text:
    E. R. Downer, Plaintiff in Error, v. John J. Warren and Gertrude A. Warren, Defendants in Error.
    Gen. No. 6,230.
    1. Equity, § 30

      —when party estopped to claim lack of jurisdiction of equity. One who has summoned another before a court of equity cannot object that as to relief, concerning matters in controversy, which such other seeks he has an adequate remedy at law.
    2. Equity, § 38*—when concurrent jurisdiction with courts of law. A court of equity has concurrent jurisdiction with courts of law in questions involving fraud.
    3. Equity, § 23*—when jurisdiction retained. When a court of equity obtains jurisdiction of a cause for one purpose it may retain it for all purposes, even though some of the matters involved are more cognizable in a court of law.
    4. Judgment, § 66*—when procuring entry of judgment by confession fraudulent. Procuring the entry of a judgment by confession under a power of attorney which the creditor knew had become inoperative because of the discharge of such indebtedness by the debtor’s discharge in bankruptcy, held fraudulent.
    5. Judgment, § 321*—when equity jurisdiction to inquire into question of fraud in entry of judgment. On a creditor’s bill to discover assets of the judgment debtor and cross-bill, averring that the judgment was fraudulently entered and praying an injunction restraining proceedings thereunder, the court may inquire into such question of fraud and, if proper, grant the prayer.
    6. Judgment, § 199*—what is effect of invalidity of judgment as to one joint defendant on liability of other. A creditor’s bill for discovery of assets of joint judgment debtors must be dismissed on a finding that the judgment was fraudulently entered as to one defendant, since it must be treated as a unit and cannot be valid as to one defendant and invalid as to another.
    7. Appeal and ebbob, § 553*—when cross-bill sufficient on appeal. Where, on filing of a joint answer and cross-bill, the complainant moved to strike the cross-bill from the files on the ground that it was filed before the answer, but filed no exceptions to the pleading as an answer, and an amended cross-bill was filed to which the complainant demurred, but did not move to strike from the files for lack of an answer, held that such cross-bill must be sustained on appeal.

      Error to the Circuit Court of Kane county; the Hon. Clinton F. Ibwin, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Charles H. Darling, for plaintiff in error.
    No appearance for defendants in error.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

In this case a creditor’s bill was filed on March 25, 1912, in the Circuit Court of Kane county, by the plaintiff in error, E. E. Downer, against the defendants in error, John J. Warren and Gertrude A. Warren. The bill was founded upon a judgment, which had been taken by confession, against the defendants in error, on the 9th day of November, 1911, for the sum of $522. The note and power of attorney upon which the judgment was based was dated August 27, 1903, the note being for the sum of $350, payable in six months after date, with six per cent, interest per annum from date.

The bill alleges that an execution had been issued on the judgment February 7, 1912, and returned nulla bona, and seeks discovery of assets and legal and equitable interests in property, claimed to be held by the defendants in error for the purpose of utilizing- the same in the liquidation of the judgment. To this bill of complaint the defendants in error filed a joint and several answer and cross-bill combined. The plaintiff in error moved to strike the cross-bill from the files for the reason that the cross-bill was filed before the defendants in error had filed their answer to the bill of complaint, which motion the court denied. After-wards, on July 15, 1913, however, the court granted defendants in error leave to file an amended cross-bill instanter, and to this amended cross-bill plaintiff in error interposed a demurrer, which the court overruled, and thereupon entered a rule upon plaintiff in error to answer the cross-bill, but the plaintiff in error elected to abide by his demurrer and the court then entered a decree talcing the cross-bill as confessed, defaulting the plaintiff in error for want of an answer thereto, and finding the facts as alleged in the cross-bill, and upon the basis of these facts finding the equities to be with the defendants in error.

The facts found by the court, which are alleged in the cross-bill, are that on the 27th day of August, 1903, the defendants in error, John J. Warren and Gertrude A. Warren, executed the promissory note for $350, upon which the judgment was founded, and the power of attorney, 'which note and power of attorney were signed by Gertrude A. Warren in the name and style of “Mrs. John Warren,” and that on the 28th day of March, 1906, the defendant in error, John J. Warren, filed in the District Court of the United States for the Northern District of Illinois, the Eastern Division thereof, his petition in bankruptcy, and on the 4th day of February, 1907, an order was entered by said court discharging said John J. Warren from all debts and claims made provable under the bankruptcy laws of the United States, and which existed on the 28th day of March, 1906.

The court finds that the order of discharge operated as a discharge of the debt represented by the promissory note in question and of the obligation thereof; that at the time of the entry of the judgment in question for the sum of $522 in favor of the plaintiff in error, the said John J. Warren therefore was not indebted to the said E. B. Downer upon the promissory note, nor upon the obligation for which it was given, and that the power of attorney attached to the note had become null and void by reason of the discharge in bankruptcy, and did not any longer authorize any attorney to appear and confess judgment against the defendants in error; and the court finds that the judgment in question against the said defendants in error was obtained and entered of record on the 9th day of November, 1911, is null and void and of no force and effect; and ordered that the plaintiff in error, E. R. Downer, and his attorney, be permanently enjoined and restrained from selling, assigning, or otherwise disposing of any claimed interest in said judgment of record, and from causing any execution to issue thereon; and further decreed that said judgment be set aside.

From this decree the plaintiff in error prosecutes this writ of error, and it is contended by him that the court erred in overruling the demurrer to the amended cross-bill, and he insists that the defendants in error, on account of the matters set forth in the amended cross-bill, should have sought their remedy at law; and that they have no standing in a court of equity to set aside and vacate a judgment at law, but should have gone into the court where the judgment was rendered and made a motion and an affidavit setting up the facts averred in the cross-bill, and asked leave to plead and prove their defense to the judgment; that the defendants in error have no right to seek the aid of a court of equity, where their remedy at law is complete and adequate.

We are of opinion, however, that the plaintiff in error cannot successfully raise the question that defendants in error are in the wrong tribunal to have their rights adjusted, when he himself summoned them into this tribunal. He is not in position to deny them the privilege of having their rights and interests, which are involved in the subject-matter of this suit, settled by the court to which he compelled them to come and submit themselves. However, a court of equity has concurrent jurisdiction with courts of law, in questions involving fraud. (Newman v. Willitts, 60 Ill. 519; Jones v. Neely, 72 Ill. 449; Babcock v. McCamant, 53 Ill. 214; Grand Tower & C. G. R. Co. v. Walton, 150 Ill. 428.) And when a court of equity obtains jurisdiction of a cause for one purpose it retains it for all purposes, even though some of the matters involved are more cognizable in a court of law. (Pomeroy’s Equity, vol. 1, sec. 181; Stickney v. Goudy, 132 Ill. 213; Grand Tower & C. G. R. Co. v. Walton, supra; Coleman v. Connolly, 242 Ill. 574; Drum v. Drum, 251 Ill. 232; Patterson v. Patterson, 251 Ill. 153.)

John J. Warren’s discharge in bankruptcy released him from all debts provable against his estate as a bankrupt, and this included the promissory note in question. (Nelson v. Petterson, 229 Ill. 241.) From the allegation of facts in the cross-bill it clearly appears that the note in question was a subsisting debt against John J. Warren on March 28, 1906, and was provable against his estate as a bankrupt; and was in fact proved up against his estate by the plaintiff in error prior to the date of his discharge in bankruptcy, namely, February 4,1907. The plaintiff in error must, therefore, be charged with full knowledge of the fact that at the time the judgment by confession was entered upon the note under the stipulations of the power of attorney attached thereto, the note was no longer a subsisting debt against the defendant in error, John J. Warren, and that the power of attorney had become inoperative. Under these circumstances the act of the plaintiff in error in invoking the power and jurisdiction of the court to enter a judgment upon an indebtedness which he knew had been released by the bankrupt’s discharge under a power of attorney which he knew had become inoperative was a fraud, and the judgment was therefore fraudulently entered against the defendant in error, John J. Warren, and the transaction, therefore, became a legitimate matter for the jurisdiction of a court of equity.

It is insisted, however, that because the discharge in bankruptcy affected only the rights of the defendant in error, John J. Warren, the other defendant in error, Gertrude A. Warren, could not base any defense to the judgment upon such, discharge, and that so far as she is concerned the obligation to pay the debt represented by the promissory note still remained. This argument might have considerable force if we were dealing with the matter of the indebtedness alone, which was represented by the promissory note, but in this case the question involved bears upon the validity of the judgment, which is a joint judgment against both defend-' ants in error. The judgment is a unit, and must be treated as such. It cannot be regarded as valid against one defendant and invalid as to the other. (Seymour v. O. S. Richardson Fueling Co., 205 Ill. 77.)

The judgment, therefore, cannot be sustained in part and vacated in part, nor its collection enjoined in part, but can only be sustained as a whole, or vacated in its entirety. It is evident that the matters which rendered the judgment invalid were therefore matters which constituted a defense against the whole judgment, and affected the right of the plaintiff in error to maintain it against both defendants, and these matters of defense were therefore properly pleaded as a joint defense, available to the defendants in error, jointly.

