text:
    Charles T. Morris, Appellant, v. Calvin Vulgamott, Appellee.
    Gen. No. 5344.

      Damages—when reversal ordered notwithstanding only right to nominal, shown by the evidence. Ordinarily, a reversal will not he awarded where the record discloses only the right to recover nominal damages but if from such record it is apparent that the plaintiff may upon a subsequent trial show a basis for more than nominal damages, a reversal will be ordered.
    Action on the case. Appeal from the Circuit Court of Stark county; the Hon. T. N. Green, Judge, presiding.
    Heard in this court at the April term, 1910.
    Reversed and remanded.
    Opinion filed November 18, 1910.
    Kerns & Fling, for appellant.
    James H. Rennick, for appellee.
   Mr. Presiding Justice

Willis delivered the opinion of the court.

Appellant sued appellee in an action on the case for deceit in a horse trade and afterwards filed a declaration in assumpsit and, still later, filed a motion to change the form of action from case to assumpsit. That motion was never acted upon by the court, but defendant filed a plea of non assumpsit and issues were joined on that plea. There was a jury trial and, at the close of plaintiff’s evidence, the court directed a verdict for defendant, denied a motion for a new trial, and entered judgment against plaintiff below for costs, from which he appeals.

The declaration contains five special counts and the common counts. The first count charged that in consideration that appellants would buy of appellee a certain stallion for $300 appellee promised that said horse would be delivered to appellant sound and not over twelve years old; that said horse was a standard bred and registered trotting stallion with a record of trotting one mile in two minutes and eight seconds; that appellee would furnish appellant a pedigree of said horse setting forth such age, breeding and trotting record; that, if said horse should prove unsound or more than twelve years old or should prove not to be standard bred and registered, with a record of one mile in 2.08, or if appellee failed to furnish appellant with a pedigree of said horse, showing him to be a standard bred and registered trotting stallion with a record of trotting one mile in 2.08, then appellee would take said horse back and repay appellant said $300 paid by appellant therefor; that appellant, confiding in said promise “did buy the said stallion horse of the said defendant” and paid appellee therefor $300 by delivering to appellee a colt for $75 and two promissory notes of the appellant, payable to the order of the appellee, one for $100 payable in two years and one for $125 payable in one year, each with interest at six per cent per annum; that appellee deceived the appellant, in this, that said horse was not sound and twelve years old, but was unsound and more than twelve years old, and was not a standard bred and registered trotting stallion with a record of trotting one mile in 2.08; that appellee did not furnish appellant a pedigree of said horse showing that he was a standard bred and registered trotting stallion with a record of trotting one mile in 2.08, but wholly failed to furnish the same; whereby said horse became of no value to appellant, and thereupon appellant tendered back said horse to appellee and requested appellee to take back said horse and return to appellant said colt and said notes amounting to $225 or in lieu thereof, pay appellant said $300; and that appellee has not repaid said $300 nor returned said colt and notes, the appellant being ready, willing and able and now offering to return said stallion, but appellee wholly refused so to do. The second count was of like tenor, except that it was confined to the promises alleged that appellee would deliver to appellant said horse sound and just twelve years old, and said second count did not aver expressly a previous tender of the horse to the appellee, but made such tender in the count. The third count was of like tenor with the second count, except that it was confined to the promises alleged to deliver a standard bred and registered trotting stallion with a record of trotting one mile in 2.08. The fourth count was of like tenor with the second, except that it was confined to a promise by appellee to deliver appellant a written pedigree showing said horse to be a full blood Black Hawk Morgan. The fifth count was like the second, except that it was confined to the promise to deliver a pedigree showing said age and a breeding and trotting record of one mile in 2.08.

The proof showed that the contract was made on February 18,1909; that appellee made the said several representations and promises alleged concerning said horse; that appellee delivered the horse to appellant on February 20, 1909, and received the colt and two notes corresponding to the contract and that he stated to appellant that the pedigree was in the possession of a man in Washington, Illinois, who was sick with a contagious disease and under quarantine and therefore appellee could not get and deliver the pedigree then, but that he would do so in a short time; that in March, 1909, appellant wrote appellee asking for the pedigree and saying that he could not use the horse till he got The pedigree, and that he wanted to borrow $75; that on March 23, 1909, appellee came to appellant and asked Mm if he would secure the $75 and appellant said he would by a mortgage on Ms home; that they then went to a bank in Toulon where appellant resided, and by agreement a new note was drawn and executed by appellant to appellee for $300 and appellee paid appellant the $75 and delivered to him his two notes of $100 and $125 duly cancelled, and appellant gave appellee a mortgage on his homestead, securing said note for $300 and at the same time appellee again told appellant that he would get the pedigree for him as soon as the quarantine was off at Washington, Illinois.

The proof showed that the horse was twenty-one years old, that he was not sound, that he had never been registered, that he had never made the record promised, that he had no pedigree and that he was only one-sixteenth Black Hawk Morgan. Appellant never tendered the horse back before the commencement of the suit, but an hour or so after the suit was begun he met appellee at the depot at eight o’clock p. m. as appellee was taking the train for Peoria, where he lived, and appellant then told appellee that he tendered him the horse and the money he had borrowed, to which appellee replied that “they could not run any bluff on him; that he would not do anything.” The horse was not there and appellant did not show appellee any money, though either he or his attorney had the money present. The proof showed that appellant had formerly wtf'rked for appellee when appellee lived in Stark county; that the horse was in Peoria when these representations were made and that appellee knew that it was inconvenient for appellant to go to Peoria to see the horse and knew that appellant relied upon the representations. There were also in evidence some letters from appellee to appellant and, among them, one of April 12, 1909, in which appellee offered to sell appellant another stallion twelve years old, with a pedigree and record, and that the papers were right with him and “no monkey business this time,” which might have meant that there was “monkey business” in the way appellee had dealt with appellant about the horse here in question, or might have meant that there had been “monkey business” about the pedigree on the part of the man alleged to have the same at Washington, Illinois.

Appellant now contends that he never bought the horse or acquired the title to him; that the horse was not to be his till he was delivered sound, and not over twelve years old, a full Black Hawk Morgan horse, registered and with a record of 2.08, nor till a written pedigree was delivered to him showing such registry and record. We fail to see how that claim can be sustained under the declaration. The allegation of each count is that appellant did buy the horse, and it is nowhere alleged that the title was not to pass till the horse complied with these conditions and such a pedigree was furnished. Appellant relies chiefly upon Smith v. Hoffman, 122 Ill. App. 198, and Hazelton v. Carolus, 132 Ill. App. 512, but these were each actions on the case for deceit and not in assumpsit.

But while the age and unsoundness of the horse and the slightness of the strain of Black Hawk Morgan in him and his lack of registry and a record are rather false representations than breaches of the contract, and are available rather in the action of deceit originally brought than in the action of assumpsit to which plaintiff changed it, still appellant further alleged and proved a contract to deliver a written pedigree showing certain things concerning the horse, and also averred and proved a breach of that contract and a failure to deliver the pedigree agreed or any pedigree whatever, and that for want thereof, he could not sell the services of the horse, as a stallion.

Appellant did not follow this up by proving either what the horse was in fact worth when he received him, or what he would have been worth if the promised pedigree had been furnished, and therefore it may well be that the jury could hot have awarded more than nominal damages; but it seems clear that the court should have permitted the case to go to the jury, under the proof of the breach of the contract so alleged and proved, and that in the absence of other proof plaintiff must have recovered at least nominal damages. Courts will not reverse a case to permit the recovery of merely nominal damages; but it may be that on another trial appellant will establish a basis for more than nominal damages. The judgment is therefore reversed and the cause is remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice

license: Public Domain

text:
    N. A. Smith, Appellee, v. E. S. Hopping et al., Appellees, and William Sadler, Appellant.
    Gen. No. 5358.

      Fraud—when general statements constitute misrepresentations. While, ordinarily, general statements constituting misrepresentations will not afford a basis for relief, yet, in equity, if the parties are not dealing on equal terms and an actual fraudulent result is accomplished by such fraudulent statements, relief will be granted.
    Foreclosure. Appeal from the Circuit Court of Du Page county; the Hon. Mazzini Slusser, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the April term, 1910.
    Affirmed in part, reversed on cross errors and remanded with directions.
    Opinion filed November 18, 1910.
    L. N. Hoover, for appellant.
    L. C. Cooper and Kremer & Greenfield, for appellees.
   Mr. Presiding Justice

Willis delivered the opinion of the court.

