text:
    Henry O. Tonsor, Charles A. Schleuter, Charles Seibold, Robert J. Young, Max Rubenstein, Robert M. Stamper, Alexander W. Hope, Henry S. McPike and Newton Hynes, Appellees, v. Fidelity & Deposit Company of Maryland, Appellants.
    1. Appeals and errors—harmless error. Though, certain pleas setting up the provisions of a bond, to which a demurrer was sustained, may have been proper, yet the verdict will not be reversed where the issues sought to be made by such pleas were submitted to the jury.
    2. Official bonds—questions for jury. In an action by sureties on the bond of a town ■ tax collector against a company which indemnified them against loss thereon, it is for the jury to determine, and its determination is conclusive, whether the company waived provisions of its bond requiring notice of acts, which might cause liability, and providing that claim, must be filed within six months after the expiration or cancellation of the bond, where one of the sureties had informed an agent of the company that a demand had been made on the collector for a deficiency, and an action had been brought against them on his bond, and the agent had informed the company which directed the sureties to defend the suit, and on being informed of the amount of the judgment more than six months after the expiration or cancellation of the collector’s bond, denied liability unless the collector had been guilty of embezzlement.
    3. Instructions—when correct as to liability on indemnity bond. In an action by sureties on a town collector’s bond against a company which indemnified them against loss thereon, an instruction is correct which states, that before the plaintiff can recover, the jury must find that the collector embezzled or fraudulently converted money during the period described, and submits the question whether a notice of default given the company by the sureties was a waiver of the provisions of the bond.
    4. Embezzlement—definition. An instruction which states that there must be a felonious stealing, taking, and carrying away to constitute embezzlement or fraudulent conversion is incorrect.
    5. Instructions—repetition. It is not error to refuse instructions fully covered by those given.
    6. Indemnity—liability for costs. In an action against an indemnity company which indemnified the plaintiffs as sureties on a collector’s bond against loss thereon, for a judgment recovered against the sureties on default of the collector and for expenses, such indemnity company is not liable for the costs of appeals to the Appellate or Supreme Courts, in the action on the collector’s bond,

      where the sureties were authorized by the company to defend the suit but not to take appeals.
    7. Costs—appeals and errors. Where on appeal a judgment is affirmed on remittitur, costs may be taxed against the appellees, but the costs of two additional abstracts may be taxed against the appellant where the one by the appellee was necessary and the one by the appellant should have been included in the original abstract.
    Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed on remittitur.
    Opinion filed October 7, 1912.
    Rehearing denied November 9, 1912.
    John J. Brenholt and E. W. Eggman, for appellants.
    B. H. Canby, for appellees.
   Mr. Justice McBride

delivered the opinion of the court.

Judgment was rendered in the trial court for the plaintiffs for two thousand dollars and costs, and the defendant brings this case to this court by appeal.

Greene Parker was collector of taxes for the town of Alton, Madison county, Illinois, for the term ending May 1, 1905. The appellees became sureties upon Parkers’ bond as collector and on the 27th of January, 1905, for a consideration of one hundred fifty dollars the appellant gave to the appellees a bond of indemnity to the amount of fifty thousand dollars, agreeing to indemnify and keep indemnified the appellees during the period beginning January 23,1905, and ending May 1, 1905, from and against any and all loss which they might be put to, incur or suffer by reason of any personal act or acts of larceny or embezzlement committed by the said principal in the discharge of his duties in said position. The bond provided, also, that if the appellees, or either of them, should become aware of any act which may be made the basis of any claim thereunder, shall immediately give the Fidelity & Deposit Company of Maryland notice in writing, by registered letter addressed to the president of said company, Baltimore, Maryland, within ninety days after the assured or either of them became aware of such acts as aforesaid, file with the company an itemized claim with full particulars, duly sworn to, and if required, shall produce in support thereof all appropriate books and vouchers for the use of the Company in investigation. And it is further provided that no claim payable thereunder shall be filed with the company after a period of six months from the expiration or cancellation of said bond, nor should there be any liability under such bond for any act of larceny or embezzlement committed after the appellees or either of them became aware of any act which may be made the basis of a claim thereunder.

It appears from the evidence in the case that Parker made a settlement of the taxes collected about March 29, 1905, and that he retained in excess of his lawful commission $1,045.52. That a demand was made upon Parker by the town of Alton for this excess retained by him which he neglected and refused to pay over to the proper authorities but appropriated the money to his own use, and that afterwards on April 10th the town of Alton commenced a suit in the Circuit Court of Madison county to the May term, against Parker, and appellees as sureties upon his bond, for the $1,045.52 which he had collected and refused to turn over. The evidence tends to prove that the appellees had no notice of the default and conversion of the money by the said collector until after said suit was commenced, and that immediately after summons was served upon them they gave notice to the agent of the appellant at Alton, Illinois, of this suit that had been instituted against them upon said bond and asked appellant to take charge of the suit. That the agent notified appellant immediately and that shortly thereafter appellees were instructed by said agent to employ attorneys and defend the suit, such agent representing that he was directed to do so by the appellant; this, however, is disputed by the agent of appellant. The evidence also tends to prove that no objection was made to this notice of the claim that had been brought against appellee. Appellees employed attorneys and proceeded to defend the suit but judgment was rendered against appellees for the amount of $1,045.52 and costs of suit. That there were pending in said Circuit Court at the same time several other suits against the appellees, or some of them, on account of liabilities as sureties upon other collectors’ bonds in which the appellees were not indemnified, after judgment had been rendered the appellees, without consulting with the appellant, appealed from said judgment to the Appellate and Supreme Courts but the judgment of the Circuit Court was not reversed and appellees were compelled to pay the judgment and costs amounting to $1,294.19, and interest thereon amounting to $194.12. On August 7, 1906, written notice, under oath, of the recovery of the judgment and costs was given by appellees to the appellant. Between the time of the final rendition of the judgment and the payment of it efforts had been made to effect a settlement for a less amount but failed. On the 9th day of August, 1906, the appellant, by its vice president, ácknowledged receipt of the notice above mentioned, and stated that its previous information was that the claim against Parker only involved $1,500.00, and denies liability unless Parker was guilty of acts of embezzlement.

The first count, of the amended declaration, sets forth the bond in haec verba and then avers that between the 28th day of January and the first day of May, 1905, and on to wit March 25, 1905, said Greene Parker embezzled and fraudulently converted $1,045.52 of the money of the said town to his own use, contrary to the statute. That the appellees had no notice of the conversion of this fund until suit was instituted against them for the recovery thereof. That appellant was notified that appellees would hold it responsible for any loss they might sustain, and that thereupon the appellant directed appellees to defend the suit, which they did. That no objection was made to their failure to give notice by registered letter of such default. That on August 7th a written notice of the liability was given to the appellant but appellant then disclaimed liability, except so far as Greene Parker had been guilty of acts of larceny and embezzlement. In other words, the declaration sets out the provisos together with the acts of waiver by appellant.

The second count of the amended declaration, after setting forth the cause of action generally, in the same manner as in the first count, alleges that upon the receipt of the notice of the commencement of said suit against appellees, that it became the duty of appellant to make defense or be bound by the judgment rendered in the absence of fraud or collusion; then avers that appellees did proceed to make defense, and judgment was rendered and paid by the appellees, and thereupon the appellant became liable to reimburse them.

The common counts were also filed and a bill of particulars therein. Demurrers to the amended declaration were overruled and leave given to defendant to plead over. The defendant filed the plea of general issue, non est factum, and nine special pleas. Demurrers were filed and sustained to pleas Nos. 3, 4, 5, and 9, and it is claimed that the court erred in sustaining the demurrer to each of these pleas. It is urged by counsel for appellant that, as these pleas set up some of the provisos of the bond, it was improper to permit these provisos of waiver to be set forth in the declaration, and refuse to allow the defendant to plead such provisos in its defense. It may be that the pleading was irregular, and that possibly some of these pleas would have been proper as setting forth the defense relied upon by appellant, but an examination of this record discloses that the issues sought to be raised by these respective pleas were presented to the jury under other pleas, the evidence heard thereunder and instructions given at the request of appellant, presenting the matters set forth in these pleas as an issue to be determined by the jury. Defendant’s third instruction includes the matters set forth in his third plea. Defendant’s sixth instruction includes the matters set forth in his third and fourth pleas. Defendant’s fourth instruction sets forth the matters involved in his fifth plea, and defendant’s sixth instruction sets forth the matters involved in his ninth plea. There were many pleas filed and some of them were a repetition, but so far as we have been able to ascertain all of the issues sought to be made - by these pleas were submitted to the jury for its determination. While it is true that the pleadings were irregular, yet we would not be willing to disturb a verdict upon that account unless it appeared that some issue that was vital to appellant’s defense was not submitted to the jury. One of the objects to be obtained by pleading is to intelligently present to the jury the several matters that are in dispute between the litigants. Mere irregularities will not work a reversal of a judgment. Wallace v. Curtiss, 36 Ill. 157; Rubens v. Hill, 213 Ill. 523. A judgment will not be reversed or impaired or in any way effected by reason of any imperfections, omissions, defects, matters or things in the process or pleadings, unless it shall appear that either party has been prejudiced thereby. Sec. 6, Chap. 7, Hurd’s Revised Statutes (Amendments and Jeofails).

