty minutes after the hoisting “of coal” ceases for the day.

In large mines as shown here “jerry work” is going on in the mine all through the night and the cage frequently goes up and down and this the Legislature must have known. If it had been intended the top man and bottom man should be there at such times, it would have provided they should be at their posts at such times or at all times, but if such requirement be desirable it is for the Legislature and not the courts to furnish the remedy.

We are of the opinion there was no evidence tending to prove the wilful failure of appellant as averred in the declaration and as the appellee is at liberty to proceed further we express no opinion upon the evidence in the case except as to its application to the declaration before us.

The judgment will be reversed and the cause remanded.

Reversed, and remanded.


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    George J. Ringering, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Touts—in whom right of action exists for injury from overflow of water. If injury results from the overflow of water by reason of the failure of a railroad company to leave sufficient openings in its embankment to carry off the flow of surface water, the right of action is in the tenant unless permanent injury is done to the reversion, in which case the owner may maintain an action.
    2. Appeals and bbbors—when admission of erroneous evidence will not reverse. A judgment will not be reversed on the ground of irrelevant or incompetent evidence where the court can see that it worked no injury to the complaining party.
    3. Appeals and errors—when giving of erroneous instruction will not revérse. The giving of an erroneous instruction will not work a reversal if it is apparent that the jury could not have been misled prejudicially to the complaining party.
    Action in ease. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    D. E. Keefe, for appellant; L. J. Hackney, of counsel.
    C. H. Burton, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This was an action to recover for an injury alleged to have been caused by the negligent failure of appellant to provide sufficient openings in its embankment for the passage of surface waters whereby the lands occupied by appellee as a tenant were flooded and growing crops thereon damaged. There was evidence showing the tracks of appellant were located on an embankment several hundred feet in length and crossing a course where surface waters flowed in a state of nature; that appellant’s road had been constructed many years ago and that formerly where it crossed the watercourse it had provided a trestle which left an opening for the passage of water one hundred and fifty to two hundred feet in length, but about the year 1885 it filled the opening, making a solid embankment, except it provided an opening of three pipes, two of three feet in diameter each, and one of six feet in diameter. The evidence further showed openings in the embankment were necessary to accommodate the overflow waters of Wood river which at times are so sudden and in such volume the channel of the stream is not large enough to contain them and they overflow and spread out over the surrounding low lands and that before the embankment of the appellant was made such waters naturally flowed off in much larger volume through the trestle toward Grassy lake. The tendency of this evidence was to show that before the embankment was made the water would leave the overflowed land and relieve it more rapidly than since, and that the pipes provided are not sufficient for that purpose. There was further evidence that the land of appellee was in the territory subject to such overflow and to the effect produced by holding the water back by the embankment, and that by reason of the pipes through appellant’s embankment being insufficient, the water stood upon appellee’s land a number of days spreading over about twenty acres of growing wheat and eight acres of timothy resulting in the destruction of both crops.

Evidence was submitted by appellant to the effect that appellee’s land was low and flat, water standing upon it much of the time, and tending to show that the negligence complained of resulted in no injury to appellee for the reason that the pipes would carry off the same water the piling would under like conditions, that the land would overflow without regard to the embankment, and that it was so low and flat it would not produce crops in a rainy season.

The evidence was conflicting and we are not prepared to say the verdict was wrong in this respect.

Going to the question of the measure of appellee’s damages, appellant sought to prove that appellee was a tenant of the land and that his landlord was to receive as rent a portion of the destroyed crop when harvested. The court sustained objections to the proposed testimony. The landlord has filed in this court a release and waiver of all damages that might result to him if any, by reason of the alleged injury to the 0 crops for which damages are claimed in this cause.

We are of opinion that by the weight of authority there is no right of action in the landlord to recover against appellant, but that such right is in the tenant exclusively. It is only where some injury results from the tort to the reversion that the landlord may recover damages. It must be an injury to the reversion of such permanent character that it would lessen the value of the property on the expiration of the tenancy. Dicey on Parties to Actions, marginal page 340.

The landlord has no title to the crops. He is not a tenant in common. The ownership is in the tenant subject to the lien of the landlord given by statute. This lien invests him with no title either general or special and for any injury to the crops grown or growing the right of action is in the tenant alone. Frink v. Pratt & Co., 130 Ill. 327; Indiana, Ill. & Iowa R. R. Co. v. Patchette, 59 Ill. App. 251.

“The landlord has not by virtue of his lien any title in or right of possession to the property subject to the lien, therefore he cannot maintain any action which is founded on the right of property or right of possession against a third person who removes or destroys the property thereby defeating the enforcement of the lien.” Am. & Eng. Ency., Vol. 18, p. 350.

The question of the landlord’s right of recovery against a stranger who .acquires the property and disposes of it with notice of the lien, thereby preventing its enforcement, is not presented by this record.

Notwithstanding the cases cited in appellant’s brief which hold in effect the landlord may have a right of action, we believe the weight of authority and the better reasoning support the view expressed in this opinion.

It is urged there was error in admitting improper evidence upon the measure of appellee’s damages. The declaration alleged a destruction of crops of growing wheat and timothy by the overflow. The evidence established there were between twenty and twenty-two acres of growing wheat and a fraction more than eight acres of growing timothy totally destroyed. A witness was permitted, over objection, to testify what in his opinion the crops would have yielded at maturity, and their market value less the cost of harvesting, threshing and getting them on the market. There was no instruction by the court advising the jury of the proper measure of damages. Even if this evidence was purely speculative and erroneous as claimed, the error was harmless. The same witness testified without objection to the fair market value of the crops just before the overflow, and estimated the value to be about fifteen dollars per acre for the wheat and ten dollars and twelve dollars per acre for the timothy. The jury returned a verdict for $350 which was well within the latter estimate.