On November 18, 1903, Edward S. Hopping and Jennie E. Hopping, his wife, executed and delivered their promissory note for $1,560 to one J. A. Young and, to secure the payment of the same, at the same date, executed a trust deed on certain real estate owned by them. This proceeding, a bill to foreclose said trust deed, was commenced in August, 1905, by Smith, endorsee of the note; and later the Hoppings filed their answer therein and also a cross bill, making the original complainant and others cross-defendants and praying that a contract therein set out, together with the note and trust deed, be declared void, that the contract be rescinded, and that an accounting be had to ascertain the damages sustained by the cross complainants. Various amendments were made to this cross bill at different times, the last amendment striking out the averments and prayer of the cross bill as to the rescission of the contract. After answers had been filed by the variohs cross-defendants, there was a trial by jury, which resulted in a disagreement. Later, the cause was tried without a jury and a decree was entered by the court, awarding to the Hoppings, the cross complainants, damages in the sum of $1,010, and abating the lien of said trust deed upon their real estate in that amount, leaving it as a subsisting Hen in the sum of $550. One of the cross defendants, William Sadler, has appealed from that decree, and cross errors have been assigned by the Hoppings.

The facts, as proved by a preponderance of the evidence, are as hereafter stated. William Sadler owned and_ conducted a nursery business at ‘Bloomington, Illinois, under the name of the Home Nursery Company. In the summer of 1903, the Hoppings who then owned and were living upon a ten acre tract of land near Gflen Ellyn, in DuPage county, were approached by one Wilkerson, a travelling salesman for the Home Nursery Company under the direct superintendence of one Young, a general agent for said company, and the Hoppings gave said Wilkerson an order for nursery goods amounting to $560 in August of that year. In September, 1903, before the delivery of the goods on said order, Wilkerson and the general agent of the nursery company, Young, went to the Hopping residence and took another order from them for an additional $1,000 worth of trees. At that time the two orders were combined in one contract.. Later, the trees were set out on the land of the Hoppings, and, in November, 1903, the Hoppings executed the note and trust deed here in question. The note was after-wards assigned by Young to Smith, the original complainant, and the proceeds thereof were remitted to Sadler, the owner of the nursery company.

The evidence shows that Hopping was a draughtsman, employed in Chicago, and was entirely unfamiliar with farming or horticulture; that he had so stated to both Wilkerson and Young and that he would have to rely upon their representations as to the suitability of his soil for the growth of fruit trees; that Young and Wilkerson represented that the Hopping land was especially adapted to the growth of plum and cherry trees and that they would plant the necessary trees and take care of them for five years, replacing all trees that died during that time, and at the end of that period Hopping could pay for them at the rate of one dollar per tree; that the agents of the nursery company also represented that the variety of plum tree sold by them, known as. the Pottawatamie plum, was proof against the attacks of an insect known as the chrculio and that they had set out large orchards of that kind of plum tree for people in that vicinity, from which the owners were receiving large returns, and that the Hopping land was in first class condition for the planting of a plum orchard. Young showed Hopping printed descriptions of the Pottawatamie plum and also what he claimed were genuine testimonials from owners of such orchards, showing the large returns to be derived therefrom. Numerous other representations were made to the Hoppings by the agents of the nursery company, all tending to convince that the raising of plums in that locality was perfectly feasible and highly profitable, and that the company would guarantee their trees and would take the fruit from Hopping at the end of the fifth'year at the rate of one dollar per tree and would evaporate the fruit for him, that being a part of the company’s business. The evidence further shows that at the time of the trial, only 637 trees out of the 1,500 presumably planted, were still living, and that the plum trees planted were not the species known as the Bottawatamie plum, but were another cheaper variety.

The preponderance of the evidence also shows that nearly all of the statements and representations made to the Hoppings by the agents of the nursery company were false and must have been known to such agents at that time to be false. The Hopping land instead of being in prime condition for tree culture, was covered with a heavy growth of quack grass, which is distinctly deleterious to tree culture. The company neglected or refused to take any care of the trees, as agreed by its agents. The trees planted were not the variety specified. It is impossible to raise plums profitably anywhere in northern Illinois on account of the ravages of the curcúlio, and at the time these statements were made by the agents of the company there were no orchards in existence in northern Illinois where plums were successfuly raised for the market. Ho attempt was made by Sadler, or the company or Smith, to prove the truth of the representations of Young and Wilkerson to the effect that large orchards of such plum trees had been planted in that vicinity and were being profitably cultivated. The company was not in the business of evaporating fruit. It is probably true that some of the statements made by the representatives of the company were merely promises for the future, and some may have been a lawful praising of their own goods, and these could not alone he made a basis for an action of fraud, and some may, in fact, be said to have been merged in the written contract. Still, with such doubtful statements eliminated, there still remains many false representations made for the manifest purpose of defrauding Hopping. They were positive statements of present existing facts, or supposed facts, which were material in negotiating a contract with one like Hopping, who knew nothing about the business, and were statements upon which he had a right to rely under the circumstances. ‘ ‘ Ordinarily, statements of an indefinite or general character made by either of the parties pending a negotiation for the sale of property, relating to its cost or value, or offers made for it, and the like will not, in the absence of special circumstances, afford any ground for avoiding the sale, although false, and made with a fraudulent intent. * * * Yet it is just as well settled, that where the contracting parties, for any cause are not on equal terms, and such representations are gross exaggerations, resulting in an unconscionable bargain, equity will not hesitate to interpose in favor of the injured party.” Dillman v. Nadelhoffer, 119 Ill. 567. Hopping told Young, as he had previously told Wilkerson, that he knew nothing about fruit raising or the suitability of his soil for the planting of fruit trees, and that he would have to rely upon his statements as to all those things. Clearly, they were not upon equal terms. Young was an experienced nursery salesman, and had been in the nursery business for many years, and Hopping, knowing nothing of fruit raising, had a right to rely upon his representations, and those made by Wilkerson; and we are of the opinion, that he is entitled in equity to recoup the damages resulting from a bargain so clearly unconscionable.

Appellant contends that, as the written order signed by Hopping provided that no agent of the company had any power to make any stipulations not therein contained, he was not bound by what Wilkerson and Young said to Hopping in negotiating the contract. If this were true, then parties desiring to obtain undue advantages in dealing with others, could, always protect themselves from the fraudulent statements of their agents by inserting such a provision, in the printed orders finally signed by the parties. The proof clearly shows that Young was the general agent of the nursery company or Sadler, and that Wilkerson was working under him, and that Sadler accepted the proceeds of the Hopping contract, and he, in our opinion, cannot now be heard to repudiate Young’s agency.

It is entirely clear that if Young and Wilkerson had told the truth to Hopping, they would never have taken the order, and Sadler would never have received any benefit therefrom.

It is urged by appellant here that the Hoppings cannot rescind the contract. The record shows that they are not seeking a rescission. On the trial before the chancellor, the answer and the cross bill were amended by striking out the allegations declaring an election to rescind. This amendment was, in effect, an election to abide by the contract and to recoup the damages sustained by reason of'the fraud. “A defrauded buyer may, instead of rescinding the contract, stand by the bargain even after he has discovered fraud, and recover damages therefor, or recoup in damages, if sued by the vendor. ’ ’ White v. Sutherland, 64 Ill. 181; Allen v. Henn, 197 Ill. 486. This may be done in a proceeding to foreclose a mortgage executed by the parties defrauded in the bargain. Allen v. Henn, supra.

Appellant contends that appellee had an adequate remedy at law and that the cross bill was not germane to the original bill. These points were not raised in the trial court and therefore need not be considered here. Appellant claims to have demurred to the cross bill on those grounds, but the record does not disclose such action. It is true, exceptions were taken after the cross bill had been amended, but such exceptions were only to the last amendment. Moreover there are no assignments of error which raise these questions.

It is clear to us that the damages awarded Hopping were supported and warranted by the evidence. In addition thereto cross errors are assigned by Hopping for the failure of the court below to allow damages for the cherry trees which died within five years after the date of the contract. The contract provided that “all trees that die from any fault of said nursery will be replaced free of charge for five years.” It appears from the record that, out of the 500 cherry trees pressumably planted, 222 never showed any signs of life and only 183 were alive at the time of the trial, which was shortly after the expiration of the five years’ period. The Hoppings had nothing to do with the planting of the cherry trees; there is no evidence to charge them with any responsibility with reference to them, except the cultivation of the land; and there is no proof that they did not properly cultivate the land. It follows then, either that the trees were dead when planted in the fall of 1903, or that they possessed so little vitality that they were unable to stand the shock of transplanting, or that they were improperly transplanted. Hence it is clearly apparent that the Hoppings should have been allowed the contract price for the 222 that never lived, with interest thereon at five per cent from November 18, 1903, the date of the note, and that the lien of the trust deed should have been further abated by that amount.

