text:
    John S. Barnes, Appellee, v. Danville Street Railway and Light Company, Appellant.
    1. Personal injuries—when doctrine res ipsa loquitur applies. Where an injury occurs to a person who is a passenger in the exercise of ordinary care upon the car of a common carrier by some defect in the machinery wholly under the control of the carrier, a prima facie case of negligence on the part of the carrier is established and the burden of proof is upon it to show that the accident was without its fault.
    2. Passenger and carrier—what not lack of ordinary care by former. The action of a passenger in not assisting to move a car, held, under the facts of this case, not to show an absence of ordinary care.
    3. Passenger and carrier—what not essential to establish relation of. It is not necessary to prove that one claiming to be a passenger has in fact paid his car fare in order tb constitute the relation of passenger and carrier; such a contract may be implied from slight circumstances and it need not actually be consummated by the payment of fare.
    4. Pleading—what admitted by plea of general issue. The plea of the general issue by a defendant traction company sued for personal injuries, admits the operation of the line in question.
    5. Damages—what competent to show value of services. In an action for personal injuries where damages resulting from loss of earnings is claimed, a question as follows, held proper: “What were your services just prior to this time fairly and reasonably worth?”
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    H. M. Steely and Louis Clements, for appellant.
    Curtis G. Redden and S. M. Clark, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

John S. Barnes brought suit in the Circuit Court of Vermilion county against the Danville Street Railway and Light Company to recover damages alleged to have been sustained by him by reason of the negligent manner in which the servants of the railway company managed one of its street -cars. There was a verdict in favor of Barnes in the sum of $3,000, upon which the court rendered judgment. The company appealed.

The facts are in substance as follows: On October 3, 1906, Barnes got upon a street car of appellant near the courthouse on Vermilion street in Danville to go to his home, about a mile north from, the point .where he entered the car. As the car approached the tracks of the C., C., C. & St. L. Railway Company, which it had to cross on the way, it stopped in the usual manner for the conductor to go ahead to ascertain if he had a clear track. The conductor found the way clear and signaled the motorman to come ahead, whereupon the motorman applied the power to proceed across the tracks but just as his car got upon the railroad crossing the power failed and the car came to a stop. A locomotive was standing upon the railroad tracks near by waiting for a signal to cross the street and street car tracks. When the motorman found his power was cut off: and that his car was upon a track upon which a locomotive was likely to pass, he left his car with appellee and another passenger upon it without throwing his controller fully around so as to completely shut off the current if any there should be on the trolley wire, and called upon the passengers to aid in shoving the car back toward the south end off the railway tracks. Appellee, who was somewhat deaf, and who claims he did not hear the request of the motorman,' and one other passenger remained upon the car while the motorman and others pushed the car far enough south to free it from the railway crossing. Just at that time the locomotive, which had a clear track, started westward slowly across the street and appellant’s track, when power was returned to the trolley wire. The controller not having been fully shut off and there being no one on the car in charge of the controller the car shot forward and a collision took place which resulted in an injury to appellee for which he seeks to recover.

Appellant first contends that upon the facts it is not guilty of negligence; that under the circumstances and in view of the excitement shown to exist the appellant should not be held responsible because the motorman failed wholly to throw off his controller. In Union Traction Co. v. Newmiller, 215 Ill. 383, the court say: “Where an injury occurs to a person who is a passenger in the exercise of ordinary care upon the car of a common carrier by some defect in the machinery wholly under the control of the carrier, a prima facie case of negligence on the part of the carrier is established and the burden of proof is upon it to show that the accident was without its fault;” and the maxim “res ipsa loquitur” was held to apply.

In the case' before us the controller was under the exclusive care of the motorman, whose duty it was to see that it was wholly disconnected if he purposely or voluntarily left it for any purpose, and he was not released from that duty by reason of the fact that the surroundings were such that great care was essential to avoid danger. The maxim res ipsa loquitur applies and appellant’s contention upon this feature of the case is without merit.

Appellant next insists that appellee was not in the exercise of due care and caution for his own safety in remaining upon the car after nearly all the other passengers had left the car and after the conductor and motorman had requested help to move or push the car from its dangerous or exposed position.

Whether or not appellee was in the exercise of ordinary care was a question of fact for the jury. C. & A. R. R. Co. v. Harrington, 192 Ill. 9. We find nothing in this record to show that appellee was in any way guilty of a want of due care. He was where he had a right to he as a passenger. He could assist or not as he pleased in helping to move the car, and he had a right to presume that the motorman who had left his controller had fully cut it off from its connection with the trolley before he left it. The jury by their verdict have found that appellee was in the exercise of due care and their finding in this respect is in accord with the evidence.

Appellant next contends that there is no evidence in the record to show that the appellant company operated the line of street railway in question or that Barnes paid his fare as a passenger upon the car involved. Appellant filed the plea of not guilty only, and it was therefore unnecessary for appellee to offer testimony to the effect that at the time of the injury appellant was operating the street car line mentioned in the declaration. Such a matter was impliedly conceded in the absence of a special plea denying it. McNulta, Receiver of Wabash R. R. Co., v. Lockridge, 137 Ill. 270.

Nor was it necessary to prove that appellee had in fact paid his car fare in order to constitute the relation of carrier and passenger. Such a contract may be implied from slight circumstances and it need not be actually consummated by the payment of fare. West Chicago Street R. R. Co. v. Manning, 170 Ill. 421; Fring v. Schroyer, 18 Ill. 416.

Complaint is next made by appellant that there was error in the ruling of the trial court in the admission of evidence upon the part of appellee. The allegation in the declaration in respect to damages in addition to the claim for the physical injuries, pain, bodily suffering and medical care was in the following words: "and plaintiff was hindered and prevented from transacting his ordinary business and affairs.” Upon the trial his attorney asked appellee this question: “What was your services, just prior to this time, fairly and reasonably worth?” To which objection was made by appellant and exception saved to the action of the court in overruling the objection. Appellee answered by saying that his services were worth $130 per month and that he had lost about ten weeks time, etc.

Appellant contends that this ruling of the court was error upon the ground that the damages sought to be described by the witness were special damages and could not be recovered under the allegation in the declaration above quoted and relies largely upon the case of Wabash Western Railway Co. v. Friedman, 146 Ill. 583, in support of that claim. In that case the trial court permitted the plaintiff, over objection, to prove in substance that he had a contract of employment under which he was to receive $3,000 per year. On appeal the Supreme Court held that in the absence of an allegation in the declaration that plaintiff had a special contract or engagement, such evidence was incompetent. This case does not seem to us to be decisive of the point now under consideration. The question here complained of was not what special contract or engagement appellee had which he could not keep because of his injuries but what his services were reasonably and fairly worth at the time of the injury. This question did not call for a statement of loss of profits or earnings upon any particular engagement.