A judgment will not be reversed on the ground of irrelevant or incompetent evidence where the court can see it worked no injury to the complaining party.

The declaration charged appellant with locating its embankment across a natural watercourse with insufficient openings, and it is claimed this was a material averment with no proof to suppport it. As already stated there was evidence to the effect that in a state of nature the water flowed in a course across where the- embankment -complained of was constructed. We think this evidence fairly supports the averment. St. Louis Bridge Ry. Co. v. Schultz, 226 Ill. 409.

Complaint is made of the ruling of the trial court on instructions. The first given for appellee is an abstract proposition undertaking to state the statutory duty of railroad companies to restore a watercourse to its former state where the railroad crosses it and keep the crossing in repair. The instruction stated it to be the duty to keep the watercourse instead of the crossing in repair. It is manifest the instruction was an oversight in stating the duty. There is no duty imposed to keep the watercourse in repair and the instruction in that respect was wrong. After examining the whole record we are of opinion the error was harmless. There was nothing in the pleadings or evidence claiming any such duty or from which any such supposed duty might arise. The gist of the action was for a failure to have sufficient openings for the passage of surface water and the consequent damages and the evidence was confined exclusively to these questions. The jury could not have been misled by the instruction.

The court refused an instruction asked by appellant to the effect that if the jury believed from the evidence that if the trestle had not been removed and appellee’s land had been flooded as claimed by the overflow, he could not recover. The evidence tended to show that in heavy rains the water would overflow the channel of Wood river and spread out over the surrounding lands including appellee’s, without regard to the embankment, but further tended to show that but for the embankment the water would sooner flow away, and also that the crops were destroyed by long standing under water. Although the land might be flooded if the water flowed off quickly, no serious damage might result. Standing water for several days by reason of the embankment was a material element and the instruction was too narrow.

After a consideration of the whole.record, no error appearing sufficient to reverse the judgment, it will be affirmed.

Affirmed.


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    William Diehl, Jr., Appellee, v. Illinois Central Railroad Company, Appellant.

      Verdicts—when not disturbed where issue is as to whether bell was rung. Where the evidence upon the question of the ringing of a bell or the sounding of a whistle, and upon the question of the exercise of reasonable care in driving upon a crossing, is conflicting, it is the peculiar province of the jury who saw and heard the witnesses testify, to determine the facts, and in such state of the evidence it is not the rule to disturb the verdict in the absence of erroneous rulings, but the verdict is to be accepted as decisive of such questions.
    Action in case. Appeal from the Circuit Court of St. Clair county; the Hon. Lewis Bernreuter, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Kramer, Kramer & Campbell and C. H. G. Hemfelden, for appellant; John G. Drennan, of counsel.
    Miller, Hinde & Miller, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellee recovered a judgment for $450 damages caused from a collision at a highway crossing with one of appellant’s freight trains. The collision resulted in the killing of one mule, the crippling of another and damage to a wagon and harness.

The. only complaint here is that the manifest weight of the evidence showed appellant not guilty of the negligence averred in the declaration, and that appellee was himself guilty of contributory negligence, either of which should work a reversal of the judgment.

The negligence charged against appellant in the declaration was a failure to give the statutory signals by ringing a bell or blowing a whistle for the crossing.

At the place of the collision the railroad and highway cross at right angles. A freight train of appellant was approaching the crossing from the north at a speed of about twenty-five miles per hour. The engineer in charge of the locomotive testified upon the trial that he sounded the whistle at a post eighty rods from the crossing. The locomotive was supplied with an automatic bell which when “turned on” would ring continuously until “turned off.” This bell the engineer says he had turned on before reaching the post and that it continued to ring until he had passed the crossing. The train had forty-two cars and as it was running down grade the exhaust from the locomotive created considerable noise. A brakeman of appellant was riding on the engine at the time. He testified the whistle was sounded at the post but could not state whether the bell was rung, and that being on the engine constantly he would pay no attention to the bell.

The appellee says he slacked his team about thirty yards from the crossing and listened but hearing nothing he drove upon the crossing when his team was struck. He says he heard no bell or whistle. In addition to this testimony, two witnesses, Emil Voeling and Miss Sutter, testified they were driving slowly along the highway toward the crossing and were about two hundred yards from it at the time of the accident. These witnesses both testify they heard no bell or whistle before the collision, and Miss Sutter says she listened for the train.

There was evidence that the collision occurred in the night-time, that the view at the crossing toward the direction from which the train approached was obscured by weeds and brush and the nature of the crossing was such (the railroad running through a cut) that it was dangerous by reason of the difficulty in seeing an approaching train.

Where the evidence upon the questions of ringing a bell or sounding a whistle and upon the question of reasonable care in driving upon a crossing is conflicting, it is the peculiar province of the jury who see and hear the witnesses testify, to determine the fact and in such state of the evidence it is not the rule to disturb the verdict in the absence of erroneous rulings, but the verdict is to be accepted as decisive of such questions.

This rule is applicable to this case. The evidence was conflicting upon both questions and we cannot say the verdict is so against the weight of the evidence it should be disturbed.

The judgment will be affirmed.

Affirmed.


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    The People of the State of Illinois, Defendant in Error, v. F. C. Cunningham, Plaintiff in Error.