It is insisted by counsel for appellant that the case of Lesher v. U. S. Fidelity Co., 239 Ill. 502, is conclusive upon this question. We do not so regard this decision. It will be noted that in that case the defendant filed his plea of limitations to which a demurrer was interposed and overruled, and the plaintiff then elected to abide by his demurrer and judgment was rendered against him for costs, so the subject-matter sought to be adjudicated was not otherwise tried or in any manner submitted to the decision of the court or jury, besides the court there says: “Allegations relied on in the declaration if they had been set up in the replication to the plea would not have been sufficient.” Not so in this case; the questions were submitted and tried and we do not regard that decision as decisive of the question here under consideration.

It is next sought to reverse this case upon the ground that the acts herein proven were not embezzlement, and that if it is shown that the collector, Parker, was ready and willing to pay over the money that he was not guilty of embezzlement. The evidence in this case shows that Parker collected the money, that he retained it and appropriated it to his own use; that a demand was made upon him for it and he failed to pay it over. By Sec. 80 of Chap, 38, it is. provided, “If any State, County, Township, City, Town, Village or other officer * * * embezzles or fraudulently converts to his own use * * * any money * * * shall be imprisoned in the penitentiary not less than one nor more than fifteen years.” If a person fraudulently converts money of a municipality to his own use, even though he may have an intent to return it, and while a criminal intent is necessary, yet if the acts relied upon as constituting the crime are fraudulent, they are done with criminal intent. “A guilty intent is necessarily inferred from the voluntary commission of such an act, the inevitable effect of which is to deprive the true owner of property and appropriate it to the defendant’s own use.” Spalding v. People, 172 Ill. 40.

The jury in this case were fully advised by the instructions that before the appellees were entitled to recover, it was necessary to show that Parker embezzled or fraudulently converted the money to his own use.

It is next contended that the evidence in this case is not sufficient to warrant a verdict and that the court should have directed the jury to find a verdict for the defendant, but failing in this it should have set aside the verdict and granted a new trial. The evidence introduced on behalf of appellees in this ease tends to show that the appellees had no notice of the fraudulent conversion of this money until suit was instituted against them upon the collector’s bond, and that immediately thereafter they met and authorized A. W..Hope to call upon S. F. Connor, the local agent of appellant at Alton, Illinois, to whom they had made' their application for the indemnity bond, which was forwarded by him to the Company, returned by the Company to him and delivered to the appellees, by whom the premium was paid. That no objection was made to the form of the notice, that the agent told the appellees to defend the suit and they claim that by virtue of that authority they did defend it. While it is true that some of these matters were denied by the agent, it is also true that they were questions for the jury to determine, and if after the demand had been made upon Parker, by the city attorney for this deficiency, and suit was commenced, and at that time the appellees advised the agent of the shortage claimed and the agent agreed to notify appellant, and did so, and appellant directed the appellees to proceed in the defense of the suit, and they did so, we are unable to see why this might not be a waiver of any personal notice or presentation of the particular items of liability within ninety days, as provided by said bond should be done, and why it would not be a waiver of the time limited to file the claim with the appellant. On August 9, 1906, the appellant was notified of the amount of judgment rendered, together with the expenses incurred and in reply to this notification, after acknowledging receipt of the notice, the vice president of the company says, “In this notice you state that a judgment was recovered on the bond for $280,000.00 debt, and $1,045.52 damages; there certainly must be some mistake about this as all our previous information is to the effect that so far as Mr. Parker was concerned there was only about $1,500.00 involved. We merely acknowledge receipt of your notice and do not think that the sureties of Greene would have any claim against us unless it is proved that he was guilty of acts of larceny and embezzlement.” It appears to us that the jury were warranted in finding that the appellant understood the situation of the default of Parker, and the efforts that were being made to collect it. It is said in the case of Milwaukee Insurance Co. v. Schallman, 188 Ill. 224, “It has been repeatedly held by this court that the agent, although local in respect of the territory in which he operates, who is clothed with general power to solicit and make contracts of insurance for the company is so far a general agent, that notice to him of facts affecting the contract is notice to the Company. * * * Whether this agent was apparently clothed with authority to represent the Company in the adjusement of this loss, or to accept service of the demand and notice for arbitration, under the conditions of the policy, was a question of fact, to be determined by the jury upon consideration of all the facts and circumstances proved. (Phenix Ins. Co. v. Stocks, 149 Ill. 319; Hancock Life Ins. Co. v. Schlink, 175 Ill. 284; Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179.) These authorities hold, that a general agent, clothed with power to solicit insurance, receive the application and forward it to the company, receive and deliver the policy and collect the premium, has power to waive a condition of the policy, notwithstanding that power is negatived by provisions in the policy and his contract of employment.” The question as to whether or not the appellant waived the provision of this policy, as to the time of presenting the claim and as to whether the claim was presented in apt time were, we think, questions of fact to be determined by the jury, and their finding upon this matter is conclusive. It is said in the case of Dwelling House Ins. Co. v. Dowdall, supra, p. 185, “The doctrine of waiver as applied to a case like this is, in effect that of an estoppel in pais, and the instructions should have left the jury to determine, from all the facts proved, whether the plaintiff was led to believe by the conduct of the Company that formal proof of loss would not be required of her.” This bond of indemnity was given by appellant to secure appellees against any loss by reason of the embezzlement or fraudulent conversion of any of these funds by Greene P'arker, and if the conversion was made it seems to us that it is right and proper that the appellees should be reimbursed for the moneys paid out by them, to the extent.of appellant’s contract, unless they have been guilty of some collusion that in some manner prevented the appellant from making itself secure, but this question was made and submitted to the juiy, and so far as we can see by the evidence rightfully determined that Parker never did undertake to in any manner secure these appellees against this loss.

It is next claimed that the instructions given for plaintiffs were erroneous. The criticism made upon the first instruction is not well taken; it only defines what acts would constitute embezzlement or fraudulent conversion, and we think that this is in accordance with the views heretofore expressed in this opinion.

Instruction No. 2 is criticized and we think has been disposed of by this opinion, as the question of the authority of this agent was a matter properly to be left to the jury.

As we understand the criticism upon the third instruction, it is without merit as that instruction plainly tells the jury that before they can find for the plaintiff they must find that Greene Parker embezzled or fraudulently, converted the money to his own use during the period described in the bond, and then submits to the jury the question as to whether or not the notice, as given, was a waiver of the provisions of the bond, which we think has been disposed of above.

We think defendant’s instruction No. 8 was properly modified. This instruction as presented left the jury an opportunity to say that, even if the conditions were waived, it would he a disregarding of such conditions.

The criticism upon defendant’s refused instruction No. 4 is not well taken as it directs that, to constitute embezzlement or fraudulent conversion, there must be a felonious stealing, taking and carrying away. This is not in accordance with the statute or the construction placed thereon in the case above cited.

There was no evidence upon which to base defendant’s fifth refused instruction.

We think defendant’s seventh and eighth refused instructions were fully covered by the other instructions, and find no error in refusing them.

The next contention of appellant is that the verdict in this case is excessive, and we think that this point has much merit. The evidence tends to prove, and the jury were warranted in finding, that when suit was commenced in the Circuit Court, appellant was advised of the commencement of the suit and authorized appellees to defend it, hut we have been unable to find anything in this record that authorized the appellees to appeal the suit to the Appellate or Supreme Courts, and we think, that as there Were other cases pending, that it was to the interest of other litigants to appeal this case to the higher courts, and by an agreement a final determination of this case disposed of the other cases pending in the Circuit Court. Besides, when A. W. Hope, who was apparently the spokesman for appellees, on cross-examination was asked the question why the case was appealed to the Supreme Court he said, “I never had any idea that we had any defense and said so from the beginning. They took it up there to try and get a settlement with the town, I guess; that was the object of it.” Whatever their purpose may have been in appealing the case, we think that in order to charge the appellant with the expense of the appeal, that appellant should have authorized the taking of the appeal. We do not believe that the expense of the trial of this case in the Appellate or Supreme Courts was properly chargeable to the appellants. It is somewhat difficult to determine just how much of the expense for attorneys’ fees, that was presented, was for trial in the Circuit Court and how much in the Appellate Courts. It seems that the attorneys at about that time were paid, one of them fifty dollars and the other eighty-five dollars, which would probably be the amount for the trial in the Circuit Court, and the remainder of the expense should be paid by the appellees, and we think that the appellees are entitled to recover in this suit $1,294.19, with interest at five per cent from November 13, 1906, to November 13, 1911, as charged. Also attorneys’ fees $135.00. That the bills incurred for other attorneys’ fees and costs of record, abstracts and briefs amounting to $509.30 should be paid by appellees; in other words, that appellees were entitled to a judgment of $1,623.22, and if the appellees will file a remittitur within thirty days from the filing of this opinion of all recovered in excess of $1,623.22, then the judgment will be affirmed for that amount; otherwise the judgment will be reversed and the cause remanded.

