text:
    Margaret Watson, Appellee, v. Louis Kammeier et al., Appellants.
    1. Judgment, § 463

      —when party is not bound by result of proceedings. In order to be bound by the result of proceedings, a party must have been directly interested in the subject-matter thereof, with the right to make defense, to introduce testimony, to cross-examine the witnesses on the opposite side, to control in some degree the proceedings, and to have the right to appeal from the judgment, and a person not having these rights is a stranger to the cause.
    2. Intoxicating liquors, § 207

      —when evidence of prosecution of intoxicated person killing intestate is inadmissible in action for death under Dramshop Act. In an action under the Dramshop Act for the death of plaintiff’s intestate, who was killed by a third person, alleged to have been intoxicated, where the defendant claimed that such third person was not at the time of the homicide intoxicated but insane, evidence of the criminal prosecution against such third person for the murder of another person at the time of the killing of plaintiff’s intestate wherein the defense of insanity was interposed, such prosecution resulting in a judgment of conviction and a sentence to the penitentiary for life, held inadmissible.
    3. Intoxicating liquors, § 249

      —when instruction in action for damages under Dramshop Act in language of statute is not erroneous. An instruction in an action under the Dramshop Act for damages in the language of section 9 of that Act (J. & A. If 4609), and purporting to be the law governing the right of recovery for violations of the act, while not the best practice, was not error.
    4. Intoxicating liquors, § 249

      —when instruction in action for damages under Dramshop Act against saloon keeper and owner of building is not misleading. An instruction in an action for damages under the Dramshop Act, where one of the defendants was not a dramshop keeper but was owner of the building occupied by a dramshop of another defendant, is erroneous which does not refer only to the defendants who were dramshop keepers in connection with the question of sales, but such error is not of a serious character and it could not have misled the jury.
    5. Intoxicating liquors—when peremptory instruction is properly denied in action under Dramshop Act for death of intestate by third person. In an action under the Dramshop Act for the killing of plaintiff’s intestate by a third person alleged by plaintiff to have been intoxicated, where the defense was that the homicide was caused by the insanity of such third person and not by the sale of intoxicants to him, a peremptory instruction for the defendants held properly denied.
    6. Intoxicating liquors, § 202

      —when declaration in action under Dramshop Act for death of intestate 6y intoxicated third person is sufficient after verdict. In an action under the Dramshop Act, where the declaration charged that defendants sold intoxicating liquors to a certain person which caused his intoxication, and that while so intoxicated he shot and killed plaintiff’s husband, held that such declaration should state that the killing was in consequence of the intoxication rather than as charged, but the point not having been raised by demurrer, the declaration is sufficient after verdict to support a judgment against the defendants.
    Appeal from the Circuit Court of Marion county; the Hon. William B. Weight, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    W. H. Nelms, F. P. Drennan, Noleman & Smith and John Bundy, for appellants.
    Jonas & Haley and Charles H. Holt, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

An action on the case was brought by appellee under the provisions of section 9 of the Dramshop Act (J. & A. j[ 4609) against appellant and certain other defendants in the Circuit Court of Marion county, charging that appellee had been injured in her means of support by reason of the sale of intoxicating liquors by appellant, and others to one Charles Woods, which caused his intoxication, and who on the 13th day of August, 1914, while so intoxicated shot and killed the husband of appellee. A trial was had resulting in a verdict against appellants in favor of appellee for $2,750. A motion for a new trial was made by appellants, which on hearing was denied. Judgment was rendered on said verdict, from which judgment appellants prosecute this appeal.

The record discloses that while certain other parties were made defendants to said proceeding, all of said defendants, except appellants, were dismissed from said proceeding on the motion of appellee prior to the hearing before the jury.

The amended declaration filed in said cause alleged, in substance, that appellant, Louis E. Kammeier, Edward W. Mathias, August G-ansauer, John Enrico and William Collinsworth, and each of them, did, on August 13, 1914, sell and give intoxicating liquor to one Charles Woods, and thereby caused the intoxication of said Charles Woods, and that said Charles Woods, being so intoxicated, on said 13th day of August, 1914, shot and mortally wounded Thomas Watson, the husband of appellee, and that from the effect of said gunshot wound, he then and there, on the day last aforesaid, died.

It is further alleged that by reason of the death of said Thomas Watson, appellee has been injured in her means of support, etc. A plea of the general issue was filed to said declaration.

The evidence discloses that appellant and certain other dramshop keepers had sold or given the said Charles Woods liquors a short time prior to the shooting and killing by him of appellee’s husband, Thomas Watson. The said Thomas Watson was a man aged about fifty-one years and was at the time of the shooting the village marshal of Central City, which position he had held for some time.

The evidence further is that he had been called to the scene of the killing, in the line of his duty as such officer, to quell a disturbance claimed by appellee to have been caused by the said Charles Woods. The shooting occurred at about eleven o’clock on the evening of the said 13th day of August, 1914. The evideuce is further to the effect that the said Charles Woods had procured from a butcher shop in the immediate vicinity a rifle with which he shot and killed not only the husband of appellee, but also a man by the name of Douglas Duncan, a deputy, who was at the time assisting appellee’s intestate in his attempt to quiet said disturbance. The principal grounds assigned by appellants for a reversal of this cause are that the court erred in admitting in evidence the record of certain proceedings had in the case of the People of the State of Illinois v. Charles Woods, who had been tried for the murder of said Douglas Duncan; in giving on behalf of appellee instructions numbers one and three; and in the refusal to give the peremptory instruction requested by appellants at the close of appellee’s evidence and at the close of all the evidence.

On the trial of said cause, appellants contended that the killing of appellee’s husband by the said Charles Woods was not the result of intoxication caused, in whole or in part by liquors sold or given to Woods by them, but was the result of insanity on the part of Woods at said time. Over the objection of appellee, the court permitted appellants to offer in evidence the record of the County Court of said county, dated March 12, 1913, showing the said Charles Woods to have been adjudged insane on that day and committing him to the insane asylum at Ama, Illinois. Woods remained in said hospital for some three or four months and was then discharged, but the record does not show whether he was discharged as cured or not. On rebuttal, appellee was allowed by the court, over the objection of appellants, to give in evidence the testimony of certain witnesses to the effect that one of the defenses made on the trial in the case of the People of the State of Illinois v. Charles Woods, charged with the murder of Douglas Duncan, that the said Woods at said time was insane. Mr. E. B. Vandervort, a practicing lawyer at Salem, Illinois, testified that the defense of insanity was made in said canse; that in the opening statement to the jury and all the way through the trial the defense of insanity was insisted upon. Following this testimony the court permitted appellee to offer in evidence the record of the judgment and proceedings of the People of the State of Illinois v. Charles Woods, charged with the murder of Douglas Duncan, which record among other things showed the return of the indictment and the final judgment, finding the defendant, Woods, guilty, and sentencing him to imprisonment in the penitentiary at Chester, Illinois, for the period of his natural life. Appellants insist that the admission of this testimony constituted reversible error.

On the other hand, appellee insists that this evidence comes within the exception which allows verdicts and judgments on subjects of a public nature and judgments, when used by way of inducement or to establish a collateral fact, to be admitted though the parties are not the same. We do not, however, believe that the record offered in this case comes within the exception. One of the principal defenses urged by appellants to defeat the action brought by appellee is that the killing of appellee’s husband by Charles Woods was the result of insanity and not the result of intoxication caused in whole or in part by liquors sold by them to him.

It has been uniformly held as the law in this State that a party litigant shall not be affected by the result of proceedings to which he was a stranger.. In order to be bound by such proceeding he must have been directly interested in the subject-matter of the proceeding with the right to make defense, to introduce testimony, to cross-examine the witnesses on the opposite side, to control in some degree at least the proceedings and to have the right to appeal from the judgment. Persons not having these rights are regarded as strangers to the canse. Corbley v. Wilson, 71 Ill. 209; Bollnow v. Roach, 210 Ill. 364; Whitaker v. Wheeler, 44 Ill. 440; People v. Newbold, 260 Ill. 196.