The decree is therefore affirmed in part and reversed on cross errors at the costs of appellant, and the cause is remanded with directions to enter a decree pursuant to this opinion.

Affirmed in part, reversed on cross errors, and remanded with directions.


author: Mb. Presiding Justice

text:
    Emma Pease, Appellee, v. Chicago & Southern Traction Company, Appellant.
    Gen. No. 5369.
    1. Pleading—when allegation of relation of passenger and carrier sufficient. It is not essential that a declaration should specifically allege the existence of the relation; it is sufiicient after verdict if the existence of the relation is in effect charged.
    2. Evidence—effect given to negative. Negative evidence is of little value when contradicted by direct and positive proof.
    3. Instructions—approved form as to province of jury. An instruction upon this subject as follows, approved.
    “The court instructs the jury that the question involved herein, as alleged in the plaintiff’s declaration, of negligence on the part of the defendant, if any, and the exercise of reasonable care on the part of the plaintiff, if any, are what are known as questions of fact which it is the duty and province of the jury to determine under the law and the evidence in the case.”
    4. Instructions—upon right of recovery in action for personal injuries approved. An instruction upon this subject as follows, approved.
    “If the jury believe from the evidence that the plaintiff has proved the allegations contained in one or more counts of the declaration by a preponderance of the evidence, and if the jury believe from the evidence that the plaintiff was injured as therein alleged, and if the, jury believe from the evidence that the plaintiff, at the time of such injury, was in the exercise of reasonable care for her own safety, and if you further believe from the evidence that such injury, if proved, was caused by or through the negligence of the defendant, as alleged in such count or counts of the declaration, then the plaintiff is entitled to recover such damages as you believe from the evidence will compensate her for the injury sustained.”
    5. Instructions—defining negligence approved. An instruction upon this subject as follows, approved.
    “The court instructs the jury that negligence is the. omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a prudent and reasonable man would not do. ”
    6. Verdicts—when excessive. Held, in an action for personal injuries that a verdict for $1,500 was excessive where no serious or permanent injury, no broken bones, and no loss of earning power were shown by the evidence.
    Action in case for personal injuries. Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding.
    Heard in this court at the April term, 1910.
    Affirmed on remittitur.

    Opinion filed November 18, 1910.
    Lowes & Richards, for appellant.

      Bryan Hutchinson and John W. D’Arcy, for appellees.
   Mb. Presiding Justice

Willis delivered the opinion of the court.

On the 29th day of May, 1908, The Chicago and Southern Traction Company owned and operated an electric railway through the village of Crete, in Will county, and at the intersection of Exchange and Vincennes streets in that village maintained a small frame depot at which its cars stopped for the loading and unloading of passengers. At that point there is a jog in Vincennes street which runs north and south, and the railroad tracks and depot are not in the street but on private ground, the track being along the west side of the depot. A wooden platform extends around the building and to the track on the west. On the east and north sides of the depot the ground had merely been filled in or graded so as to be nearly level with the platform. In the evening of said day, appellee alighted from a car of appellant at this depot. The night was dark and there was no light at the depot, at least there was none on the rear or east side of the depot, which was the side nearest Vincennes street. Appellee and her daughter had been visiting in Chicago Heights, returning on the ear of appellant, and, after alighting, proceeded to the rear of the depot, intending to cross Vincennes street. As appellee stepped off of the wooden platform, she stepped into a hole which she claimed was about a foot or eighteen inches deep, and she claims to haye received internal injuries from which she suffered for a long time. She brought this suit to recover damages for such injuries and, upon a trial, recovered a verdict for $1,500. A motion for a new trial was overruled, and judgment was entered on the verdict, from which the defendant below appeals.

The assignment of errors by appellant is quite lengthy but not all the points there raised are argued here, and we need not consider any other than those argued. Appellant contends that the declaration does not state a causq of action; that appellee is not therein alleged to have been a passenger' on the car of appellant; that there is nothing in the declaration to show that appellee was not a mere licensee upon the premises of appellant; and that appellant therefore owed to appellee only the duty not to injure her wilfully or by any affirmative act. It is true that neither count of the declaration charges in express words that appellee was a passenger on one of appellant’s cars, but each count states fully the duty defendant owed to persons patronizing its cars to keep its premises in such condition that its patrons would not be injured in going to and from its cars over the premises in question; and {hat said premises and platform were owned and used by defendant for the accommodation of its patrons in going to and from its cars; and the first count avers of plaintiff that “after she had left one of the defendant’s street cars,” and “when she was passing over the platform at the defendant’s station,” she walked from the platform into the hole complained of. The proof showed that she had, in fact, been a passenger, and it may fairly be assumed from the verdict that the jury found appellee to have been a passenger. In the case of O’Rourke v. Sproul, 241 Ill. 576, it was held that after verdict, on motion in arrest of judgment or on appeal, everything which by fair and reasonable intendment may be inferred from the general averments of the declaration will be presumed. In the case of Hinchliff v. Rudnik, 212 Ill. 569, it was held that “want of express allegations in the declaration of any matter necessary to be proved, and without proof of which the jury could not have given a verdict, is cured by the verdict, if the declaration contains terms sufficiently general to comprehend any such matter by fair and reasonable intendment. ’ ’ It was necessary for appellee, in order to sustain a verdict, to prove that she was a passenger, at the time she was going from appellant’s car with a view to leaving the car and depot grounds, and this she did. It has been repeatedly held by the courts of review in this state that a plea of the general issue admits that a cause of action is stated in the declaration, and we consider that the omission of a direct statement in the declaration that appellee was a passenger is cured by verdict and cannot be taken advantage of here.

Appellant contends that the verdict should not stand, for the reason that there is no evidence in the record tending to show negligence or liability on the part of appellant, We cannot agree with this contention. Appellee was a passenger on one of appellant’s cars, and therefore appellee was entitled to the exercise of the highest degree of care and diligence on the part of appellant and its servants for her safety, not alone while she was actually riding on the car of appellant, but also during such reasonable period of time as was required by her for leaving the premises of appellant. It is admitted by appellee that appellant was under no obligation to build a depot for the accommodation of its patrons. But, if so, appellant has seen' fit to provide such a depot at this point, and we can see no reason why it should not be required to exercise the same degree of care as any other common carrier, to keep its depot, platform and premises in a safe condition for the ingress and egress of its passengers. The evidence here shows that there was no light on the side of the depot on which was the hole or depression in the ground here complained of. The evidence further shows that the roof of the depot projected over the platform, so that rain water, dripping from the northeast corner- of the roof, would fall upon the ground just at the edge of the platform, and it is a fair inference from the evidence that such dripping water caused the hole or depression. Appellee and her daughter each testified to the existence of the hole and that appellee stepped into it. One of the witnesses for appellee testified that he saw a “wash out” in the ground at this point the day after- the injury complained of, the hole made thereby being described as being about two feet long and about eighteen inches deep. The evidence also shows that this hole was about nine or ten feet in on appellant’s property. One of appellee’s witnesses testified that this hole looked “like it was an old hole.” The proof therefore shows that appellant failed in its duty to provide a safe means of egress for its passengers. If this was an “old hole,” the exercise of due diligence on the part of appellant would have caused the hole to be filled up and an eave-trough to be so fitted to the roof of the depot that the rain water would be disposed of in some other way. If this hole was caused by the rain which prevailed on the night in question, the presence of an electric light on the east platform of the depot would have revealed the “wash out” to appellee, and she would not have been injured. Appellant introduced considerable evidence for the purpose of proving that there was no hole at the point stated. This evidence was of a purely negative character, the witnesses testifying that they had never .seen such a hole there. Such negative evidence is of little value as against the direct proof on the part of appellee as to the position and size of the hole in question.

Appellant contends that the court erred in giving instructions Nos. 1, 2 and 3, requested by appellee. The first instruction was as follows:

“The court instructs the jury that the question involved herein, as alleged in the plaintiff’s declaration, of negligence on the part of defendant, if any, and the exercise of reasonable care on the part of the plaintiff, if any, are what are known as questions of fact which it is the duty and province of the jury to determine under the law and the evidence in the case. ’ ’

The third instruction given at the request of appellee was as follows:

“If the jury believe from the evidence' that the plaintiff has proved the allegations contained in one or more counts of the declaration by a preponderance of the evidence, and if the jury believe from the evidence that the plaintiff was injured as therein alleged, and if the jury believe from the evidence that the plaintiff, at the time of such injury, was in the exercise of reasonable care for her own safety, and if you further believe from the evidence that such injury, if proved was caused by or through the negligence of the defendant, as alleged in such count or counts of the declaration, then the plaintiff is entitled to recover such damages as you believe from the evidence will compensate her for the injury sustained.”