The court further finds that the additional abstract furnished by appellees was necessary herein, and that the appellant’s additional abstract should have been included in the original abstract, and it is ordered that the costs of the two additional abstracts be taxed against the appellant, and that the remainder of the costs of this appeal be taxed to the appellees.

Affirmed on remittitur.


source: Caselaw Access Project

author: Mr. Justice McBride

license: Public Domain

text:
    Patrick Grannon, Appellee, v. Donk Bros. Coal & Coke Company, Appellant.
    1. Pleading—when one good count sufficient. One good count to which the evidence is applicable and which if proven is sufficient to support the judgment is all that is requisite.
    2. Mines and miners—declaration. A count which alleges that it was plaintiff’s duty to assist in cleaning lip falls in a mine, that the assistant mine manager took him to a fall and inspected the roof and ascertained, or could have ascertained with ordinary care, that loose material remained in the roof and was likely to- come down, but directed the plaintiff to proceed to clean up the fall, and that relying on assurances of safety, he with due care proceeded and was injured by a fall, is, if proved, sufficient to sustain a judgment.
    3. Mines and miners—evidence. Evidence that an assistant mine manager made an- examination of the roof and found it to be drummy and composed of soapstone, which was more likely to fall than other material, but directed the plaintiffs and others to go ahead and clean up a fall, is sufficient to warrant a finding of negligence.
    4. Mines and miners—questions for jury. Where plaintiff was injured by a fall in a mine, his negligence is a question for the jury, where it was his duty to clean up falls and a few minutes after beginning work the assistant mine manager had examined the roof, where timbers were broken, and directed him to go ahead.
    5. Master and servant—contributory negligence and assumed risk. It would seem that where a servant relies on assurance of the master that conditions are safe, and continues to work, he is not guilty or contributory negligence nor does he assume the risk.
    6. Mines and miners—instructions. In an action for injuries caused by a fall in the roof of a mine, it is not reversible error for the court to modify an improper instruction tendered by the defendant, by inserting “and did not rely on assurances of safety” by the mine manager, for such modification even if it assumes such assurances, could not mislead where the declaration alleged specific assurances, and other instructions stated that the specific acts of negligence charged must be proved.
    7. Instructions—when one cannot complain of improper modification. One who tenders an improper instruction cannot complain of a modification thereof by the court though it is not made good.
    8. Mines and miners—instructions. In an action for injuries from the fall of the roof of a mine, it is not error to refuse an instruction which undertakes to point out particular things that the plaintiff should do or fail to do, to entitle him to recover, or things he should do in the exercise of care, since such instruction invades the province of the jury.
    9. Damages—when not excessive. A verdict for $15,000 is not excessive where the plaintiff’s spine was injured, a vertebra dislocated, he was paralyzed from the hips down, had no control over his bowels or urine, and was unable to sit up and care for himself or to perform any labor.
    10. Mines and miners—evidence. Failure to establish a wilful violation of statute as alleged is immaterial when a good common law count in the declaration is sustained by the evidence.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    Rehearing denied November 9, 1912.
    Wise, Keefe & Wheeler and Whitnel, Browning & Gillespie, for appellant; R. B. Hendricks and Mastin & Sherlock, of counsel.
    Webb & Webb and Bartel, Framer & Klingel, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

The trial of this case in the Circuit Court resulted in a verdict and judgment for the plaintiff to the amount of fifteen thousand dollars, and the defendant prosecutes this appeal.

The appellant was engaged in the business of operating a coal mine at Troy, in Madison county, Illinois, and the appellee had worked there for about seven or eight years and during that time had been engaged in practically every employment about the mine. For more than one month before appellee was injured he was employed as a slate shifter and timberman, and his duties were to clean up falls and remove fallen slate and rock from entries, and timber such places as required it. Some time during the night of July 16, 1911, or early morning of the 17th, a fall took place in what was called the run-around, connected with the eleventh west entry which was used as a parting for loaded cars. The run-around was from six to eight feet wide, and about five feet high and the fall of the roof was sufficient to fill the entire space from rib to rib, and extended almost, if not entirely, to the roof. The mine examiner in going his rounds in the examination of the mine came to this fall about three o’clock in the morning, and says at that time the rock and slate filled the space up to the roof so that he could not reach the roof to sound it; he approached the fall from the east side and there says that he marked with chalk, on the rib, the date of his visit and also placed a danger mark there, and immediately notified the night boss of the fall. The night boss sent a gang of men at once to clean up the fall. The fall had been caused by the timbers that supported the roof giving away, and on each side of the fall the timbers still supported the roof. In the morning at the usual time of commencing work appellee went down into the mine, and he, with seven other men, were directed by the 'assistant mine manager to relieve the night shift, and to clean up this fall. The night shift had removed several car loads of debris from the entry and had caused the top of the fall to be lowered. Within about fifteen minutes after appellee and his co-employes had begun the work of removing the fallen rock, William Buff, the assistant mine manager, came to the place where they were engaged at work; up to this time the men had been at work under that part of the roof where the timbering had not been disturbed, and as some of the witnesses say, at about this time the appellee and his buddy were emerging from under the timbers and commenced to work under the exposed roof, and the assistant mine manager directed them to suspend work until he had examined the roof, which he did by climbing up on top of the fallen rock and sounding the roof with a pick handle. Some of the witnesses state that Buff said, “The roof is fair;” others state that he said it was all right to go ahead and clean up; others that he said, “It sounds pretty good, all right, go ahead;’’none of which is denied by Mr. Buff, but he now says that it was drawn, a little drummy on the edge, that it was soap-stone and more brittle than slate and that he did not think there was any danger of its falling immediately. The appellee claims that relying upon the statements of Buff, as to the conditions of the roof, he proceeded with his work and in about fifteen minutes thereafter the place in the roof that had been sounded by Mr. Buff fell upon appellee, badly injuring him.

The original declaration consisted of one common law count, to which there were afterwards added six statutory counts. The first, or common law count, alleges that on July 17, 1911, and for some time thereafter, appellee had been in the employ of the defendant as a timberman and slate shifter, and that by virtue of his employment it became and was his duty to assist in removing and cleaning up falls of slate on the roadways in said mine, and on said day the assistant mine manager of the defendant took the plaintiff to said fall in said run-around for the purpose of having him assist in the cleaning up and removal thereof, and the assistant mine manager then and there inspected said roof at said point and ascertained, or could have done so by the exercise of ordinary care, that a lot of loose material remained above said track at said point, and that the same was likely to come down at any time and injure those working thereunder, and assured the plaintiff-that the roof at said point was secure and that it was safe to work thereunder and clean up said fall, and directed the plaintiff to proceed with said work. And the plaintiff further says that relying upon the inspection said assistant mine manager had made, and upon his superior knowledge of conditions existing there, and his assurance of safety, he proceeded to clean up said fall, and while so doing, in the exercise of due care for his own safety, and without knowledge or means of knowing of the unsafe condition of the roof above him, a lot of said loose material, violently and with great force fell down to and upon him and permanently injured him in the back and other parts of 'his body, etc.

The first additional count charges that the defendant wilfully failed to make an examination of said dangerous place, through its mine examiner, within twelve hours preceding the morning of July 17th, by having such mine examiner carry with him a safety lamp and sound such dangerous place with a rod or bar.

The second additional count charges that the defendant wilfully failed, through its mine examiner, to inscribe with chalk in some suitable place, on the walls of said roadway, the month and the day of the month of his visit, within twelve hours preceding the morning of July 17th.

The third additional count charges that the defendant wilfully failed through its mine examiner to place a conspicuous mark at said dangerous roof as notice to all men to keep out, within to-wit, 12 hours preceding the morning of said 17th day of July, 1911.

The fourth additional count charges that the defendant wilfully failed, through its mine examiner, to take into his possession the entrance check of the plaintiff whose working place as aforesaid was dangerous, and to give such entrance check to the mine manager of the plaintiff before the plaintiff was permitted to enter said mine on the morning of July 17th.

The fifth count was withdrawn from the jury.

The sixth additional count charges that on July 17th the mine examiner of the said defendant reported said place of plaintiff in said mine dangerous, and entered his report thereof in a book kept and properly provided for that purpose, and that the defendant wilfully failed through its mine manager to withhold the entrance check of the plaintiff until he had advised the said plaintiff of said danger and instructed Mm not to go to work until same had been removed.

At the conclusion of plaintiff’s evidence the defendant moved the court to direct the jury to find the defendant not guilty, and then entered its motion to disregard the first, second, third, fourth and sixth counts of plaintiff’s amended declaration and also to disregard the fifth and seventh counts of plaintiff’s amended declaration. The motion was allowed as to the fifth and seventh counts, which have not been abstracted, and denied as to the remainder of the counts. These motions, except as to the fifth and seventh counts, were renewed at the close of all of the evidence.