      Veedicts—when not disturbed in criminal case. It Is only where the Appellate Court can say from the whole evidence that there is a reasonable and well-founded doubt of the guilt of the accused that it will reverse a judgment of conviction in a criminal case on the ground that the verdict is not supported by the evidence.
    Error to the County Court of Effingham county; the Hon. Michael O’Donnell, Jjidge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    G. F. Taylor and Zimmerman & Rinehart, for plaintiff in error.
    R. C. Harrah, for defendant in error.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This was a prosecution by information filed by the state’s attorney of Effingham county, charging plaintiff in error in the first count with an assault upon one Susan Pearl Hardsock, and in the second count with an assault and battery.

There was a plea of not guilty, a trial by jury and a verdict finding plaintiff in error guilty of assault and battery upon which the court rendered a judgment.

Plaintiff in error was engaged in the practice of his profession as a dentist. The prosecuting witness testified she went to his office about three o’clock in the afternoon of the 6th day of May to have a tooth treated; that she had been there four or five times before on the same errand and had her tooth treated. She further testified in detail to acts of plaintiff in error after she was seated in the chair, which amounted to a lewd and indecent assault upon her person, and that she left the office and went to a millinery store near by where she adjusted her waist which had been disarranged by plaintiff in error.

Plaintiff in error testified and made a sweeping denial of all her statements of improper conduct and stated that he did no more than was necessary to be done in order to properly work upon her tooth and that there was no impropriety in anything he said or did.

The testimony showed the location of the office to be on the second floor to which a stairway leads from the street. Across the hall from the office is another office occupied by another dentist. The doors of both offices were standing open. When the prosecuting witness went into the office of plaintiff in error, he was at work upon the teeth of Mrs. Anderson. WTien he was through with Mrs. Anderson, she left the chair and it was at once taken by the prosecuting witness. Mrs. Anderson testified she went across the hall into the office of the other dentist where she remained but a few seconds; that she .went down stairs lingered at the bottom a moment; went into the millinery store which was just around the corner; that just as she reached there the prosecuting witness came in smiling and that the witness saw nothing out of the ordinary about her. The witness says that from the time she went down stairs until the prosecuting witness came into the store was about five minutes. Dr. Burkhardt was the dentist occupying the office across the hall; he was in his office at the time and both he and Mrs. Anderson testify they heard no disturbance or anything unusual from the office of plaintiff in error and Dr. Burkhardt states that when the doors were open he could hear ordinary conversations between the two offices.

The prosecuting witness and her husband both testify she related the alleged assault to the latter the same afternoon when her husband reached home; and they at once went to the dental office; that before reaching there they met plaintiff in error on the street and when the prosecuting witness told him, she had told her husband, he said he was sorry and that he didn’t know he had insulted her, and when asked by the husband why he had insulted her, he said he “didn’t know as he did.” Plaintiff in error denies these statements and says that he denied insulting her and that when the husband urged him to admit it, he said he had nothing to admit.

In this statement of the material testimony of the witnesses, it will be seen the evidence was in hopeless conflict and the question of guilt a close one. In this view of it we have closely scrutinized the rulings of the trial court to find prejudicial error. We are unable to find it. The rulings and instructions are free from error. We have also scrutinized the evidence for a motive falsely to charge the plaintiff in error but find none proven.

It is the province of the jury to pass upon the credibility of witnesses and the weight of the evidence. The jury saw these witnesses on the stand and their demeanor and heard them testify and it is only when we can say there is from the whole testimony a reasonable and well founded doubt of the guilt of the accused that we can reverse the judgment on the ground the verdict is not supported by the evidence. We are unable to reach this conclusion in this case. The judgment will be affirmed.

Affirmed.


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    Ira E. Blackman, Defendant in Error, v. Henry L. Webber, Plaintiff in Error.
    1. Instructions—when upon right to disregard testimony erroneous. The jury have no right to disregard the testimony of a witness because some of his statements as to material facts are untrue. Before his entire testimony may be disregarded, the jury must believe the witness to have wilfully and knowingly sworn falsely to a material fact. Held, that the instructions given in this case were in disregard of this rule.
    2. Instructions—must he relevant to issue. ■ An instruction not relevant to an issue in the cause should be refused.
    Error to the Circuit Court of Williamson county; the Hon. Thomas M. Harris, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Pillow, Smith & Stone and Whitley & Somers, for plaintiff in error.
    W. W. Clemens, for defendant in error; W. W. Barr, of counsel.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This is a writ of error to review a judgment for $4,000 damages, recovered by Blackman, defendant in error, against Webber, the plaintiff in error, for the alleged debauching of the wife of Blackman and alienating her affections.

The evidence upon the charge of adultery was close and conflicting. The plaintiff in error testified he had not been guilty of any act of adultery. Acts of adultery are not often proved by direct evidence and in this case there was no such proof, but the conduct of .the parties as shown by the testimony of a number of witnesses tended to establish it. There was evidence of visits to the house of Blackman by Webber when the former was away from home at unseemly hours in the night time, coupled with conduct while there which tended to show improper relations. Other circumstances, such as clandestine meetings and the dropping of notes by Webber which were picked up by the wife of Blackman were related by witnesses. The credit of these witnesses was attacked but as their credit and the weight to be given their testimony were matters for the jury, we express no opinion upon them.

The case was one where the credit of several witnesses was a very material matter to be considered by the jury and it was important the instructions upon this feature of the case should have been accurate.

Error is assigned upon the action of the court in giving and refusing instructions, and after a careful examination of them, we conclude there was no error in this regard except in giving the eighth, ninth and tenth instructions asked by defendant in error. All of them were upon the question of the credibility of witnesses.