In North Chicago Street R. R. Co. v. Brown, 178 Ill. 191, the rule upon this subject is stated to be as follows: “The rule dedueible from the cases in this state is that in order to recover compensation for inability to work at the plaintiff’s ordinary and usual employment or business, all that is necessary in the declaration is the general averment of such inability, caused by the injury, and consequent loss and damage, and that proof of his particular employment or business and of his ordinary wages or earnings therein, is admissible in evidence under such general averment, but that when it is sought to recover loss of profits or earnings that depend upon the performance of a special contract or engagement then these special and particular damages and the facts on which they were' based must be set out in the declaration.” This case was cited with approval by the court in Ill. Steel Co. v. Ryska, 200 Ill. 285, where it was held not to be error to allow appellee in that case to testify as to what wages he was receiving at the time of his injury without an allegation of special damages in the declaration. The question was not subject to the objection specifically urged by appellant.

Appellant further contends that there was error in the giving and refusing of instructions by the trial court, but' a review of the instructions given satisfies us that the jury were fairly and fully instructed upon every material feature of the case, and that the instructions tendered by appellant which the court refused to give were properly refused as either stating matters already given to the jury in other instructions or as being misleading and argumentative.

Other errors have been assigned which we do not deem of sufficient merit to warrant the extending of this opinion, especially in view of the fact that the liability of appellant seems to have been fairly established by the evidence and in view of the further fact that appellee’s injuries were of such a character that the damages awarded were not excessive.

We find no prejudicial error in this record and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Ramsay

license: Public Domain

text:
    Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant, v. Sarah L. Henry, Administratrix, Appellee.
    1. Contributory negligence—when question of law. Unless the negligence of the plaintiff is proven by such conclusive evidence that there can be no difference of opinion as to its existence upon a mere statement of facts, then such question of contributory negligence becomes one of fact which must be submitted to the jury for determination.
    2. Contributory negligence—effect of failure to look and listen. A failure by one about to cross a railroad track to look and listen, is not negligence per se. The question as to whether the failure to look and listen under all the circumstances constitutes contributory negligence, is one of fact to be determined by the jury.
    3. Instructions-—when as to weighing of evidence properly refused. An instruction is properly refused which in effect is an invitation to the jury not to attempt to weigh the evidence.
    4. Instructions—propriety of refusal where only abstract propositions of law are stated. It is not error for the court to refuse instructions which merely contain abstract propositions of law.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Coles county; the Hon. Morton W. Thompson, Judge, presiding.
    Heard in this court at the May term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Hamlin & Gillespie, for appellant; L. J. Hackney and H. A. Neal, of counsel.
    C. C. Lee and Edward C. and James W. Craig, Jr., for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee, as administratrix of the estate of Thomas N. Henry, deceased, brought suit in the Circuit Court of Coles county against appellant to recover damages for the death of said Thomas N. Henry, alleged to. have been caused by the negligence of appellant’s servants. There was a verdict in favor of appellee in the sum of $1,999, upon which the court rendered a judgment, from which this appeal has been prosecuted.

Thomas N. Henry was driving a single horse north on Sixth street, in the city of Charleston, Illinois, on the thirteenth day of June, 1906, and while endeavoring to cross the tracks of appellant was struck by one of its passenger trains and so seriously injured that he died in a few hours thereafter. The negligence charged against appellant was that it did not either ring a bell or blow a whistle as required by law at public crossings; that it had failed and continually neglected to keep a flagman at the said crossing as required by an ordinance of the city of Charleston, and that the train in question, at the time of the injury, was being run at a speed greatly in excess of ten miles per hour in violation of an ordinance of said city of Charleston, which limited the speed of passenger trains within the city limits to ten miles per hour.

Appellant contends that deceased was not in the exercise of due care for his own safety at the time of the injury and that the evidence upon that score was such that the case should have been taken from the jury upon appellant’s motion.

It is not disputed that in the year 1902, there was passed in due form by the city council of the city of Charleston, an ordinance which required of appellant the appointment and keeping of a flagman at the crossing in question and that at the time of such injury there was in force in said city an ordinance which prohibited the running of any passenger train within the corporate limits of said city at a speed greater than ten miles per hour. Nor is it- denied that at the time of the accident appellant was guilty of a violation of both these -ordinances. Appellant claims, however, that notwithstanding its failure to observe the regulations prescribed by the ordinances of the city, deceased was guilty of contributory negligence as a matter of law and argue that if he had used proper precaution to guard against such injury he would have remained uninjured. The rule is well established in our state that unless the negligence of the plaintiff is proven by such conclusive evidence that there can be no difference of opinion as to its existence upon the mere statement of facts, then such question' of contributory negligence becomes one of fact which must be submitted to a jury for determination. L. S. & M. S. Ry. Co. v. Ouska, 151 Ill. 232; C., C., C. & St. L. Ry. Co. v. Keenan, 190 Ill. 217.

Under the rule announced in the cases cited we think the question of contributory negligence upon the part of deceased was properly submitted to the jury as one of fact. It may be conceded that some of the evidence tends to show that deceased might have avoided the injury if he had stopped to look or listen to discover the approach of the train. This negligence or failure upon the part of deceased was, however, mere evidence tending to show contributory negligence, but was not conclusive upon that subject. C. & A. R. R. Co. v. Lewandowski, 190 Ill. 301; C. & A. R. R. Co. v. Pearson, 184 Ill. 386; T. H. & I. R. R. Co., v. Voelker, 129 Ill. 540.

In the last case cited the court say: “It is doubtless a rule of law that a person approaching a railway crossing is bound, in -so doing, to exercise such care, caution and circumspection to forsee danger and avoid injury as. ordinary prudence would require, having in view all the known dangers of the situation, but precisely what such requirements would be must manifestly differ with the ever-varying circumstances under which such approach may be made.”

In the case at bar the evidence shows that the train which struck deceased was going at a rate of speed estimated by different witnesses, at from eighteen to thirty-five miles per hour; that deceased was closely following a Mr. Fleming, who with a team was immediately preceding him across the railway track, at the time of the accident, while there is also evidence tending strongly to show that no bell was rung or whistle blown for the crossing in question. Upon a consideration of all the facts and circumstances surrounding deceased at the time of the injury, we are constrained to hold that the jury were not unwarranted in arriving at the verdict they returned.