Each of these instructions has been approved in Economy Light & Power Co. v. Hiller, 203 Ill. 518; Economy Light & Power Co. v. Hiller, 211 Ill. 568; and Chicago & Joliet Ry. Co. v. Patton, 219 Ill. 214.

The second instruction given at the request of appellee was as follows:

“The court instructs the jury that negligence is the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a prudent and reasonable man would not do.”

This instruction has been approved in Perryman v. Chicago City Ry. Co., 242 Ill. 269, and cases there cited. We consider the instruction named to have been properly given.

Appellant also contends that the verdict is against the greater weight or preponderance of the evidence and that the damages are excessive. We consider that the first of these contentions is not supported by the record before us. Appellee and her daughter both testified to the same state of facts as to her stepping into the hole in question, the approximate size and general location of the hole with reference to the station platform, the absence of any light on that side of the depot, and other essential facts. This evidence was corroborated, in certain particulars, by other witnesses for appellee and no witness was produced by appellant to directly controvert this testimony. But whether or not the amount of the damages is excessive is a different question. A few days after the accident appellee was examined by two physicians, one of whom testified that he was not a surgeon and had never performed an operation for a displaced kidney, and the other of whom had but just graduated from a medical school and had not commenced the active practice of medicine. These two physicians testified that in such examination, they discovered a hard internal mass in the abdominal region on the right side of appellee, which they believed to be a displaced kidney; and they further testified that such a condition could not be relieved except by a surgical operation. During the trial, a year and a half after the accident, one of these physicians and a surgeon acting for appellant made another examination of appellee and reported that they found no indication at that time of a displaced kidney, the physician testifying that he could not find the kidney at the time and the surgeon testifying that he found the kidney in its normal place and firmly fixed. From this evidence we think it a fair inference that app elle had never suffered a displaced kidney and that the hard mass or lump, found in the side of appellee, on the first examination, had passed away or been absorbed. Appellee broke no bones in her fall nor was her skin even fractured. She was confined to her bed for a few weeks and suffered considerable pain for a time after the accident, but the evidence tends to show that appellee has been doing the cooking and light house work for five people since about a month after the accident. Therefore, while in our judgment the evidence shows that appellee has suffered an injury as the result of negligence on the part of appellant while she was in the exercise of due care for her own safety and that she- is entitled to look to appellant for redress therefor, yet we feel obliged to hold that the amount of damages allowed her by the jury is excessive.

This opinion will be lodged with the clerk, and the parties notified thereof, and if, within seven days, appellee shall remit $750, the judgment will be affirmed in the sum of $750 at the costs of appellee. Otherwise the judgment will be reversed and the cause remanded.

Thereafter a remittitur being filed on the part of appellee for the sum of $750 the judgment is therefore affirmed in the sum of $750, at the cost of appellee.

Affirmed.


author: Mr. Presiding Justice Higbee

text:
    Harry Dickerson, Appellee, v. Henrietta Coal Company, Appellant.
    1. Evidence—when paper incompetent by way of impeachment. A paper sought to be used by way of impeachment is properly excluded if it contains other matter than that which related directly to the impeachment of the witness which other matter was important to the party seeking to introduce the paper, and w*here such paper was signed by other witnesses than the one sought to be impeached.
    2. Instructions—when modification upon interest of party not improper. An instruction which tells the jury that “While the plaintiff is allowed to testify in this case in his own behalf, yet in considering his testimony and the weight to be given to it, the jury have a right to and should take into consideration the fact that he is the plaintiff in this suit and is interested in the result thereof,” is not improperly modified by the addition of the words “and should judge the weight of this testimony by the same tests applied to other witnesses.”
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    Rehearing denied October 27, 1910.
    Wise & Keefe, for appellant.
    Geers & Geers, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee was injured by a rock falling from the roof of appellant’s mine in which he was engaged as a. coal miner. He brought suit against appellant, charging it in one count of the declaration with a failure to perform its statutory duty to provide a sufficient supply of props, caps and timbers, delivered on the miners’ cars at the usual place when demanded, as nearly as possible, in suitable lengths and dimensions for securing the roof of the mine; and in another count charging that it was the custom of the mine for the miners to order their props, caps and timbers from the drivers, and for the drivers, through the mine manager, to provide the same, delivered on the miners’ cars, at the usual place in suitable lengths and dimensions, for securing the roof; that appellee demanded such props, caps and timbers of one Dick Davis, a driver, but that the same were not provided for him at said place.

A judgment for $2,000 in favor of appellee is here sought to be reversed by appellant, upon the ground that the verdict is not sustained by the evidence and the court erred in excluding certain evidence offered by it and in modifying one of its instructions.

The proofs show that appellee, a man 27 years of age, was on May 28, 1908, and had been for four or five months prior thereto, working as a miner in appellant’s coal mine near the city of Edwards-ville, Illinois, and was receiving as pay $2.56 a day; that, as testified to by appellee, he, two days prior to said date, noticed a rock loose in the roof of his room, and asked the mine manager to send in some 5½ foot props; that the manager told him all right, but needing a driver asked appellee to go out and drive, which the latter did, serving in that capacity the rest of that day and all of the following day; that on the day of the injury, having returned to work in his room, he discovered the props had not been sent in and at about 8 o’clock a. m. ordered some 5% foot props from Davis, a driver; that it was the custom and rule of the mine to demand props of the drivers; that the props, however, were not delivered and shortly before 11 a. m., a rock fell upon him from the roof, by which he was most painfully injured and permanently crippled and disfigured.

Whether or not appellee ordered the props from the mine manager or the driver, was a controverted question.

Section 16 of the Act in regard to Mines and Miners, provides, that the mine manager shall “always provide a sufficient supply of props, caps and timbers delivered on the miners’ cars at the usual place when demanded, as nearly as possible, in suitable lengths and dimensions, for the securing of the roof by the miners.” The proofs show that appellant failed to deliver such props, caps or timbers to appellee on the miners’ cars at the usual place, but it is claimed by appellant that there was a sufficient supply of props of the desired length in appellee’s room about 60 feet from the face of the mine, and there were also a number of such props at a switch in the entry not far from the mouth of the room. Even if the existence of props and timbers of the proper length in such location, could be considered a compliance with the statute (see Donk Bros. Coal & Coke Co. v. Lucis, 226 Ill. 23), yet upon that question there was also a sharp controversy in the evidence. It was clearly for the jury to say from the evidence, whether the props had been ordered from the mine manager or the driver, whether they were provided in a sufficient supply in the manner and at the place designated by statute, and whether if there was a failure to so supply such props,, the same was the proximate cause of appellee’s injury..

As to the ruling upon the evidence, appellant complains that the court refused to permit the mine examiner to testify that the day before the rock fell he called appellee’s attention to it and told him to look out for it. This evidence was incompetent for the reason, if true, it could only tend to show that appellee was guilty of contributory negligence, which is no defense in an action based upon the wilful failure of a mine operator to comply with the statute providing for the health and safety of employes. Peebles v. O’Hara Coal Co., 239 Ill. 370; Kellyville Coal Co. v. Strine, 217 id. 516; Carterville Coal Co. v. Abbott, 181 id. 495; Himrod Coal Co. v. Adack, 94 Ill. App. 1.

Appellant further complains that the court refused to admit a statement made on May 28,1908, and signed by the mine manager Jenkins and two miners, Teasdale and Wiese, stating that after the injury, they had found fourteen 5% foot props together with other props in the room where appellee was injured; that these timbers were all in good shape and size for using, and stating what the requirements of the place as to timbers were. It appeared that the .statement had been made out by the general manager of the company at its office and handed to the men to sign. Wiese, who was a witness, for plaintiff upon the trial admitted that he signed it saying, “All I done was to put my name on there.” He however said that he did not measure the props but only heard the measurement called off and stated that the conditions in appellee’s room had been changed between the time of the accident and the time the examination was made. Objection was made by appellee to the admission of this statement. We think the paper was properly excluded for the reason that it contained other matter than that which related directly to the impeachment of the witness, which was important to appellant in the case and also because others than the witness himself, signed the statement, and by its admission appellant would get the benefit of what they said in the statement, as well as the witness. The fact that appellant offered to omit a portion of the statement and all signatures except that of Wiese, did not" render the instrument admissible and was not, under the circumstances, a practical thing to do.