In People v. Newbold, supra, being an appeal from a judgment of conviction on the charge that Newbold was violating section 57 of chapter 38, Eevised Statutes (J. & A. if 3591), by keeping a common ill-governed and disorderly house to the encouragement of idleness, drinking and fornication, the court on a trial in said cause permitted the People to offer in evidence the record showing convictions of certain persons charged with patronizing the house kept by Newbold in violation of a city ordinance. The court, in passing on the rulings of the trial court, at page 198 says: “The prosecutions under the ordinance were between different parties from those in the prosecution under the statute, and the records of the former were not admissible in the latter for the purpose of proving the character of the house or any other fact upon which the convictions were founded. No man can be affected by proceedings to which he is a stranger.” Citing Gorbley v. Wilson, supra; Whitaker v. Wheeler, supra. Again, at page 199 in said cause the court further says: “The admission of these judgments was seriously detrimental to the plaintiff in error, because from them it appeared that the court had in five different cases adjudged that the hotel kept by the plaintiff in error was a common, ill-governed and disorderly house, kept for the encouragement of idleness and fornication, and the jurors were not instructed that they might not accept and act upon such finding as conclusive.” We are clearly of the opinion, in view of the holding of the Supreme Court made in the case cited, that the trial court erred in admitting the record in the case of the People v. Woods, above referred to, and the testimony of the witness Vandervort, in connection therewith, and that by reason of the probable effect of said evidence on the minds of the jury in this case that this error of itself is sufficient to require a reversal of this cause.

It is contended by appellants that the court erred in giving the first and third instructions given on behalf of appellee. "The first instruction is in the language of section 9 of the Dramshop Act (J. & A. 4609) and purports to be the law governing the right of recovery for violations of said act, and while we are inclined to believe that the practice of giving instructions of this character is not the best and frequently has a tendency to mislead and confuse the jury rather than to enlighten them, still we would not be inclined to hold the giving of this instruction as error. In fact, both the Supreme and Appellate Courts have approved instructions of like character. Johnson v. Bush, 154 Ill. App. 494; Reisch v. People, 229 Ill. 574; Eaton v. Marion County Coal Co., 173 Ill. App. 444.

The complaint made by appellants to the third instruction is that one of appellants is not a saloon keeper, but is the owner of the building occupied by one of the dramshop keepers; that the instruction was too general in its character and should have referred only to those of appellants who were dramshop keepers in connection with the question of sales. We think the point is well taken, but it is not of a serious character and could not have misled the jury to the hurt of any of appellants. It would be well, however, on the retrial of the cause to modify the instruction so as to make it comply with the facts.

It is next contended by appellants that the court erred in not peremptorily instructing the jury to find the defendants not guilty. Without going into a discussion of the evidence it is only necessary for us to say that in view of the record in this case we do not think the court erred in refusing said instructions, and that there was sufficient evidence in the record to warrant its submission to the jury.

Lastly, it is contended by appellants that the declaration is not sufficient to support the judgment. This contention is based on the failure of the declaration to allege that the killing of appellee’s husband by the said Charles Woods was in consequence of intoxication caused in whole or in part by liquors sold by these appellants. The charge in the declaration being that appellants sold to the said Charles Woods intoxicating liquors, which said liquors caused. the said Charles Woods to be and become intoxicated, and that while intoxicated he shot and killed appellee’s husband. We hold that the declaration should state that the killing was in consequence of the intoxication, rather than as charged in the declaration, but were this the only error in the record we would be inclined to hold that after verdict, the point not having been raised by demurrer, the declaration would be sufficient to support the judgment.

For the reasons above set forth the judgment of the trial court will be reversed and the cause will be remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    Frank Young by Andrew Bachman, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Waters and water courses, § 10

      —when owner of dominant heritage has right to discharge collected waters on land of servient heritage. The owner of the dominant heritage has the right to collect the waters falling on his land and throw them on the land of the servient heritage in increasing quantities and is not liable for damages caused thereby, providing the waters are thrown on the servient heritage at a point where in the course of nature they originally flow.
    2. Adjoining landowners, § 1

      —when doctrine of lateral support is inapplicable. Where plaintiff’s land adjoining defendant’s railroad right of way was in part at a considerable elevation above said right of way and so hilly that at the time of heavy rainfall the water would flow .with such velocity from plaintiff’s land onto said right of way that it caused the soil to wash and flow off into a ditch excavated by defendant along the right of way and ten or twelvé feet from plaintiff’s land, and to cause ditches and gullies in plaintiff’s land, held that "while the doctrine of lateral support obtains, it is not applicable to the facts and it was error, in a suit for damages against the railroad, to refuse a peremptory instruction for the defendant.
    3. Adjoining landowners, § 2

      —when instruction is erroneous as not conforming to pleadings in action for damages resulting from excavation. Where a declaration charged damages to plaintiff’s land by reason of an excavation made by the defendant railroad on its adjoining land causing plaintiff’s land to cave and fall into said excavation, and the evidence showed plaintiff’s land was the dominant and defendant’s the servient land, and that the water flowed from plaintiff’s to defendant’s land after as before such excavation, held that an instruction, to the. effect that if the jury believe from the evidence that the defendant by such excavation negligently diverted the flow of surface water over plaintiff’s land and thereby caused such water to erode the surface of said land and render it unfit for cultivation as charged in the declaration, did not follow the theory of said declaration and was not supported by the evidence, and the giving of same was erroneous.
    4. Railroads, § 943

      —when instruction on right of owner to recover damages for injury to land by fire is erroneous. Where the owner of land sued a railroad company for damages for injuries to said land by fire from defendant’s engine, and the evidence showed said land was rented and that the tenant had sued for and collected damages to the crop of hay growing on said land, held the giving of an instruction on the part of the plaintiff that if the jury believe from the evidence that the defendant negligently set fire to plaintiff’s land as charged in the declaration and damaged the crops growirig thereon, then they should find for plaintiff, was erroneous, and the only damage plaintiff would be entitled to recover would be the damage to the remainder.
    5. Railboads, § 943

      —when defendant is estopped from, insisting upon correct rule of damages in an action hy owner for injury to land 5y fire. The proper measure of damages in an action by the owner of land in possession of his tenant against a railroad company because of injury to said land caused by fire from defendant’s engine is the value of the premises before and after the fire, but the defendant cannot insist on this measure of damages where he offered on the trial testimony as to the cost of resowing the land burned over and as to the loss of the succeeding crop of hay.
    Appeal from the Circuit Court of White county; the Hon. Junius C. Keen, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded.
    Opinion filed November 13, 1916.
    P. J. Kolb "and N. C. Bainum, for appellant; L. J. Hackney and Frank L. Littleton, of counsel.
    Francis M. Parish and Conger, Pearce & Conger, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

Appellee, who was the owner of the Northeast Quarter of the Northeast- Quarter of Section 22, and the Northwest Quarter of the Northwest Quarter of Section 23, Town 5 South, Range 9 East, except the right of way of appellant railway, instituted an action on the case against appellant in the Circuit Court of White county to recover for damages alleged to have been caused by reason of certain excavations made by appellant on its said right of way on said above described premises, and also for damages alleged to have been caused by reason of the failure on the part of appellant to keep its said right of way through appellee’s lands free from combustible materials, by reason whereof, said materials on said right of way were ignited by a passing engine and the fire spread to the premises of appellee, thereby injuring the same, etc. Issue was joined and a trial was had resulting in a verdict and judgment for appellee for five hundred dollars, and from said judgment this appeal is prosecuted.

Appellant’s first contention for a reversal of this judgment is that the court erred in refusing to direct a verdict in its favor on each of the three counts of appellee’s declaration. The first and second counts are based on the theory that appellant, by virtue of the excavation made by it on its right of way adjoining appellee’s land, removed the lateral support therefrom, thereby causing appellee’s land to cave and fall into said excavation and to wash, and ditches or gullies to be formed running back from appellant’s right of way, thereby injuring appellee’s land and rendering it in a condition so it was impossible to cultivate the same. The evidence is to the effect that the excavation made by appellant on its right of way was some ten to twelve feet from the line of appellee’s land adjoining said right of way, and so far as the evidence is concerned, it fails to show or tend to show that there was any caving in of the land of appellee by virtue of said excavation alone. The evidence beings to the effect that by reason of the fact that appellee’s land was extremely hilly (the highest point of which was some thirty-eight feet above the track of appellant’s railroad), the water at the time of a heavy rainfall would flow with such velocity from the lands of appellee on the right of way of appellant, and into the excavation made by it, that it caused the soil, which is of a washy character, to wash and flow off into the ditch excavated by it along its right of way, thereby creating the ditches and gullies in appellee’s land, some of which extended back some sixty feet.