Appellant assigns as error the action of the court in refusing to give its instruction number one, which stated that the burden was upon the plaintiff to show due care upon the part of deceased by a preponderance of the evidence and that if the evidence was equally balanced or if it was so unsatisfactory that the jury were unable to say upon which side of the question the preponderance of the evidence was, .the issue would not be considered proven. The court by its second instruction, given for appellee told the jury that preponderance of the evidence meant a greater weight of the evidence and that to entitle plaintiff to recover she must prove her case by the greater weight of the evidence, and by its instructions given for appellant told the jury that by the term preponderance was meant more or better evidence and that the facts upon which the plaintiff relied for a recovery must be proved by more or better evidence than that tending to prove the contrary.

We do not think that there was any reversible error in the refusal to give appellant’s first instruction offered relating to the force of equally balanced evidence, in view of the fact that other instructions were given requiring plaintiff to prove her ease by a preponderance of the evidence. Fidelity & Casualty Co. v. Oehne, 94 Ill. App. 121.

Furthermore, such first instruction offered by appellant, in telling the jury that if the evidence was so unsatisfactory that they could not determine upon which side the preponderance was, on the question of due care, without telling them that it was their duty to weigh the evidence, was an invitation to the jury not to attempt to weigh it at all. It was the duty of the jury to weigh the evidence, whether they wanted to or not, and determine, when weig’hed, whether it preponderated in favor of plaintiff, or whether it was equally balanced or preponderated in favor of defendant.

Appellant next assigns as error the action of the court in refusing its sixth, seventh, eighth and ninth instructions offered. Bach of these instructions stated an abstract proposition of law merely. It is not error to refuse to give such instructions. Chicago City Railway Co. v. Anderson, 193 Ill., 9.

There is no reversible error in this record and the judgment is affirmed.

Affirmed.


text:
    Olaf Olson, Appellee, v. Kelly Coal Company, Appellant.
    1. Appeals and errors—one good count sufficient to sustain judgment. The action of the court in refusing to withdraw particular counts from the jury is not error, even though such counts are insufficient to sustain a judgment. A judgment will he sustained if there is one good count to support it.
    2. Mines and Miners Act—section 19 construed. The words “all conditions” contained in section 18 of the Mines and Miners Act do not refer merely to such dangerous conditions as the report of the mine examiner may show to be such.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Buckingham & Troup, for appellants
    W. T. Gunn and S. M. Clark, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Olaf Olson brought suit in the Circuit Court of Vermilion county against the Kelly Coal Company to recover damages for an injury alleged to have been sustained by him through the negligence of the company in allowing Olson to enter the company’s mine to work ■therein, but under the direction of the mine manager, while the conditions therein were unsafe. There was. a verdict in favor of Olson in the sum of $3,000, upon which the court rendered judgment. This appeal followed.

The case was tried upon three additional counts, all original counts having been dismissed. The three additional counts are, for convenience, designated counts A, B, and C.

Count “A” is based upon an alleged breach of duty upon the part of appellant, as fixed by section 18 of chapter 93 of the Revised Statutes, which provides that “No one shall be allowed * * * to enter the mine to work therein, except under the direction of the mine manager, until all conditions shall have been made safe.”

Count “B” was a common law count and alleged that appellant furnished appellee, who was a mule driver in the mine, a dangerous, balky and unsafe mule to drive, knowing the same to be such and that such unsafe mule was the cause of appellee’s injuries.

Count “C” was also a common law count and alleged that appellant had not furnished appellee a reasonably safe place in which to work and that appellant knew of such unsafe condition and that appellee was injured by reason of such dangerous condition, etc.

Appellant first contends that it was error upon the part of the trial court not to withdraw counts “B” and “C” from the consideration of the jury for the reason that as the liability against appellant'in said counts “B” and “C” was alleged upon common law grounds alone, no recovery could be had on either of those counts without an affirmative showing that appellant knew of the conditions alleged to be dangerous, prior to and at the time of the injury to appellee. We are aware that there is eminent authority (Wilmington Mining Co. v. Fulton, 205 U. S. 60) supporting appellant’s views upon this contention, but the rule seems to be well settled in our state that even if this be error, as contended by appellant, it would not be a reversible one, if one good count remained in the declaration upon which a judgment could be sustained. In I. C. R. R. Co. v. Weiland, 179 Ill. 609, it was held that the refusal of the trial court to instruct the jury to disregard counts because there was no sufficient evidence to sustain a judgment thereon was not such an error as would operate to reverse a judgment when there was one or more counts, other than the ones complained of, upon which judgment could be sustained. The same doctrine was held in Consolidated Coal Co. v. Scheiber, 167 Ill. 539, and in C. W. & V. Coal Co. v. Moran, 110 Ill. App, 664.

In the case at bar the evidence tends to show that appellee was employed in appellant’s mine as a mule driver; that in the discharge of his duties appellee drove á mule hitched to cars which ran on a track provided for that'purpose in the entry of the mine; that the entry was about eight feet wide and the track within about one foot of the wall on what is called the rib side, which left a space on the other side of the track of between three and four feet, outside of the track, known as the “gob” side; that it was the custom in that mine to use only collars, hames and traces on the mules in hitching them to the cars, or tail chains, and to drive the mules without lines; that the driver would stand with one foot on the bumper of the car and the other one on the chain; that in going-down a decline the car was held back by the driver placing one hand on the car and the other on the mule and bracing himself to keep the car back from the mule.

The evidence further tends to show that at the time of the accident' there had accumulated in the entry where appellee was injured on the “gob” side of the track, quite an amount of refuse, consisting of timber, ties, dirt, coal and other material that had fallen from the roof of the mine or rolled off the car, which ‘ gob, ’ ’ as it is called, was allowed to accumulate to a height of from eighteen inches to three feet and remain so close to the track that it would rub the coal cars as they passed; that at the time of the injury appellee was in the position indicated, driving down a slight decline, with a trip of cars, when one of the cars caught on the “gob” that had been so allowed to accumulate close to the track, which caused the mule to make a sharp pull or jerk to release the car; that when the car was released from the gob it ran upon the mule and appellee was crowded off the car on the rib side and caught between the car and the rib side of the entry, in a space only six or eight inches from car to rib, where he suffered the injury complained of.

The evidence further shows that the mine examiner had examined the mine the night before appellee’s injury, had passed along this entry and did not find or ■consider, or report, the place dangerous or unsafe.