The eighth instruction advised the jury that if they believed the statements of any witness, to be untrue as to any material fact, they might refuse to attach any weight or. credit to the testimony of such witness except in so far as it was corroborated by other credible .evidence.

This is not the law. The jury have no right to disregard the testimony of a witness because some of his statements as to material facts are untrue. Before his entire testimony may be disregarded, the jury must believe the witness to have wilfully and knowingly sworn falsely to a material fact. Pollard v. The People, 69 The People of the State of Illinois, Defendant in Error, v. F. C. Cunningham, Plaintiff in Error. 148; Penn. Co. v. Conlan, 101 id. 93.

The ninth instruction was not relevant to any issue and should have been refused.

And the tenth should have contained the element that the jury had no right to discredit the testimony of the defendant merely because he was the defendant.

We have referred to the sharp conflict in the' evidence and to the character of the witnesses, some of whom were acting in the capacity of detectives in the employment of defendant in error in which they were to be paid according as they might discover incriminating evidence, and one witness testifying to incriminatings acts was impeached. In addition to this the defendant in error was charged with the commission of adulterous practices with a witness who testified to repeated acts of adultery with her at a hotel at Harrisburg. This evidence was very material on the measure of damages. Defendant in error denied this testimony and we refer to it as showing the conflicting evidence on all material points. In this state of the record accuracy in presenting the law to the jury on the credibility of witnesses was highly essential to the rights of the parties, and in this case the giving of the instructions above referred to was harmful error.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


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    The People of the State of Illinois, Defendant in Error, v. Joel D. Moore, Plaintiff in Error.
    1. Pleading—when several counts constitute single information. Held, that the several counts of the Information in question in this case constituted one information and not several, notwithstanding a repetition of the recital in several counts, “Now comes into court” the state’s attorney, etc.
    2. Pleading—what not essential conclusion of counts of informar ■ tion. It is not necessary that the counts of an information should conclude against the form of the statute or against the statute.
    3. Continuance—when denial for absence of witness not erroneous. Unless due diligence by issuing of a subpoena or otherwise is shown, the denial of a continuance because of the absence of a material witness is not erroneous.
    4. Judgments—when presence of defendant in criminal case sufficiently established. “Where the prisoner’s presence in court can by fair intendment be collected from the record, that is sufficient.”
    5. Dbam-shops—when conviction for selling of intoxicating liquor in anti-saloon territory established. Held, that the evidence in this case was sufficient to sustain the conviction appealed from.
    6. Dbam-shops—what evidence competent in prosecution for selling intoxicating liquor in anti-saloon territory. In a prosecution for the selling of intoxicating liquor in anti-saloon territory an exemplified copy of the issuing of an internal revenue tax stamp by the United States revenue collector, is competent as tending to show the liquor sold was of the kind for which the government required the payment of a tax and also as tending to show that such liquor was intoxicating in character.
    7. Instructions—whew upon circumstantial evidence inaccurate in criminal case. An instruction is inaccurate which tells the jury that circumstantial evidence is sufficient if it satisfies their minds beyond a reasonable doubt of the defendant’s guilt and if from all the evidence in the case, both circumstantial and direct, the jury believed the defendant guilty they should so find,—in that such instruction leaves out the element that the jury should believe the defendant guilty beyond a reasonable doubt. Held, however, in this case, that this instruction did not constitute a ground for reversal because the omitted element was supplied in other instructions given.
    Prosecution for unlawful sale of intoxicating liquor. Appeal from the County Court of Franklin county; the Hon. W. S. Phillips, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.

      Mooneyham & Seeber, for plaintiff in error.
    G. A. Hickman, for defendant in error.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellant was placed on trial upon an information containing nine counts, each count charging him with selling intoxicating liquor in anti-saloon territory. He was found guilty by a jury as charged in the first, second, third, fourth, and fifth counts. There was judgment on the verdict and he was sentenced to pay a fine of $100 on each of said counts and to be imprisoned in the county jail for a term of thirty days on each count, the term on each, after the first count, to begin at the expiration of the time of imprisonment on each preceding count.

Many alleged errors are assigned and they will be considered so far as they appear to be material, and are urged in the brief of plaintiff in error.

The court overruled a motion to quash the information. The motion was urged upon several grounds; one that there were three separate informations. The beginning of the first, fifth and ninth counts recites that “now comes into court Gr. A. Hickman, state’s attorney in and for said county and in the name and by the authority of the People prosecutes” etc. This recital was unnecessary after the first count and it would have been sufficient to recite that the “state’s attorney aforesaid, by the authority of the people of the State of Illinois aforesaid, prosecutes” etc., but the state’s attorney having signed once at the conclusion of all the counts this does not make different informations; either recital means and amounts to the same thing: that the state’s attorney prosecutes. Another ground was that each count concluded contrary to the statute instead' of to the form of the statute. If it were necessary the counts should conclude against the form of the statute, there would bé no substantial difference.

It is not necessary, however, the counts of the information should conclude against the form of the statute or against the statute. There is no such requirement by statute and the constitution requires only that prosecutions shall be carried on “in the name and by authority of the people of the State of Illinois,” and conclude “against the peace and dignity of the same. ’ ’ Other grounds urged are trivial.

Plaintiff in error filed an affidavit for a continuance on account of the absence of a witness. No diligence was shown to procure the attendance of the witness. It did not appear any subpoena was issued for him and the court properly overruled the motion.