The first and second counts of appellee’s declaration present a question that so far as we have been able to ascertain is one that has never been passed upon by the Supreme or Appellate Courts in this State. The doctrine of lateral support obtains in this State and is recognized by the Supreme and Appellate Courts (City of Quincy v. Jones, 76 Ill. 232; City of Joliet v. Schroeder, 92 Ill. App. 68, affirmed in Schroeder v. City of Joliet, 189 Ill. 48), but has never been applied to a case of this character. That doctrine has only been held to apply to the extent that any one excavating on his own premises must not excavate so close to the land of an adjoining owner as to cause earth from the land of such adjoining owner to cave or fall into the excavation, for lack of lateral support, so far as its own weight is concerned. This doctrine, however, has not been carried to the extent that one must furnish lateral support for the additional weight that may be placed on the land of the adjoining owner. In other words, a person excavating would not be bound to furnish lateral support for a building that might be placed on the premises of an adjoining owner. In the case at bar there was some ten or twelve feet of unexcavated land between the cut made by appellant on its right of way and appellee’s land. It cannot, therefore, be seriously contended that there was not sufficient lateral'support for said lands of appellee, unaffected by any outside cause. The question then is, whether appellant in making the excavation on its right of way in the lawful pursuit of its business is responsible in damages by reason of the fact that heavy rains falling on appellee’s land, on account of its hilly condition, .would flow with such force and rapidity as to wash the banks of the ditch excavated by appellant, so as to create ditches and gullies extending back from said excavation onto the land of appellee.

We are of the opinion that appellant would not be so liable. It has been repeatedly held in this State that the owner of the dominant heritage has a right to collect the waters falling on his land and throw them on the land of the servient heritage in increasing quantities, and is not liable for damages caused thereby, providing the waters are thrown onto the servient heritage at a point where, in the course of nature, they originally flow. Peck v. Herrington, 109 Ill. 611; Broadwell Spec. Drain. Dist. No. 1 v. Lawrence, 231 Ill. 86; Lambert v. Alcorn, 144 Ill. 313.

The only case brought to our attention, which in its facts is similar to this case, is the case of Pohlman v. Chicago, M. & St. P. R. Co., 131 Iowa 89. The opinion in that case, in arriving at the conclusion that there could be no recovery, among other things, says: “It is the theory of counsel for plaintiff that to all intents and purposes the situation presents a case of the removal by an adjoining proprietor of the lateral support to the soil of his neighbor. That such a right exists at common law in a proper case, all the books agree. The right is a natural one, and, like a surface-water servitude, is predicated upon necessity. As-the term itself implies, it has relation to the support which in a state of nature the soil of one owner receives at the boundary line from the soil of his neighbor. * * * But the doctrine cannot be extended to embrace cases of trespass generally. It goes no further than to inveigh against an interference within the zone of the natural support afforded by the soil conditions at the boundary line. Manifestly, then, we cannot concur in the view that the case before us is a proper one for the application df the doctrine. It is no part of the contention presented by the petition that the ditch constructed by defendant extended to or near the boundary line, or that plaintiff’s soil at the boundary line in respect of its lateral support had been in any manner disturbed. The essence of the complaint is that by the accelerated flow of the surface water, more soil had been carried away from the general surface of plaintiff’s land than otherwise would have occurred, and that this resulted in the formation of a ditch along the length of Poole Hollow, and of gullies back upon such portions of the land as drained into said hollow.”

If the holding in the Iowa case is sound, and we think it is, then there can be no recovery by appellee on the first and second counts of his declaration, and the peremptory instructions directing a verdict for appellants on said counts should have been given and it was error to refuse the same.

The third count of appellee’s declaration alleges damages to appellee’s land caused by fire spreading from appellant’s right of way onto the land of appellee, which burned and destroyed his meadow. We think the evidence tends to support this count of appellee’s declaration, and there was no error in refusing to instruct the jury to find for appellant, as to said count. It is next insisted by appellant that the court erred in giving the three instructions given on behalf of appellee, and in refusing the tenth instruction presented on behalf of appellant. Appellee’s first instruction is as follows: “That if you believe from the evidence that the defendant railway company reconstructed its road and excavated a cut, and in so doing negligently diverted the flow of surface water over the premises of the plaintiff, and thereby caused the surface' water to erode the surface of such premises, and render it unfit for cultivation, as charged in the declaration, or some one of its counts; and if you believe that such premises were damaged by such acts of the defendant, then you should find for the plaintiff. ’ ’

The declaration counts on damages by reason of the excavation made by appellant causing the land of appellee to cave and fall into said excavation, whereas, this instruction is based on the theory that there was a diversion of the flow of the surface water off appellee’s premises. The evidence conclusively shows that there was no diversion of the flow of water off of appellee’s land. In fact, the water flowed from appellee’s land just as it had always flowed onto the right of way of appellant. This instruction does not follow the theory of appellee’s declaration, nor is it supported by the evidence, and for that reason should not have been given.

Appellee’s second instruction is based on practically the same theory, and for that reason should not have been given. Appellee’s third instruction is as follows : ‘ ‘ That if you believe from the evidence that the defendant negligently set fire to the premises of the plaintiff, as charged in the third count of the declaration, and damaged the crops growing thereon, then in such case you should find for the plaintiff as to such count.” This instruction should not have been given for the reason that the evidence conclusively shows that appellee was not in possession of the premises owned by him but that the same were rented, and that the tenant had sued for and collected the damages occasioned to the crop of hay growing on said premises. The only damages that appellee would be entitled to recover for are the damages to the remainder.

It is next contended by appellant that the verdict is excessive. The evidence tends to show that some thirteen or fourteen acres of meadow were burned over by the fire set out by appellant’s engine, and was thereby destroyed, and that it was necessary to resow the same.

The evidence further tends to show that the cost of resowing and the loss of the succeeding crop would amount to from six to ten dollars per acre. In other words, the maximum damages on account of the fire would not exceed one hundred forty dollars. It is also insisted by appellant that there was no evidence in the record tending to show the value of the premises of appellee before the fire and after the fire, and that therefore there was no basis on which to estimate appellee’s damages. Appellant, however, is not in a position to insist on this measure of damages, as it offered on the trial testimony as to the cost of resowing the land burned over, and as to the loss of the succeeding crop of hay. We are inclined to hold that this is a correct basis for estimating the damages in this character of case.

As appellee is not entitled to recover on the first and second counts of his declaration, it is not necessary to consider the evidence with reference to the amount of damages suffered by him, by reason of the washing of his land.

For the reasons above set forth, the judgment of the trial court will be reversed and said cause remanded.

Reversed and remanded.


text:
    Ford Motor Company for use of John E. Keyser, Appellant, v. Charles Fry, Appellee.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Wabash county; the Hon. J. C. Bagleton, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action by Ford Motor Company for the use of John E. Keyser, plaintiff, against Charles Fry, defendant, to recover damages for breach of a contract for the purchase of an automobile from Keyser as agent and for loss of commissions. From a judgment for defendant, plaintiff appeals.
    Abstract of the Decision.
    1. Sales, § 345

      —when seller exercising option to retain sum provided in contract as liquidated damages for breach is precluded from further recovery. Where a contract of sale made between an automobile agent for his company and a purchaser for a machine provided that such purchaser should pay a certain sum on acceptance of the order, and that if he failed to accept the machine within forty-eight hours after being notified that same was ready for delivery such machine might be resold and the sum paid retained, at the seller’s option, as liquidated damages for its expense and efforts in making such resale, held that under such contract the seller was foreclosed from any further recovery than the sum retained by it.
    2. Sales, § 344

      —what is measure of damages for breach of contract of purchase where machine is resold by seller. In the absence of a measure of damages fixed in a contract for the sale of an automobile for a breach thereof by refusing to accept the machine in accordance with the terms of such contract, where a resale of the machine is had the seller would not be entitled to recover any greater amount than the expense, if any, incurred in effecting such resale at the same price as to the first purchaser.
    3. Factors, § 28

      —when agent is not entitled to commissions on unaccepted machine. Where an automobile company sued for the use of its agent the purchaser of one of its machines under a contract of sale thereof, held no recovery can be had for the commissions or profits which such agent would have been entitled to had such purchaser accepted such machine under such contract.
    4. Contracts, § 256

      —what are merged in written contract. All prior conversations and agreements are merged in a written contract.
    P. J. Kolb and M. J. White, for appellant.
    E. B. Greek and Theodore G. Bislet, for appellee.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Leonard Hoehn, Appellee, v. East Side Levee & Sanitary District, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sanitary districts, '§ 17

      —when evidence sufficient to show obstruction of flow of surface water by levee. In an action against a sanitary district for damages claimed to have been caused by a levee constructed by the district obstructing the flow of surface water from plaintiff’s land after a certain heavy rainfall, whereby plaintiff’s crops were injured, the question was one of fact for the jury whether said levee so obstructed the flow of said water, and where the clear preponderance of the evidence was to the effect that prior to the construction of the levee the waters had flowed in the direction of the levee and had never caused serious damage to plaintiff’s crops or remained on his land at any great length of time, and that the levee did so obstruct the flow of water, a finding to that effect was not against the manifest weight of the evidence.