Appellant seeks to -excuse itself from liability upon the ground that only those conditions are contemplated by said section 18, hereinbefore quoted, which have been found to be dangerous by the mine examiner and by him reported as such to the mine manager. In other words, while the statute expressly provides that no one shall be allowed to enter a mine to work therein until all conditions have been made safe, unless he does so under the direction of the mine manager, yet the words “all conditions” mean only such dangerous conditions as the report of the mine examiner may show to be such. This, in our judgment, is not a correct interpretation of the statute. The act as adopted was enacted for the purpose of providing for the health and safety of persons employed in mines, and to permit a person to enter a mine where there are dangers obvious and as apparent as the one in question would seem to have been, is clearly contrary to the spirit of the statute, although the mine examiner may have failed to report them as such. If appellant’s contention upon this feature of the case be correct then an operator or owner of a mine would not be liable for an injury resulting from a dangerous condition in the mine, of which he had actual or personal knowledge, unless the mine examiner had previously reported to him that such dangerous condition did in fact exist.

There was evidence tending strongly to show that the “gob” in the entry at the place where appellee was injured was an obvious danger or menace to those in charge of passing cars; that it had existed for a considerable time prior to the day of the accident and was one which appellant should have known of and removed prior to the injury to appellee. It was a condition which said section 18 peremptorily required should have been remedied before appellee was permitted to enter the mine to work there and the examiner’s failure to so report it was no excuse for appellant’s failure to make it safe.

Appellant next contends that the verdict is not supported by the evidence, but a review of the testimony as abstracted satisfies us that the jury were not unwarranted in finding that the condition complained of by appellee was unsafe and dangerous and was the cause of the injury to appellee.

There is no reversible error in this record and the judgment is affirmed.

'Affirmed.


text:
    Martha E. Worthy v. Susan C. Day et al. Susan C. Day, Appellee, v. Charles S. Babcock, Appellant.

      Injunctions—venue of action to restrain collection of judgment at law. Where the injunction prayed to restrain the collection of a judgment at law is incidental to the main relief sought,, the action need not he instituted in the county wherein such judgment at law was rendered.
    Bill in equity. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    John J. Rea, for appellant.
    William E. O’Neill, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Martha E. Worthy filed her bill in equity in the Circuit Court of Champaign county against Susan C. Day et al. to foreclose a trust deed made by said Day on October 9, 1903, to Charles S. Babcock upon property in the city of Urbana, Illinois, to secure five promissory notes of $1,000 each, due in three years from their date with interest at six per cent, payable semiannually. In said bill it was alleged that said notes and trust deed had been assigned by Babcock to Worthy and that Babcock had also assigned to Worthy a claim for $4,000 for moneys expended in redeeming the property involved from judgments, tax sales, and other liens, and that there was then due from Day to Worthy upon said two claims with interest unpaid approximately $9,500.

To such bill -Susan C. Day filed an answer denying the main allegations made in said bill and demanding strict proof of the same. Upon the issue so closed the cause was referred to the master in chancery of said court, which cause is still pending before such master undisposed of.

On September 2,1907, while matters rested as above stated, Susan C. Day filed her cross-bill against Worthy, the complainant in the original bill, and said Charles S. Babcock, appellant herein. In said cross-bill it was alleged in substance that on the ninth day of October, 1903, the date on which the notes and trust deed mentioned in the original bill were executed, Charles S. Babcock was acting as attorney for Day; that prior to that date one Boyal Wright had been her attorney, and that she, acting upon the advice of Wright, had transferred to him by deed the property mentioned in the original bill; that Wright, without her consent, had sold a part of the property conveyed to him and had declined to re-eonvey the remainder to her upon request made, and that thereupon Day employed Babcock to secure for her a re-conveyance of her property from Wright; that being unable to induce Wright to do so Babcock advised her to execute the trust deed sought to be foreclosed in the original bill to prevent Wright from selling or disposing of the property; that there were several trust deeds and judgments which had become liens upon Day’s property which she was unable to pay, and that Babcock said to Day that when said liens became due he would negotiate a loan on said notes and mortgage she was to so execute to Babcock and turn the money over to Day, with which she should pay off said various liens; that said Babcock and said Worthy were now claiming that said trust deed and notes of $5,000 were given to Babcock for his fees and advances due to him on account of certain litigation, and that Babcock and Worthy had some agreement, by force of which Worthy was seeking to collect for Day money alleged to be his due for services, a sum excessive, unjust and unfair to Day, and also that Worthy was attempting to recover for Babcock moneys expended by him in connection with such litigation, a sum also unjust and unfair to Day; that Day never received any part of the $4,000 claimed to have been loaned by Worthy, except a part thereof which may have been expended in redeeming the premises; that Worthy received about $450 for making such loan as commission, with which Day should not be charged; that on the third day of July, 1907, Babcock brought suit in the Municipal Court of Chicago to recover the sum of $10,000, which suit was still pending, upon a statement of account covering precisely the same charges and items of expense that Worthy is attempting to recover by her original bill of complaint; that under such foreclosure proceedings said Babcock and Worthy are attempting to collect unjust and illegal sums for services and advancements; that such alleged unjust claim of Worthy and the unjust claim of Babcock -in his suit at law were brought to recover precisely the same alleged claims. In said cross-bill Day offered to pay to Worthy the sum advanced by her which had been expended for the benefit of Day and to pay to Babcock any sum which he was justly entitled to for services and for money properly expended by him in her interest, as to the court might seem fair and just; that by reason of the pendency of said two suits involving precisely the same alleged claims Day is unable to determine to whom she is indebted and fears that she may be compelled to pay the same alleged obligation twice, unless an accounting can be had between the parties and Babcock enjoined until such case can be finally determined. In her cross-bill she prays for an accounting between Worthy, Babcock and herself, and that a decree may be rendered determining all matters between them and for an injunction restraining Babcock from pressing his suit at.law until a hearing could be had on such cross-bill.

To this cross-bill Babcock entered his limited appearance and made a motion to dismiss such bill. This motion was overruled by the court and a ternporary injunction ordered, from which order this appeal is prosecuted.

Appellant does not question the sufficiency of the cross-bill but bases his motion to dismiss upon the ground that as the parties to the controversy live in Cook county and that as the suit at law between Babcock and Day was brought in Cook county, the Circuit Court of Champaign county had no jurisdiction in the premises and could not award a temporary writ of injunction and in support of that contention relies upon section 4 of chapter 69 of the Revised Statutes of Illinois, which reads as follows: “When an injunction shall be granted to stay a suit or judgment at law, the proceeding shall be had in the county where the judgment was obtained or the suit is pending.” This section of the statute was before our Supreme Court in Hayes v. O’Brien, 149 Ill. 403, where it was held that if such a bill is filed simply to enjoin proceedings at law it could only be brought in the county where the proceedings at law are pending, but that if such was not the primary object of the bill and the court had jurisdiction of the main purposes of the bill then the court under such a bill would have the right' to grant an injunction as ancillary or incidental relief so as to make the relief granted complete.