Counsel for appellant in their argument insist, First. That the defendant was not guilty of any wilful failure, as charged in the declaration. Second.—That appellee was violating the statute requiring him before commencing work to properly examine his roof, and having failed to make that examination he could not recover. Third.—That the evidence does not support the original or common law count of the declaration. Fourth.—That the court erred in modifying and refusing instructions of appellant. Fifth.—That the verdict is excessive.

As to the first additional count it is claimed that the roof was not dangerous, as it appeared just prior to the injury and was not determined as dangerous by the associates of the plaintiff who had examined it just before the fall, and to fail to observe it being in that condition was not a wilful failure; that the clod that had fallen was piled up to the roof, and the mine examiner could not get up to the roof immediately over this fall and examine it. It may be, that if the roof, which was left after the fall had taken place, was so obscured by the clod directly under it that the mine examiner could not reach it, and an examination thereof could not be made, that such failure would not be a wilful failure to examine the roof. It is next contended that the second additional count charges that defendant, through its mine examiner, failed to inscribe with chalk in some suitable place on the walls of said roadway the month and the day of the month of his visit. It is true, as contended, that the mine examiner testified that he placed his visit mark and dangerous mark on the side of the entry, and this, so far as we have been able to observe, is not contradicted except by testimony of a negative character to the effect that those who testified to being there state that they did not see it, but it does not appear that they looked for it, except the plaintiff says he always looked for marks.

The third additional count charges that the mine examiner failed to place a conspicuous mark at the dangerous roof. The observation as above made was to the first additional count will apply with equal force to the averment of this count. -

The fourth additional count charges that the mine examiner wilfully failed to take into his possession the check of appellee and deliver it to the mine manager; and the sixth additional count charges that the mine manager wilfully failed to withhold the entrance check of the plaintiff until he had advised the plaintiff of said danger, and instructed him not to go to work until the danger had been removed. We are unable to see how the violation of the statute as charged in the fourth and sixth counts could be the proximate cause of this injury.

However, as we view the facts in this case, we do not deem it necessary or important to determine whether the evidence shows a wilful failure to observe the statute as charged or not, as we think the original declaration consisting of a common law count is sustained by the evidence and sufficient to sustain a judgment. Where there is one good count of the declaration, to which the evidence is applicable, and which, when proven, is sufficient to support the judgment, then this is all that the law requires. It is said in the case of Consolidated Coal Co. v. Scheiber, 167 Ill. 541, “From the view we take of the case it is unnecessary to examine the other counts of the declaration for if there is one good count to which the evidence is applicable, and which is sufficient to sustain the judgment, the error of the court, if any, in refusing to instruct the jury to disregard the other counts becomes harmless;” and this doctrine is fully sustained in the case of Swift & Co. v. Butkowski, 182 Ill. 24, and other cases. We regard the evidence in this case as being more peculiarly applicable to the original declaration, and that it is sufficient to warrant the jury in finding a verdict thereunder.

It appears from the evidence in this case that on the morning of July 17th there had been a heavy fall in the run-around connected with the eleventh west entry of appellant’s mine; that it was caused by the timber in the roof giving away at that particular place, and when the fall occurred it spread out beyond and to a point where the timbers were in place, and supporting thereof; that the night gang had removed several car loads of the debris from the entry; that at the usual time for the commencement of work in the morning the nig’ht gang were, at the direction of the assistant mine manager, relieved by the appellee and his associates, and after appellee had been at work for a few minutes the assistant mine manager, William Buff came to the' place where they were engaged, and up to that time appellee and his buddy had been at work under the timbers that protected the roof. Appellee says, “A short time after I come there Mr. Buff came, he told me to clean the rail and push our car up; we shoved our car up there. Before we shoved the car up Buff stopped us, told us to wait a minute and examined the roof.” He sounded the roof with a pick handle. Appellee says, “He (Buff) said it was all right. He said all right to go ahead and clean it up.” Henry Lyles says that Buff said, “Well, all I heard him say was the top was fair; I believe he said that.” James Boston says, “While Buff was examining the roof he said it was all right, for us to go ahead and clean up; it sounds pretty good. SteinDunskey says, “I saw Buff there. He went on top to examine; after he had examined it he said all right, go ahead.” These statements that are claimed to have been made by Buff at the time are not denied. Buff says, “When I climbed to sound the roof I had a pick handle and I told all to be quiet; I beat around the edges of the fall to see if it was dangerous or loose enough to faff.” He says at that time appellee was about six feet away, and that he did not find anything there that indicated to him any danger of immediate fall. Again, Buff says, on cross-examination, “It sounded drummy eastward about one foot and a half or two; I pronounced it drawn. I didn’t tell them it was drawn; they knew it, I guess. I didn’t tell them how big the piece was that sounded drummy; I could not tell how big it was, whether it was two feet or nine feet; it was a little drummy on the edge; it was soap-stone; that is more brittle than slate; it will break square through.” Again, he says, when it is drummy that indicates that it is loose and when it is loose it is liable to fall; you cannot tell just when it will fall; it may fall right away and it may hold there for a while. Ton can have it sound drummy and know it is not going to fall immediately but it is liable to fall at any time; it never gets any tighter, it gets looser all the time. When it will fall depends on the nature of the top. Soap-stone is more liable to fall as a general rule. Soap-stone usually gives some indication of a fall. Ton can hear it pop and little pieces will fall, like falling snow. It will give away at the edges. There was no popping or any little flakes falling while I was there.” It seems to us, from this testimony, that the jury was fully warranted in finding that at the time the assistant mine manager examined the roof, he ascertained that it was drummy and loose, and while he says that he did not think there was any immediate danger of falling, yet he also says that it was liable to fall at any time, the substance being soap-stone was more liable than any other to fall. It seems to us that he knowing that this material was soap-stone and that it was liable to fall at any time, and a part of it had fallen, and at that time appeared to him to be drummy and loose, that he was negligent in directing the men to proceed to work under a roof in this condition. When he discovered this condition he should have ordered the work stopped and the roof taken down before any one was allowed to go under it to work. To say the least of it, such a condition existed as to warrant the •jury in finding that he was negligent. It appeared that up to this time the appellee had been working under the timbers that were supporting the roof in the entry, and was about to move his car up under the roof that fell but at the direction of the assistant mine manager he waited until he (the mine manager) made an examination of the roof and pronounced it all right, and, as some of the witnesses say, directed appellee to go ahead.

It is said that the appellee was negligent and barred from a recovery because he did not make an examination for himself. This argument, however, was applied more particularly to the additional counts. The question as to whether or not appellee was negligent or not using due care for his own safety were questions of fact to be determined by the jury from all of the circumstances surrounding the work, and whether or not the appellee was justified in working under the roof after the assistant mine manager had examined it or whether he should have examined it for himself are questions for the jury to determine. We do not think that where a servant relies upon the assurance of the master that the conditions are all right, and continues to work, that he can be regarded as being guilty of contributory negligence, or of assuming the risk. Consolidated Coal Co. v. Shepherd, 220 Ill. 123.

In the case of Gundlach v. Schott, 192 Ill. 512, the Supreme Court says: “Plaintiff testified his employer said, ‘It is all right; go ahead and put it on.’ It is well settled that even though the plaintiff knew of the defect, if the master ordered him to proceed with the dangerous work he did not assume the risk of so doing unless the danger was so manifest that a person of ordinary prudence and caution would have incurred it. Even if a servant has some knowledge of attendant danger, his right of recovery will not be defeated, if, in obeying the order, he acts with the degree of prudence which an ordinarily prudent man would exercise under the circumstances. When the master orders the servant to perform his work the latter has a right to assume that the former, with his superior knowledge of the facts, would not expose him to unnecessary perils. The servant has the right to rest upon the assurance that there is no danger, which is implied by such an order. The master and servant are not altogether upon a footing of equality. The primary duty of the latter is obedience, and he cannot be charged with negligence in obeying an order of the master unless he acts recklessly in so obeying. Whether he acted thus recklessly in obeying his master’s order, or whether he acted as a reasonably prudent person should act, are questions of fact to be determined by the jury.” In this case we think it is a question of fact to be determined by the jury as to whether or not the appellee acted with reasonable prudence in proceeding with the work as directed by the master, and under the conditions observed by the master, and the assurances made by him, especially in view of the knowledge that the master then had, as it now develops, as to the liability of the roof to fall at any time.

It is urged that the court erred in refusing defendant’s eighth instruction. It will be observed that this instruction undertakes by a statement of a chain of facts, to point out what would or would not constitute negligence. Besides such parts of this instruction as appellant was entitled to, as to the due care and caution required upon the part of the plaintiff and the negligence of the defendant were fully covered by his given instruction No. 9.