      Appeal from the Circuit Court of Madison county; the Hon. Loots Beknbeijter, Judge, presiding. Heard in this court at the Miarch term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Leonard Hoehn, a tenant farmer, complainant, against East Side Levee & Sanitary District, defendant, for damages alleged to have been caused by a levee constructed by defendant, which obstructed the flow of the water from the premises occupied by him, thereby damaging his crops. From a judgment for $1,071 in plaintiff’s favor, defendant appeals.
    F. A. Cares che, J. B. Harris and D. H. Mudge, for appellant; Thomas E. Gillespie, of counsel.
    Burton & Burton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

2. Waters and water courses, § 12 —what is rule as to obstruction of drainage by sanitary district as lower proprietor. The courts of this State have adopted the rule of the civil law that the right of drainage is governed by the law of nature, and that the lower proprietor of land cannot do anything which prevents the natural flow of surface water and cast it back upon the land above, and no distinction is made as to water flowing in natural water courses or as to a sanitary district in its use of lands.

3. Appeal and error, § 1489 —when error in admission of evidence may not be complained of. Where, in a suit against a sanitary district for damages claimed to have been caused by a levee constructed by the district obstructing the flow of surface water from plaintiff’s land after a certain heavy rainfall, whereby plaintiff’s crops were injured, evidence was offered by plaintiff to the effect that defendant after said rainfall constructed a lateral ditch whereby such surface water was drained off the land, held, that whether or not the court erred in admitting such evidence cannot be raised by defendant, whose witness had testified on defendant’s behalf on direct examination as to the construction by defendant of said ditch.

4. Sanitary districts, § 16b -—what does not constitute variance between pleading and proof in an action for damages for overflow due to construction of levee. Where, in an action for damages for overflowing of plaintiff’s land caused by defendant’s levee it was charged in the declaration that said levee was not properly constructed so as to provide for the escape of surface water from said land by openings in said levee along said land, the court admitted evidence on the part of the defendant that such openings were provided by defendant at other points, held such evidence was admissible under said averment in the declaration.

5. Sanitary districts—when tenant has right of action for construction of levee. Where no lands in the possession of a tenant were taken for the construction of a permanent levee on adjoining land, such tenant would have no right of action because of the construction of such levee until damage to him occurred, and when it did occur he would have a right to recover therefor.

6. Appeal and error, § 1466 —when erroneous admission of evidence is harmless error. The erroneous admission of evidence which had no material effect on the finding of the jury, where the amount of damage found by the jury was supported by the evidence and was not complained of as excessive, would not require a reversal of the case.

7. Instructions, § 126 —when giving of abstract instruction is not error. There is no error in giving an instruction which is abstract in form and states the law correctly and is applicable to the facts in the case.

8. Damages, § 244 —when giving of inaccurate instructions on in behalf of plaintiff is harmless error. Where certain instructions given on behalf of plaintiff did not limit the damages to those charged in the declaration and were not as accurate as they should be, there would be no reversible error in giving same where the measure of damages which should govern appeared in the instructions given on behalf of the defendant.


text:
    In the Matter of the Estate of Nelson A. Grote, Deceased. Loretta Lemen et al., Appellants, v. Estate of Nelson A. Grote, Deceased, Appellee.
    1. Joint itbnancy, § 6

      —when right of survivorship does not obtain in personalty. Where a husband turned over to his wife out of his earnings a certain sum for a long term of years, from which she paid their living expenses and of the balance, with his consent, invested a part in real estate in their joint names and deposited a part in the bank, from which he checked and made loans in his own name, and at the time of his death there was on deposit in certain banks certain sums on deposit certificates stating he and she were joint owners of said sums and that said sums should be payable to either before or after the other’s death three months after date, held, on petition for discovery of assets filed against said wife as administratrix of his estate, that said funds were held in equal shares, and that the deceased impliedly made a gift to his wife of one-half of the proceeds of" said certificates, and that, notwithstanding it may have been their intention that said funds should be held jointly with right of survivorship, they would still be held, under the Act of 1821, in common and the right of survivorship would not obtain.
    2. Joint tenancy, § 6

      —right of survivorship of joint estates. The Act of 1821, abolishing the right of survivorship of joint estates, is still in force, with unimportant changes, as to personal property, as the Act of July 1, 1872, restoring the right of survivor-ship when so expressly provided in a conveyance, has reference only to real estate and in no way affects personal property held in joint ownership.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and remanded with directions.
    Opinion filed November 13, 1916.
    W. E. Knowles and T. M. Webb, for appellants.
    James G. Rafter and Dan MgGlynn, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

A petition was filed in the Probate Court of St. Clair county, by Loretta Lemen and May O’Neill, daughters of Nelson A. Grote, deceased, to compel Margaret E. Grote, widow of said deceased and mother of said petitioners, the administratrix of said estate, to make discovery of and inventory certain moneys which petitioners state on information and belief said administratrix had in her possession belonging to the estate of said deceased. No particular moneys or funds were designated, it being alleged in said petition that the knowledge with reference to said funds was particularly with said administratrix. The administratrix was the only witness testifying in the cause.

On the hearing in the Probate Court the prayer of said petition was denied and said petition was dismissed. On appeal to the Circuit Court said cause was heard at the September term, 1915, and an order was entered by the court dismissing said petition at the cost of said petitioners, and from said judgment this appeal is prosecuted.

The oral evidence consists alone of the testimony of said administratrix and is to the effect that Nelson A. Grote and his wife, Margaret E. Grote, lived for many years in the City of East St. Louis; that during the time of his marriage, Nelson A. Grote was employed by an express company, which employment paid him a salary of $125 per month; that for a period of something like twenty-two years preceding his death, said deceased from his monthly salary retained $25 for his own use, the remaining $100 he would deliver to his wife.

The evidence further discloses that Mrs. Grote was a frugal woman and saved whatever she could out of the money delivered to her by the deceased, and with his knowledge and consent she purchased certain real estate, paid taxes and life insurance, and the other necessary expenses about the house. The balance of the money, with the knowledge and consent of her husband, she would deposit in various banks in the City of East St. Louis to their joint account.

At the time of the death of said Nelson A. Grote, there was on deposit in the Southern Illinois National Bank the sum of $5,037.50, and in the Illinois State Bank, the sum of $1,000. The certificate of deposit for the $5,037.50 issued by the Southern Illinois National Bank was as follows:

“N. A. and Margaret Grote, Joint owners, have deposited with The Southern Illinois National Bank, of East St. Louis, Five thousand, thirty-seven dollars and fifty cents, payable to the order of either, before or ' after the death of the other, on the return of This Certificate properly endorsed, three months after date, in current funds.

“This deposit bears no interest after maturity and Will not be paid until this certificate is due.”

The certificate for the $1,000 in the Illinois State Bank was of a similar character.

It is insisted by appellants that no gift was made by said deceased of the moneys delivered by him to his wife, Margaret E. Grote, and that whatever remained after the payment of the family expenses from the funds so delivered by said deceased to his wife, remained his property and being traced to the certificates of deposit above referred to should have been inventoried as a part of his estate.

On the other hand, appellee contends that without reference to whether or not there was a gift of said funds to her by her husband at the time the same was delivered to her, that the fact that Nelson A. Grote allowed his said wife to retain said funds without making any account to him and allowed her to control the depositing of said funds, through the long period of years covering these matters, would have the effect of vesting the title to said funds in her.

There being no pleadings in this case from which the court can determine the theory of the parties to this proceeding, the only way that that theory is to be determined is from their briefs and arguments. Appellants insist that in order for appellee to hold the funds in question she must prove by a preponderance of the evidence that her husband, Nelson A. Grote, made an absolute gift of said funds to her in her lifetime, while appellee insists, quoting from the brief of her counsel: “We have refused from the commencement of this litigation to share the views of counsel for appellants in their insistence that the transactions between Nelson A. Grote and his wife were to be measured and ‘determined by the law relating to gifts causa mortis or inter vivos.” Again quoting from the brief of appellee: “Each semimonthly payment to her (appellee) was an executed transaction, and it is not altogether true to say that under the facts of this case these payments to her was a gift as the relation was contractual; she agreeing to pay, and the proof clearly showing that she did pay, all household and other expenses, and thereafter treating the residue as her own absolutely and without condition.”

We do not agree in our conclusions with either contention but are inclined to hold that under the facts disclosed in this record, Nelson A. Grote and appellee, his wife, held the funds covered by the two certificates in equal shares. It is probable that it was the intention of appellee and her said husband that they would hold said fund as tenants in common with right of survivorship, and if the right of survivorship obtained with reference to personal property jointly held as it did at common law, appellee would probably be entitled to this whole fund.