The point made by the plaintiff in error that the defendants in error did not have a legal right to file a cross-bill because no answer has been previously filed to the original bill is not well taken. The record discloses that a joint answer and cross-bill had been filed previous to the filing of the amended cross-bill, which the plaintiff in error moved to strike from the files, and which motion the court denied, and that an amended cross-bill was afterwards filed by leave of court. No motion was made to strike the amended cross-bill from the files for lack of an answer filed to the original bill; and indeed it does not appear that the sufficiency of the pleading previously filed denominated “joint answer and cross-bill” as an answer was questioned. If this pleading was not sufficient, or was deficient, as an answer, the plaintiff in error should have raised the question by filing exceptions to it. This was not done, hence this court must assume that what purported to be their answer to the original bill was in fact an answer, and the amended cross-bill was filed after this answer had been filed.

We are of opinion that the demurrer was properly overruled and we find no error in the decree vacating the judgment and permanently enjoining its collection. The decree should therefore be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Niehaus

license: Public Domain

text:
    Paul Lund, Defendant in Error, v. W. Irving Osborne et al., Plaintiffs in Error.
    Gen. No. 6,240.
    1. Pleading, § 58

      —when plaintiff may not be required to elect between counts. In an action for personal injuries, held that a motion to compel the plaintiff to elect between counts charging simple negligence and others charging wilfulness and wantonness was properly denied.
    2. Street railroads, § 131*—when evidence insufficient to show contributory negligence of pedestrian. In an action for personal injuries sustained by being struck by an interurban electric train at a busy street crossing, evidence held not to show that the plaintiff was guilty of contributory negligence.
    3. Street railroads, § 64*—what degree of care required in approaching street crossings. It is the duty of those in charge of street cars to exercise a greater degree of care and watchfulness when approaching a street crossing, or intersection, than at other places along their route, and especially so when such crossing is a busy and much frequented one.
    4. Street railroads, § 131*—when evidence sufficient to show negligence of motorman. In an action for personal injuries sustained by being struck by an interurban electric car at a busy street intersection, evidence held sufficient to justify an inference that there was such a lack of watchfulness on the part of the motorman as indicated an indifference to consequences, wantonness, and wilfulness.
    5. Negligence, § 7

      —what constitutes wilful or wanton negligence. It is not necessary, in order to constitute wilful or wanton negligence, to show ill-will against the particular person injured, but an entire absence of care for the life, person or property of others, if it exhibits indifference to disastrous consequences, is sufficient.
    6. Negligence, § 192*—when question for jury. Whether a personal injury has been inflicted by gross and wanton negligence is a question of fact to be determined by the jury.
    7. Negligence, § 91*—when contributory negligence immaterial. Where, in an action for personal injuries, wantonness and wilfulness on the part of the defendant’s servants are shown, the question of contributory negligence of the plaintiff is immaterial.
    Error to the Circuit Court of Lake county; the Hon. Charles Whitnet, Judge, presiding. Heard in this court at the April term, 1916.'
    Affirmed.
    Opinion filed August 10, 1916.
    Bull & Johnson and Charles H. King, for plaintiffs in error.
    Cooke, Pope & Pope and Paul MacGuffin, for defendant in error.

      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. Presiding Justice Niehaus

delivered the opinion of the court.

This action was commenced in the Circuit Court of Lake county by the defendant in error, Paul Lund, against the receivers of the Milwaukee Electric Bail-road Company, plaintiffs in error, to recover damages for personal injuries suffered by him; and this is the second time the case has been brought before this court for review. At the former hearing, the judgment rendered was reversed and the cause remanded for another trial. (Lund v. Osborne, 183 Ill. App. 63.) Upon a retrial of the case in the court below, the jury awarded the defendant in error damages in the sum of $5,000, and the court rendered judgment on the verdict of the jury.

The facts appearing in the record concerning the injury and the condition of the pleadings are stated in the previous opinion, and are as follows: The Chicago & Milwaukee Electric Road runs between Chicago and Milwaukee in a northerly and southerly direction upon St. Johns avenue and crosses Central avenue, an east and west street of the City of Highland Park. The tracks of the Chicago & Northwestern Railway are a short distance west and the passenger station of said railway is a short distance south of Central avenue and a short distance west of St. Johns avenue.

At the time in question, a car of the electric railway was running south on St. Johns avenue and a passenger train, southbound on the Chicago & Northwestern Railway, was approaching the passenger station. The tower bell of the steam railway was ringing and its gates over Central avenue were being lowered. Paul Lund was on the east side of St. Johns avenue and desired to take passage on the Northwestern train. He was going across St. Johns avenue, within the limits of Central avenue, and was either walking fast or running to reach the Northwestern train, when he and said electric car collided on the eastern part of the rounded surface of the front of said car and he was thrown » away from the ear onto the pavement and very seriously injured.

The declaration consists of two counts and of an additional or third count. The first count charges that the plaintiff was exercising due care and that the defendants carelessly drove the car at a dangerous rate of speed in crossing Central avenue, and struck and injured the plaintiff. The second count contains no allegation that the plaintiff exercised due care, but charges that the plaintiff was necessarily crossing Central avenue to reach the Northwestern station, in and about his business; and that the defendants were driving the car at a high rate of speed, and knew that the plaintiff was about to cross their tracks, and did not use ordinary" care to avoid injuring him, nor give him any warning, but that they negligently and wilfully ran the car against him, and thereby injured him; and that there was then in force in said city an ordinance which required defendants to maintain a flagman where it crossed any street in said city, whose duty it should be to signal persons traveling in the direction of such crossing and warn them of impending danger, and that the defendants did not have a flagman at the crossing of Central avenue and plaintiff was not warned of the impending danger.

The third count does not allege that the plaintiff was exercising due care, but charges the defendants, as in the second count, with a lack of ordinary care and with a failure to give the plaintiff any warning, and that they negligently, wilfully and wantonly ran their car against the plaintiff and injured him. A number of questions are raised by plaintiffs in error, some of which were passed on in the former opinion, and those previously determined we shall not again consider at this time.

The plaintiffs in error, at the conclusion of the evidence introduced in behalf of the defendant in error, moved the court that the defendant in error be put upon his election as to the second and additional counts of his declaration, as to whether the defendant in error would rely upon the charge of simple negligence in the counts or upon the charge of wilfulness and wantonness, and the motion was denied. The plaintiffs in error then also offered separate motions, at the close of the evidence adduced for the defendant in error, to instruct the jury to find the plaintiffs in error not guilty, as to each of said counts, which motions were also denied by the court.

We are of opinion that no error was committed in denying these motions, and the defendant in error could not be put upon an election with reference to the matters alleged but had a right to submit the questions pertaining to the extent of the negligence, which was charged in the counts, to the jury; and the plaintiffs in error were not entitled to a separate verdict on the different counts of the declaration until the whole case was submitted for the consideration of the jury. (Scott v. Parlin & Orendorff Co., 245 Ill. 460; Colesar v. Star Coal Co., 255 Ill. 532; Chicago, R. I. & P. Ry. Co. v. Clough, 134 Ill. 586.)

Plaintiffs in error strenuously insist that the important question in this case, under the pleadings and the evidence, is whether or not the defendant in error was guilty of contributory negligence, and that the evidence so conclusively shows that he was guilty of contributory negligence as to bar a recovery, as a matter of law. We cannot agree with them in this contention, furthermore, it may be proper to add that the importance of the factor of contributory negligence depends upon the state of the proof concerning the charge made in the declaration, that the defendant in error was injured by acts which were wilful and wanton. The evidence shows that the intersection of St. Johns avenue with Central avenue is apparently the most frequented and busiest place in Highland Park, and necessarily and most frequently used by foot passengers and vehicles in connection with the Chicago & Northwestern passenger station; and, that about the time of the injury to the defendant in error, there were probably thirty people hurrying along and across this intersection, for the purpose alone of'taking passage on the Chicago & Northwestern train, which was about to leave, and there were other people moving in and about this intersection for other purposes.

It is clearly the duty of those in control of street cars to exercise a greater degree of care and watchfulness when approaching a street crossing or intersection than at other places along their route. (Heidenreich v. Bremner, 260 Ill. 439, and cases there cited.) This duty is particularly emphasized when the crossing or intersection is a busy one and much frequented. (Chicago City Ry. Co. v. Tuohy, 196 Ill. 410; Chicago City Ry. Co. v. Fennimore, 199 Ill. 9.)

The evidence tends to prove that the electric car which was managed by the motorman of the plaintiffs in error ran into this much frequented and busy intersection, at probably its busiest time, at a dangerously high rate of speed (two witnesses testified that the speed at which the car was running exceeded twenty miles an hour), and that the motorman who was managing the car, and who was supposed to be on the lookout, and was charged with a high degree of watchfulness at this point, had not even noticed the defendant in error on the street in front of him, as he was attempting to cross, when the car struck him; and the first knowledge the motorman had of the injury to the defendant in error was when passengers standing near him on the platform called his attention to the unfortunate fact. Undoubtedly the jury could reasonably infer from this evidence, not only that the car was running at a rate of speed highly dangerous, but that there was such a lack of watchfulness on the part of the motorman as indicated an indifference, to the consequences which naturally might be involved, which affected the life, limb and property of persons, under the circumstances and conditions which prevailed at this intersection.