In the case before us Worthy had filed her bill in the Circuit Court of Champaign county and had submitted her claim against Day to the jurisdiction of that court. In that bill she was seeking to recover from Day the exact sum or sums of money from Day which Babcock would recover from her in his suit at law in Cook county unless he be restrained therefrom by injunction. Day, in her cross-bill, offers to pay whatever sum a hearing may show she owes to either Worthy or Babcock. The cross-bill seeks to prevent her being called upon to pay the same debt twice. We think it clear that the injunction was not the primary object of the cross-bill, but that such cross-bill was properly filed to have determined what, if anything, Day owed and to which one of the defendants in such bill it was payable and until that question could be fully determined it was proper, as incidental to the main relief sought, to restrain the prosecution of the suit at law. It is also clear that as the trial court had jurisdiction of Worthy by the filing of her original bill it was competent and proper under section 34 of chapter 22 of the Revised Statutes for Day, under her cross-bill, to make Babcock a defendant to such cross-bill as a new party. ■

The decree of the trial court in awarding the temporary injunction was right and is affirmed.

Affirmed.


text:
    Mary Ann Standley, Appellant, v. Phillip Standley et al., Appellees.

      Divorce—what sufficient to establish right to temporary alimony. A wife, a party to a divorce proceeding, in order to establish her right to temporary alimony, need only show probable grounds.
    Divorce. Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge; presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    Walter C. Headen and Le Forgee and Vail, for appellant.
    No appearance for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellant filed her bill against appellees in the Circuit Court of Shelby county in which she prayed for a divorce from Phillip Standley and for an injunction against him and Oliver M. Standley, and while said cause was pending presented her petition for ternporary alimony and solicitor’s fees, which, on hearing, was denied and appellant ordered to take and have nothing for her support, etc. This appeal followed.

Upon the hearing a sharp conflict developed in regard to the merits of appellant’s claim for divorce, appellee’s financial ability to care for and support appellant, and in regard to the amount that he had actually expended in her behalf after their separation.

It would seem, from an inspection of the abstract, that the appellant showed probable grounds for her claim, which is all the law required upon such a hearing. Jenkins v. Jenkins, 91 Ill. 167; Johnson v. Johnson, 20 Ill. App. 495.

We do not deem it necessary to make examination in detail of the record, or to discuss the case at length, as appellees have failed to file any brief as required by rule 29 of this court.

The order of the trial court is reversed and the cause remanded.

Reversed and remanded.


text:
    Mary E. Richardson, Appellee, v. The Northwestern Mutual Life Insurance Company, Appellant.
    Insurance&emdash;what does not establish acceptance of policy. Possession of a policy of insurance by an applicant raises a presumption that the policy has been delivered and accepted, yet such presumption may be rebutted by showing that such applicant was permitted to take the policy merely for the purpose of examining it and determining after such examination whether or not he would accept it.
    Assumpsit. Appeal from the Circuit Court of Adams county; the Hon. Harry Higbee, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed.
    Opinion filed April 21, 1908.
    Brown, Wheeler, Brown & Hay and Govert & Lancaster, for appellant.

      McCarl & Feigenspan and Vandeventer & Woods, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

■The Northwestern Mutual Life Insurance Company appealed from a judgment in favor of Mary E. Richardson, in the sum of $10,783.33, rendered upon a verdict returned in her favor against said company in the Circuit Court of Adams county.

Appellee, in her declaration, counted upon two policies of insurance alleged to have been made and delivered by appellant upon the life of James H. Richardson, Jr., each in the sum of $5,000 payable upon the death of said James H. Richardson, Jr., to said appellee as beneficiary.

Defendant, in the trial court, filed a plea of not guilty ■ verified, and gave notice to plaintiff that it would not be necessary to produce any evidence to prove the signing, by the defendant, of either of the policies of insurance sued on, but that by its plea defendant sought to put in issue the delivery by defendant to James H. Richardson, Jr., the insured, of each of said policies of insurance as and for ■ consummated and binding contracts of insurance.

The facts, as developed upon the trial, in substance were these: James H. Richardson, Jr., in June, 1890, took out what is called a semi-tontine policy of insurance in appellant company in the sum of $1,000, under which, at the end of fifteen years from its date, the insured had the option, among others, to surrender his policy and accept the surrender value in cash, or take its then value in additional insurance. In May, 1905, deceased wrote to appellant asking for advice as to the surrender value of his policy and what offer the company would make him if he would take out additional insurance. Following this request one Becker, agent for appellant, visited Richardson at Quincy, Illinois, where on July 11, 1905, after some negotiations, he delivered the policies involved in this suit to Richardson and took from him a receipt in the words and figures to-wit:

“Quincy, Illinois, July 11th, 19.05.

Received of R. 0. Becker, General Agent, policies 625,111 and 625,112, for $5,000 each, dated June 28, ’05, and issued by the Northwestern Mutual Life Insurance Company. ■ These policies are delivered to me for inspection only, and not to be considered in force until payment of premium while I am in good health.

J. H. Richardson, Jr.”

Soon after the above date Richardson was called toCorsicana, Texas, and while he was there some letters passed between him and Becker which cover all that took place between the parties, or was done by them in furtherance of the transaction, after Richardson gave his receipt of July 11, 1905. These letters were in the words and figures, to-wit:

“Peoria, Ill., July 27, 1905.

J. H. Richardson, Jr.,

Quincy, Ill.

Dear Mr. Richardson: I understood you were to advise me about your insurance, but to date we have heard nothing from you. Would like to get your semitontine dividend statement as soon as possible before August 5th.

Kindly let me hear from you.

Tours very truly,

R. O. Becker, General Agent.”

“Corsicana, Texas, Aug. 2, 1905.

Mr. R. O. Becker,

Gen. Agt. Northwestern Mutual Life Ins. Co., Peoria, 111.

Dear Sir: Answering your favor of the 27th ult., beg to state that upon my return home, which will be in the next few weeks, I will take the matter of insurance up with you.

Tours truly,

J. H. Richardson, Jr.”

“Peoria, III., Aug. 5, 1905.

Mb. J. H. Richardson, Jr»,

Corsicana, Texas,

• care Richardson-Gay Oil Co.

Dear Sir: I have your letter of Aug. 2nd. It was my undertsanding that you would decide on your insurance before leaving for the south, and as a result of what you write I am, by this mail, writing the Company stating that you are away and, therefore, I cannot report on your business until late in the month.

Wish you would let me know when you will return, as it is to your interest, as well as ours, to get the matter of your dividend, now due, in shape as quickly as possible.