In the case'of Hay v. Bennett, 153 Ill. 271, the court at page 281, in discussing the question as to whether the Act of 1821, and which act with unimportant changes is still a part of the statute of this State, applied to personal property as well as real estate, says: “It seems reasonably clear that section 2 of this Act of 1821, being section 1 of the present chapter 76. (J. & A. jf 6744), is broad enough to include personal as. well as real property, and that some of the phraseology, to wit, that referring to transmissibility to executors and administrators, is especially applicable to personal estate. Section 3 of the original fact (section 2 of chapter 76, J. & A. ff 6745) manifestly includes a reference to personal property held in joint ownership, and has been so construed by our Supreme Court. (Benjamin v. Stremple, 13 Ill. 466; Boyle v. Levings, 28 Ill. 314; German National Bank v. Meadowcroft, 95 Ill. 124.)” This same section applied to real- estate held in joint tenancy and provided: “That if partition be not made between joint tenants, the parts of those who die first shall not accrue to the survivor or survivors, but descend or pass by devise, and shall be subject to debts, dower, charges, etc., or transmissible to executors or administrators, and be considered, to every intent and purpose, in the same view as if such deceased joint tenants had been tenants in common.”' In construing this section the Supreme Court held that all estates in joint tenancy become tenancies in common and thereby cut off the right of survivorship.

The Legislature in order to obviate the sweeping effect of the Statute of 1821 abolishing joint estates, in the act concerning conveyances, in force July 1, 1872, re-enacted the provision in the Revised Statutes of 1845, provided in section 5, “that no estate of joint tenancy in any lands, tenements or hereditaments shall be held or claimed under any grant, devise or conveyance whatsoever, heretofore or hereafter made, other than to executors and trustees, unless the premises therein mentioned shall expressly be thereby declared to pass, not in tenancy in common, but in joint tenancy; and every such estate, other than to executors and trustees (unless otherwise expressly declared as aforesaid) shall be deemed to be in tenancy in common.” Section 5 of the Act on Conveyances (J. & A. 2236), however, has reference only to real estate and in no way affects personal property held in joint ownership, so that the Statute of 1821, abolishing the right of survivorship as to such personal property, still obtains.

It is insisted by appellee that whatever was left of the funds from time to time delivered by Nelson A. Grote to appellee were her funds and that she had complete control of the same, and that it was wholly with her as to how she deposited the same, and that by reason of the fact that the deceased never called on appellee to account for said funds or inquired of her what she was doing with the same necessarily shows that he had surrendered the entire dominion over said funds, and that they thereby became appellee’s sole property. In other words, appellee argues that the construction placed on these transactions by appellee and her said husband must control.

It is our opinion, however, that if the question of the ownership of these funds is to be determined by that rule, our conclusion that the funds were owned in equal shares by appellee and her said husband must obtain, for the reason that the funds accumulated from time to time from the funds delivered by the deceased to appellee were deposited in the name of both of them, and that this fact was known to the deceased and acquiesced in by him; that being true, at the time the deceased delivered these funds to his wife each month, he knew just what disposition was being made of them, and the conclusion would follow that one reason why he said nothing to her when he delivered the funds and why he made no inquiry of her as to how she was disposing of them is because he knew, according to her own testimony, just what disposition was being made of them,, and that, that disposition of said funds was satisfactory to him.

There are other circumstances in the record that go to corroborate the correctness of this holding and that is, that certain real estate purchased by appellee from the accumulated funds saved from the amounts delivered by the deceased to her were invested in real estate, the title to which was taken to both of them. The record further discloses that the deceased did have access to these accumulated funds and that he checked from said funds and made loans therefrom, which loans he made in his own name, one of said notes now being in the hands of said appellee as such administratrix and which she concedes should be inventoried as a part of her husband’s estate.

The construction we place on this transaction is as favorable, we think, as appellee can contend for, as she testified on the hearing that when these funds were delivered to her by her husband, nothing was said about there being a gift, in fact, she testified, that nothing was said when the funds were so delivered to her, but she says, “they were given to pay expenses. Sometimes it was over and above expenses; the balance, of course, went to me,” The statement, however, that the balance went to appellee' was a mere conclusion on her part, as she testified that her husband said nothing about what should be done with the balance. Appellee’s counsel insist in their brief that they do not have to claim this fund by gift, either inter vivos or causa mortis, but that the relation between the deceased and appellee when these funds were turned over to appellee was a contractual relation, that is, that appellee should pay the household expenses, taxes, etc., out of said funds and that the balance should be her property. Appellee further insists that while there is no direct proof of this contractual relation, that it is shown by implication from the acts of the parties and the way in which they treated the handling of these funds. This conclusion, however, as stated above, does not follow from the acts of the parties for the reason that according to appellee’s own testimony she deposited these funds that were accumulated in the name of both of them, or when she purchased real estate from these funds she purchased it in the name of both of them, and that these acts of hers with reference to said funds were known to her husband, and were acquiesced in by him.

Our conclusion further is, that to the extent of one-half of the proceeds of the certificates in question, Nelson A. Grote impliedly made a gift to appellee, his wife, and that the same was an executed gift. The authorities we think fully bear out this construction. Koch v. Sallee, 176 Ill. App. 381; Grondenberg v. Grondenberg, 112 Ill. App. 615; Morey v. Wiley, 100 Ill. App. 76; Mahan v. Schroeder, 236 Ill. 392.

We might further observe with reference to the provisions in said certificates of deposit to the effect that the funds so deposited should be payable to the order of said deceased or appellee after the death of the other, that said provision at most would amount to a power of attorney to withdraw the entire fund, which power of attorney was revoked by death. It would have no effect on the construction to be given to these certificates, as our holding is that notwithstanding it may have been the intention of appellee and her intestate husband that said funds should be held jointly, with the right of survivorship, it would still, under the provisions of the Statute of 1821, be held in common and the right of survivorship would not obtain.

For the error in dismissing the petition and in not directing appellee to charge herself as administratrix of her husband’s estate with one-half of the proceeds of the two certificates of deposit, as well as the note, said cause is reversed and' remanded with directions to the trial court to enter an order directing said administratrix to charge herself as administratrix with one-half the proceeds of said certificates.

Reversed and remanded ivith directions.


text:
    H. T. Miller and Homer Miller, Appellees, v. George W. Mayberry et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Wayne county; the Hop. Julius C. Keen, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action in assumpsit by H. T. Miller and Homer Miller, plaintiffs, against George W. Mayberry, J. B. May-berry and J. K. Wright, defendants, to recover for the alleged breach of a contract for the exchange of certain real property, and personal property for real property. From a judgment for $1,700 against them, defendants appeal.
    Creighton & Thomas and William T. Bonham, for appellants.

      Abstract of the Decision.
    1. Appeal and- error, § 1173

      —what questions determined in absence of submission of propositions of law. Where no proposition of law was submitted to the court trying a case without a jury, the only questions to be determined on assignment of errors are whether the court erred in its rulings on admission and refusal of evidence and whether the competent evidence in the record sustains the findings and judgment.
    2. Appeal and error, § 1301

      —when presumed court considered only competent evidence. On trial by the court without a jury, it is presumed the court only considered the competent evidence, and if such evidence sustains the court’s finding and judgment, it is sufficient notwithstanding the court received incompetent evidence.
    3. Exchange of property, § 10

      —when contract is not abrogated by subsequent contract of plaintiff with third person. Where plaintiff and defendant entered into a contract for exchange of lands which was fully executed by plaintiff but defendant failed to furnish an abstract showing his title to be good, as required by the contract, and plaintiff thereafter entered into a second contract with a third party for an exchange of the same lands he was to receive from defendant, which contained a like provision that plaintiff should furnish an abstract showing the title to said lands to be good, held, in an action on the first contract, on trial by the court without a jury, that the court properly found the second contract did not abrogate the first contract, and defendant was not relieved from his obligation under the first contract to furnish an abstract showing good title merely by reason of the second contract.
    4. Appeal and error, § 1414

      —when findings of trial court on conflicting evidence not disturbed. All the Appellate Court is required to determine on a contested question of evidence upon trial by the court without a jury is whether the findings of the court were against the manifest weight of the evidence.
    Boggs, Boggs & Heidihger, for appellees.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Seth Powell, Appellee, v. Alton & Southern Railroad, Appellant.
    (Wot to he reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1411

      —when verdict based upon conflicting evidence will not be disturbed. Where the evidence upon a question of fact was sharply conflicting and the verdict of the jury was not against the manifest weight of the evidence, such verdict should not be disturbed, unless other errors in the record require it.
    2. Railroads, § 443

      —when instruction on measure of damages in action for damages for construction and operation of road is erroneous. The true measure of damages in an action against a railroad company for damages because of the construction and operation of its road near the plaintiff’s property is the difference in the fair cash market value of the property before and after such construction and operation, and an instruction which directs the jury to fix such damages as they may find them from the evidence, is erroneous and warrants reversal, unless it be supplemented and cured by other instructions.