The only complaint concerning the instructions is that the court modified one offered for appellant, which told the jury that “While the plaintiff is allowed to testify in this case in his own behalf, yet in considering his testimony and the weight to be given to it, the jury have a right to and should take into consideration, the fact that he is the plaintiff in this suit and is interested in the result thereof,” by adding the words ‘ and should judge the weight of this testimony by the same tests applied to other witnesses.”

In C. & E. I. R. R. Co. v. Burridge, 211 Ill. 9, it was held, that an instruction similar to that offered by the appellant here, was proper in a case where the party on one side was an individual and on the other a corporation.

In Henrietta Coal Co. v. Martin, 221 Ill. 460, however, it was held that under the same circumstances, it was proper for -the court to modify such an instruction by adding a clause telling the jury they had the right to weigh that testimony “by the same -rules applied to the testimony of all other witnesses.”

The modification in that case was substantially the same as the one in the case before us, and we therefore regard the question as settled against the contention of appellant.

We are of opinion that the judgment of the court below ought to be and it accordingly is affirmed.

Affirmed.


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    Grace Lowe, Appellee, v. Alton Baking and Catering Company, Appellant.
    1. Negligence—competency of other accidents. Evidence of other accidents occurring from the same cause is competent not for the purpose of showing independent acts of negligence but as tending to show the common cause of these accidents was a dangerous and unsafe thing.
    2. Instructions—when as to province of jury proper. An instruction is proper which tells the jury that the question of negligence on the part of the defendant and that .the exercise of reasonable care on the part of the plaintiff are questions of fact for the jury to determine under the law and the evidence in the case.
    3. Instructions—limiting effect of “ evidence. Evidence which for one purpose is incompetent, is properly limited by instruction to the competent purpose.
    Trespass on the case. Appeal from the City Court of East St. Louis; the Hon. Thomas F. Ferns, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed August 5, 1910.
    Rehearing denied October 27, 1910.
    John F. Brenholt and E. W. Eggmann, for appellant.
    B. J. O’Neill and E. G. Meriwether, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee claimed to have been made ill by eating ice cream made and sold by appellant. She brought suit, charging in her declaration, that appellant negligently failed to exercise due care and caution to keep the cans in which it packed its ice cream, free from dirt and filth, deleterious and dangerous to human health and life; that by reason of such unwholesome and unclean conditions, the ice cream packed in said cans, coming in contact with the same and so delivered to its patrons and customers, also became dangerous to human health and life; that appellee ate of the ice cream furnished by appellant packed in such cans and became sick.

The general issue was filed and the case has been tried three times before three separate trial judges with a jury; all of the trials resulted in a verdict in favor of appellee. The first jury assessed appellee’s damages at $750, the second at $999, and the third, from which this appeal is prosecuted, at $969.44.

The facts in the case are shown by the record to be substantially as follows: On the evening of May 24, 1907, fourteen members of the graduating class of the Upper Alton High School, together with their principal, Professor Haywood Coffield, his wife and child, attended a banquet at .the residence of T. A. Bice in that city, whose daughter, Lutie, was a member of the class. At about half past ten o’clock they were served with refreshments) consisting of ice cream and a number of other articles of food, the ice cream .being furnished by appellant. The guests departed at about half past eleven and shortly after appellee arrived at home she retired. About two hours later she was awakened by violent pains. A physician was called who found her suffering from severe cramps in the bowels and purging. She afterwards vomited blood and was at times unconscious. She was compelled to remain in bed six days and was ill between two and three months. The physician who attended her testified that her sickness was in the nature of ptomaine poisoning. Twelve of the other guests who ate the ice cream and partook to a greater or less extent of the other refreshments, testified to having been taken sick during the night in the same manner as appellee. In addition to these, one of the guests, Mrs. Todd, a daughter of T. A. Bice, who was present at the banquet, and who ate nothing but the ice cream, was taken sick in the night in the same manner as appellee and the others. It was also known that two other persons who ate ice cream and other food were not sick. Appellee ate bread and butter, drank hot chocolate and then ate ice cream and cake. The ice cream was delivered at the Bice home about 6 o ’clock p. m., packed in ice, in a wooden tub covered with burlap and was placed in a corner of the kitchen, where it remained until it was time to serve it. There were three cans delivered but only two of them used. Two daughters of Mr. Bice testified that as the cans were removed from the tub, a towel dipped in warm water was wrapped around them, the lid removed and the cream turned out on a bread board, which was washed for the purpose, sliced and served; that when the cans were opened, pieces of paper appeared on the top of the cream but not elsewhere. They and another daughter of Mr. Rice testified they examined the cans next morning and found they were rusted on the inside and that in the corners and cracks was a dark, sticky, dirty looking substance, which could not be easily removed by washing and had to be scraped out with a knife. One of them testified that the substance found was decayed and putrid. Three witnesses on the part of appellant, who were connected with the operation of its business testified that every can used by them to pack ice cream in was washed, dried and placed on á dry rack and before being further used, was placed in boiling water and again wiped out and dried; that the cream was protected in the cans by oiled paper made for the purpose; that the cans in question here, when returned to appellant on the day after the banquet, were found without any scratch of a knife upon them, in a clean condition and with no evidence of any improper or deleterious substance having been in them.

A chemist produced as a witness on the part of appellant, stated that ptomaines had no life so that they could not be destroyed or affected by boiling water; that there was nothing in them to kill. Dr. Campbell, a witness for appellee, testified that if the cans were in the condition testified to by the two Rice girls and their sister, Mrs. Todd, and the ice cream came in contact with the decayed substance, ptomaines would form and in a short time permeate the ice cream.

The conditions presented by the evidence appear to us to be substantially as follows: Nearly all of the guests at the banquet were made ill and their sickness was caused by something they ate, appellee claiming that it was caused by the ice cream and appellant that it might have been caused, as well, by some of the other of the many articles of food furnished. Bearing upon the question as to whether it was the ice cream and not the other food which caused the sickness, it appears that one person who ate nothing but the ice cream was sick in the same manner as the others; that there was found in the cans containing the ice cream, a dark,'-sticky, putrid substance, which a physician testified would cause the formation of ptomaines ; and that appellee was afflicted with what her attending physician believed to be ptomaine poisoning. It is true there was a controversy in the testimony as to whether the cans in question contained the deleterious and dangerous substance mentioned.

Three witnesses, however, swore positively to finding the substance in the cans, while an equal number on the part of appellant swore to the custom of the ice cream factory and to circumstances which tended to preclude the possibility of such substance ever being found in their cans. The members of three juries however, who have heard the case, have found the facts in favor of appellee, and we are of opinion that the facts, as presented to us by the record in the last trial, sustain such a finding.

Appellant insists that the court erred in admitting the testimony of other banqueters, that they became ill shortly after the banquet in the same manner as appellee. Our courts have held that evidence of other accidents, occuring from the same cause,' is competent, not for the purpose of showing independent acts of negligence, but as tending to show the common cause of these accidents as a dangerous, unsafe thing. Chicago v. Jarvis, 226 Ill. 614; Bloomington v. Legg, 151 Ill. 9; Rowlands v. Elgin, 66 Ill. App. 66.

It appears to us entirely proper that the other guests at the banquet should have been permitted to state whether they were or were not affected in the same manner as appellee as bearing upon the question whether such illness was or was not produced by food served at the banquet.

Appellant complains also of instruction No. 1 given for appellee. This instruction told the jury that the question of negligence on the part of appellant, and the exercise of reasonable care on the part of appellee, were questions of fact for the jury to determine under the law and the evidence in the case. This instruction was approved in C. & J. Elec. Ry. Co. v. Patton, 219 Ill. 214.

Appellant also complains of the second instruction given for appellee, which told the jury that the evidence of sickness of other persons who attended the supper was admitted upon the question as to whether or not said ice cream was unwholesome and deleterious and was not to be considered as tending to show any independent act of negligence against appellant, nor upon the question of appellee’s damages, if any. The evidence referred to was competent, as we have above seen, but it was proper for the court to limit its effect, as was done in the instruction.

We find no reason disclosed by the record why the judgment of the trial court should be reversed and the same is therefore affirmed.

Affirmed.


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    James W. Royall, Sr., Appellee, v. Hartford Fire Insurance Company, Appellant.
    1. Appeals and errors—when findings of court subject to review. An exception to the judgment entered by the court is sufficient to preserve for review the propriety of the finding of the court; an exception to such finding is not indispensable.
    2. Insurance—proportionate loss clause construed. A proportionate loss clause contained in an insurance policy in question in this case is construed and the apportionment made by the trial court between the policy in question and a blanket policy is sustained.
    Assumpsit. Appeal from the Circuit Court of Franklin county; the Hon. J. R. Creighton, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed November 12, 1910, being a modification on petition for rehearing.