Tours very truly,

R. 0. Becker, General Agent.”

Nothing further was done by Richardson to show an acceptance by him of the policies held under the receipt above stated, nor was anything done by him toward surrendering to appellant the old, or semitontine policy, or to receipt for or discharge, its cash value or the value of the dividend belonging thereto.

Matters between Richardson and the company were in this condition when Richardson died in Corsicana, Texas, on the 26th day of August, 1905.

"While it is true as contended.by appellee that possession of a policy of insurance by the applicant raises a presumption that the policy has been delivered and accepted, yet such presumption may be rebutted by showing that such applicant was permitted to take the policy merely for the purpose of examining it and determining after such examination whether or not he would accept it. Equitable Life Assurance Co. v. Mueller, 99 Ill. App. 462; N. Y. Life Ins. Co. v. Easton, 69 Ill. App. 479.

In the case at bar Richardson in his receipt stated that he held the policies for inspection only and that they were not to be considered in force until payment of premium had been made, and in his letter of August 2, 1905, which was his last declaration or statement on the subject, said that he would take up the matter of insurance with Becker upon his return home, which would be in the next few weeks. Richardson never returned home and never, in fact, accepted or paid for the policies. There was no competent evidence upon which to base a verdict in favor of appellee.

The judgment is reversed but the cause is not remanded.

Reversed.

Finding of fact, to be incorporated in the judgment:

We find that the policies of insurance involved never became binding and valid contracts between the parties.


text:
    F. D. Hennigh, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Common carriers—burden to establish limitation upon liability. A carrier who relies upon a contract to limit the extent of its liability has the burden of showing that the shipper assented to its terms.
    . 2. Evidence—how question of reasonable time of carriage cannot be shown. It is not competent to show what is a reasonable time to be consumed by a carrier in transporting merchandise between particular points by having witnesses testify as to what is such reasonable time.
    3. Instructions—what should contain where ends with direction. If an instruction directs a verdict for either party or amounts to such a direction, in case the jury should find certain facts, it must necessarily contain all the facts which will authorize the verdict.
    Action in case. Appeal from the Circuit Court of Shelby county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed June 11, 1908.
    George B. Gillespie, for appellant; L. J. Hackney Hamlin & Gillespie and W. C. Kelley, of counsel.

      Richardson & Whitaker, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the. court.

Appellee brought suit in the Circuit Court of Shelby county to recover damag’es from appellant for its alleged negligent failure to transport, within a reasonable time, eighty head of cattle belonging to appellee from Windsor, Illinois, to Chicago. There was a trial had before a jury which resulted in a verdict in favor of appellee in the sum of $300, upon which the court rendered judgment. The railway company appealed.

The liability charged in appellee’s declaration was that the railway company on October 2, 1906, received from appellee at Windsor, Illinois, eighty head of cattle of the value of $2,000, to be carried by appellant within a reasonable time to the Union Stock Yards in Chicago and there delivered to appellee’s commission men, but that said appellant, not regarding its said duty, through negligence and carelessness failed to transport said cattle within a reasonable time and permitted them to remain in transit for such an unreasonable time that appellee suffered loss in said cattle by shrinkage and by sale on a falling market.

Appellant filed a plea of not guilty and upon the trial, as a part of its defense, insisted that appellee was bound by the terms of a contract, usually termed a shipper’s contract, alleged to exist between the parties, which provided that in the event of any unusual delay in such shipment, caused by the negligence of the appellant, or its employes, or otherwise, he would accept as full compensation for his loss, the amount actually expended by him in the purchase of food and water for such stock while so detained.

Appellant first insists that no recovery could be had .except upon the terms of the contract, which limited a recovery in case-of delay to the cost of food and water alone, and that appellee was estopped thereby from recovering anything in excess of the cost of food and water.

We cannot adopt appellant’s theory upon this subject. The right of action expressed in each count of the declaration was distinctly charged as being negligence and carelessness upon the part of appellant in delaying transportation, which could be based upon shipment made as well without as with a written contract of shipment.

As presented by the issues closed, the contract involved was a matter of defense alone, the burden of establishing which rested upon the appellant, which contract had no force whatever until appellant had shown that appellée knew of its terms and had assented thereto. Wabash R. R. Co. v. Thomas, 222 Ill. 337.

Appellant next insists that there was error in the action of the trial court in permitting certain witnesses upon the part of appellee to say that from twelve to fourteen hours was a reasonable time in which to transport cattle from Windsor to Chicago. While it might have been proper to allow testimony to be given by one familiar with such transportations, to show the usual and customary time required to make such shipment, in the method employed, yet to allow a witness to say whether or not the shipment involved was made within a reasonable time, was to permit the witness to determine for the jury the precise question which it was their exclusive province to decide.

Appellant next contends that the court erred in giving appellee’s third instruction which told the jury in substance that if they believed from a preponderance of the evidence that defendant received the cattle from plaintiff to be transported from Windsor to Chicago, that it was then the duty of the defendant to transport and carry them within a reasonable time; and if the defendant through its negligence or the negligence of its connecting carrier failed to transport said cattle from Windsor to Chicago within a reasonable time and that the cattle were thereby and on account of such delay decreased in value, then plaintiff would be entitled to recover such damages as the evidence showed he had sustained.

This instruction was erroneous. It in substance directed a verdict for appellee without calling the attention of the jury to thé contract which appellee claimed existed between the parties. If an instruction directs a verdict for either party or amounts to such a direction, in case the jury should find certain facts, it must necessarily contain all the facts which will authorize the verdict. Pardridge v. Cutler, 168 Ill. 504; Montgomery Coal Co. v. Barringer, 218 Ill. 327, 337; Swiercz v. Ill. Steel Co., 231 Ill. 456.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Fred S. Phoenix, Appellant, v. Anna Chapman, Appellee.
    Amendments and jeofails&emdash;when action in permitting verification of plea proper. It is not an abuse of discretion for the court, even after the evidence upon both sides has been closed, to permit a defendant to verify a plea denying signatures to the instruments in suit.
    Judgment by confession. Appeal from the County Court of McLean county; the Hon. Rolland A. Russell, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed November 21, 1908.
    Rayburn & Buck, for appellant.
    Rowell & Lindley, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

On May 24, 1904, Fred S. Phoenix took judgment by confession against John W. Chapman and Anna Chapman, the appellee, in the sum of $570.81 in the County Court of McLean County. On the twenty-sixth day of the same month Anna Chapman filed a motion to set aside the judgment as to her, and filed therewith her affidavit stating that she did not sign the note upon which judgment had been rendered, nor authorize anyone to sign it for her. On the filing of the motion and affidavit further action was stayed and on July 26, 1904, appellee filed two pleas, one a plea of general issue, and the other that she did not jointly or severally undertake and promise, etc. The court refused to allow a motion to strike the pleas from the files and entered a formal order setting the judgment aside and allowing the pleas to stand, after which nothing further was done in the case until April 8, 1907, when by agreement a jury was waived. On August 21, 1907, the cause was submitted to the court for trial without a jury and the evidence heard by the court. On the next day, August 22, 1907, and before any final judgment was entered, appellee entered a motion for leave to file her affidavit denying her signature to the note, as of July 26, 1904, the day on which she filed her two pleas. On the 23rd of August, 1907, appellee’s motion to file her affidavit nunc pro tunc was allowed, after which, upon the issues so closed and upon the evidence already heard, the court rendered judgment in favor of appellee, from which Phoenix has appealed.