      Appeal from the City Court of East St. Louis; the Hon. Robert H. Flannigan, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Action on the case by Seth Powell, plaintiff, against the Alton & Southern Railroad, defendant, to recover damages for injury to plaintiff’s property due to the construction and operation of defendant’s railroad. From a judgment for $375 in favor of plaintiff, defendant appeals. , - ,
    Kramer, Kramer & Campbell, for appellant.
    Silas Cook, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

3. Instructions, § 159 -—when considered as a series. The instructions given by the court are to be read and considered together, and if when so considered they state the law applicable to the case with substantial correctness, it is sufficient, notwithstanding some one instruction is in itself erroneous.

4. Instructions, § 88 —when instruction as to determination of preponderance of evidence is not reversibly erroneous. An instruction as to determining the preponderance of the evidence should include the number of witnesses as one of the elements to be considered, but the omission of this element is not reversible error except where the element of the number of witnesses is shown to be important.

5. Appeal and error, § 1491 —when exclusion of evidence is harmless error. It is not reversible error to refuse to admit in evidence exhibits consisting of certain records made by a witness with a machine invented by him where he is allowed to give the results of his tests to the jury.


text:
    S. R. Keasler, Appellee, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    1. Carriers, § 30

      —what law governs in action in State court involving interstate shipment. An interstate shipment of freight is governed in an action in a State court for damages for loss of goods by the Interstate Commerce Act and its amendments.
    2. Carriers, § 33

      —when question of unreasonableness of provision in a contract for interstate shipment as to notice of claim of damages may not be questioned in State court. The reasonableness or unreasonableness of a provision in a contract for an interstate live stock shipment that no claim for damages in shipment shall be allowed or pai'd unless such claim is delivered to the general freight agent of the carrier at his office within five days from the time the stock is removed from the car is a question for the Interstate Commerce Commission and not for the State court in which action for such damages is brought, and so long as the filed tariff provides for a notice of this character it is binding upon the shipper as well as the carrier and cannot be questioned in such suit.
    3. Cabbiebs, § 241

      —when shipper not having actual knowledge of-provisions of contract for interstate shipment of live stock as to making claim for injuries is hound. A shipper of an interstate car of live stock under a contract signed by his agent providing that a claim for damages for loss in shipment must be filed within five days after removal of the stock from the car is not in a position to raise the question that he had no notice of such provision of the contract, where the filed tariff provides for a notice of such character, as such provision of the contract is binding upon him, notwithstanding he may not have had actual knowledge of the stipulation in the contract.
    4. Cabbiebs, § 241

      —what is effect of failure of shipper of live stock to file claim for damages within required time. Failure of a shipper of live stock to file his claim for damages for loss in shipment within five days after removal of the stock from the car, as required by his contract of shipment, is a bar to such shipper’s right of action for such damages.
    McBbide, J., dissenting.
    Appeal from the Circuit Court of Gallatin county; the Hon. Junius C. Keen, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed.
    Opinion filed November 13, 1916.
    Kramer, Kramer & Campbell, Roedel & Roedel and W. H. Hebenstreit, for appellant; Edward Barton, of counsel.
    Robert H. Davis and M. E. Lambert, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

Suit was brought by appellee before a justice of the peace of G-allatin county against appellant for the loss of certain hogs in a shipment made by appellee over appellant’s railroad. Judgment was rendered in favor of appellee before a justice of the peace. An appeal was taken to the Circuit Court of said county, where a jury was waived and on a' trial .before the court, judgment was rendered in favor of appellee' for $135, from which judgment this appeal is prosecuted.

The evidence discloses that on July 25, 1914, appellee loaded for shipment on appellant’s railroad at Omaha, Illinois, a car of hogs billed to Cincinnati, Ohio. The hogs were loaded about 11:35 a. m. on July 25, 1914, and reached their destination at the stockyards at Cincinnati, Ohio, at about 9:35 p. m. on July 26th, and were unloaded at about 10:30 p. m. of said evening, when it was found eleven of said hogs were dead. Appellee insists that the cause of the death of the hogs was the failure of appellant to water them at proper times when requested so to do by Mr. Harrell, the man in charge of said shipment. At the close of the evidence, appellant requested the court to hold as a matter of law the following proposition: “That the plaintiff failed to file his claim with the defendant within five days, as required by the live stock contract in evidence, and that therefore plaintiff cannot recover in this case,” which proposition of law was refused by the court and judgment was rendered in favor of appellee as above set forth.

The shipment in question was made under the provisions of what is known as the Uniform Limited Liability Live Stock contract, which contract provides among other things: ‘ ‘ That said shipper is at his own risk and expense to load and take care of and feed and water said stock while it is being transported, whether delayed in transit or otherwise, and to unload the same; and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same.”

It is further provided in said contract: “That no claim for damages which may accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or sued for in any court by the said shipper, unless a claim for such loss or damages shall be made in writing, verified by the affidavit of the said shipper or his agent, and delivered to the general freight agent of the said carrier, at his office in the City of Cincinnati, Ohio, within five days from the time said stock is removed from said car or cars; and that if any loss or damage occurs upon the line of a connecting carrier, then such carrier shall not be liable unless a claim shall be made in like manner, and delivered in like time, to some proper officer or agent of the carrier on whose line the loss or.injury occurs.” Said contract contains this further provision: “And S. E. Keasler does hereby acknowledge that he had the option of shipping the above described live stock at a higher rate of freight according to the official tariffs, classifications and rules of the said carrier and connecting carriers, and thereby receiving the security of the liability of the said carrier and connecting railroad and transportation companies as common carriers of the said live stock upon their respective roads and lines, but has voluntarily decided- to ship same under this contract at the reduced rate of freight above mentioned.”

On the trial of said cause the following stipulation was entered into between appellee and appellant:

“It is hereby agreed by and between the plaintiff and defendant in the above suit that a jury be waived in this court, and the case be tried by the court upon the following facts:

“That the plaintiff, on July 25, 1914, offered to the defendant at Omaha, Ill., 59 hogs for shipment to Talbert & McDonald & Co., Cincinnati, Ohio, and that the defendant accepted said shipment at 11:35 a. m. on said day as per contract, duly executed between the parties hereto attached hereto, and made a part of this stipulation; that said hogs arrived at destination July 26, 1914, at 9:35 p. m., and were unloaded at 10:03 p. m. same day; that when said hogs arrived it was found that 11 hogs were dead; that on August 3, 1914, plaintiff wrote a letter to Mr. O. V. Lewis, freight claim agent of the defendant at Baltimore, Md., as per letter attached hereto and made a part of this stipulation.

“Either party hereto may introduce such further competent and material evidence in this case not inconsistent to the above facts.”

The question, therefore, which is presented by this appeal and which is raised by the proposition of law submitted by appellant and. which was refused by the trial court is whether or not appellee was bound by the provisions in said contract requiring him within five days to file his claim for damages, verified by his affidavit, or that of Ms agent, with the general freight agent of appellant at his office in the City of Cincinnati, Ohio. If appellee is to be bound by sMd provision in said contract, then the judgment of the trial court will have to be reversed without reference to any other question presented in this record.

Appellee makes no contention whatever that he complied with this provision of the contract of shipment entered into on his behalf by his agent, Harrell. In other words, he does not contend that the letter which he wrote to C. Y. Lewis, freight claim agent of appellant at Baltimore, Maryland, on August 3, 1914, some eight days after said shipment was made, is a complianee with the provision of said contract of shipment above referred to, but the insistence of appellee is that the provisions of said contract are unreasonable and therefore are not binding upon him in this case.

This being an interstate shipment, the only question for us to determine is whether or not the courts of this State are bound by the provision of the Interstate Commerce Act with its amendments, and by the cor struction placed upon the same by the Federal courts as well as the courts of this State. In our view of the law, this is not now an open question as it has been definitely determined, not only by the Federal courts, but also by" our Supreme Court, that interstate shipments are governed by the provision of the Interstate Commerce Act.

In the case of Michelson v. Judson Freight Forwarding Co., 268 Ill. 546, at page 556, the court referring to the Carmack amendment to the Interstate Commerce Act says: “This statute has been held by the Supreme Court of the United States to be constitutional. (Atlantic Coast Line Railway Co. v. Riverside Mills, 219 U. S. 186.)” It has also been held in construing the act that almost every detail of the subject is covered, and there can be no doubt but that Congress intended by the act to take full possession of the subject of interstate shipments, and that the effect of the act was to supersede all State laws and regulations on the subject. Adams Exp. Co. v. Croninger, 226 U. S. 491; Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400. In the case at bar, the shipment in question was an interstate shipment, and there can be no question but that it is governed by the provisions of the Interstate Commerce Act, including the Car-mack amendment.