      W. H. Williams and Barger & Hicks, for appellant.
    W. H. Hart, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinon of the court.

Appellee brought suit upon a policy of insurance, issued by appellant to him and S. 0. Snyder, insuring them from loss by fire to an amount not exceeding $2,500, covering three buildings therein described, and recovered a judgment. There was a stipulation entered into between the parties as to the main facts in the case and while the testimony of two witnesses was heard, there was no conflict in their testimony, and no controversy whatever on the trial as to the facts.

It was agreed by the parties at the time of the fire appellee was “the sole owner and beneficiary in the policy.” At the time appellant issued its policy aforesaid, The American Central Insurance Company of St. Louis, Missouri, also had in existence a policy upon the same premises issued to the same parties, for the like sum of $2,500. The terms and conditions of the two policies were substantially alike. In appellant’s policy however, the amount of the insurance was divided among the three buildings, $1,250 being placed upon one, and $625 each upon the two others, while in the policy of the American Central Insurance Company, the property insured, which consisted of three adjoining store buildings, separated only by partition walls, was described as one building and the insurance was in one item, the sum of $2,500, upon the whole. During the life of the two policies the property described in them was damaged by fire to the extent of $3,495.49. The damages were" apportioned among the three buildings, it being agreed that the building Insured by appellant for $1,250 had suffered injury to the amount of $2,212.54, one of the other buildings to the amount of $682.60 and the third to the amount of $600.35.

A jury was waived and upon the trial the court below adopted the theory that each of the two insurance companies was liable for one-half of the loss, and gave judgment against appellant for $1,747.74.

Appellee insists that no question is presented to this court for review because no propositions of law were presented to the trial court and while the judgment was excepted to, no exception was taken to the finding of the court. While it is the usual practice to except both to the finding and the judgment of the court, where there is a trial without a jury, yet this is not always necessary.

In Sands v. Kagey, 150 Ill. 109, which was a case tried upon an agreed state of facts, by the court without a jury, it is said, “the bill of exceptions shows that the defendants excepted to the judgment rendered by the court in favor of the plaintiff, and that was all that was required to entitle them to review the judgment on appeal or writ of error.” In our opinion the failure to except to the finding of the court, in this case does not affect appellant’s right to be heard on appeal.

As no propositions of law were presented in this case to the trial court, and consequently no exceptions taken to the rulings of that court upon the law, it is doubtful whether the question of the proper apportionment of the loss under the two policies of insurance, can be properly raised in this court. As however we are of opinion the trial court correctly decided that question we have determined to give our reasons why the judgment should be sustained upon its merits.

Bach of the two insurance policies contained the following provisions: “This company shall not be liable under this policy for a. greater proportion of any loss on the described property * * * than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property.”

In order to construe this provision of the contract, it is therefore necessary for us to determine what was meant by the words, “the amount hereby insured” and “the whole insurance.” Appellant contends that a proper construction of the terms demands, in determining these amounts, the several items of its policy should be divided according to the amounts of insurance therein named, but that as the American Central Company’s policy was a blanket policy, the whole amount named therein should be first applied as insurance upon the building, bearing the largest amount of insurance, which bore the greatest loss in appellant’s policy, to-wit, the one bearing insurance to the amount of $1,250. That is to say, that the total amount of insurance on said building must be considered as amounting to $3,750 and that the amount of the loss on said building to be contributed by appellant, should be the proportion of $1,250 to $3,750, while that to be contributed by the American Central Company should be in the proportion of $2,500 to $3,750; that what remains of the American Central policy after deducting the amount contributed towards the payment of the greatest loss should be added to the amount of insurance contained in appellant’s policy on the “item suffering the next greatest loss to make a total and so on with the remaining item. This method of computation would make appellant’s share of the loss amount to $1,302.15, which it claims is all it should be required to pay. Why appellant should insist upon applying all of the American Central Company’s policy to make up the total on the item of greatest loss, rather than to commence at the other end and apply it first, to assist in making up the total on the item of smallest loss, is difficult to understand and is not explained. Appellee on the other hand contends that as each company had insured the three store rooms or buildings to the amount of $2,500, the loss should have been divided between them equally. In ascertaining what is meant by the words above referred to in appellant’s policy it is necessary to consider the whole instrument. Appellant’s policy insures “against all direct loss or damage by fire except as hereinafter provided, to an amount not exceeding $2,500 to the following described property.” The property insured is then described but the amounts of insurance are divided as above set forth- It contains the further provision “$2,500 other insurance permitted concurrent herewith. ’ ’

It appears to us from the reading of the policy that “the amount hereby insured” as used in appellant’s policy, means the whole amount of insurance covered by the policy, that is the sum of $2,500. No good reason appears to us why those words as they appear in the provision, relating to the apportionment of loss, should require the dividing up of the amount of insurance named in the policy into the different items mentioned. Had appellant desired the provision in question to bear the construction it here seeks to give it, it could readily have made the meaning clear by the insertion of additional words giving it that effect. This it failed to do and it should now be held to that construction which -seems to be in accordance with the ordinary meaning attached to the words used. If the above interpretation be given to the phrase “the amount hereby insured,” then the words “the whole insurance” must necessarily mean the total of the two policies, that is the sum of $5,000, and as the amount insured in each policy was the sum of $2,500, each should bear one-half of the loss, as was properly determined by the court below. If appellant had issued three separate policies, one on each of the three store rooms named and the American Central Company had issued its blanket policy as referred to herein, upon all of them, a different question would have been presented and what we have here said is not intended to apply to such a case. Appellant raises the question that appellee is not entitled to recover here for the reason that the policy was issued to appellee and one S. O. Snyder and that while the declaration alleges that Snyder assigned his interest to appellee, with the written consent of appellant, no proof of such assignment or consent was made. This objection, even if it could properly be availed of by appellant, under the record as it is here, is fully covered by the agreement of counsel made in the trial court and above referred to, that while the policy was issued to appellee and Snyder, yet at the time of the fire, appellee “was the sole owner and beneficiary in the policy.” '

The judgment of the court below will be affirmed.

Affirmed.


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    James T. Tartt, Trustee, Appellant, v. Thomas T. Ramey, Appellee.
    1. Instructions—approved form, as to credibility of witnesses. An instruction upon this subject as follows, approved.
    “The court instructs the jury that if you believe from the evidence that any witness or witnesses who testified in this case have wilfully and knowingly testified falsely concerning a material matter in isssue in this case, then you have a right to disregard the entire testimony of such witness or witnesses in so far as you may believe it to be false.”
    2. Contracts'—what does not excuse performance. In the absence of a saving clause the performance of a contract is not excused by inevitable accident preventing performance.
    3. Set-off—when unliquidated damages may be considered by way of. Items interposed by way of set-off even though they may be in fact unliquidated may be considered if they grow out of the contract which is the basis of the suit.
    4. Set-off—what items not unliquidated. Items interposed by way of set-off if representing work and labor performed or employed are not to be regarded as unliquidated if there is any reasonable doubt as to whether they are connected with the contract which is the basis of the action.
    Action in covenant. Appeal from the Circuit Court of Madison county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    Warnock, Williamson & Burroughs, for appellant.
    Geers & Geers, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.-

On January 2,19.07, James T. Tartt, for himself and certain other parties, under the style of James T. Tartt, Trustee, leased to Thomas T. Barney, a portion of what was called the Chenango Plantation in Brazoria county, Texas, for the term of one year. The leasing was by a written instrument which provided that Tartt should also furnish Barney twenty work-mules to be used on said premises and the seed for certain crops to be planted thereon. Barney on his part agreed to furnish feed for said mules, to take good care of them and keep them in good condition; to furnish farming-tools and implements; to cut all grasses growing on the premises; to cultivate the cane on the premises in a proper manner; to keep all waterways and drains open and free from trash and weeds, to farm said premises in a good “husbandlike” manner and plant and harvest all crops in proper time; to take good care of all buildings and improvements and to pay as rent certain portions of the crops raised by him fully set forth in the lease.

Both Tartt and Barney reside at Edwardsville, Illinois, and after the expiration of said lease, the former, as trustee, brought suit in convenant against the latter charging him with a failure to comply with the covenants of the lease. The bill of particulars filed by Tartt claimed damages amounting in the aggregate to $1,100.05, the principal items being, injuries to the said mules by not being taken care of as provided by the lease, $500; failure to harvest 80 acres of prairie meadow, $225, and failure to cultivate crops properly and take care of drains and ditches, $250.