Next, it is claimed that the court erred in modifying defendant’s 14th instruction by inserting the words, “And did not rely upon any assurances of safety made by Buff.” and says that this instruction is vicious, in that it assumes that Buff made assurances of safety. We do not believe that the jury could have been misled by this modification. The fact that the defendant did give assurances of safety to the appellee was one of the specific allegations of the declaration. And by defendant’s second instruction the jury are advised that it became necessary for the plaintiff to prove the specific acts of negligence charged. In considering the instructions they are to be taken and considered as one charge, and conceding that there was error in this modification, we do not think it could have prejudiced appellant, and was not such, if error at all, as to cause a reversal of the case. The instruction as presented was not good. It ignored appellee’s claim that the master had assured appellee that the roof was safe. The court undertook to insert this idea in the instruction but in so doing left the instruction subject to criticism. We do not think that appellant can complain of this. The rule is, “That one who asks the court to give an improper instruction, cannot be heard to complain of the court’s action in modifying it, although the court fails to make it good.” Wibel v. Illinois Central R. R., 147 Ill. App. 192; Swift & Co. v. Rennard, 119 Ill. App. 180.

We do not think the court erred in refusing appellant’s 17th instruction, as claimed, as we think’ it to some extent invaded the province of the jury; that it was for the jury to determine how the performance of a particular thing required by the statute would or would not constitute wilfulness. This instruction was not directed to the wilfulness charged in the declaration but to the wilfulness of the mine manager. Under the views taken of this case, even if the instruction was not proper it could not affect the verdict.

The refusal to give instruction No. 18 is claimed as error but as this instruction is applicable to the whole declaration, the common law as well as the statutory-counts, and as it undertakes to point out particular things he should do, or fail to do, to entitle him to recover, or what particular things he should'do in the exercise of care, we think under the rulings of our courts that it invades the province of the jury. It omits some of the elements of plaintiff’s claim. We do not think the refusal of this instruction was error.

The next claim made is that the verdict rendered is excessive. We appreciate that this is a large verdict but under the holdings of our court, unless it is of such magnitude as to show it to be the result of passion or prejudice, and not commensurate with the injuries sustained, then we would have no right to disturb it as the amount to be fixed is largely in the discretion of the jury. In this case the appellee’s spine was injured, one of the vertebra dislocated, and he was paralyzed from the hips down, without power to move the muscles, without sensation in the legs, poor circulation of the blood, no control over his bowels or urine, and no knowledge of their operation; not able to sit up or care for himself or to perform any labor of any kind. We are not able to say that the verdict of the jury is not warranted, and cannot disturb the verdict upon this account. From a careful examination of this record we are of the opinion that the jury was warranted in finding a verdict for the plaintiff, and that we have no power to disturb the verdict or judgment, and the judgment of the lower court is affirmed.

Judgment affirmed.


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    The Moffat Coal Company, Appellant, v. Charles F. Miller, Appellee.
    1. Evidence—parol as to consideration. Where a lease provides that the party of the first part for a consideration to be mentioned agrees that the party of the second part may mine coal for fifty years on certain property, and the party of the second part in consideration thereof agrees to keep accounts of coal mined and to pay a certain royalty, it cannot be shown by parol, that $100 was also given as consideration since there is a specific statement that all the consideration is contained in the terms of the agreement.
    2. Mines and miners—leases. A lease under which the first party agrees to allow the second party a fifty-year right to mine on certain property, and the second party agrees to keep an account of the coal mined and to pay a certain royalty, is not fair or within good conscience, and even if parol evidence of a payment of $100 as consideration by the second party is admissible, such a.payment will not induce equity to aid in making the lease valid, but the second party should be left to his remedy at law.
    Appeal from the Circuit Court of Randolph county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    William M. Schuwerk and A. E. Crisler, for appellant.
    H. Clay Horner, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This cause was heard upon an amended bill filed by the appellant in the Circuit Court of Bandolph county, seeking to correct a mistake in the description of lands in a lease set forth in said bill. To this bill the appellee filed a demurrer, which was sustained by the Circuit Court and to reverse this holding the appellant prosecutes this appeal.

The amended bill alleges that on October 27, 1903, the appellee entered into a written agreement and lease deed with Thomas Moffat for mining and removing the coal from under lots four (4) and five (5) of school lands in Section sixteen (16) Town five (5) south, Range five (5) west of the Third Principal Meridian in Randolph county, Illinois, but by a mistake of the scrivener the lands were erroneously described as the west half (½) of the northwest quarter (¼) of Section sixteen (16). The lease referred to is set forth in complainant’s bill and provides that the said Charles F. Miller, party of the first part, for the consideration hereinafter mentioned to be performed by the party of the second part, agrees that the said Thomas Moffat may mine and remove the coal from under the west half (½) of the northwest quarter (¼) of Section sixteen (16) aforesaid, providing said right and privilege shall not extend for a longer period than fifty (50) years from the date hereof. The lease also provides that the party of the second part may have and use sufficient of the surface for necessary air shafts,, pump houses, and to use entries and ways that may be open for mining purposes and for the transfer of coal. It further provides that the said party of the second part, in consideration of the premises above set forth, doth hereby agree to keep a correct account of all coal mined and removed from said land, and render a true monthly statement thereof, and to pay two and one-half cents per ton for each ton of coal that may be mined and removed from such mine, payable on the 20th day of each month succeeding the removal of the coal. The agreement then provides penalties for the default in the payment of the money due for coal, and that upon the expiration of fifty years above mentioned that second party may remove any and all machinery and property thereon. It is also averred that this lease was duly assigned by Thomas Moffat to the appellant.

The prayer of the bill asks that the erroneous description given in said lease may be corrected.

The validity of this lease was before this court at the February term, 1910, in the case of Charles F. Miller v. Thomas Moffat et al., reported on page one of Vol. 153 of the Appellate Reports, and in that case the court held that the contract above set forth was void for want of mutuality; and the appellant now seeks to avoid the force of said opinion by alleging in its bill that the “complainant further represents that on the same day and immediately upon the execution and delivery of the said agreement and lease deed, the said Thomas Moffat paid to the said Charles F. Miller the sum of one hundred dollars in consideration of and for said agreement; and on the same day, in the same place and in the presence of the said Charles F. Miller, and for the purpose of reaching the coal under the land described in said lease deed, by continuous mining from the coal lands of the complainant, the said Thomas Moffat entered into a written agreement and lease with one R. J. Miller, a brother of the said Charles Miller, for mining and removing the coal from under the following described real estate;” and then describes the real estate, and also alleges that the above agreements were executed for the benefit of the appellant; and alleges that ever since the making of the said agreements it has driven the entries of its coal mine on its own land adjoining the lands leased from the said R. J. Miller towards the lands of appellee, and at great expense had arranged to mine the coal under the lands of appellee.

It is claimed by counsel for appellant that while it is true, the alleged consideration of the payment of one hundred dollars and of the making of the lease to R. J. Miller are not included within the terms of the lease existing between appellant and appellee, but that appellant is entitled to show by parol proof that such consideration in fact passed, and that it is sufficient to relieve the contract in question from the want of mutuality.

It is claimed that the real consideration for a deed may be shown by parol evidence, and the case of Kinzie v. Penrose, 3 Ill. (2 Scam.) 515, with other authorities, are urged in support of this proposition. An examination of the Penrose case will disclose that the general rule laid down there is that the complainant cannot contradict his deed nor enter into proof of any other consideration than that expressed in the deed, for that would be contrary to the deed, but it is also said that there are exceptions to this rule which prevails in cases of fraud, mistake, imposition or oppression, or in cases where deeds have been entered into upon secret trust between the parties; and the court permitted the introduction of other evidence in that case for the purpose of preventing Penrose from taking advantage of a fraud that he had at-temped to perpetrate upon Kinsey, which he had admitted in writing, and that he was not doing what he agreed to. In the case of Huebsch v. Scheel, 81 Ill. 281, the parol evidence was admitted for the purpose of showing that the conveyance made was intended as additional security and not as a sale, and was permitted for the purpose of placing appellant in the true light in his relation to the purchase of property in question, but we do not regard these authorities as conclusive of the question now presented for consideration.

The only part of this allegation that warrants serious consideration is the alleged payment of the one hundred dollars to appellee. We are not able to perceive how the lease that may have been made with R. J. Miller, or the work done by appellant upon its own land, can effect the consideration between appellant and appellee. We think the decision in this case rests upon the determination of the question as to whether or not the consideration expressed in the lease is a mere recital or whether it is a part of the contract, and as to whether or not so slight additional consideration as is alleged in the bill would make a void contract valid.

The deed in this case provides, “That the said Charles F. Miller, party of the first part, for the consideration hereinafter mentioned to be performed by the party of the second part, agrees that the said Thomas Moffat, party of the second part, may mine and remove the coal from under the following described real estate,” etc. "And further on in the lease it is stated, “And the said party of the second part in consideration of the premises as above set forth, doth hereby agree to keep a correct account of all coal mined,” etc. By these provisions it is covenanted that the things appellee undertakes to do are in consideration of the matters hereinafter mentioned to be performed by appellant; and the things undertaken to be performed by appellant are in consideration of the matters set forth in the agreement as covenants of the appellee, so that we have in this "contract a specific statement that all of the consideration is included within its terms, and if other or additional considerations were allowed to be proven or considered it would have to be done in violation of the plain provisions of this agreement. It is said by Wigmore on Evidence, Sec. 2433, “But the statement of a consideration may, on the other hand, sometimes be itself an operative part of a contractual act, as when in the same writing the parties set out their mutual promises as considerations for each other; here the word consideration signifies a term of the contract, and hence the writing alone can be examined.” In the case of Illinois Central Ins. Co. v. Wolf, 37 Ill. 355, it is said, “All that the Court held in these cases was, that parol evidence might be received for the purpose of contradicting the acknowledgment, in a deed, of payment of the consideration, where the object and effect of such evidence were not to vary the legal import of the deed. For example, in a deed for the conveyance of lands, the recital of payment of the consideration may be contradicted, provided it is not sought by such evidence to impair the effect of the deed as a conveyance. But we know of no case, nor do we think any can be found, in which it has been held that the acknowledgment of payment may be contradicted by parol, for the purpose of making the deed null.” And this doctrine is further sustained by Martin v. Stubbings, 27 Ill. App. 128, and affirmed in Martin v. Stubbings, 126 Ill. 387.