It is insisted by appellee that the provision in the contract entered into with appellant for the shipment of his stock requiring notice of his claim to be filed within five days is unreasonable. We take it that under the decisions of the United States Supreme Court construing the Interstate Commerce Act that this is not a question to be passed on by this court; that the reasonableness or unreasonableness of the provision with regard to the giving of notice is a question for the Interstate Commerce Commission, and that so long as the filed tariff provides for a notice of this character, it is binding upon the shipper as well as the carrier, and cannot be questioned in a suit for damages. We do not know whether or not this specific question in connection with the notice to be given of a claim for damages has.been passed upon by the United States Supreme Court, but that court has frequently passed upon the question of the effect of the filed tariffs in connection with the limit to be placed on the amount of recovery for loss of goods shipped and in every such case has held the proviso with reference to the amount of recovery in case of loss to be binding on the shipper and the carrier. Pierce Co. v. Wells Fargo & Co., 236 U. S. 278; Missouri, K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 657; Great Northern Ry. Co. v. O’Connor, 232 U. S. 508 [8 N. C. C. A. 53]; Boston & M. R. R. v. Hooker, 233 U. S. 97; Pennsylvania R. Co. v. International Coal Min. Co., 230 U. S. 184; Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639. We have no doubt but a like holding would be made by said court on the provision with reference to notice of claim for damages.

It is next contended by appellee that he had no notice of the provisions of said contract with reference to the five-day clause. We do not believe that appellee is in a position to raise this question as the provision of the contract signed by his agent is binding on him, notwithstanding he may not have had actual knowledge of the stipulations in his contract.

In the case of Michelson v. Judson Freight Forwarding Co., supra, at page 558, the court quoting from the case of Boston & M. R. R. v. Hooker, 233 U. S. 97, says: “It was held that a regulation contained in the published tariffs of an interstate railway carrier on file with the Interstate Commerce Commission limiting baggage liability to $100 unless a greater value is declared and stipulated by -the owner, and the excess charges paid, is binding upon the passenger in case of loss of the baggage through the carrier’s negligence.” This is held to be the law regardless of the passenger’s lack of knowledge of or assent to such regulation.

In Boston & M. R. R. v. Hooker, supra, quoting from Adams Exp. Co. v. Croninger, supra, it was said: ‘‘The knowledge of the shipper that the rate was based upon the value is to be presumed from the terms of the bill of lading and of the published schedules filed with the commission.” To the same effect is Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639.

Appellee being bound by the provision in the contract entered into with appellant', that notice of any claim for damages must be filed within five days, it will not be necessary for us to pass on the question as to whether or not appellant’s alleged failure to water said hogs was the proximate cause of the injury complained of. For although appellee might have had a right of action for damages had he filed his claim in compliance with the provisions of his contract, his failure so to do would bar such right.

The whole theory of the Interstate Commerce Commission is that contracts for interstate shipments must be uniform and must be binding on all shippers and carriers alike, and so long as the tariffs filed with the Interstate Commerce Commission stand, they are not to be disregarded by either shipper or carrier, but are to be uniformly enforced. Mot to do so in particular cases would amount to discrimination and would be a violation of the provisions of said act, and the courts are not warranted in countenancing any other than a uniform enforcement of its provisions until changed by the Interstate Commerce Commission under the provisions of said Interstate Commerce Act.

For the failure of the trial court to hold the proposition of law submitted, the judgment of said court is reversed.

Judgment reversed.

Mr. Justice McBride dissents.


text:
    W. C. Goodall, Charles F. Merker and W. J. Miller, Appellants, v. Silas Cook, William P. Launtz, John J. Weis, J. A. Goodall and Bankers Accident Insurance Company, Appellees.
    ' 1. Insurance—how transfer of rislcs may be made in mutual company. Where a bill for injunction was filed by certain members of a mutual accident and sickness insurance company against the majority members of its board of directors, charging conspiracy to reinsure and transfer the risks held by the company in order to enable said majority members to convert the assets of said company to their own use, and a temporary injunction was issued thereon, held that the officers of such company did not possess the powers necessary to make such transfer of risks, as it could only be done under the statute (J. & A. 6564) by a two-thirds vote of the members and submission of the reinsurance contract to the meeting including all of the members, and such bill was without equity, and the court was without jurisdiction to issue the injunction.
    2. Insurance—provisions of statute relative to transfer of rislcs in mutual company as part of contract of transfer. The provisions of the statute with reference to the transfer of members or risks in a mutual insurance association (J. & A. j[ 6564) enter into and become a part of the contract of transfer just the same as though the provisions of the statute were written into the articles of transfer.
    3. Equity, § 23

      —what court may not determine upon dismissing bill for want of equity. Where in a suit for an injunction by certain members of a mutual accident and insurance company against the majority members of its board of directors, charging conspiracy to reinsure and transfer the risks held by the company, in order to enable such majority members to convert the assets of the company to their own use, the bill for injunction was dismissed for want of equity and a temporary injunction issued thereon dissolved,. held that the court had no jurisdiction then to go on and undertake to determine who was president of the company or to enter an order undertaking to dispose of the company’s personal property where the bill contained no basis for such an order.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventeb, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed in part and reversed in part with directions.
    Opinion filed November 13, 1916.

      James O. Miller, for appellants.
    M. Millard and Dan McGlynn, for appellees.

      See Illinois Notes Digest, Vois, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.

At the January Term, 1916, of the City Court of East St. Louis, appellants, for themselves as members of the Bankers Accident Insurance Company, and for the benefit of all other members who might join, filed their bill of complaint asking for an injunction against appellees, setting up said company is a mutual association organized under the statutes of Illinois for insuring its members against disability due to accident and sickness; that it has members numbering about 3,700, and has assets of $20,000; that it is managed by a board of seven directors, consisting of appellees and Albert Diehm, Edmund Goedde and appellant W. C. Goodall; that the appellant W. C. Goodall was president and had the active management of the affairs of said association until the acts of appellees hereinafter complained of; that appellees conspired to reinsure the members of the said c'ompany in another company with a secret commission to themselves; that appellees, in pursuance of the plan to reinsure, found it necessary to eliminate appellant W. C. Goodall from the management of the association; that appellees through said Albert Diehm represented to said W. C. Goodall that certain changes were desired in the by-laws which at that time required unanimous consent, and that because of the strained relations between appellee J. A. Goodall and appellant W. C. Goodall one or the other would object and prevent the desired changes in said by-laws; that upon this representation of appellees, the resignation of appellant W. O. Goodall as president was given on August 25, 1915; that the by-laws were amended as desired in October without objection from appellant and that he continued the management thereafter with the consent of appellees, hut that the resignation was not returned; that thereafter, on the 26th day of November, at a regular meeting of the board, appellees, being a majority of the board of directors, voted to accept the said resignation of appellant W. C. Goodall; that following the action of the board, appellees locked appellant out of the office of the association and notified the agents and others that said W. C. Goodall was no longer in charge of the business of said company; that an illegal meeting of the board of directors was held on November 29th, entirely without notice to the said W. C. Goodall, and that a pretended election was had of appellee Silas Cook as president; that said directors refused to rescind their pretended election of Cook or permit said Goodall to perform his customary duties of president.

The bill further charges that appellee J. A. Goodall negotiated with the Washington Life and Accident Company and the Clover Leaf Casualty Company for reinsuring the members of the Bankers, and that the interests of the members would be jeopardized by the reinsurance of the Bankers and by the elimination of appellant W. C. Goodall from the management of the association.

The bill concluded with a general prayer for summons and an injunction.

The chancellor ordered the issuance of a temporary writ of injunction as follows: “Therefore, by these presents, we command you and each of you to desist and you are hereby enjoined and restrained from making any contract for the reinsurance of the members of the Bankers Accident Insurance Company, providing for a commission or gratuity for themselves, or either of them, either directly or indirectly, and from interfering with W. O. Goodall in the discharge of his duties as president of the Bankers Accident Insuranee Company, and that Silas Cook is hereby restrained and enjoined from presiding at members’ or directors’ meetings of said Bankers Accident Insurance Company until further order of the court in the premises.”

Appellees filed an answer denying all of the material allegations of the bill and averred that about June, 1915, dissensions arose between the president, W. C. Goodall, and the secretary, J. A. Goodall, that threatened the destruction of the company’s business; that the board on November 26th, accepted the resignation of W. C. Goodall theretofore tendered; that the resignation of said W. C. Goodall was not obtained by any misrepresentation, misstatement, promise or inducement, but that the resignation was obtained and demanded for the sole and only reason that the dis-' sensions of the president and secretary threatened to destroy the business of the company, and that the interests of the company required such action. Formal replication was filed to the answer, and said cause was heard upon the -merits.