It is not necessary, in order to constitute wilful or wanton negligence, to show ill-will against the particular person injured, but an entire absence of care for the life, person or property of others, if it exhibits indifference to disastrous consequences, is sufficient. (1 Thompson on Negligence, sec. 22; Neice v. Chicago & A. R. Co., 254 Ill. 595; Chicago Terminal Transfer R. Co. v. Kotoski, 199 Ill. 383; Illinois Cent. R. Co. v. Leiner, 202 Ill. 624.) And whether a personal injury has been inflicted by gross and wanton negligence is a question of fact to be determined by the jury. (Heidenreich v. Bremner, supra; Illinois Cent. R. Co.v. Leiner, supra; Chicago, B. & Q. R. Co. v. Murowski, 179 Ill. 77.)

We are of opinion that there is sufficient evidence in the record, from which the jury might reasonably infer, and from which they would be justified in finding, that the injuries to the defendant in error were caused by negligence that was wilful and wanton, as charged in the declaration. It is not necessary, therefore, in this state of the proof, to discuss the matter of contributory negligence.

We are of opinion that no error was committed in the instructions given, nor in the modifications made, concerning the question of wilful and wanton negligence, which was involved in the case. The instructions, with the modifications, state the law with substantial accuracy. Nor was there any reversible error committed in giving the instructions concerning the elements to be taken into consideration by the jury, in arriving at the amount of damages. The judgment should therefore be affirmed.

Judgment affirmed.


text:
    Davis Milk Machinery Company, Defendant in Error, v. A. D. Tappen, Plaintiff in Error.
    Gen. No. 6,245.
    (Not to be reported in full.)
    Abstract of the Becision.
    1. Appeal and ebrob, § 1303

      —when presumed that verdict sustained by evidence. Iu the absence of a bill of exceptions setting out the evidence, it must be conclusively presumed that a verdict is sustained by the evidence.
    2. Pleading, § 466*—when absence of formal plea aired by verdict. If parties allow a suit to go to trial without the filing of a plea, or without formal issue or without formal pleadings, the error is cured by verdict.
    3. Pleading, § 466*—when failure to file plea cured by appearance. Defects in pleadings arising from the failure to file a formal plea are cured „by the appearance of the parties.
    4. Appeal and ebrob—when improper joinder of causes harmless error. The improper joinder of a count in assumpsit to a declaration in replevin is harmless error where no objection to such procedure was raised in the court below.
    Error to the Circuit Court of Grundy county; the Hon. Samuel C. S tough, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action in replevin by Davis Milk Machinery Company, plaintiff, against A. D. Tappen and W. L. Avery, defendants, to recover possession of certain personal property. From a judgment finding the ownership and possession of the property to be in plaintiff, defendant A. D. Tappen prosecutes a writ of error, the case having been dismissed as to the other defendant before trial.
    Frank H. Hayes, for plaintiff in error.
    Cornelius Reardon, for defendant in error.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


author: Mr. Pbesiding Justice Niehaus

text:
    Harry Allison, Appellee, v. Belvidere Screw & Machine Company, Appellant.
    Gen. No. 6,247.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Boone county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action by Harry Allison, plaintiff, against Belvidere Screw & Machine Company, defendant, to recover a balance of $68.60 claimed to be due for services. From a judgment for plaintiff for $50, defendant appeals.
    It was conceded in the court below that the plaintiff had worked for defendant 196 hours, for which he had not been paid, and that the wages he received for such work was at the rate of thirty-five cents per hour, which would amount to the sum of $68.60; but defendant claimed that the plaintiff, in his employment as a screw machine operator, in turning out some bushings, which the defendant had a contract to manufacture and deliver to the Fox Machine Company, had done some of his work defectively, which resulted in damages to the defendant to the amount of $37.45, and sought to recoup these damages against the amount admitted to be due plaintiff.
    W. C. DeWolf, for appellant.
    Adexandeb J. Stbom, for appellee.

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

   Mr. Pbesiding Justice Niehaus

delivered the opinion of the court.

Abstract of the Decision.

1. Set-off and recoupment, § 41 —when evidence sufficient to sustain verdict. In an action by an employee to recover for wages as a screw machine operator, when the amount of work done was undisputed, but defendant endeavored to recoup damages for defective work which had been returned by a purchaser and credit given the latter for a certain sum, where there was evidence that the cost of the materials and labor amounted to the sum claimed by defendant, that the returned articles were worthless for sale, but no proof that the articles might or might not be of any value for any other purpose, evidence held sufficient to sustain a verdict in which defendant was allowed about one-half of his claim. *

2. Appeal and erbob, § 1523*—when error in instruction harmless. Any error in a given instruction is harmless where it is not misleading and it cannot have any effect on the verdict.


text:
    Benjamin Lounsberry, Appellant, v. George Boger, Executor, Appellee.
    Gen. No. 6,249.
    (Not to be reported in full.)
    Appeal from the Circuit Court of DuPage county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the April term, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action of replevin by Benjamin Lounsberry, plaintiff, against George Boger, as executor of the estate of Albert Smart, deceased, defendant, to recover possession of a promissory note which plaintiff claimed was donated to him by decedent prior to his death and wrongfully withheld from him by defendant, as executor.' From a judgment for defendant, plaintiff appeals.
    The legal questions involved are practically the same as were passed on in Lounsberry v. Boger, 193 Ill. App. 384, a related case.

      Abstract of the Decision.
    1. Gifts, § 30

      —what constitutes valid gift causa mortis. To make a valid gift causa mortis, the owner must not only part with the possession but all control and dominion of the property.
    2. Gifts, § 34*—what does not constitute gift causa mortis. There is no parting with the control or dominion of a note by a decedent during his lifetime so as to constitute a valid gift causa mortis where a donor of a note—which contained an indorsement signed by the donor that if the note was not paid before his death, it should be paid to the donee, and which was included with other papers in a tin box, to which the donor had the key— called the donee into his room and expressed his intention of giving him the note after his death and instructed another person to give it to him after the funeral, and gave such other person the keys, and possession of the entire contents of the box was obtained by the executor of deceased after his death.
    Bunge & Harbour, for appellant.
    S. L. Rathje and T. H. Slusser, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    General Accident Fire & Life Assurance Corporation, Ltd., Appellant, v. Sophia Krekel, Appellee.
    Gen. No. 6,252.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Peoria county; the Hon. Chester Barmett, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action by Sophia Krekel, plaintiff, against General Accident Fire & Life Assurance Corporation, Ltd., defendant, to recover on an accident insurance policy for $300 on the life of plaintiff’s husband. From a judgment for plaintiff for $345, defendant appeals.
    Abstract of the Decision.
    1. Appeal and error, § 864

      —when questions not considered on appeal. Questions pertaining to the issue raised by the general issue and to the verdict will not be considered on appeal where the abstract does not contain the declaration or verdict.
    2. Insurance, § 667*—when evidence insufficient to show that insured committed suicide. In an action on a life insurance policy where there was no direct evidence as to how the insured was shot, but it appeared that on the morning of his death he dressed himself, took his revolver, and went downstairs to his saloon and then into the basement and returned to the saloon, where, after a scuffling sound and two revolver shots, he was found dead, and a door leading to the outside of the building open with a bullet hole through it, evidence held insufficient to show that deceased committed suicide.
    3. Appeal and error, § 1236*—when party may not complain of insufficiency of proof. An insurance company which waives formal proof of notice of death of the insured and of proofs of death at the trial cannot complain on appeal of the insufficiency of the proof in such respects.
    4. Insurance—when no recovery on accident policy for additional per cent. Where an accident insurance policy provides that the beneficiary, in case of death of insured, shall be entitled to recover a certain sum, and, in addition thereto a stipulated per cent, for each consecutive month preceding the accident, provided the nolicy is maintained in force continuously, and the monthly premiums are paid on the date due, there can be no recovery for such stipulated per cent, if the payments are not made when due.
    5. Appeal and error, § 1769*—when affirmed upon entering of remittitur. A judgment will be affirmed where the amount thereof is erroneous, upon entering of a remittitur as required by the court
    Keithley & Keithley, for appellant.
    Kirk & Shurtleff, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Iceleen Wilson, Appellee, v. Fred Cutler, Appellant.
    Gen. No. 6,254.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Bastabds, § 22

      —what degree of proof required to establish charge. It is incumbent on the prosecution to establish the charge of bastardy by the weight of evidence.
    2. Bastabds, § 22*—when verdict against weight of evidence. In bastardy proceedings where the only testimony on behalf of the plaintiff was the bare assertions of the prosecuting witness that defendant had intercourse with her and was the father of the child, which was flatly denied by the defendant, and there was the testimony of other unimpeached witnesses on behalf of defendant, strongly militating against the charge of paternity, held that a verdict finding defendent to be the father of the child was against the weight of evidence.
    3. Bastabds, § 62*—when verdict set aside. A verdict in bastardy proceedings which is against the weight of evidence should be set aside.
    Appeal from the County Court of Knox county; the Hon. R. C. Rice, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Bastardy proceedings by the People of the States of Illinois, on the relation of Iceleen Wilson, plaintiff, against Fred Cutler, defendant. From a judgment of conviction, defendant appeals.
    R. D. Robinson, for appellant.
    A. J. Boutelle, for appellee; Josiah Babcock and M. J. Daugherty, of counsel.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Michael J. Ryan, Appellee, v. John E. Harty, Appellant.
    Gen. No. 6,256.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 475