It seems to us that it would indeed be dangerous, where a contract within itself contains provisions that one party promises to do certain things in consideration that the other party performs certain other things, to permit parol evidence to be introduced to show that either party were required to do other or different or additional things to those mentioned in the contract. If we should permit the contract set forth in complainant’s bill to be aided by showing additional consideration it might result in the making of a contract that was invalid, valid and oppressive.

As was determined by this court in the case of Miller v. Moffat, 153 Ill. App. 1, the lease here set forth was without mutuality; that appellee was not under the terms of this agreement bound to do anything; that the object of this agreement, as entered into, was to remove the coal and to secure a royalty to appellee by the removal of such coal; that appellee was not in a position to compel appellant to mine or remove one ton of this coal, and if the agreement is held valid then for a period of fifty years the appellee, without any real consideration, would be compelled to await the pleasure of the appellant in the mining and removal of this coal, or any part of it. We do not regard' such a contract as fair or within good conscience, and that a court of equity ought not to give its aid towards the enforcement of such a contract, and we do not believe that the payment of a small consideration of one hundred dollars, if otherwise permissible, ought to induce a court of equity to lend its aid in the making of a void contract valid, and of giving the appellant such undue advantage over the appellee, but that appellant should be left to its remedy at law. We believe that the Circuit Court did right in sustaining the demurrer to complainant’s bill, and the decree of the Circuit Court is affirmed.

Affirmed.


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    Joe F. Johnson, Appellee, v. Wasson Coal Company, Appellant.
    1. Master and servant—when assumed risk. Assumed risk is a question for the jury where the evidence is at all contradictory.
    2. Mines and miners—evidence. In an action for 'injuries received by a mine driver from the kick of a mule, it is not error to refuse peremptory instructions or a motion for a new trial in behalf of defendant on the ground of assumed risk where the evidence shows that the mule was vicious, but that the plaintiff was not so notified, and it is conflicting as to whether the mule ever kicked at plaintiff and whether plaintiff knew that he sometimes kicked.
    3. New trial—misconduct of jury. It is not error to refuse to set aside a verdict for plaintiff in an action by a mine driver for injuries, though the affidavit alleges that the jury, during the intermissions of the trial, mingled with miners who were excited over a mine accident a few days before the trial in which many were killed, but no injury to the defendant is shown, or that the action at bar or the accident were discussed by the jurors and miners on the streets.
    4. Evidence—exclusion. Failure to exclude evidence is not error where it was agreed and so stated to the jury that the evidence should be excluded and an instruction to that effect was promised but overlooked, since the defendant could easily have asked for and obtained such instruction.
    5. Trial—exhibit of injured limbs. It is not error to permit plaintiff to exhibit his injured limbs to the jury, under directions of the attorneys not to move them.
    6. Damages—evidence. When physicians state the entire amount of a hospital bill and in an attempt to separate the doctors’ charges from the total, estimate them at about a certain sum, it cannot be objected that they are permitted to approximate the value of the medical attendance.

      7. Damages—when not excessive. $5,000 is not excessive when it appears that plaintiff was confined to a hospital for eight months, and suffered a great deal, that the flesh of one leg was torn open to the hone, and was left very weak, and that the other leg was broken, the calf ground into a pulp, after two years an incurable ulcer remains, the muscles are small, out of shape and grown to the bone, and the ankle is stiff.
    8. Damages—instructions. An instruction, “And if you find for him such sums as in the judgment of the jury under the evidence and instructions of the court in this case will be a fair compensation for the injuries he has sustained or will sustain if any, so far as such damages or injuries, if any, are claimed and alleged in the declaration” is proper.
    9: Mines and miners—instructions. In an action for injuries received by a mine driver from the kick of a mule, where the question was whether the mule was a vicious and kicking mule, an instruction is correctly refused which omits such elements, but provides that plaintiff cannot recover if he knew or had good reason to believe that the mule was at times unruly.
    10. Mines and miners—instructions. An instruction is correctly refused in an action by one injured when kicked by a mule he was driving, where it provides that no recovery can be had, unless it is proved that he did not know the conditions of the mule and did not have an equal opportunity with the defendant to know and find out the character and tendency of the mule.
    11. Mines and miners—duty to warn of habits of mule. That a mule kicked at the time complained of, without complying with his previous custom of first looking back, will not excuse a failure on the part of the master to warn of his vicious propensities.
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 7, 1912.
    Rehearing denied November 9, 1912.
    M. S. Whitley, for appellant; Mastin & Sherlock, of counsel.
    H. Robert Fowler and John L. Thompson, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

Appellee obtained judgment against the appellant in the trial court for five thousand dollars, and it is sought by this appeal to reverse such judgment.

The appellee first began work in appellant’s mine in the fall of 1909, and for a short time was engaged in driving mules. In December he quit work for appellant and sought employment elsewhere but returned again and began work for appellant in January, 1910. Upon his return he was employed as a driver and directed to work a “spike team,” consisting of two mules, one in advance of the other. The rear mule was named “Billy” and the lead mule named “Barney.” After appellee had been at work driving this team for fifteen or sixteen days, and on February 14, 1910, he was pulling a trip of loaded cars up grade and had just reached the top of the grade, one of the cars having passed over the grade, when the mule “Billy,” without warning, kicked him, knocked him off of the car and the car wheel struck his left leg just above the ankle, making a very bad wound; the bone of the right leg was broken about midway between the knee and the ankle, and the calf of this leg was literally ground into pulp and left hanging in strings from the bones, leaving an ulcer; and appellee, according to the testimony of several witnesses, is permanently injured and unable to perform manual labor. So far as disclosed by the evidence, this was the first time that the mule had kicked at the appellee, and the evidence tended to show that the appellee did not know of the vicious disposition or that he was in the habit of kicking. The evidence discloses that the mule at times was vicious, and as some of the witnesses expressed it, when he was mad he would kick at the drivers or butt at them and they had to get out of his way to avoid being injured. The evidence further discloses that the vicious disposition of this mule was well known to-the appellant; the mine manager Evans, and the boss driver Mamond both admit that they knew Billy was a kicking mule. At the time appellee was employed to drive this mule he says he knew nothing about the disposition of the mule, and it is admitted by the mine manager that he did not inform him of the disposition of the mule to kick at times.

It further appears from the evidence that the appellee was a good driver, kind and gentle to his team, but that the team had a few times balked while he was driving it, and on such occasions he cut the trip in two and, as he says, got along without any trouble.

The declaration in this case consisted of one count, averring that it was the duty of the defendant to exercise reasonable care to furnish the plaintiff with a reasonably safe mule; that the defendant wholly disregarded its duty in that behalf and negligently and carelessly ordered and directed the plaintiff to drive a vicious and kicking mule. Plaintiff further avers that he had been driving said mule about twenty-five days up to and before the 14th of February, 1910; that he was wholly unacquainted with and had no knowledge or notice of the dangerous habits of the mule; that the defendant did know that the mule was bad about kicking, or could have known of the same by the use of due care and caution to know that fact; that while the plaintiff was driving the mule, with one mule in front as a “spike team,” using due care and caution for his own safety, the hind mule kicked him in the left side and knocked him off of the car and across the rail of the track in front of the car, injuring him, etc. To this defendant filed a plea of not guilty. At the conclusion of the plaintiff’s evidence, and at the conclusion of all of the evidence the defendant asked an instruction directing the jury to find a verdict of not guilty, but these instructions were refused and the appellant claims that the court erred in refusing them, upon the ground that this was an assumed risk and being so the appellee was not entitled to recover.