It is assigned for error that the record does not show the presence of plaintiff in error at the time of the sentence.

The record shows that on April 27, came again the people and the said defendant into open court, a motion for new trial argued and overruled. Motion by defendant in arrest of judgment overruled, and judgment on the verdict and sentence.

This record shows plaintiff in error present during the proceedings leading up to his sentence." “Where the prisoner’s presence in court can by fair intendment be collected from the record that is sufficient.” Schirmer v. The People, 33 Ill. 275; Sewell v. The People, 189 id. 174.

The evidence in the case showed that the plaintiff in error hereafter referred to as Moore and one Ross Neal were co-partners in the grocery business which they carried on, on lot one, Benton Realty Company’s first addition to the city of Benton, Illinois, and in the town of Browning. It was further shown by competent record evidence that at an election held on April 7, 1908, the town of Browning by a majority vote became anti-saloon territory. It was further shown that in March, 1910, one Allen bought at the place of business of Moore and Neal, some sort of beverages called Tamberine and Gringo. Allen testified he bought a dozen small bottles or more of Tamberine during a period of about two weeks. This apparently reluctant witness said on a searching examination that it “looked red like the real stuff, whiskey;” that “it tasted some like whiskey but not- altogether, he couldn’t tell exactly;” that he bought the stuff from both Moore and Neal; three or four bottles from Neal and about a dozen from Moore. This witness stated the Tamberine did not intoxicate him but made him sick. Notwithstanding it made him sick he kept on buying and drinking it. Other witnesses testify to buying from the plaintiff in error beer in bottles, the ordinary beer sold in saloons, and without going into the details of this testimony, it is enough to say the evidence was ample to show plaintiff in error was selling both whiskey and beer and many more than enough sales were shown to sustain the verdict of guilty upon the five counts of the information.

Complaint is made of admitting an exemplified copy of a record showing the issuing of an internal revenue tax stamp by the Internal Eevenue Collector at East St. Louis, issued to Moore and Neal as retail liquor dealers on lot one hereinbefore described. The evidence ■ was admissible and competent as tending to show the liquor sold by them was of the kind for which they were required to pay a tax to the Government, and tending to show it was intoxicating liquor. Aside from the revenue stamp, however, we have already said the .testimony of the witnesses was ample to show sales of intoxicating liquor.

Criticism is made of the instructions given on behalf of the People. Upon examination of them we find but one that is not sufficiently accurate. Instruction number four told the jury that circumstantial evidence was sufficient if it satisfied their minds beyond a reasonable doubt of defendant’s guilt, and if from all the evidence in the case both circumstantial and direct, the jnry believed the defendant guilty, they should so find. The instruction left out the element that the jury should believe the defendant guilty beyond a reasonable doubt but as many other instructions directed the minds of the jury to this element they could not have been misled. They were repeatedly told that if they had a reasonable doubt of his guilt, they should acquit.'

After considering all the alleged errors which are deemed to be material, we conclude there is no reversible error; that the verdict and judgment are supported by the evidence and we cannot say the sentence imposed carried excessive punishment. The judgment and sentence of the County Court will be affirmed.

Affirmed.


text:
    Louis J. Souleyret, Appellee, v. O’Gara Coal Company, Appellant.
    1. Mines and minees—what evidence competent to show condition of roof. Held, that evidence as to the condition of the roof of the mine after the accident, to the effect that "there was a piece of slate hanging,” was not too remote and was therefore competent.
    . 2. Mines and minees—what evidence competent to show condition of roof. Evidence which tends to show such condition immediately before an accident is competent.
    ■ 3. Mines and minees—what, evidence incompetent to show wilful violation in connection with condition of roof. Held, that it was improper to permit evidence of the method employed in handling loose slate and of propping it to prevent falling; also that it was improper to permit evidence as to whether or nqt the place could have been so propped.
    4. Mines and minees—what evidence incompetent to show condition of roof. Held, incompetent to show the condition of a portion of the roof in question two or three months before the injury complained of. s '
    5. Mines and miners—what tends to establish wilful violation.
      There must be a conscious violation and this may arise not only from actual knowledge of the dangerous condition but also from a knowledge of facts from which the company ought to know of its dangerous condition.
    6. Evidence—what part of res gestae. Declarations accompanying an act which show the purpose thereof, are part of the res gestae and competent.
    7. Instructions—when as to obligations of jury improper. An appeal to a juror not to surrender his conscientious convictions in order to arrive at a verdict, states no principle of law, is entirely vicious and therefore erroneous.
    8. Instructions—when upon credibility of witness erroneous. An instruction is erroneous which directs the jury that they are at liberty to disbelieve the entire testimony of any witness who has wilfully sworn falsely to any material matter except insofar as his testimony is corroborated by other competent testimony; the rule is that the jury are at liberty to disbelieve such witness when he is not corroborated by other competent evidence or by facts and circumstances in evidence.
    9. Measure of damages—what not part of, in action for personal injuries. “The marring of personal appearance and humiliation resulting from contemplation of bodily disfigurement are not elements entering into the computation of pecuniary damages for personal injuries by reason of alleged negligence.”
    Action in case for personal injuries. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Denison & Spiller and M. S. Whitley, for appellant.
    H. Robert Fowler and John L. Thompson, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

As the judgment in this cause will he reversed and remanded for the errors presented by the record, there will be no discussion of the evidence, except that we are of opinion the court was warranted in refusing to direct a verdict to find the defendant not guilty as requested at the close of the evidence for appellee and again at the close of all the evidence.