      —what constitutes preponderance. The number of witnesses testifying in a case is not necessarily decisive of the question of preponderance.
    2. Evidence, § 475*—what constitutes preponderance. If there are but two witnesses in a case and they testify diametrically opposite to each other concerning matters within their personal knowledge, this does not necessarily result in a lack of preponderance, but the question of preponderance is largely a question of credibility of the witnesses, and is for the jury to determine.
    3. Witnesses, § 253*—who proper judge of credibility of. The jury are the proper judges of the credibility of witnesses.
    4. Appeal and ebbob, § 1258*—when defendant may not complain of verdict. A defendant cannot complain on appeal that a verdict is for a lesser sum than the amount of the plaintiff’s claim.
    Appeal from the Circuit Court of Stark county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the zCase.
    Action of assumpsit by Michael J. Ryan, plaintiff, against John E. Harty, defendant, to recover the amount of a note for $1,106 alleged to have been retained by defendant. From a judgment for plaintiff for $1,000, defendant appeals.
    John W. Fling, Jr., and William W. Wright, for appellant.
    James H. Rennick, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Robbs Express Company, Appellee, v. Nickolas Ferkel, Appellant.
    Gen. No. 6,277.
    (Not to be reported in full.)
    Appeal from the County Court of Rock Island county; the Hon. Nels A. Larson, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action in assumpsit by Eobbs Express Company, plaintiff, against Nicholas Ferkel, defendant. From a judgment for plaintiff, defendant appeals.
    The action was brought to recover certain collections alleged to have been made by the defendant for work done under the following contract:
    “July 1, 1910.
    “Agreement entered into this day between Eobbs Express Company and Nick Ferkel, whereby the Eobbs Express Company have agreed to employ Nick Ferkel as teamster on the basis of Twenty-one Dollars per week, he to furnish his own team and harness and it is understood he is to do what hauling we have to and from the Eock Island Arsenal exclusively. Where it is impossible to do the work with one team we will furnish the help on days when shipments are too heavy. This contract to go into effect July 1,1910, and run until July 1, 1911.
    ‘1 Signed Eobbs ’ Express Co.
    Per F. W. DaFoe, Sec’y.
    “Accepted
    Nick Ferkel.”
    The defendant contended that this written contract related only to the hauling which the plaintiff had contracted to do for the Government, of Government owned materials and supplies, and testified that on the day on which this written agreement was entered into, and before its final execution, be made a verbal additional and distinct agreement with E. F. Lewis, the president of the express company, concerning other than Government owned stuff to be hauled to and from the arsenal by him, for the express company, by which the parties were to share equally in the profits of such work, and that in his judgment the written contract was signed after the verbal understanding mentioned.
    Abstract of the Decision.
    1. . Evidence, § 322

      —when parol evidence inadmissible. A written contract unambiguous in its terms cannot be varied, contradicted or modified by parol evidence of anything that occurred at or prior to the time when such contract was executed.
    2. Contracts, § 256*—when oral agreement merged in written contract. In an action to recover collections made by the defendant for hauling done by him under a written contract with the plaintiff, such contract by its terms covering all hauling to and from a certain place, held that an oral agreement, alleged by the defendant to have been entered into by the parties prior to the execution of the written contract, whereby it was claimed to have been agreed that the material to be hauled from such place under the written contract should include only .that owned by a certain party, was, if made, merged in the written contract, and collections made by the plaintiff for hauling claimed to have been done thereunder could not be set off in such action.
    The defendant pleaded the general issue and filed a notice of set-off, claiming one-half of the collections made by the plaintiff for work claimed to have been done under the alleged verbal agreement.
    Joseph L. Haas and Habry McCaskrin, for appellant.
    William McEniry, for appellee.

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

   Mr. Presiding Justice Niehaus

delivered the opinion of the court.


text:
    Laura Baker, Appellee, v. State’s Accident Insurance Company and American Bankers’ Insurance Company, Appellants.
    Gen. No. 6,279.

      Insurance—when insured confined in house within health insurance policy. An insured, under a health and accident insurance policy providing for payments during such time as the insured might be necessarily confined in the house, by reason of disease or illness which would wholly deprive her from pursuing her occupation, held entitled to recover though she went to and from her house to the office of her physician to receive treatment.
    Appeal from the County Court of Peoria county; the Hon. Chester M. Barnett, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    George J. Jochem, for appellants.
    K~tr,tc & Shurtleff, for appellee.
   Mr. Presiding Justice Niehaus

delivered the opinion of the court.

This is an action in assumpsit commenced by the appellee, Laura Baker, in the County Court of Peoria county against the appellants, the State’s Accident Insurance Company and the American Bankers’ Insurance Company. The suit is based upon a benefit claimed by the appellee under the terms of a certain health and- accident insurance policy issued to her by the State’s Accident Insurance Company, which was subsequently absorbed and taken over by the American Bankers’ Insurance Company.

The appellee claims an insurance in the sum of $15 per week for the first two weeks, and $25 per week for the next fifty weeks, during such period of time, if any, in which the insured might be necessarily confined in the house by reason of disease or illness, which, independently of all other causes, would wholly disable and prevent her from performing any and every duty pertaining to her occupation as a seamstress. In her amended declaration she avers that on July 1,1915,'in the City of Peoria, where she resided and pursued the occupation of seamstress, in some manner unknown to herself, she became afflicted with sore eyes, so much so that she immediately thereupon consulted an eye specialist for necessary treatment, and that from and after such 1st day of July, 1915, the appellee became and remained so severely afflicted and diseased by reason of such disability or illness that independently of all other causes she was thereby wholly disabled and prevented from performing any and every duty pertaining to her said occupation, namely, seamstress, and that she continuously so remained wholly disabled and prevented from performing any and every duty pertaining to her said occupation as seamstress on and from said 1st day of July, 1915, and to and including the 16th day of August, 1915, and that she was during all of the aforesaid period necessarily confined in the house, except that she was able to go and come to and from her home to the office of said eye specialist for treatment. But that she was not during all of the aforesaid period able to perform any duty whatever pertaining to her said occupation as a seamstress, and that she did not perform any of such duties pertaining thereto or any other duty whatsoever during said period of time.

The appellants filed a general demurrer to the declaration containing the averments above set forth and the court overruled the demurrer. Appellants elected to abide by the demurrer, whereupon the court rendered judgment against them for $147.85, and costs of suit, and the appellants prosecute this appeal to reverse the judgment.

It is contended by the appellants that under the averments in the declaration the appellee had no right to recover because it appeared from them that she was not necessarily confined in the house by the disease of her eyes, but was able to go, and did go, from her home to the office of her physician who was treating her for the disease with which she was afflicted, and it is insisted that under the terms of the policy under which appellee is seeking to recover it must not only appear that appellee was afflicted with a disease or illness which prevented her from performing any and every duty pertaining to her occupation, but that by reason of such illness or disease she was necessarily and constantly confined in the house.

The terms “necessarily confined in the house,” however, have been repeatedly interpreted by courts of review in different States, and it has been repeatedly held that the words quoted in an insurance policy of this kind should not be interpreted to mean that the person must remain constantly in the house; that the words should receive a reasonable construction with a view to the purpose for which they were intended in the insurance agreement. Thus it was held in Breil v. Claus Groth Plattdutschen Vereen, 84 Neb. 155, that within the meaning of an insurance contract for sick benefits it cannot be said that an assured is not confined constantly in the house during an illness characterized by recurring periods of severity, although at intervals he may occasionally step into his yard or make visits to his physician, or other short and unusual trips, the assured at all times being unable to resume the ordinary duties and pleasures of life. And in Hoffman v. Michigan Home & Hospital Ass’n, 128 Mich. 323, it was held that the benefit provided by a similar contract is not defeated by the fact that the insured went out by the direction of his physician for an occasional airing, and it was held in Mutual Benefit Ass’n v. Nancarrow, 18 Colo. App. 274, that the words “confined in the house” contained in the benefit certificate do not contemplate a constant restraint indoors, and the fact that the insured visited his physician’s office, using a car line, would not defeat his right of recovery. To the same effect are Thayer v. Standard Life & Accident Ins. Co., 68 N. H. 577; Jennings v. Brotherhood Accident Co., 44 Colo. 68; Scales v. Masonic Protective Ass’n, 70 N. H. 490, and Metropolitan Plate Glass & Casualty Co. v. Hawes’ Ex’x, 150 Ky. 52. While there are a few cases which apparently hold a contrary doctrine, some of which are cited hy appellants, the great weight of authority' sustains the view that the'fact that appellee went to and from the office of her physician for treatment during her confinement in the house hy her illness would not defeat her recovery under the terms of the policy.