It is maintained by counsel for appellant that as the evidence on behalf of appellee showed that while the animal was some times and under some circumstances inclined to kick, yet these inclinations were indicated hy something immediately preceding such acts, and that at the time of the accident none of these conditions weré present or indicated by the mule and that it was not in' line with the past conduct and habits of the animal, and that so far as any tendency or viciousness that the mule had shown to any person, accustomed to its habits, that they were totally different from anything here exhibited, and hence that the defendant admits agents could not possibly have had any more information on this subject than the plaintiff himself. It is not denied by counsel for appellant but that the mule was of a vicious disposition and often kicked at the drivers, but it is said that so far as appears from the evidence that he always looked back before he kicked, and that because the mule kicked on this occasion without looking back that the plaintiff knew as much about that mode of kicldng as the defendant. We are unable to see how this would affect the. question here involved, for if the mule was a kicking mule, and the appellant knew that fact, then when he employed appellee he should have so advised him; or if he knew the disposition of the mule was to look back before he kicked, he should have advised him of that also, and then the appellee could have been upon his guard; he did not advise him of either; the evidence of several witnesses discloses that he was a bad kicking mule, at times kicking out of the harness, butting the drivers and had a bad disposition when mad. Eobert Humphrey, one of the mule drivers, says he kicked at him more than a half a dozen times. Andy Kish says that he was a good mule at times and at other times he would become unruly, and that he would kick and butt, and that he had tried to kick him many times. John Mamond, the boss driver, says he would kick at the driver or any one. John Smith says he kicked at him several times, and if you tried to pass him he would knock you over with his head and when mad would kick loose from the trip and run to the bottom. Harry Evans says that he would kick and that he kicked at him and the pit boss, and that he was supposed to be a mean kicky mule and he was aware of its disposition. John Barton said he would kick without the driver whipping him and would squeal and kick. John Stradler says that for two or three weeks at times he would work good and then he would kick and butt with his head. It is quite apparent from the testimony of these witnesses that the mule Billy was of a vicious disposition, and at times tried to kick and hurt the drivers, and that this was known to the appellant’s agents at the time they employed appellee, and yet they admit that they did not advise the appellee of the disposition of the mule to kick. The only question left to determine is as to whether or not the appellee assumed the risk, or did appellee know of the disposition of this mule or have the same opportunity of learning the disposition as appellant. Barton says that the conduct of the mule depended on the driver; that he did not know whether he ever saw him kick when Johnson drove him or not. Later on he says he could not tell how many times he saw him, kick when Johnson was driving him and says that he might have kicked at Johnson, and, he thinks, he saw him kick at Johnson while Johnson was driving him. Harry Evans says he saw the mule kick while Johnson was driving him but did not see him kick at Johnson. Johnson denies positively that he knew anything about the disposition of the mule to kick or that he ever saw him kick or that the mule ever kicked at him. It is true, on cross-examination, he was asked the question if the mule ever kicked and he said, “If he did I did not notice it.” While there are some things in this testimony that might tend to show Johnson knew that the mule sometimes kicked, there is nothing in it that tends to show that he ever knew the mule kicked any one or kicked at any one or had the bad, vicious disposition of which the evideuce shows he was possessed; and while he worked with him fifteen or sixteen days, the evidence of some of the witnesses discloses that the mule at times, when he was kindly treated, would work for two or three weeks without having one of his kicking spells.

It is said by our Supreme Court, ' ‘ On reason we are unable to perceive any distinction between directing the use of an animal that is dangerous on account of its peculiar inclination to kick under certain circumstances, even though its efforts in that regard be not particularly directed against mankind, and directing the use of an instrumentality or appliance of a mechanical nature which is dangerous to the servant.” Manufacturers’ Fuel Co. v. White, 228 Ill. 187.

Where the evidence is at all contradictory the question of assumed risk becomes one of fact to be determined by the jury, and under the state of the evidence in this case the verdict of the jury would be conclusive, and we do not think that the court erred in refusing the peremptory instructions, or in denying the motion for a new trial upon this ground.

The next error complained of is, that because of an accident in the O’G-ara mine, located in that vicinity, a few days before the trial, and that the jury during the intermissions of the trial mingled with a large number of miners who were excited over the disaster where a great number of men were killed, and, as claimed by the affidavit, were discussing the disaster, but it no where appears from the affidavit to have actually worked an injury to the appellant or that this cause or the disaster had in any manner been discussed by any of the jurors and the miners upon the streets. If such condition existed at that time that was in any manner calculated to prejudice appellant’s rights by proceeding: to trial, then a motion and proper showing made would undoubtedly have postponed the trial, or on mere application to the court with suggestion of any probable risk in permitting the jury to mix with the crowd during the trial would doubtless have resulted in keeping the jury together, under the charge of an officer, but no such applications were made and no injury having been shown to have occurred to the appellant by reason of the matters set up in the affidavit, we do not see how appellant can now complain, and there was no error in refusing to set aside the verdict upon this account.

It is next complained that because the court permitted Doctor Baker and Doctor Turner to approximate the value of their medical attendance to the plaintiff, and the failure to exclude the evidence of Doctor Nyberg, that this was error. It appears from the evidence that the appellee while being treated was taken to the hospital, controlled by these physicians, and the whole bill for medical attendance and hospital service were given in a lump sum, and in an attempt to separate the physician’s bill from the total amount the doctors estimated it at about two hundred dollars, it is claimed that this was error, and the case of Turner v. Lovington Coal Company, 156 Ill. App. 60, is cited as an authority upon this point. The error complained of in that case, however, was that the physician gave the results he feared might happen to the patient, instead of testifying as to the reasonable certainty of the results that might have followed, and is ah entirely different question, and the case is not in point. The failure to exclude the testimony of Doctor Nyberg grew out of an agreement made in open court, and before the jury, that his evidence should be excluded, and was so stated to the jury, and the court promised to instruct the jury to disregard it but it was overlooked. If the appellant desired any further instruction upon this question he could easily have asked for it and obtained it. We do not think this was error.

It is next contended that the court erred in permitting the appellee to exhibit his limbs to the jury under the directions of the attorneys not to move them. We presume the directions grew out of the decision of our court tending to hold that it is not proper for a physician to examine the injured limb before a jury and comment upon it; but the fact of the exhibition of the limbs to the jury is fully warranted by the case of the City of Lanark v. Dougherty, 153 Ill. 163.

It is next contended that two or three witnesses were asked upon cross-examination as to whether or not the mule had ever kicked during the time plaintiff was driving him, before the time of the injury, to which the court sustained objections; and that when the same witnesses were put on the stand on behalf of the appellant the court still refused to allow the questions to be answered, but no questions are pointed out that are relied upon and we do not find that serious error was committed, or that the matters sought to be proven were not elicited during the course of the trial; we observe that some such questions were asked of some of the witnesses upon cross-examination that were not proper cross-examination, and some in chief were improper, in assuming that the mule did Hck the plaintiff, but we have observed nothing that we can see is prejudicial error.

It is said by counsel for appellant, but not argued, that the damages are grossly excessive. It is true that the verdict rendered is such a one as only could be rendered where the injury is very serious. In this case the injury shows that the appellee was confined in the hospital for about eight months and suffered a great deal; that the flesh of the left leg was torn open to the bone, and when healed left an ugly scar, and the leg very weak. The bone of the right leg was broken, the calf of this leg literally ground into pulp, and after two years there still remains what is termed an incurable ulcer; the muscles of the calf are very small, unnatural and drawn out of shape and grown tight to the bone; the ankle stiff. That the appellee is unable to perform manual labor and that the injury is a permanent one and that he has now lost two years’ time and suffered during the whole of this period, and while the verdict is a large one we are unable to say that the jury was not warranted in awarding this amount.

The next objection made is to appellee’s first instruction, “that it attempts to define and. provide against the defense of assumed risk and the proposition as there stated is neither warranted by law nor supported by the evidence in this case.” We do not regard this point as well taken and think it has been disposed of by the former part of this decision.

It is then said that there is no instruction in the case that advised the jury that before the plaintiff can recover it must appear that he has proven his case by a preponderance of the evidence. The first instruction given for appellant advised the jury that as a matter of law the burden of proof is upon the plaintiff and he must prove his case as alleged in the declaration, and that if the evidence bearing upon the case is evenly balanced or if it preponderates in favor of the defendant then he cannot recover. These instructions are taken as a series and we think the jury could not be misled upon that question.

The objection to the second instruction, “That this instruction tells the jury that said instruction must come from the defendant, even if the plaintiff did know it, yet if the defendant did not tell him the defendant would still be liable;” we do not think this criticism is good for the .simple reason that the instruction not only advises the jury that it was the duty of the defendant to advise the plaintiff of the viciousness of the .mule, if it knew it, but that the plaintiff did not know it, and the knowledge of the defendant and want of knowledge of the plaintiff must concur before this duty was imposed.

The third instruction criticised lays down the law properly, as we think, and we think the jury was fully advised, as to the matters that would excuse the defendant from this duty by appellant’s eleventh instruction, which instruction in fact quotes the same principle of law as appellee’s third instruction, and then advises the jury as to the conditions under which the defendant had fully complied with the law in that regard. <

In the criticism of the fourth instruction of the appellee the appellant does not quote the whole of the sentence containing the phrase criticised. . The whole of the sentence is, “And if you find for him such sums as in the judgment of the jury, under the evidence and instructions of the court in this case, will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages or injuries, if any, are claimed and alleged in the declaration;” we think the jury by this instruction was limited to such sums as appeared just, under the evidence and instructions of the court, and were further limited by his claim alleged in the declaration, and that the instruction was good.

The defendant claims that the court erred in refusing, to give its first and second refused instructions. The first refused instruction advised the jury that the plaintiff could not recover if he knew “or had good reason to believe that the mule was at times unruly;” the question here was, as to whether the mule was vicious and a kicking mule, and these elements are omitted by this instruction.