Barney pleaded compliance on his part with the provisions of the contract, except where he was excused or prevented from performing the same by Tartt and except also when he was prevented from performing the same by the condition of the weather and the action of the elements. He also filed a plea of set-off with a bill of particulars, as follows:

“James T. Tartt, Trustee, Etc.,

In account with Thomas T. Barney. Dr.

To 10 bushels of potatoes furnished by defendant to plaintiff for seed, at $1.00 per bushel...............................$ 10.00

To 50 bushels of potatoes kept by plaintiff for seed, at 75c per bushel................ 37.50

To money advanced to G-abe Simon for and at the request of plaintiff................. 25.00

To money had and received by the plaintiff to and for the use of defendant, being one-half the proceeds from the sale of 208 ton's of cane, at $3.50 per ton (less $242.00 paid convicts for harvesting same...... 122.00

To labor, implements and material performed and furnished and provided in cultivating and superintending the cultivation of to-wit, 84 acres of corn on leased premises, for, and at request of, plaintiff.... 300.00

To labor and material performed and furnished and provided in and about whitewashing and repairing buildings, plantation cabins, etc., on leased premises, for and at request of plaintiff..... 50.00

To pasturing and attending to 80 Angora goats on leased premises, for and at request of plaintiff, for 365 days at lc each per day.....................i....... 219.00

To pasturing and attending to 400 calves on leased premises, for, and at request of, plaintiff for 90 days at 2c each per day.. 720.00

To hire of farm' machinery, implements and wagons let by defendant to plaintiff and by plaintiff accordingly had and used on portion of Chenango plantation not leased to defendant......................... 50.00

Total..........................$1,533.50”

Upon the trial the jury found a verdict in favor of Ramey upon his claim of set-off for $275.70, for which amount a judgment was rendered. Plaintiff below perfected an appeal and brings the record here for review.

He complains of the refusal of the trial court to give the following instruction offered by him :

“The court instructs the jury that if you believe from the evidence that any witness or witnesses who testified in this case have wilfully and knowingly testified falsely concerning a material matter in issue in this case, then you have a right to disregard the entire testimony of such witness or witnesses in so far as you may believe it to be false.”

This instruction in language almost identical, was approved by this court in St. L. P. & N. Ry. Co. v. Rawley, 106 Ill. App. 550. It does not attempt to state the conditions under which the entire testimony of a witness may be disregarded, as is usual in instructions in regard to impeachment of witnesses, but says in effect that under the circumstances named the jury might disregard such portion of the testimony of a witness or witnesses as the jury believe to be false. Appellant had no other instruction covering the same matter and this one should have been given.

Appellant further insists that the court erred in giving appellee’s seventh instruction which is as follows :

“The court instructs the jury that if you believe from the evidence that the defendant was prevented by the condition of the weather and the action of the elements from performing any of the provisions of said lease, then the plaintiff cannot recover from the defendant on account of his failure to perform such provisions as he was so prevented from performing, if any.”

This instruction does not state a correct general principle of law and should not have been given.

In Summers v. Hibbard, 153 Ill. 102, it is said : ‘‘ The general doctrine is that where parties by their own contract and positive undertaking create a duty or charge upon themselves, they must abide by the contract and make the promise good, and either do the act or pay the damages. Inevitable accident affords them no relief, for they are regarded as insurers to the extent of making good the loss.”

In Bacon v. Cobb, 45 Ill. 47, where there was a failure to deliver corn according to contract, Mr. Chief Justice Breese says, “The rule from the earliest times to the present is, when a party by his own contract creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” To the same effect are the cases of Steele v. Buck, 61 Ill. 343; Schwartz v. Saunders, 46 id. 18, Dean v. Lowey, 50 Ill. App. 254, Kenwood Bridge Co. v. Dunderdale, ib. 581, Drake v. White, 117 Mass. 10, School Trustees v. Bennett, 3 Dutch (N. J.) 513. The same erroneous statement of the law was contained in instruction No. 2 given for appellee.

Appellant also contends that evidence in support of the items contained in appellee’s statement of account filed under his plea of set-off, should not have been admitted, for the reason that the statement covers items of unliquidated damages not connected with the contract upon which suit is brought.

We are inclined to the belief that said items of set-off should properly be considered as growing out of and connected with the contract in question, with the exception of the “money advanced to Gabe Simon,” amounting to $25 and the item of $50 charged for hire of farm machinery, used on a portion of the plantation not leased to appellee. But are the items of the set-off unliquidated?

In the case of East v. Crow, 70 Ill. 91, Bast had rented farm premises to Crow. A dispute arose between them, a suit was brought by Bast, and each presented a long string of accounts against the other. The question whether the accounts of Crow were liquidated or not arose and it was said by the court in the course of the opinion, “The items in defendant’s account, were not unliquidated damages arising out of a breach of contract, covenant or tort. They were for work, labor performed, board, goods sold and delivered, and money, etc. These items were a proper subject of .set-off.”

It is clear that under the decision last referred to, all items of the set-off, concerning which there could be any reasonable question as to whether they were connected with the contract or not, must be held to be liquidated, and were proper items of set-off if established by the proof.

For the errors in the trial above discussed, however, the judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    H. S. Shrigley, Appellee v. Chicago & Eastern Illinois Railway Company, Appellant.
    Measure of.damages—in action for injury to orchards and pasture lands. In such a case the true measure of damages is the difference in the fair cash market value of the property injured immediately before and immediately after the injury, and this notwithstanding a claim was made and supported by some insufficient evidence that such property had no market value.
    Action in case. Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    H. T. Dick and Kagy & Vandervort, for appellant; E. H. Seneef, of counsel.
    E. D. Telford, Charles H. Holt, W. F. Bundy and Frank F. Noleman, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This suit was brought by appellee to recover damages for injuries occasioned to his orchards and pasture lands, lying along appellant’s right of way, by fire alleged to have been permitted to escape from appellant’s locomotives.

The first three of the five counts of the declaration, alleged that the fire started on appellee’s land outside of the right of way, while the other two charged negligence on the part of appellant in permitting dead grass, dry weeds and other combustible matter to remain on the right of way, and that the fire started therein and spread and was communicated to appellee’s premises.

Appellee recovered a verdict and judgment in his favor for $6,612. Certain special interrogatories submitted to the jury by both sides and the answers returned thereto, indicated that the jury found appellant not guilty upon the first three counts of the declaration, but that it was guilty of permitting said combustible material to remain upon its right of way and that the fires which injured appellee’s property, were communicated thereto by passing engines and having started upon the right of way, passed to appellee’s premises.

Appellee, as the proofs showed, owned a farm of some 280 acres in Alma township, Marion county, Illinois, upon which were located a blue grass pasture of some thirty-six acres; an apple orchard, about twenty-four years old, of some seven acres; a peach orchard, eight years old, of about twenty acres; a pear orchard five years old, containing fifteen eleven-hundredths acres, and a young apple orchard about five years old, containing about forty-five acres, a portion of which lay along appellant’s right of way. On September 25, 1908, a fire, alleged to have been caused by'a locomotive engine and found by the jury to have started on appellant’s right of way, destroyed about ten acres of the blue grass pasture, three sixty-five hundredths acres of the old apple orchard, twelve ninety-eight hundredths acres of the peach orchard, all of the pear orchard of fifteen eleven hundredths acres, and twenty-six eighteen hundredths acres of the young apple orchard.

On October 3, 1908, another fire, claimed to have been started in like manner, burned over nineteen five hundredths acres more of the pasture, making a total area of fifty-seven ninety-two hundredths acres burned over by the two fires. In addition thereto, some 300 rods of fence, worth about $100, was destroyed by the fires.

On the trial there was a vigorous controversy between counsel for the respective parties concerning the rule governing the measure of damages in this case. It was insisted by appellant that the correct rule was to ascertain the depreciation in the fair cash market value of the property by reason of the fire, that is, the difference in the fair cash market value of the real property immediately before and immediately after the fire. On the other hand it was contended by appellee that the property had no market value and that therefore the damages must be determined either by proof of the value of the part destroyed, not as a severed article but as a part of the whole, which being ascertained, would measure the extent to which the value of the whole had been diminished; or by means of proof of the fair cash value of the whole, immediately before and immediately after the destruction of a part by fire. The court below approved appellee’s theory in regard to the measure of damages and substantially adopted the second of the two methods advocated by him.