We are of opinion, therefore, that the declaration stated a cause of action and that the court properly-overruled appellant’s demurrer and rendered judgment. The judgment should he affirmed.

Judgment affirmed.

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


author: Mr. Justice Carnes

text:
    William C. Siegert, Appellee, v. Public Service Company of Northern Illinois and City of Ottawa, Appellants.
    Gen. No. 6,148.
    (Not to he reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Edgab Eldredge, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action hy William G. Siegert, plaintiff, against Public Service Company of Northern Illinois, a corporañon, and the City of Ottawa, defendants, to recover for personal injuries. From a judgment for plaintiff, defendants appeal.
    The Illinois River bridge is 942 feet long, with a driveway 24 feet wide, and was on July 8,1914, the day in question, the only means of crossing the Illinois River in the City of Ottawa. There was a large amount of travel across the bridge, including interurban and street car traffic. There was laid along the east side of the wagon road of the bridge extending into the driveway, about 18 inches from the side of the bridge, an 8 inch gas pipe used by defendant Public Service Company, laid in sections joined by a flange or expansion joint projecting 2 inches, so that the diameter of the pipe and flange was about 12 inches. This pipe was elevated a few inches above the level of the floor of the bridge on a cement foundation, but extended beyond the base on which it rested. It was not covered or guarded in any way, and the flange or expansion joint was so constructed that a wheel scraping along the side of the pipe would catch on the flanges. Plaintiff was a gardener, acquainted with and accustomed to the use of this bridge. He drove onto it with a horse that was somewhat afraid of cars and met a street car. His horse shied to the east as the car passed him, and just then another car came up. The horse, becoming more frightened, veered to the east and started to run. The left wheel of the wagon struck against the gas pipe a few feet from a flange. The wheel slid along until it hit the projection of the flange. The wagon was thrown into the air by the force of the impact, and plaintiff thrown out and injured.
    The court instructed the jury, at the instance of defendants except as modified by the insertion of the clause in parentheses, as follows: ‘ ‘ That while it is the duty of a city to use reasonable care to keep its streets iü. a reasonably safe condition to drive upon, it has the right to devote the sides of the street to other useful public purposes. It may construct sidewalks of a higher grade and gutters of a lower grade than the driveway, place curbing on the line of the gutters, erect hydrants and authorize the erection of hitching posts, telephone, telegraph and electric light poles and the laying of water and gas pipes (provided that in so doing the streets remain in a reasonably safe condition for public use). It may thus to a reasonable extent and for a useful public purpose narrow the driveway and exclude teams and horses altogether from the sides of the streets.”
    Abstract of the Decision.
    1. Municipal corporations, § 1100

      —when instruction on right of city to authorize laying of pipes in strept correct. In an action against a gas company and a city for personal injuries resulting to the plaintiff from his wagon running into a gas pipe placed along the side of a bridge with the permission -of the city, an instruction to the effect that a city may authorize the laying of water and gas pipes in streets, provided that in so doing the streets remain in a reasonably safe condition for public use, held correct.
    2. Municipal corporations, § 1107*—when question whether street suitable for travel is for jury. In an action for personal injuries resulting from the plaintiff’s wagon striking a gas main placed at the side of the roadway over a bridge, evidence held to require the submission to the jury of the question whether the roadway was thereby rendered unsafe for public travel.
    3. Municipal corporations, § 1098*—when evidence insufficient to sustain finding that bridge unsafe for travel. In an action against a gas company and a city for personal injuries sustained as the result of the plaintiff’s wagon running against an 8-inch flanged gas main lying on the side of a bridge 24 feet wide, evidence held not to support a finding that the bridge was thereby rendered unsafe for public travel.

      Girard A. Ellingston and Rector C. Hitt, for appellants.
    Butters & Clark, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. William Kingsley et al., Appellants, v. David Andrews, Appellee.
    Gen. No. 6,235.
    1. Quo warranto, § 33

      —what rules govern pleadings. Pleadings in quo warranto cases are governed by the same rules that prevail in other civil actions.
    2. Quo warranto, § 45*—what defendant must allege. The defendant in a quo warranto proceeding must either disclaim or justify, and, if the latter, he must show a valid title to the office, the People not being bound to show anything.
    3. Quo warranto, § 56*—when judgment of ouster proper. Though the People, in a quo warranto proceeding, set out specific causes of disqualification of the defendant to hold thé office occupied by him, that is, alienage, still they need make no proof thereof, and unless the defendant shows valid title, a judgment of ouster should be entered against him.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed August 10, 1916.
    C. E. McNemar, for appellants; Sheen & Galbraith, of counsel.
    Cameron & Cameron, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

This is an appeal from a judgment for the respondent in a quo warranto proceeding tried by the court without a jury on an information filed by the State’s Attorney of Peoria county on relation of three citizens and legal voters of the Township of Kickapoo, in said county, charging that David Andrews, the appellee, was unlawfully holding the office of supervisor of said township. It was alleged in different counts of the information that appellee was an alien, born in the Kingdom of Great Britain and Ireland; that his father was an alien, bom in said kingdom and did not take out naturalization papers after coming to America; that appellee was not a legal voter of said township or of the State of Illinois, and was not a citizen of the United States. Appellee pleaded that his father came to this country about sixty-seven years ago and continuously remained in the United States from that time until his death, about the year 1867; that after he had lived and resided in this country the requisite number of years he was naturalized and thereby became a citizen of the United States; that at the time of the naturalization of his father appellee was a resident of the United States and under the age of twenty-one years and thereby became, under the law, a citizen of the United States, concluding his plea with a verification. The People filed a replication to this plea, denying that the father of appellee was naturalized or became a citizen of the United States, and concluded to the country.

On the trial it was stipulated, in substance, that the only question to be tried was whether appellee was at the time of his said election eligible to the said office; that if the court found he was eligible, the judgment should be not guilty, and if the court found otherwise, judgment of ouster should be entered. It was also stipulated that there was no record of naturalization of the father of respondent in any court in Peoria county, Illinois. The People introduced evidence tending to show that appellee was born in England, some of which the court held competent and some he held not competent, but taken together it was not sufficient proof that appellee at the time of his election was not a legal voter of said township. Appellee offered no evidence. He assumed the burden was on the People to establish the charge that he was an alien and not a legal voter of said township. The court adopted his view of the case and entered judgment accordingly. The only question presented here is whether the court erred in so doing.

Pleadings in quo warranto cases are governed by the same rules that prevail in other civil actions. (Bishop v. People, 200 Ill. 33, 36; Independent Medical College v. People, 182 Ill. 274; People v. Heidelberg Garden Co., 233 Ill. 290, 294.) The general rule is that the defendant must either disclaim or justify. If he justifies he must set out his title specially and show a valid title to the office. The People are not bound to show anything. He must exhibit authority for exercising the functions of the office or the People will be entitled to judgment of ouster. (Clark v. People, 15 Ill. 213, 217; Carrico v. People, 123 Ill. 198; Catlett v. People, 151 Ill. 16; Place v. People, 192 Ill. 160; People v. Keechler, 194 Ill. 235, 238; People v. Central Union Tel. Co., 232 Ill. 260, 271; People v. Baldridge, 267 Ill. 190, 195; People v. Garrett, 157 Ill. App. 377.) It follows, of course, that the respondent must prove his plea. It was said in People v. Baldridge, supra, on page 195: “The form of the issue in quo warranto between the State and the respondent is not like that in other civil proceedings, but the defendant is called on to show title by his plea, which presents an issue of fact, and the burden of proof is upon him to establish it.”

And in People v. Keechler, supra, that it was not sufficient that the plea denies or confesses and avoids the material allegations in the information. The plea “must be good, in and of itself, to show the right of the respondents to the offices which they are charged with usurping.” But People v. Central Union Tel. Co., supra, is relied on by appellee to support his position that the burden of proof in this case was on the People because while they might have alleged usurpation of the office in the most general terms they did not choose to do so but made specific charges of disqualification which appellee assumes places the burden of proof on the People. The court held in that case that the office of an information in the nature of a quo warranto is not to tender any issue of fact but simply to call upon the defendant in general terms to show by Avhat warrant or character the privilege claimed is held or exercised, but also said that it was the privilege of the People to make the information specific and set out particular acts as usurpation of authority, or set out special causes of forfeiture. We do not regard that case as holding that the People may in an information, by setting out the causes of disqualification, tender an issue of fact that the respondent may meet by a general denial, concluding to the country. Appellee did not adopt that theory in pleading, but, as we have before stated, concluded his plea with a verification. We are of the opinion that under the law and the pleadings in this case the burden was on appellee to show his title to the office, and as he introduced no evidence and the record contains no evidence supporting appellee’s plea, the court erred in rendering judgment in his favor.