At the conclusion of complainants’ evidence, appellees moved to dissolve the injunction and dismiss the bill for want of equity. Thereupon the chancellor made the following findings: “That the resignation of W. C. Goodall as president was tendered and accepted by the board of directors on the 26th of November, 1915, and that thereafter he ceased to be president; that J. A. Goodall had not negotiated with the Washington Life and Accident Company for the reinsurance of the members of the Bankers without the knowledge and consent of the other defendants; that the resignation of W. C. Goodall was voluntarily given; that there was no equity in the bill and that the complainants wholly failed to establish the averments of the bill and that the injunction was improvidently issued without any grounds therefor, and entered an order dissolving the injunction and dismissing the hill for want of equity.”

Thereupon appellees filed a motion for an order of restitution of the effects and property of the Bankers Accident Insurance Company. Over the objection of appellants the chancellor heard testimony as to the property said to be in the possession of the appellants under the writ of injunction. After a hearing on said motion, the chancellor found that at the time of the service of the writ upon him that Silas Cook was in possession of the effects of the Bankers as president and that in obedience to the command of the writ he surrendered possession to W. C. Goodall, and it was ordered that said W. C. Goodall restore the possession of the effects of said company to Cook as president; that in event of his refusal to so turn over the effects that a writ of restitution issue to the sheriff to put said Cook in possession thereof, and that the bill be dismissed for want of equity.

It is first contended by appellants that the court erred in dissolving the temporary .injunction issued in this case and in failing to make the same perpetual.

The theory of appellants being that J. A. Goodall, the secretary, and who was also one of the directors, and certain other of the directors were attempting to reinsure and transfer the risks held by the Bankers Accident Insurance Company in order to enable them to convert the assets of said association controlled by them as its officers to their own use. The evidence in the record in our judgment does not bear out this contention, and even if it did, under the statutes of this State governing the transfer of risks of the character held by the above named association, the officers of the association do not possess the power necessary to make said transfer. The transfer can only be made under the provisions of the statute by a two-thirds vote of the members holding certificates in said association. Section 245 of chapter 73, Hurd’s Revised Statutes 1913 (J. & A. ft 6564), provides as follows: “No such corporation under the laws of this State shall transfer its risks to, or reinsure them in any other corporation, unless the contract of transfer or reinsurance is first submitted to and approved by a two-thirds vote of a meeting of the insured, called to consider the same, of which meeting a written or printed notice shall be mailed to each member, certificate or policy holder at least thirty days before the day fixed for such meeting. If such transfer or reinsurance shall be approved, every member, certificate or policy holder of the corporation, who shall file with the secretary thereof, within ten days after the meeting, a written notice of his preference to be transferred to some other corporation than that named in the contract shall be accorded all the rights and privileges, if any, in aid of such transfer as would have been accorded under the terms of such contract, had he been transferred to the corporation named therein.”

It requires a two-thirds vote of all the members, after notice, to transfer the risks to some other company, and the reinsurance contract must be submitted to the meeting and include all of the members. Bolles v. Mutual Reserve Fund Life Ass’n, 220 Ill. 400; Brown v. Mutual Reserve Fund Life Ass’n, 224 Ill. 576.

The provisions of the statute with reference to the transfer of members or risks in an accident association of the character here involved enter into and become a part of the contract of transfer just the same as though the provisions of the statute were written into the articles of transfer. Bolles v. Mutual Reserve Fund Life Ass’n, supra; Brown v. Mutual Reserve Fund Life Ass’n, supra.

We are therefore of the opinion that appellees, as officers and directors of the Bankers Accident Insurance Company, had no power or authority to transfer the risks covered by this association or to effect a reinsurance of the members of said association in any other organization. Such transfer could only be effected in the manner provided by statute, and the efforts of appellees to effect such transfer without submitting the same to a vote of the members of said association would be ineffectual. The temporary injunction sued out restraining appellees from making any contract for the reinsurance of the members of the Bankers Accident Insurance Company was therefore wholly unnecessary and the trial court was without jurisdiction to issue the same. Officers of an insurance corporation of the character here in question have the right to discuss questions of policy with regard to the management or control of the business of such association, even to the extent of the question of the advisability of consolidating it with another association of the same character or the advisability of reinsuring the risks held by the association represented by them in a different insurance association. ° These are matters that usually precede submitting the question of consolidation or the transfer of risks to a vote of the members of the association. The acts of appellees in this case, we think, as shown by the record, would not warrant the conclusion that they were intending to violate the provisions of the statute or were attempting to transfer the risks of the Bankers Accident Insurance Company without first submitting that question to a vote of the members.

The next question which arises on the record in this case is as to the jurisdiction of the court to determine who were the officers of said Bankers Accident Insurance Company. The trial court after finding that the injunction should be dissolved finds that Silas Cook was the president of the Bankers Accident Insurance Company and that W. C. Goodall was not such president. When a bill is dismissed for want of equity, the court ordinarily makes no findings of fact other than to find the equities with the defendants. We are inclined to the opinion in this case that there was no occasion for departing from that rule, and that the court’s finding with reference to who was or was not rightfully the president of the Bankers Accident Insurance Company was not a proper finding.

It might be further observed that the injunction in this case was not served until the 13th day of January, 1916, and on that day the members of the company held elections for the purpose of electing directors and officers of said association, and the question who was or was not the president of said association prior to that time is not a very vital question in this case.

The next question raised by the assignment of errors is whether the court in dissolving the injunction and dismissing the bill for want of equity should have entered an order requiring W. C. G-oodall to return to Silas Cook the property of said association. It is contended by appellants that it is the duty of a court of equity, .when it has jurisdiction of a cause, to make a complete decision upon all points before it. This proposition we concede to be correct, but the court in this cause, having dissolved the temporary injunction issued by it and dismissed the bill for want of equity, had no jurisdiction to then go on and undertake to determine who was the president of the board of directors of said association. Neither had it jurisdiction to enter an order undertaking to dispose of the possession of the personal property of said association.

It might be further observed that there is nothing in the bill on which to base an order of that character. The bill was solely a bill for injunction, and the temporary injunction which had been granted by said court did not undertake to dispose of the possession of the personal property in question. There was therefore no basis for the contention that the court, after having dissolved the injunction and dismissed the bill for want of equity, should then have a hearing in reference to the custody of the personal property and to enter an order disposing of the same. If appellants are wrongfully withholding any of the personal property of said association from the proper authorities, the law affords an ample remedy to regain possession thereof, and the remedy should be sought there.

The order, therefore, will be that the judgment of the City Court dismissing the bill for want of equity and dissolving the injunction be affirmed. The order designated an order of restitution will be reversed and cause will be remanded with directions to vacate said order of restitution.

The costs of the appeal in this case will be equally divided between appellants and appellees.

Affirmed in part and reversed in part with directions.


text:
    F. W. Hummel and E. S. Needs, trading as Hummel & Needs, Appellants, v. C. F. Freshwater et al., Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Crawford county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed November 13, 1916.
    Statement of the Case.
    Petition by F. W. Hummel and E. S. Needs, copartners, trading as Hummel & Needs, complainants, against C. F. Freshwater (J. L. Barnes, C. M. Schuder, Henry Labowitz and Lonie Lindenbaum, copartners, trading as the Lawrenceville Salvage Company), the Western Supply.& Wrecking Company, a corporation, and the Independent Torpedo Company, a corporation, defendants, to enforce a mechanic’s lien for drilling a well. From a judgment refusing to hold Barnes, Schuder and the Lawrenceville Salvage Company personally liable, the Western Supply & Wrecking Company, Independent Torpedo Company and complainants appeal.
    Abstract of the Decision.
    1. Pbincipal and agent, § 8

      —what is insufficient evidence to prove agency. The declarations oí an alleged agent alone are not sufficient to prove his agency.
    2. Pbincipal and agent, § 8

      —what evidence is necessary to establish liability of persons as principals. Where the owner of a certain oil lease contracted with three persons to sell to each a one-fourth interest in a well he proposed building when same was completed, and on completion of such well by him such interests were assigned to and paid for by said parties, and thereafter liens for supplies for the construction of the well furnished to the owner were filed and suit brought thereon and the materials sold to satisfy such liens, leaving a deficiency for which a personal decree was entered against such owner alone, held that in order to hold them to any personal liability it would be necessary to prove said owner was their agent ether by positive evidence or by the facts and circumstances surrounding the transaction.
    McCarty & Arnold and Newlin, Parker & Newlin, for appellants.
    George W. Lackey and Noah M. Tohill, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Boggs

delivered the opinion of the court.