As to defendant’s second refused instruction, the third and fourth paragraphs are misleading in this: that they simply call attention to the knowledge that Johnson may have had; in the third paragraph, that he did not know the conditions of the mule, and in the fourth paragraph, did not have equal opportunity with the defendant to know and find out the character and tendency of the mule he was driving, and concluded by saying if he failed to prove either of these propositions the verdict should be not guilty. This instruction was very misleading. It was not the conditions of the mule or the general character or tendency of the mule that was in question, but it was as to whether or not he was a kicking mule. We think the court did right in refusing these instructions.

That the mule in question in this case was vicious, and even kicked and attempted to injure its drivers there can be no question. The knowledge possessed by the appellant and appellee as to the viciousness of this mule were questions of fact to be determined by the jury, and the jury was fully advised by the instructions that if the appellee knew of the vicious habits of the mule in question, and continued to work with him after having such knowledge, that he assumed the risk and could not recover, but that if he did not know of the vicious habits and the appellant did and failed to advise appellee, then he could recover; these questions of fact having been determined by the jury we have no right or authority to interfere with the verdict unless we can say it is manifestly against the weight of the evidence, which we are unable to do in this case, and the judgment of the Circuit Court is affirmed.

Judgment affirmed.


author: Mr. Justice Shirley

text:
    Francisca Merlo, Appellee, v. Johnston City & Big Muddy Coal & Mining Company, Appellant.
    1. Appeals and errors—waiver. Where on appeal the argument of counsel is confined to the refusal of the court at the close of the evidence to direct a verdict, all other alleged errors are waived.
    2. Mines and miners—purpose of statute. The purpose of the mining statute is to protect the miner from exposures to dangers, and from his own carelessness; to keep him away from dangers to which he will he exposed in the line of his employment, until they are removed.

      3. Mines and miners—wilful violation of statute. It is a wilful violation of the mining statute to permit a man, not under the direction of the mine manager, to enter a mine to work where dangerous conditions exist to which he will be exposed.
    4. Mines and miners—contributory negligence. Contributory negligence is no defense in a personal injury suit against a mine owner, who wilfully violated the mining statute by permitting an employe to enter the mine, knowing that it was in a dangerous condition.
    5. Mines and miners—personal injuries. In an action to recover for the death of a miner, the defendant cannot set up as a defense,, that the deceased went to the dangerous place with full knowledge thereof and against the directions of the superintendent, where he had been permitted to enter the same in wilful violation of the mining statute.
    6. Mines and miners—effect of notices to keep out. The fact that dangerous places in a mine have been marked, as notice to keep out, does not relieve the owner of the obligation imposed by the mining statute, not to permit an employe to enter until all the conditions are made safe.
    7. Mines and miners—directing verdict. Where the evidence tends to show that the proximate cause of the death of the plaintiff’s husband was the wilful failure of the defendant to comply with the mining statute, in permitting him tó enter the mine to work, not under the direction of the mine manager, when a dangerous condition existed, before it had been made safe, it is not error to refuse to direct a verdict for the defendant.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Williamson, county; the Hon. W. W. Duncan, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Rehearing denied June 13, 1912.
    Denison & Spiller, for appellant; Mastin & Sherlock, of counsel.
    Hartwell & White, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellee recovered a judgment for damages claimed to have been sustained by her on account of the death of her husband, Frank Merlo, which occurred in the coal mine of appellant where he was employed as a miner.

Numerous errors are assigned upon the record hut the argument of counsel for appellant is confined to the refusal of the court at the close of the evidence to direct a verdict for appellant. This ig a waiver of all other alleged errors (Joliet R. R. Co. v. Linn, 93 App. 535; Hardin v. City of Chicago, 186 Ill. 424; Keyes v. Kimmel, 186 Ill. 109) and presents the sole question whether there was evidence fairly tending to prove the plaintiff’s case as alleged in any count or counts of the declaration. If there was, the court did not err in refusing to direct a verdict, and the judgment must be affirmed.

It is contended by appellant that the undisputed evidence shows conclusively that appellee had done all the law required of it to keep the deceased out of. his working place until the same had been made safe, and that no breach of duty alleged in the declaration was shown to have been the proximate cause of his death.

It was charged in the several counts of the declaration that the entries where Merlo was employed were in a dangerous condition from quantities of deleterious air, standing powder, smoke and gas, which were liable to and did explode and kill him, and the divers breaches alleged in the several counts as causing his death were a wilful failure to force currents of air into his working place, wilfully permitting him to enter the mine to work, not under the direction of the mine manager, before all conditions had been made safe, and a wilful failure to build stoppings in the cross cuts connecting the inlet and outlet air courses in a substantial manner with brick or other suitable material, but made such stoppings of lumber and used them as permanent stoppings contrary to the statute.

The evidence was, that the mine of appellant was a large one in which some four hundred men were employed. The working place of Merlo was at a place called the 7th and 8th south entries off the 4th east entry, and at the time, he (with two others) was engaged in driving onward the 7th and 8th entries. Gas had been accumulating about the face of these entries for some days, a fact well known to appellant. It was an explosive and dangerous gas liable to explode when coming in contact with an ordinary miner’s lamp. The air courses could not supply sufficient air to the faces of these entries to drive away the gas, and appellant had devised other means in an effort to accomplish that purpose. On the morning or night before the accident the mine examiner had found gas at the face of the 7th entry and had put up notices to that effect as notice to keep out. The examiner before Merlo entered the mine had reported this condition to the mine manager. The superintendent who had learned of the dangerous condition from the record book and from a note made by the examiner before Merlo went into the mine, went down on a cage in advance of Merlo for the purpose of having the gas brushed out of the entry by a gas brasher, which was one of the methods employed by appellant to get.rid of the gas. The superintendent testifies that Merlo came down from the surface the first or second cage after him; that he talked with him at a place called the “office” in the main entry; that he told him he was going to send a man to brush the gas out of the entry and for him to sit down there and wait until the gas was brushed out of his place and the place made safe for him; that Merlo could speak English and said “all right.”

The evidence further shows that before the gas brasher got to the place to brush out the gas, there was an explosion in one or the other or both the 7th and 8th south entries which resulted in the death ofMerlo whose body was found in the 8th entry some eighteen feet from the face of the 7th entry and near the last cross cut. He had gone there ahead of the gas brasher. Upon the evidence thus briefly recited did appellant do all the law required of it to keep Merlo out of his working place until it had been made safe?

Clause B. of Sec. 18 of the Mining Statute, provides : “No one shall be allowed to remain in any part of the mine through which gas is being carried into the ventilating currents nor to enter the mine to work therein except under the direction of the mine manager, until all conditions have been made safe.” Before Merlo entered the mine it was well known to appellant that Merlo’s working place was in a highly dangerous condition yet he was permitted to enter to work therein without being under the direction of the mine manager and before conditions had been made safe. It is argued that to give the statute a literal construction would be unreasonable because it would be impossible to operate a coal mine lawfully where several hundred men are employed if none were permitted to enter until every dangerous condition has been made safe. Such a construction would be unreasonable and not within a fair interpretation of the statute. To say that a man should not be permitted to enter the mine until some dangerous place distant from his working place and to which danger he would not be exposed, should be made safe, would be absurd. The purpose of the law is to protect the miner from exposure to dangers and from his own carelessness; to keep him away from dangers to which he will be exposed in the line of his employment until they are removed. If he is kept out of the mine there will be no exposure to dangers. We think it is no strained construction to hold, that it is a wilful violation of the statute to permit a man to enter a mine to work where dangerous conditions exist, and to which dangers he will be exposed, not under the direction of the mine manager. The entries where Merlo was killed were his working place, highly dangerous conditions existed there, and he was permitted to enter the mine to work therein not under the direction of the mine manager. Assuming that he went to the dangerous place after being permitted to enter the mine with full knowledge of its dangers, against the direction of the superintendent and that this was contributory negligence, it is no defense against the wilful failure of appellant to permit him to so enter the mine. (Kellyville Coal Co. v. Strine, 217 Ill. 516; Peebles v. O’Gara Coal Co., 239 Ill. 370.)

That Merlo was killed by the explosion of the gases constituting a dangerous condition is shown, and it is shown that such explosion was the proximate cause of his death. That such explosion proceeded from the dangerous condition and Merlo’s contributory negligence operating together is no defense if the wilful failure of appellant concurred with such negligence. (Waschow v. Kelly Coal Co. 245 Ill. 520, and cases cited.) And the fact that marks were placed there by the mine examiner as notices to keep out did not relieve appellant from the obligation not to permit Merlo to enter the mine to work until all conditions had been made safe.

The evidence tended to prove that the proximate cause of the death of Merlo was the wilful failure of appellant to comply with the statute in permitting him to enter the mine to work not under the direction of the mine manager when a dangerous condition existed, before it had been made safe, as alleged in the second and fourth counts of the declaration, and there was no error in refusing to direct a verdict for appellant.

The ¡judgment is affirmed.

Affirmed.