Appellee relies also on the authority of decisions in election contests in this State holding where alienage is charged that the burden of proof is on the party charging it. The rule announced in these cases is not applicable in quo warranto proceedings which are governed by the rules announced in the cases before cited. The question of how much and what character of proof would have been required of appellee to make a prima facie case of citizenship is not before us. There is no' proof in the record that appellee had exercised the rights of a citizen and voter or that his father exercised such rights and privileges. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    W. L. McCloud, Appellee, v. W. H. Hogle and Frank A. Gilbreath, Appellants.
    Gen. No. 6,246.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Iroquois county; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the April term, 1916.
    Affirmed.
    Opinion filed August 10, 1916.
    Statement of the Case.
    Action for fraud and deceit by W. L. McCloud, plaintiff, against W. H. Hogle and Frank A. Gilbreath, defendants. From a judgment for plaintiff against him, W. H. Hogle appeals.
    The plaintiff was a dealer in automobiles and Hogle was a merchant. Gilbreath on and before May 7, 1910, owned one hundred and twenty acres of land in Issaquena county, Mississippi, subject to a first mortgage of about $250. On that date he gave a second mortgage on the land to one Sam Finney to secure an indebtedness said to have grown out of bucket shop transactions. There being default in payment of the mortgage, Finney foreclosed the equity of redemption in a proceeding in the Chancery Court of Issaquena county. The record of that court shows that on December 6, 1911, there was a finding: ‘ ‘ That publication has been duly made in the manner and form and for the time required by law,” and Gilbreath and his wife, the defendants in the suit, were defaulted and the bill taken as confessed against them. The next day a decree of sale was entered barring the defendants’ equity of redemption upon the making of the sale. The sale was made pursuant to the order in the decree to Sam Finney for $500, which was approved by the court July 17, 1912. More than a year afterwards, August, 1913, Hogle offered to trade plaintiff Gilbreath’s supposed equity in this land for an automobile valued at $1,650, stating positively that the title to the land was in Gil-breath subject only to the first mortgage. A bargain was made and Hogle signed a memorandum in writing in which he agreed to furnish a deed of conveyance from the owner of the land to plaintiff, and to clear the land of incumbrance and pay $650 in cash for the automobile. Plaintiff inquired about the value of the land and the amount due on the first mortgage, which he learned was $261.05. Hogle procured Gilbreath and wife to convey the land by warranty deed to plaintiff, subject only to the first mortgage, and gave plaintiff his check covering the $650 cash payment and the $261.05 necessary to pay and discharge the mortgage, and took the automobile. Plaintiff paid the mortgage and sent a release with his deed to Issaquena county for record and did not discover for several months afterwards that he had no title to the land. Hogle had traded Gil-breath an old automobile for his supposed equity of redemption, and said he had no knowledge of a second mortgage and that he procured the deed direct from Gilbreath and wife to McCloud to save a recording fee, and for no other purpose; that he supposed there was no other incumbrance on the land, though Gilbreath had before told him there was a judgment against him down there in Mississippi but it was for a gambling debt and was not good; that he did not tell plaintiff about the judgment because he did not consider it valid; that he always understood a gambling judgment was not good, and that Gilbreath had told him there was no service on him, and he took Gilbreath’s word that the judgment was invalid.
    Abstract of the Decision.
    1. Exchange of property, § 8

      —when evidence sufficient to show making of false statement as to title relied upon 6y purchaser. Where the defendant in an action for fraud and deceit, in the representation as to title to land, informed the plaintiff that certain land which he caused to be deeded to the plaintiff was unincumbered except as by a first mortgage, and on the trial admitted that the owner had told him that there was a judgment on record against him, in the State where the land was situated, for a gambling debt, which the defendant said he considered for that reason invalid, and there was other testimony to the effect that the defendant had been informed that there was a second mortgage on the land, evidence held to justify a finding that the defendant had made a material statement as to the title to the land which he knew was false, or had no good reason to believe was true, and to conclusively prove that the plaintiff believed the statement and acted on it.

      John P. Pallissard, a lawyer who was representing Gilbreath in the trial of this case, was called by plaintiff as a witness and testified that he prepared the deed from Gilbreath and wife to plaintiff at Hogle’s instance, but that at sometime prior to that transaction, Hogle had come to inquire about the land, and said Gilbreath had suggested that he do so. Pallissard at the time knew something about the title and knew about the Finney mortgage. He testified that he went into the title pretty thoroughly in his discussion with Hogle; that the Finney mortgage may not have been mentioned by name, but it was mentioned that there was a second mortgage. Hogle denied this conversation and denied that he was ever informed by anybody before the deed was made that there was a second mortgage on the land.
    Nelly B. Kessler and Edward P. Harney, for appellants.
    Frank Harry, for appellee; J. W. Kern and C. G. IIirschi, of counsel.

      See Illinois Notes Digest, Yols. 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 Carnes

delivered the opinion of the court.

2.. Eraud, § 18 —when action lies. Where one, not open to the charge of negligence in so doing, believes and acts upon a material statement of another, who either knows that such statement is false or has no good reason to believe it to be true, an action for fraud and deceit will lie.

3. Witnesses, § 27*—who may be witness. While it is unethical and bad practice for a lawyer to act as both attorney and witness in the same case, still the fact that he is acting as attorney does not, in itself, disqualify him from testifying.

4. Witnesses, § 165*—lohen attorney may testify as to conversations with client. An attorney may testify as to conversations with a client which occurred before the relation of attorney and client arose.

5. Evidence, § 240*—when copy of mortgage inadmissible. A copy of a mortgage on land in a foreign State held improperly admitted in evidence, where the certificate of the clerk of the County Court recited that he was ex officio recorder, but the certificate of the judge failed to so recite.

6. Evidence, § 245*—when certified transcript of court record admissible. A duly certified transcript of the record, of a court of general jurisdiction of a foreign State, of a suit in which a mortgage was foreclosed, reciting that due service was made by publication, held properly admitted in evidence and good as against collateral attack, though it did not show what the laws of such State were as to such service, nor that such steps were taken as would have made the service good in Illinois.

7. Exchange oe property, § 8*—what is measure of damages for fraud and deceit. In an action for fraud and deceit where, owing to defendants’ fraud, the plaintiff acquired no title to land for which he exchanged an automobile, the measure of damages was held to be, not the value of the land, but the value of the automobile.


text:
    Alice Eilers by Tillie Eilers, Appellee, v. Peoria Railway Company, Appellant.
    Gen. No. 6,250.
    1. Carriers, § 480

      —when contributory negligence of passenger after alighting from street car for jury. In an action for personal injuries sustained by a passenger on a street car who, after alighting, passed behind the car and was struck by another car coming from the opposite direction to that in which the car from which she had alighted was going, the question of contributory negligence on the part of the plaintiff held, on the evidence, properly submitted to the jury.
    2. Negligence, § 228*—when instructions on degree of care incorrect. In an action for personal injuries, instructions as to the degree of care required of a person who finds himself in a position of danger, held to improperly confine the jury’s attention to what the plaintiff did after she found herself on a street car track where she was injured.
    3. Carriers, § 482*—when instruction bad as invading province of jury. In an action for personal injuries sustained by a passenger being struck by a street car after alighting from another car going in the opposite direction, an instruction that a pedestrian has a right to expect that a street railway company will not run a car past a car discharging passengers and without giving warning and observing the ordinances of the city governing the operations of cars, held bad as deciding, as matter of law, a question of fact.
    4. Damages, § 186*—when evidence as to extent of personal injuries inadmissible. In an action for personal injuries, testimony of a physician that it was likely that there would be a gradual increasing of the plaintiff’s, irritability-—“Probably some abnormal mental condition later on will develop,” held improperly admitted as amounting to a mere probability that such effect would result.
    5. Damages, § 213*—when instruction on computation of damages for loss of future earnings erroneous. In an action for personal injuries, an instruction that, in estimating damages for loss of future earnings, the jury might consider the facts and circumstances in proof in connection with their knowledge, observation and experience in the ordinary affairs of life, held erroneous.
    '6. Carriers, § 482*—when instruction on duty of passenger to keep lookout for cars confusing. In an action for personal injuries resulting from the plaintiff’s being struck by a street car, after alighting from another car going in the opposite direction, an instruction to the effect that it was as much the duty of the plaintiff as of the motorman to keep a lookout, and that if the plaintiff did not keep such a lookout the defendant should be found not guilty, held confusing in not stating what kind of a lookout was required of the plaintiff.
    7. Street railroads, § 91

      —<what lookout must be maintained by pedestrian crossing tracks. A pedestrian crossing a street car track is required to keep such a lookout as ordinarily prudent people would do under similar circumstances.
    8. Trial, § 124*—when remarks of counsel ground for reversal. In an action for personal injuries against a street car company where the plaintiff’s attorney made remarks of a nature to influence the passions and prejudice of the jury, the judgment was reversed.
    9. Damages, § 179*—what admissible on question of loss of future earnings. In an action for personal injuries, proof of a contract of the plaintiff for future employment, held admissible on the question of loss of future earnings.
    Appeal from the Circuit Court of Peoria county; the Hon. Clyde E. Stone, Judge, presiding. Heard in this 'court at the April term, 1916.
    Reversed and remanded.
    Opinion filed August 10, 1916.
    Page, Hunter, Page & Dallwig, for appellant.
    John B. King and Leo GL Hana, for appellee.