The declaration containing two counts charged the appellant in the first count with a wilful failure to examiné the mine and observe if there were unsafe conditions and to mark them and report to the manager and to make a record of the examination in a book kept for that purpose, whereby appellee who was a miner employed in said mine was injured by a mass of loose roof falling upon him.

The second count charged a wilful failure to comply with the statute in permitting appellee to enter the mine, to work, not under the direction of the mine manager, before dangerous conditions had been made -■safe. Upon a trial of the issues made by the declaration there was a verdict and judgment for appellee.

In view of another trial we shall briefly notice the points made in appellant’s brief and where the rulings of the trial court occur to us to have been improper they may in future be obviated.

A witness introduced by appellee was permitted to testify to the condition of the roof where the fall had occurred just after appellee was injured by the fall. He stated “There was a piece of slate hanging.” It is argued that this being after the fall it was not admissible. We think it was not too remote and tended to show the condition of the roof before the fall and was admissible. The weight of this evidence, whether much or little, was for the jury in connection with the other evidence.

Evidence was admitted over objection, of the method employed in handling loose slate and of propping it to prevent falling, and whether the place could have been so propped. This evidence was immaterial and irrelevant to the issues involved by the pleadings, and the objection should have been sustained.

Evidence was admitted showing the condition of a portion of the roof in the room two or three months before the injury complained of. If this evidence had shown further that it was the same slate that had fallen it would have been proper and not too remote, but as it did not appear it was the same slate it was improper.

The court permitted the witnesses to testify that appellee on his way to the place where he was injured told them he was going over there to see the machine men to see if the place where he had been at work squaring a room was squared so they could cut it; that he wanted the machine men to come and see if it was ready to cut. As the testimony' showed the fall occurred at a place where appellee was not engaged at work it was regarded as material for him to show he was called there in the line of his employment and was rightfully there and not a mere volunteer to whom appellant would owe no duty. There was evidence that it had been the custom in the mine for two or three years for the men after the coal was loaded to notify the machine men they were ready to have coal cut, or ready for the machine. The evidence tending at least to show a custom to notify machine men to cut coal when the place was ready, was admissible as tending to show appellee’s right to go and notify them and appellee testifying he went to the place for that purpose the evidence of his declarations of the purpose while on his way was part of the res gestae and admissible.

Evidence was offered by appellant which tended to show the condition of the slate before and just before the fall. The witness Jones testified that while he did not examine it he noticed it and was then asked tosíate its condition which the court refused to permit him to do. The offered evidence was proper and the weight of it was for the jury. Any testimony tending to show the condition was proper, provided the witness had seen it or examined it, but it would be immaterial to prove what would be done in case loose slate or rock was discovered.

The first instruction asked by appellant and refused does not state the law. It states that the company must know it is violating the statute and if by oversight or accident it fails to comply with the statute there can be no recovery for a wilful failure. There must be a conscious violation but this may arise not only from actual knowledge of the dangerous condition but also from a knowledge of facts from which the company ought to know of its dangerous condition. Aetitus v. Spring Valley Coal Co., 246 Ill. 32.

It was proper to refuse the third refused instruction asked by appellant. It is an appeal to the juror not to surrender his conscientious convictions in order to arrive at a verdict. It states no principle of law and is entirely vicious.

The tenth instruction asked by appellant was wrong and the court’s modification did not materially change it. Aetitus v. Spring Valley Coal Co., supra.

In considering the criticism of the instructions given for appellee we find the second to be substantially a correct rule. The fourth tells the jury if they find appellant guilty they may award appellee compensation for pain and suffering and for any disfiguration of his person or physical appearance shown by the evidence. The instruction was erroneous.

“The marring of personal appearance and humiliation resulting from contemplation of bodily disfigurement are not elements entering into the computation of pecuniary damages for personal injuries by reason of alleged negligence.” Lake St. El. R. R. Co. v. Gormley, 108 Ill. App. 59, 66, and cases cited. Cullen v. Higgins, 216 Ill. 78.

While the instruction does not direct the jury .to consider the mortification or humiliation resulting from a contemplation of physical disfigurement, that is the effect of it.

The eighth instruction directs the jury that they are at liberty to disbelieve the entire testimony of any witness who has wilfully sworn falsely to any material matter except in so far as the testimony is corroborated by other competent testimony. This is wrong. The jury are at liberty to disbelieve such witness when he is not corroborated by other competent evidence or by facts and circumstances in evidence.

The judgment for the errors indicated will be reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    Rollin Williams, Appellee, v. Orion Coal Company, Appellant.
    1. Verdicts—when failure to predicate upon particular count does not vitiate. Where a jury by their verdict under instructions of the court specify under which counts it is predicated, and fail to pass upon one count, the verdict is not vitiated,—the various counts being predicated not upon different but upon the same cause of action.
    2. Mines and miners—when verdict finding wilful violation set aside. A verdict which finds a wilful violation under the Mines and Miners Act will be set aside if manifestly against the weight of the evidence.
    Action in case for personal injuries. Appeal from the Circuit Court of Perry county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Bland & Cave and I. R. Spilman, for appellant.
    George W. Dowell and M. C. Cook, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellee recovered a judgment for the sum of $650 damages as compensation for an injury occasioned by a fall from the roof in appellant’s mine in which he was employed as a miner.

There were four counts in his declaration alleging in each a distinct wilful violation of the statute which resulted in his injury but it is clear that each count was based upon the same injury and that the four counts were the pleader’s different statements of the same cause of action.