Appellant assigns only one error that we deem worthy of consideration and that relates to the action of the court in allowing appellee to verify her plea denying signatures to the note sued on after the evidence had been closed upon both sides.

Appellant argues that at the time he first offered the note in evidence there was no plea verified denying signatures and that appellee and her witnesses therefore could not be thereafter heard to deny the execution of the note by appellee and that the court had no such discretionary power as would warrant the granting of the motion to file the affidavit nunc pro tunc.

It seems to us, that this action upon the part of the trial court was clearly within its judicial discretion and that such action could not, in any way, have prejudiced appellant. There was an affidavit filed when the motion was first made to open the judgment and for leave to plead on the twenty-sixth day of May, 1904, in which appellee stated that she did not sign the note or authorize anyone else to sign it for her, which affidavit had been on file in the case for over three years prior to the trial. With this affidavit on file for such length of time before the trial, it was not possible for appellant to have been surprised upon the trial as to the character of the defense that would be made.

It furthermore appears that the order was made by the trial court permitting the affidavit to be filed while the trial was still pending and before any final judgment had been rendered. Under paragraph 24 of-chapter 110 of the Revised Statutes of Illinois, the court had no power at any time before final judgment, in the exercise of a sound legal discretion, to allow changes or amendments in the character of the pleadings or proceedings in form or substance in furtherance of justice.

There was no abuse of that discretion in this case and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Higbee

text:
    T. E. Tate, Appellee, v. Missouri Pacific Railway Company, Appellant.
    1. Practice&emdash;when special findings not inconsistent with general verdict. A judgment should not be rendered upon special findings as contrary to the general verdict unless, considered as a whole, they are inconsistent with the general verdict.
    2. Verdict&emdash;when set aside as against the evidence. A verdict will be set aside on review when it is apparent that the same was not the result of an impartial judgment of the jury, but that it must have resulted from mistake, misconception or confusion in regard to the evidence, or that the jurors were influenced by some condition not proper to be considered by them.
    Assumpsit. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed March 18, 1908.
    Rehearing denied September 9, 1908.
    Forman & Whitnel, for appellant.
    Kramer, Kramer & Campbell, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee recovered a judgment against appellant in the Circuit Court of St. Clair county for damages alleged to have been occasioned by the delay in transit of six carloads of western horses, shipped by him over appellant’s road and destined for the National Stock Yards at East St. Louis, Illinois.

The declaration, which was in assumpsit, and contained two counts, alleged in the first count that appel-. lee, on September 16, 1905, at Council Grove in the state of Kansas, delivered to appellant, a common carrier of live stock for hire, six carloads of horses to be safely carried from that place and be delivered to appellee at the National Stock Yards in St. Clair county, Illinois, in good order, within a reasonable time; but that appellant failed to safely carry and deliver said horses within a reasonable time as aforesaid, by reason whereof the same were lessened in value and certain of them either wholly lost or rendered worthless. The second count alleged there was no regular sale at said stock yards for western horses, but there were special sale days fixed upon, at which they were sold, of which the defendant had notice, and that defendant undertook to carry said horses and deliver them to plaintiff at said stock yards in good order in time for a special sale to be held on Tuesday, September 19, 1905; that appellant failed to deliver said horses to appellee in time for said sale, whereby appellee lost the opportunity of selling said horses on said day and was compelled to keep them for ten days to await another sale. Appellant filed the general issue and three special pleas. Plea No.. 2, which was the first special plea, set up as a bar to recovery that the delay, damage and injury was wholly occasioned and caused by unprecedented rains and floods amounting to an act of God. Plea No. 3 set up certain provisions of the contract under which the stock was shipped, providing that said stock was not to be transported within any specified time nor delivered, at destination at any particular hour, nor in season for any particular market, and that the shipper should assume the care of said stock in transit at his own. expense and risk, and alleged that the damage, if any, to said stock was occasioned from causes not arising from the negligence of appellant. Plea No. 4 set up a provision of said contract, requiring notice of the claim for damages to be given by the shipper in writing, within one day after delivery of the stock at destination and the failure on the part of appellee to comply with such requirement.

Appellee filed a replication to the second plea, denying that the delay and injury complained of was caused by unprecedented rains and floods amounting to an act of God. To the third plea he replied that the delay and injury was occasioned by negligence of defendant and that the terms of the said live stock contract were not assented to by him. To the fourth plea, he replied that the provision contained therein was unreasonable and therefore void; that the contract was not assented to by him and that defendant had waived the provision requiring service of notice.

The first trial resulted in a verdict in favor of appellant but a new trial was awarded and upon the second trial the jury returned a general verdict for $625 in favor of appellee. Upon this trial five special interrogatories were also submitted to and answered by the jury as follows:

“1st. Was the rain which fell from the 15th to the 20th of September, 1905, in the States of Kansas and Missouri along the defendant’s line an extraordinary and unprecedented rain in that locality?

Answer. Yes.

2nd. Was the defendant’s roadbed and tracks so damaged and impaired by the extraordinary rains and floods as to prevent its moving trains over same during the time intervening from the 16th to the 20th days of September, 1905?

Answer. Yes.

3rd. Did the defendant use diligence in repairing its tracks and roadbed and moving said stock forward after such repairs were made ?

Answer. No.

4th. Did the plaintiff, T. E. Tate, enter into and assent to the contracts in evidence without the use of fraud or artifice on the part of the defendant or its agents ?

Answer. Yes.'

5th. Did the plaintiff serve notice in writing on its, the defendant’s, agent of claim for damages within twenty-four hours after the delivery of said stock at destination?

Answer. Yes.”