In conformity with these views the court gave an instruction for appellee, which told the jury that in determining the amount of damages, if any, they had a right to take into consideration the age, condition, growth and variety of plaintiff’s fruit trees and the quality and character of his pasture and fencing and continued as follows: “and the fair cash market value of his land including said improvements, if the same had a market value, immediately before the fires in question, and if you believe from the evidence that said land did not have a fair cash market value, then the fair cash value, if shown by the evidence, immediately before the said fires, the nature and extent of said fires, the number of fruit trees, the acreage of pasture, blue grass and fencing burned, injured and destroyed by said fires, if any, and the condition of said fruit trees, pasture, blue grass and fencing, if shown by the evidence, and the fair cash market value of said land immediately after said fires, if the same had a fair cash market value and if not then the fair cash value if shown by the evidence immediately after said fires, and to render a verdict in such an amount as you believe from the evidence will compensate the plaintiff for his damages, if any.”

Appellant insists that this instruction was wrong in theory and that the giving of it by the court was reversible error. It is well settled in this state that as between the owner of land and a mere tort feasor, fruit trees standing and growing thereon, are real property and a part of the freehold. L. E. & St. L. Con. R. R. Co. v. Spencer, 149 Ill. 97.

It is also equally well settled that where land has a market value and fruit trees are negligently destroyed thereon by a railroad company by fire escaping from its locomotive engines, the damage is the depreciation in the value of the realty caused by the fire. I. C. R. R. Co. v. Almon, 100 Ill. App. 530. The ordinary rule for determining such depreciation is to ascertain the difference in the fair cash value of the real property on the market immediately before and immediately after the fire. Champlin v. B. & O. S. W. R. R. Co., 140 Ill. App. 94.

In Birmingham Fire Ins. Co. v. Pulver, 126 Ill. 329, it is said that in estimating damages the terms “fair cash value” and “actual cash value” must be considered as practically synonymous, and that the actual cash value of property is the fair or reasonable cash price for which the property can be sold in the market. From this appellant argues that there is no real difference between the terms “fair cash value” and “fair cash market value” as used in the instruction in this case complained of by him, and we are of the opinion that, as a general rule, this contention is correct and that it is especially true in all cases where the property has an actual market value. In this case however appellee contends that the property in question had no actual market value and that therefore it was proper to show what the instruction denominates the “fair cash value” of the property, as distinguished from its “fair cash market value.”

It is true that a number of the witnesses stated they had never heard of good orchards in a high state of cultivation, as appellee claims his were, being sold in that neighborhood and it is therefore claimed by counsel for appellee that this orchard had no market value. It appeared however, from the proofs, that other orchards which appellee claims to have been of inferior grade, had been sold. It would be wonderful indeed if land in Illinois, as advantageously located as this appears to have been, bearing a good orchard, should have in fact no market value, and the evidence in this case as a whole, does not show that this land really had no market value. Nor do we think that the rule of law laid down in Sanitary District v. P. Ft. W. & C. Ry. Co., 216 Ill. 575, for determining the measure of damages where property has no market value, was intended to apply to Illinois farm lands either with or without orchards located on them.

It seems to us that the instruction.in question was misleading and did not confine the jury to the determination of the actual loss sustained by appellee as they would have been' had the ordinary rule for ascertaining damages been followed. The giving of this instruction was therefore in our opinion reversible error.

Appellant’s claim that the damages allowed were excessive, does not appear to us to be without foundation. But as this case is to be remanded for another trial under a different rule for ascertaining the damages, we will not go into a discussion of the evidence in the case upon that subject.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Shirley

text:
    Carson Foster, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    1. Venue—when proof material. In an action for personal injuries where the declaration relies solely upon the breach of a municipal ordinance it is essential under the general issue to prove that the injury claimed for occurred within the territorial limits of the municipality which enacted the ordinance in question.
    2. Evidence—of what judicial notice taken. A city court may take judicial notice of the boundaries of the city and the location of the streets of such city within which it has jurisdiction.
    3. Negligence—what does not establish wilfulness. To drive a car at a high rate of speed is not of itself proof of wilfulness.
    4. Negligence—how wilfulness may be established. It is not necessary to sustain the charge of a wilful injury that there should be proof that there was an intention to drive the car upon the plaintiff or that the motorman in charge of such car had any ill-will against the plaintiff, but it is necessary to prove not negligence merely but such conduct as would show a general intent to inflict an injury.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding.
    Heard in this court at the March term, 1910.
    Reversed and remanded.
    Opinion filed November 12, 1910.
    Schaefer, Farmer & Kruger, for appellant.
    Webb & Webb, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment recovered against appellant in the City- Court of East St. Louis.

The declaration charges that the city of East St. Louis was a municipal corporation possessed of divers public streets, among which were Thirteenth street, and Lake and Gross avenues, and that appellant had its tracks in Thirteenth street which street was bounded on the west by Central Park and on the east by Whittaker’s family garden; that each of said parks were much frequented by day and by night by the public which defendant well knew; that the parks were opposite each other and about fifty feet south of Gross avenue and that the portion of Thirteenth street lying between the entrances of the two parks was much frequented by the public in passing to and fro over .Thirteenth street which appellant well knew.

It was further averred there was an ordinance of the city of East St. Louis providing that “No street railway or interurban company shall by itself, agent or employee, run any street car upon or along any of the streets of said city at a greater speed than ten miles per hour;” that appellee was on-said Thirteenth street between the entrances of said parks and while attempting to cross the same, the defendant wilfully and recklessly ran a street car along said street at a greater rate of speed than ten miles per hour, to-wit, twenty miles per hour by means whereof the car ran against appellee and he was injured.

Appellee while attempting to cross a street called Thirteenth street between two gardens and at a point between street intersections was struck by a car of appellant running north on Thirteenth street. As the judgment must be reversed and remanded for error well assigned on the record, we refrain from any discussion of the evidence, except to say that upon the material question of the alleged running of the car at a speed prohibited by the alleged ordinance there was á sharp conflict in the testimony of the witnesses.

There was no direct evidence that the collision occurred within the city limits of East St. Louis. Under the averments of the declaration and the plea of the general issue, it was necessary and material to prove this averment. The only breach alleged was a violation of a speed ordinance of the city. Evidence of the venue need not be direct; if it can be fairly inferred from all the evidence it will be sufficient, but it must be proved either by direct evidence, or by facts and circumstances from which it may be inferred.

The action was local. It is only in civil cases arising within the city, of which the City Court of East St. Louis has jurisdiction, and the general rule is that where the place is a fact material to be averred as in local actions, it must be established by proof at the trial. Ency. of P. and P., Vol. 22, page 812.

We are of opinion that although the court might take judicial notice of the boundaries of the city and the location of its streets this did not dispense with the necessity of proving that the alleged injury occurred within the limits of the city.

We have examined the evidence to determine whether it furnished circumstances from which it might be inferred the injury occurred within the city. There is evidence that the streets described in the declaration ran in certain directions; that they were paved and had electric lights and that there was a “gaslight in front of Whittaker’s; ” that at the place where the collision occurred there were streets and blocks. Many witnesses testified they lived in East St. Louis and frequently went out to Central and Family parks. This evidence does not prove the venue nor does it prove facts from which it can fairly be inferred the injury occurred within the city limits. When the ordinance was offered in evidence, it was objected by appellant that no proper preliminary proof had been offered upon which to base the introduction of it. The objection was sufficient and should have been sustained.

It follows that all instructions based upon the alleged ordinance or based upon the injury occurring within the city were erroneous.

The errors assigned challenge other instructions given for appellee and as the cause must be retried, they will be considered.

The third instruction given for appellee states that if the motorman wilfully and recklessly ran said car at an excessive rate of speed and thereby caused the injury to appellee, the jury should find for the appellee. To drive a car at a high rate of speed is not of itself, as to an injury that may result, wilfulness. It would depend upon the circumstances under which the car was driven.

“Negligence even when gross is but an omission of duty. It is not designed and intentional mischief although it may be cogent evidence of such act.” C. B. & Q. R. R. Co. v. Johnson, 103 Ill. 512. It is not necessary to sustain the charge of a wilful injury that there should be proof that there was an intention to drive the car upon appellee or that the motorman had any ill will against him, but it is necessary to prove not negligence merely but such conduct as would show a general intent to inflict an injury. C. C. Ry. v. Jordan, 215 Ill. 390.

There should be, to make the act wilful, either an actual intent to injure, or such a conscious or intentional disregard of the rights of others as to warrant a conclusion that an injury was intended. Ibid.

The instruction complained of did not define wilfulness and set forth what was necessary to prove the charge, and was therefore misleading.

Appellee’s instruction No. 5 authorized a recovery of damages for “future injuries” without any evidence to justify it. There ,was no evidence of a permanent injury.

We are of opinion that the second refused instruction asked by appellant stated a correct rule and should have been given.

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

Reversed and remanded.