The trial court directed the jury if it should find appellant guilty, to specify upon which count or counts of the declaration it so found, and the jury returned a verdict finding the appellant guilty on the first three counts and made no finding on the fourth count. The direction was unnecessary as under the present practice one good count in a declaration, if proven, is sufficient to sustain a general verdict. It is claimed that no finding on the fourth count having been made, the judgment on the verdict was erroneous and the case of Semple v. Hailman, 3 Gil. 131, is cited as authority. In that ease the declaration contained four counts each declaring upon a different writing obligatory. There were four different causes of action between the same parties declared upon. Issues were joined on all the counts and it was held that a verdict on three of the counts and no finding upon the fourth was not good and it was error to render judgment upon it for the reason as stated, that “a verdict which finds part only of the issue is void as to the whole.” The finding and judgment in that case were no bar to the cause of action alleged in the fourth count upon a separate writing obligatory.

In this case the several counts being for the same and not different causes of action, a verdict and judgment on a portion of the counts would be a bar to a recovery on the remainder. There was no error in holding the verdict in this respect sufficient. Akers v. Bay Co. Savings Bank, 63 Mo. App. 316; Spencer v. New York, etc., R. Co., 62 Conn. 242.

In the first count of the declaration it was averred it was the duty of the appellant to have its mine examined every morning for dangerous and unsafe conditions; that near the month of room twelve on the twelfth south entry, there were loose rock, slate and other material which were dangerous; that appellant wilfully failed to examine it, and that while appellee was engaged there as a miner it fell upon him. The second count avers the duty to examine and mark a dangerous place and wilful failure, whereby appellee was injured by a fail from the roof, and the third count charges the duty to examine where men are expected to pass or to work, to mark the dangerous places as notice to keep out, and allow no one to enter the mine to work while such dangerous conditions exist, except under the direction of the mine manager, and a wilful failure to perform the duty.

The mine examiner did not mark the place on the morning of the day of the accident, and appellee was allowed to enter the mine.

The main contention of appellant is that there were no dangerous conditions in the place where the injury occurred at the time the mine was examined and that such conditions arose afterwards by appellee taking the coal out during the day of the accident thereby allowing the slate which fell upon him, thus unsupported to fall, while appellee contends the dangerous piece of slate was at the time the mine was examined in the morning unsupported, and was then a dangerous condition and that such place should have been marked and that appellee should not have been permitted to enter the mine until such condition had been made safe except under the direction of the mine manager.

The fair preponderance of the evidence should show the breach of duty alleged in one or more of the first three counts of the declaration was the proximate cause of appellee’s injury; that the dangerous place complained of was the thing that caused the injury.

The testimony of appellee was that at the place where the fall occurred, he was working out a piece of bottom coal and fixing to set a prop when the piece of slate fell upon him; that the place was then dangerous, but he says the piece of slate was not there the day before, was not showing, was not loose. The evidence shows satisfactorily that appellee’s working place (in the sense that such place included the room, entry and a crosscut) was dangerous, or had dapgerous places in it, but upon a careful examination of all the evidence we are unable to find sufficient evidence that the place from which the piece of slate fell was at the time of the examination dangerous and unsafe. He says himself it was not showing, not loose the day before. Witnesses introduced by appellant testify that they saw a slip there, slate hanging in the slip, but they do not state it was before the examination of that morning. An affidavit for continuance on account of a witness Nevills, read as his testimony, stated that Nevills if present would testify that he was working in the entry in plain view of appellee on the day of his injury and saw him remove the coal from under the piece of slate and leave it in the condition which caused it to fall. This statement is nowhere denied by appellee. If this is true, the dangerous condition which caused the injury did not exist at the time of the examination in the morning and the breach of duty alleged in the first three counts was not the proximate cause of appellee’s injury. We have gone over all the testimony in this record including appellee’s heretofore referred to, with care, and find the manifest weight of the evidence shows the dangerous condition which caused appellee’s injury did not exist at the time of the examination of the mine in the morning. For this reason the court should have awarded a new trial and it was error to refuse it. The breach of duty in failing to furnish props alleged in the fourth count is not before us for review.

The judgment is reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    Bridget Huber, Appellee, v. John J. McGlynn, Administrator, Appellant.
    1. Evidence—effect given to verbal admissions. Verbal admissions should be received with great caution. They are frequently unreliable and entitled to little weight and are subject to imperfection and mistake.
    2. Verdicts—when set aside. A verdict manifestly excessive and against the weight of the evidence will be set aside on review.
    Contested claim in court of probate. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    B. H. Canby, for appellant.
    Dan McGlynn, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

John J. McGlynn, as administrator of the estates of John J. and Hanora Snowball, deceased, prosecuted this appeal from a judgment in favor of appellee rendered upon a claim originally filed against said estates in the Probate Court of St. Clair county and from that court appealed to the Circuit Court. The claims filed, by appellee were for services rendered during three separate periods; the first from June 1, 1883, to October 30, 1900, at $20 per month, amounting to $4,080; the second for services rendered from October 30, 1900, to May, 1905, at $20 per month, amounting to $1,120; and the third for services and furnishing meals from May, 1905 to April 27, 1909, at $40 per month, amounting to $1,920. The total of the claim was $7,120, -upon which there were credits of $1,209 cash paid between June 1,1883, to October 30, 1900, and $80 paid from May to December, 1908, leaving a claimed balance due of $5,831.

The same claim was filed against both estates and the two were consolidated by agreement and tried by a jury. A verdict for $4,500 was returned for appellee upon which the court rendered a judgment.