      See Illinois Notes Digest, Vole. XI tó 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 Carnes

delivered the opinion of the court.

Alice Eilers, the appellee, a girl seventeen years old, was in the nighttime a passenger on a southbound street car of the appellant company- in the City of Peoria. As the car stopped, according to its custom, at the far side of an intersecting street, she alighted from the rear and after it started walked diagonally across the track on which she had been riding and an intervening space between that track and appellant’s northbound track, and as she stepped upon the northbound track was struck and injured by a northbound car. She, by her next friend, brought this action to recover for that injury alleging, as defendant’s negligence in different counts of her declaration, careless and negligent management of the defendant in running its cars.

A violation of a city ordinance requiring conductors and drivers of street railway cars to keep vigilant watch for all persons on the track, and at the first appearance of danger to such persons to stop the car in the shortest time and space possible. A violation of another ordinance requiring street cars to be provided with signal lights and equipped with a gong or other suitable device to be sounded or rung at least one hundred feet from where the track intersects any other street and kept sounding or ringing until such street is reached, and that the northbound car by which she was injured approached the street intersection in a careless manner. There were other appropriate allegations in the declaration showing the facts before stated and alleging due care and caution of the plaintiff in alighting from the car and attempting to cross the northbound track of the defendant, and alleging permanent physical injury resulting in pain and sickness and prevention from transacting her affairs and business which before that time had engaged her attention. She had a judgment on a verdict of $3,350, from which the company prosecutes this appeal.

Appellant first contends that this is a plain case of contributory negligence. The argument supported by the evidence is that appellee might have seen and avoided the danger. This is true in most grade crossing accidents. Usually it is easy to demonstrate that a greater degree of care would have saved the plaintiff from injury, still, the question is whether the degree of care exercised by the plaintiff was such as would ordinarily be used by prudent persons under similar circumstances, and unless there is but one reasonable conclusion the question must be left to the jury as one of fact, subject to the supervision and review of the trial judge and of this court. We are of the opinion that this record presents a case where the court did not err in refusing to direct a verdict for the defendant. As the judgment must be reversed for reasons hereinafter stated, we express no further opinion as to the weight of the evidence.

The jury were told in the first of appellee’s given instructions, if the plaintiff at the time in question was in the exercise of ordinary care for her own safety and the defendant was guilty of negligence as charged, etc., then the verdict should be for the plaintiff. And in appellee’s second given instruction that there is no rule of law which prescribes any particular act to be done or omitted by a person who finds herself in a place of danger that will constitute ordinary care; that the only requirement of law is that her conduct at such time should be consistent with what a person of ordinary prudence would do under like circumstances. The main inquiry on the question of plaintiff’s care was whether she was in the exercise of ordinary care in placing herself on the northbound track. Appellant argues that these instructions, taken together, ignore that question and confine the jury’s attention to what plaintiff did after she found herself in danger on the track. There is some force in this criticism, and the instructions in that respect should be more carefully guarded on another trial. Numerous authorities are cited by counsel on each side holding that character of instruction good and bad. Whether good or bad in any given case depends largely upon.the facts of that case, and whether it is likely from a consideration of the facts and the other instructions the jury’s attention might have been improperly confined to the conduct of the plaintiff after she found herself in danger, to the exclusion of the inquiry of the propriety of her placing herself in danger. Appellee’s fourth given instruction told the jury that a pedestrian has a right to expect that a street railway company will not run a car past a car discharging passengers without giving warning and observing the ordinances of the city governing the operation of cars, if any. This instruction was bad in deciding as matter of law a question of fact. (Louisville, N. A. & G. Ry. Co. v. Patchen, 167 Ill. 204; North Chicago St. R. Co. v. Irwin, 202 Ill. 345; Brun v. P. Nacey Co., 267 Ill. 360.) Appellee’s fifth given instruction was to the effect that if the jury found the defendant guilty, then in assessing damages they might take into consideration bodily disability occasioned by the accident and any impairment of the plaintiff’s mental faculties and general health proven which the jury believe from the evidence will affect or impair her future ability to attend to her ordinary affairs of life the same as if the injury complained of had not occurred. The evidence on which the theory of permanent impairment of mental condition rested was that of a physician that it was likely that there would be a gradual increasing of appellee’s irritability—“Probably some abnormal mental condition later on will develop.” Under the authority of Amann v. Chicago Consol. Traction Co., 243 Ill. 263, 267; Lauth v. Chicago Union Traction Co., 244 Ill. 251, and Lisenbury v. St. Louis & S. Ry. Co., 184 Ill. App. 395, this evidence of what was “likely and probable” (which was objected to) was improperly admitted and its effect emphasized by the giving of this instruction. Appellee’s seventh given instruction told the jury, among other things, if they believed plaintiff sustained damages as charged in the declaration, that in estimating damages for permanent injury or for pain and suffering: “It is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury may, themselves, make such estimate from the facts and circumstances in proof, and by considering them in connection with their knowledge, observations and experience in the ordinary affairs of life.” One item of damages charged in the declaration is plaintiff’s inability to attend to the ordinary affairs and business which prior to that time had engaged her attention. Appellee proved the rate of her earnings immediately before the time of the injury and a contract as to future earnings. Damages assessed on this item of loss of future earnings must have been based on evidence and not on the jury’s knowledge, observation and experience in the ordinary affairs of life; therefore this instruction was erroneous. (Elward v. Illinois Cent. Ry. Co., 184 Ill. App. 107.)

The court refused an instruction offered by appellant as follows: “You are further instructed that it was as much the duty of the plaintiff to keep a lookout for approaching street cars as it was the duty of the motorman of the street car testified about to keep a lookout for approaching persons, and if you believe from the evidence that the plaintiff failed to keep such a lookout and that such failure on the part of the plaintiff helped to bring about the injury testified about, then the plaintiff cannot recover and you should find the defendant not guilty.” Appellant argues that the first part of the instruction informing the jury as to the relative duties of the plaintiff and the defendant in keeping a lookout is good law, and cites authorities to support that.position. Assuming that to be so, we think the instruction bad in telling the jury if the plaintiff failed to keep such a lookout then she could not recover. It is not dear from that language what lookout the jury might presume was required as matter of law. The law required the plaintiff to keep such a lookout as ordinarily prudent people would do under similar circumstances. This instruction would not have aided them, and was properly refused on the ground that it might tend to confuse the jury if not on the ground that it was stating as matter of law what should be left to the jury as a question of fact.

Appellee’s counsel in his closing argument to the jury charged appellant’s counsel with stooping to rotten methods to put up a defense in the case. The court sustained an objection to that statement. He then referred to appellant as a “gigantic octopus,” that “You, the people of the City of Peoria, have permitted to wield its tentacles through your city streets,” and added, “The least consideration it could pay you in return is to operate its cars according to the rule of law, which would have safeguarded this young girl as well as you and all the rest of this community.” Again he said: “In determining the amount of damages to which this woman is entitled, and I ask you to consider well who are the parties. The defendant, our largest local corporation, operated, as it is,—counsel tried to tell you in his opening statement, purely in the interest of public welfare, with just probably now and then a credit, not to you and me, but to a select few who can afford to own its stock.” The court sustained an objection to this statement. He then appealed to the jury to return a verdict extending the same measure of consideration to the plaintiff that they would ask if she were their sister or daughter, or other loved one invoking judgment at the hands of a jury, and added: “You need have no fear that your fellow citizens in Peoria County will accuse you of any dereliction of duty because you say by that returned verdict in behalf of this plaintiff, which will preserve and keep her in a modérate degree of comfort as her pitiable condition will permit.” It is apparent that these suggestions were intended to inflame the passions and prejudices of the jury and direct their attention to considerations having no legal bearing on the questions submitted to them for decision. Cases are numerous where judgments have been reversed because of improper conduct and suggestions by counsel on the trial, and while as a rule the trial court should be left largely to judge of the influence of improper remarks and conduct and may obviate any evil effect therefrom by his rulings on objections to the same, still there are cases in which the mischief is done beyond remedy by any ruling of the court. (Wabash R. Co. v. Billings, 212 Ill. 37, 41.) The Appellate Court of the Third District in Illinois Cent. R. Co. v. Seitz, 111 Ill. App. 242, well said:

“There is enough natural and inherent prejudice in the minds of jurors against railroad and'other corporations without having it augmented by direct and improper appeals calculated to arouse the sympathy, passion or prejudice of jurors. A. lawyer who tries his case in a proper manner, observing the ethics of the profession, is at a great temporary disadvantage when trying a cause against counsel who resort to improper language to obtain a verdict. Verdicts thus obtained generally are and always should be short-lived. Trial courts should set them aside as often as they are obtained. It is the policy of this court to discourage such misconduct on the part of lawyers by reversing judgments obtained by them when it is manifest they are the result of unprofessional conduct. ’ ’

Great care is exercised in impaneling juries to obtain men free from prejudice that might bias their fair consideration of the facts upon which, as matter of law, their verdict should depend. If a juror on his voir dire were to admit that he had prejudices such as were sought here to arouse, he would not be permitted to sit in the case. The law is so careful in this respect that changes of venue are granted at much expense and inconvenience to parties and witnesses if necessary to avoid prejudice on the part of the jury against one of the litigants. The whole purpose of the law to obtain a trial by a fair and impartial jury is defeated if appeals to their passions and prejudices are to be permitted during the course of the trial. Reviewing-courts have always consistently condemned such conduct and often reverse judgments for no other reason. Among the many cases illustrating this principle are the following: Peoria, B. & C. Traction Co. v. Vance, 234 Ill. 36; Chicago Union Traction Co. v. Lauth, 216 Ill. 176; Appel v. Chicago City Ry. Co., 259 Ill. 561; McCoy v. Chicago & A. R. Co., 268 Ill. 244; Chicago Union Traction Co. v. Wirkus, 131 Ill. App. 485; Chicago Union Traction Co. v. Faurot, 136 Ill. App. 347; Parlin & Orendorff Co. v. Scott, 137 Ill. App. 454, and cases there cited; Swinosynski v. Kelly Coal Co., 146 Ill. App. 120; Upthegrove v. Chicago Great Western Ry. Co., 154 Ill. App. 460.