The alleged errors of the trial court urged here for a reversal of the judgment will be considered hereafter. John J. Snowball and Hanora, his wife, had resided many years in East St. Louis. They had one son who died in 1889 leaving a daughter, Nellie Snowball, who still survives. The mother of Nellie died in 1900 and the latter was reared by an uncle in Ohio. John J. Snowball died February 14, 1909, and his wife Hanora on the 27th of April following.

Prom the year 1888 and continuously until their deaths, they resided in a dwelling at the corner of Sixth street and Summit avenue, East St. Louis, and on the same lot they had a building consisting of two four room tenements which was rented. The property belonged to John J. Sometime about the year 1884 appellee began to live with John J. and Hanora and so continued until the first of January, 1895, when she left there and engaged as a domestic doing household work for a family in St. Louis. During the time she lived with the Snowballs and prior to January, 1895, the testimony shows she did all the cooking, washing, ironing and other household work. After she went to St. Louis to work, John J. Snowball and Pat Mul-Queeney, a brother of appellee, went to St. Louis to get her to return to Snowballs and this brother testifies that Snowball told her she was foolish to leave after working so many years for them and “he would see she would be well paid for this when he died” or “well paid for her work when they died.” The testimony shows she did return to the Snowballs on March 17, 1895, having remained absent from there some two and a half months and that she thereafter lived there and continued to do the household work until her marriage in October, 1900. Atter her marriage she did not live in the Snowball residence but lived about a block away until 1902 or 1903 when she with her husband moved into the tenement house of Snowball above referred to, and continued to reside .there until the deaths of the Snowballs.

Taking up for consideration the first item of appellee’s claim for services from June 1, 1883, until October 30, 1900, an allowance for any services prior to March 17, 1895, would, waiving all other questions, be barred by the statute of limitations which it was not necessary to plead specially. Bromwell v. Estate of Bromwell, 139 Ill. 424.

There is evidence that John J. Snowball in conversations with the brother of appellee about 1890 or 1892, and up to 1898, would say “he didn’t see how they could get along without her” and “he would see she was well paid when they died” but there is no evidence that any such promise or statement was ever made to appellee prior to the time appellee left and went to work in St. Louis January 1,1895. Moreover, the fact that appellee left the Snowballs and went out to service in St. Louis tends to show there was at that time no such agreement between them. At best, assuming she was not living there as a member of the family, there could have been but an implied promise to pay for services rendered which would be barred by the statute of limitations. Freeman v. Freeman, 65 Ill. 106.

From the 17th of March, 1895, until October 30, 1900, when appellee was married, she lived with the Snowballs continuously and did the household work.

The evidence of the brother as before stated, was that the Snowballs were anxious for her to return and that in his presence Snowball told her she was foolish to leave after working these many years for him and to come back and work for him as she had been and he would see she was well paid for it when he died. After her return a number of witnesses testify to hearing declarations of the Snowballs to the effect that she was to be remunerated. One witness heard Mrs. Snowball tell her just before Snowball’s death that “she would see .her paid for her trouble in that sickness of his.” Another witness heard both Snowballs say six or seven years ago they were going to reward her for what she was doing. There is testimony of other witnesses of like declarations tending to corroborate the evidence of the promise testified to by the brother of the conversation between Mr. Snowball and appellee when they went to St. Louis to get her to return.

A number of disinterested witnesses testify to admissions of appellee which contradict the claim that she was to be paid for the services rendered by her after her return from St. Louis and prior to her marriage in 1900 when the Snowballs died.

Patrick Tierney states that after her return from St. Louis she told him she was receiving $10 per month after her return for her work. Mrs. Gray states that just after she returned from St. Louis she told her she was receiving $10 per month. Mrs. Hayes testified she told her often and just before she was married she was getting $10 per month.

Another witness, Kate Crane, a distant relative of the granddaughter, Nellie Snowball, states that after the funeral of Mr. Snowball appellee told her that when she came back from St. Louis the Snowballs promised her $10 per month if she would come back and they had paid her that wage since she returned. Nellie Snowball testified to the like admissions. Appellee contradicts all such statements.

Verbal admissions should be received with great caution. They are frequently unreliable and entitled to little weight and are subject to imperfection and mistake. Bragg v. Geddes et al., 93 Ill. 39; Corder v. Corder, 124 id. 229. And this is especially so of admissions of a person since deceased. Laurence v. Laurence, 164 id. 367.

The evidence of the promise to pay and the payment of wages depend on both sides upon alleged admissions subject to the same imperfections and we are of opinion that weighing it by the same standard, the weight of the evidence was that she was paid the sum of $10 per month.

Appellee married in 1900 and left the Snowballs and never thereafter lived in the house but lived elsewhere with her husband. True she did many things for them but she at the same time kept her own household and during some of this time the Snowballs employed help and Mrs. Snowball did some of her own work. Appellee and her husband during all the time from 1902 or 1903 when they moved into the tenement of the Snowballs, occupied it and there is no evidence they paid any rent and during this time the testimony is very indefinite as to what appellee did for them.

If appellee is entitled to compensation and has not been paid for her services, she should be paid a reasonable compensation for services not barred by limitations for what competent evidence shows she did, deducting whatever she may owe the estate or has been paid, hut the evidence before us does not support the judgment for $4,500. It is manifestly excessive and against the weight of the evidence and the court erred in refusing to award a new trial.

There was also error in admitting the evidence of appellee’s husband of the conversation between his wife and other witnesses. The testimony was incompetent.

The judgment will be reversed and the cause remanded.

Reversed and remanded.