Appellee was permitted to prove a contract with her employer as to future wages in case of her contemplated continuing in his employment. This is urged as error by appellant, but we see no reason why not only the earnings of the plaintiff at the time of her injury but also the wages that she had contracted to receive in the future if she were not injured is not a proper subject of inquiry. The evidence is rather meagre as to this contract, and it is no doubt true if the supposed contract amounted to an offer that was not accepted or something short of a substantial contract for employment and increased wages it would not be competent evidence. For the errors before indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    David M. Swain and Verne Swain, Appellees, v. Herman F. Mehl, Appellant.
    Gen. No. 6,274.
    1. Justices of the peace, § 97

      —when statements of counsel substitutes for pleadings. Where, on the trial of a case in a justice’s court, counsel for the plaintiffs stated to the jury that the plaintiffs had to prove that the act of the defendant, upon which the action was based, was negligently and wilfully done, and the defendant’s counsel said that the defendant was not guilty in manner and form charged, and the court said that he had had the reporter take down the opening statements, and they took the place of the pleadings, held that the plaintiffs, in order to recover, had to prove wilfulness, and that the defendant was only required to defend that charge.
    2. Damages, § 190*—when evidence insufficient to sustain verdict. Where, in an action for the negligent destruction of piling, there was no evidence what such piling was worth, and no evidence that new piling, put in by the plaintiffs in place of the old, was of the same or similar character as the old, and no evidence what such new piling was reasonably worth, held that a verdict, based on the amount of the bill paid by the plaintiffs for such new piling, could not be sustained.
    3. Damages, § 50*—what not measure for destruction of property. Where property has been destroyed by the defendant and replaced by the plaintiffs, the rule as to the measure of damages where property is injured by the defendant and repaired by the plaintiffs does not apply..
    4. Instructions, § 135*—when necessary that request for be made. Where a party requests no instructions as to the measure of damages, he cannot complain of the failure of the court to give any.
    5. Torts, § 12*—when person liable for destruction of piles in navigable stream. Though piles are maintained in a navigable stream in violation of law, it does not follow that one wrongfully destroying them incurs no liability to the one who drove and maintained them.
    6. Appeal and error, § 1035*—when errors not reviewed. Rulings of the trial court, on which no errors have been assigned on appeal, are not before the reviewing court.

      Appeal from the Circuit Court of Marshall county; the Hon. Theodore N. Gbeen, Judge, presiding. Heard in this court at the April term, 1916.
    Reversed and remanded.
    Opinion filed August 10, 1916.
    B. W. Wright and Quinn & Quinn, for appellant; Frank J. Quinn and John E. Dougherty, of counsel.
    Barnes & Magoon, for appellees; Wallace J. Black, of counsel.

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

   Mr. Justice Carnes

delivered the opinion of the court.

David M. Swain and Verne Swain, the appellees, about 1891, drove a cluster of seven or. eight wooden piles in the Illinois River (a navigable stream) at Lacón, Illinois, for an aid in landing boats. The original piling stayed there seven or eight years. The life of a pile is said to be about ten years. Appellees replaced piles as they became useless from time to time from 1891 to 1914. They were used by appellees and other boatmen and were apparently an aid to navigation. In 1914 appellant’s boat collided with and broke them down. Appellees caused other piling to be driven in their place, whether similar or different does not appear, and paid for the material and labor a bill of $92.40. They brought this suit before a justice of the peace to recover said amount, and judgment for the defendant was there rendered. On appeal in the Circuit Court evidence was introduced by the plaintiffs only. The court denied the defendant’s motion for a directed verdict and the jury rendered a verdict for said sum of $92.40, on which judgment was entered, from which this appeal is taken.

Appellees’ counsel in his opening statement to the jury said: “We have to prove that it was negligently done and that it was wilfully done.” The defendant’s counsel said he, the defendant, was not guilty in manner and form complained of against him. The court said: “I have had the reporter take down, the opening statements, and it takes place of the pleadings.” While this did not constitute a statement of the plaintiffs’ demand under section 19 of our Justices Act (J. & A. ft 6915), and while opening statements of counsel are not ordinarily to he taken in the place of pleadings, still we think under the facts above stated we should assume that the plaintiffs undertook to prove a wilful destruction of the piling, and for the purposes of the trial the defendant was only required to defend that charge. There is no evidence to support a finding of wilful conduct. Appellees in their statement here of what they have proved only claim negligence in the operation of appellant’s boat. Wilfulness is something quite different from negligence.

There is no evidence showing what the piling that was destroyed was worth, and, as we have said before, no evidence that the new piling was of the same or similar character. There is no evidence that it was reasonably worth $92.40 to procure and place this- new piling. Even if the measure of damages was the cost of replacement, for the reasons above given the evidence would not support the verdict based on the amount of the bill paid. Appellees cite the decision of this court in Crossen v. Chicago & J. Elec. Ry. Co., 158 Ill. App. 42, holding: “When personal property has been injured by the negligence of another and can be repaired, the proper measure of damages is the cost of the repairs and the value of the loss of the use of it while it is being repaired.” That rule was announced on the authority of FitzSimons & Connell Co. v. Braum, 199 Ill. 390, and is the law. But the court added: “If the property could.not he repaired, then the measure would be the difference between the market value of the property before the injury and the value of the wreckage.” In the"present case the property was not repaired, it was replaced, and therefore was not within the rule announced in the above cited cases as to repairing damaged property. If it was, the evidence that appellees had paid a certain bill without any evidence whatever to show the character of the work or the resonableness of the bill, or whether it was a usual and customary charge, is hardly sufficient to support a verdict for the amount of the bill. The only Illinois case we know of indicating that the amount paid might be taken as a basis of recovery is Travis v. Pierson, 43 Ill. App. 579. We noticed that holding in Chicago Great Western R. Co. v. American McKenna Process Co., 200 Ill. App. 166, and expressed a doubt whether the rule could be taken as one of general application. For the reasons above indicated the judgment must be reversed.

For the purposes of another trial we should say that appellant urges here that it was error to submit the case to the jury with no instructions as to the measure of damages, and cites a decision of this court in Comstock v. Price, 103 Ill. App. 19, holding that instructions which do not state the rules of law upon which 'plaintiffs’ damages are to be assessed but leave the jury to judge what were the proper elements of damage and open before them the field of speculation and conjecture are erroneous. ■ That was said with reference to an instruction as to the measure of damages that did not correctly inform the jury on what basis they should act. Nothing in that case affords any ground for a claim that the court should, of his own motion, have instructed the jury as to the measure of damages. The authorities are too numerous in this State to require citation that the trial court is under no duty, of his own motion, to instruct the jury as to any matter of law involved in the'case. In the present case there was no instruction given for the plaintiffs except as to the form of verdict. The defendant offered no instruction on the measure of damages, therefore there was no error in this respect.

There is a Federal statute referred to in Cobb v. Lincoln Park Com’rs, 202 Ill. 427, 437, which may be found in Federal Annotated Statutes, vol. 6, sec. 10, p. 813 (Eivers, Harbors and Canals), making it a penal offense to build any pier in any navigable river or other water of the United States outside of established harbor lines; or where no harbor lines have been established except on plans recommended by the chief of engineers and authorized by the secretary of war. The record does not affirmatively show that the new piers were driven in violation of that statute. If they were, it hardly seems possible a recovery could be permitted for an amount expended in doing an illegal act. If the piling "broken were maintained there in violation of this statute, we do not presume that that of itself would exonerate a defendant charged with destruction of property. While it is true, as held in Marcy v. Taylor, 19 Ill. 634, that a person may remove a fence erected across a highway without being guilty of a trespass, it does not follow that no liability was incurred by appellant if he wrongfully destroyed the piers in question, even though they were maintained there in violation of law. (Bayley v. Nichols, 263 Ill. 116.)

Appellees say that the court erred in not permitting proof of a similar act by appellant at another time and place, and argue that it was competent as tending to show wilfulness. No cross error is assigned, therefore that question is not before us. The judgment is reversed and the cause remanded.

Reversed and remanded.