It appeared from the proofs in the record that for some sixteen years appellee had been engaged in buying western range horses, and shipping them east to the National Stock Yards, to be sold at auction on certain sale days in each month which were devoted to the sale of such horses and were well known to buyers. On July 5, 1905, appellee shipped twenty-two carloads of horses from a point in Colorado to the National Stock Yards under an agreement giving him the privilege of unloading and pasturing as many of the carloads as he desired, during the summer at different points along the road in Kansas and then re-ship them to their destination, for which privilege he was to pay an additional sum of $17 for each carload so stopped and pastured. Under this arrangement he unloaded five of the cars at Council Grove, Kansas, and put the horses upon pasture for the remainder of the summer. On September 14, 1905, appellee shipped another carload of horses from Pueblo, Colorado, to the National Stock Yards which arrived at Council Grove on the following day and were there unloaded for rest, feed and water. On Saturday afteimoon, September 16th, appellee brought in the five carloads of horses from the pasture, intending to load them and ship the six carloads that night so they would reach the National Stock Yards in time for the sale of western horses on the following Tuesday, September 19th. After he had paid his freight bill and signed and received his writ-' ten contract and was ready to load his stock, he was told by the agent not to load the horses then, as the company could not handle them on account of washouts on its tracks between there and Kansas City. About three o ’clock the following morning, September 17th, the agent notified him to prepare to load his horses as they could go forward on a train which would leave about eight o’clock that morning. Appellee thereupon loaded his stock and it proceeded on its way to Kansas City where it arrived about 11:35 p. m. on the same day. From the 14th to the 20th of September, 1905, there were unprecedented rains and floods throughout Kansas and Missouri, the heaviest rains falling on September 16th. At five o’clock Sunday morning, September 17th, the iron bridge of appellant over the Lamine river, a stream about 200 feet wide at Otterville, Missouri, 110 miles east of Kansas City, was washed out together with 1,700 feet of track. When appellee’s six cars of stock reached Kansas City they could not be sent forward to their destination on account of the washout at Otterville. The floods had damaged other roads leading east out of Kansas City, so that there was a congestion of stock and freight at that place. Appellee testified that he requested appellant, if it could not handle his stock to turn it over to some other road, which could take it to its destination; he was afterwards told by the live stock agent of the Burlington road that company could handle his stock and he so informed the general live stock agent of appellant, the latter answering that, “he would see about it.” Appellee left Kansas City about 5:30 p. m. on Monday, arriving at the National Stock Yards the next morning, at which time he told appellant’s live stock agent at the stock yards of the condition of his stock and his intention to make a claim against the company for damages. Appellee’s horses remained at Kansas City until Wednesday evening, September 20th, when they were forwarded over the Wabash railroad and arrived at the National Stock Yards the next morning, September 21st. During the delay a number of the animals died and others were so bruised and scarred they sold at a loss.

Upon the return of the general verdict and special findings, appellant entered a motion for judgment in its favor on the special findings, which was denied by the court.

Appellant insists that the- special findings 1, 2 and 4 are inconsistent with the general verdict and therefore under that section of the Practice Act which provides that, “When the special finding of fact is inconsistent with the general verdict the former shall control the latter and the court may render judgment accordingly.” Hurd, 1905, chap. 110, sec. 58c. The court in this case should have rendered judgment in its favor.

By special findings 1 arid 2 the jury found that the rains which fell from the 15th to the 20th of September, 1905, in the States of Kansas and Missouri were extraordinary and unprecedented and that thereby appellant’s roadbed and tracks were so damaged and. impaired as to prevent its moving trains over the same during the time intervening from the 16th to the 20th days of September, and by special finding No. 4 the jury said that appellee entered into and assented to the contracts in evidence without the use of fraud of artifice on the part of appellant or its agents. These findings tend to support the defense relied upon by appellant in his special pleas.

But the jury also specially found in answer to the third, interrogatory, that defendant did not use diligence in repairing its tracks and roadbed and moving said stock forward after such repairs were made, and in answer to the fifth, found that plaintiff served notice in writing on appellant’s agent of claim for damages within twenty-four hours after the delivery of said stock at its destination. The special findings as a whole therefore did not decide the ultimate facts presented for determination by the issues in the case so conclusively in favor of appellant as to have warranted the court below in entering a judgment thereon for appellant, and its motion for judgment upon the special findings was properly refused.

The question then recurs, was the general verdict warranted under the case presented to the jury? We are of opinion the proofs tended to show that the delay in Kansas City was primarily caused by circumstances which amounted to what is known in law as an act of God, and that appellant by the use of due diligence was unable to repair its line to St. Louis in time to forward the stock in question, prior to the time it was actually shipped to its destination over the Wabash railroad.

Appellee, however, insists that appellant is liable because, as alleged, it received the stock after the damage to the track which subsequently caused the delay at Kansas City had occurred and also because it failed to forward the stock from Kansas City over the Burlington railroad to St. Louis at once on its arrival. The former matter of contention does not appear to us to have either been raised by the pleadings in the case, or sustained by the proofs; and the evidence on the part of appellee that the stock could have been shipped over the Burlington, was very unsatisfactory, while there was evidence on the part of appellant that the stock went forward just as soon as that company could get it transported.

A careful examination of the evidence in the case leads us to the conclusion that the general verdict was manifestly against the weight of the evidence; and when that fact is considered in connection with the special findings, it is apparent that the verdict was not the result of the impartial judgment of the jury, but that it must have resulted from mistake, misconception or confusion in regard to the evidence, or that the ' jurors were influenced by some condition not proper to be considered by them and therefore the court below should have set aside the verdict and awarded a new trial. St. L. Nat. Stock Yards v. Godfrey, 101 Ill. App. 40; Chicago City Railway Co. v. Maloney, 99 Ill App. 623; Robinson v. Webb, 73 Ill. App. 569.

The third section of the shipping contract entered into by appellant and appellee at Council - Grove, provided appellee should assume all risk and expense of feeding, watering, bedding and otherwise caring for the live stock, covered by the contract while in cars, yards, pens or elsewhere, and should load and unload the same at his own expense and risk.

In regard to this condition of the contract, the court instructed the jury “even if you do believe from the evidence that the terms and conditions of the live stock contracts in question, are binding upon the plaintiff in this case, yet he would not under said terms and conditions, be required to remain in Kansas City during all the time the horses in question remained there, and to feed and care for them during all that time.” '

Appellee contends all that could be required of him under this contract was to feed, water and care for the horses, provided they were not unreasonably delayed and made an ordinary trip; and asserts that they were taken into Kansas City by the gross negligence of appellant, and therefore appellee was relieved from obligation to feed and care for them. The question whether there was unreasonable delay under the circumstances or gross negligence on the part of appellant in taking the horses to Kansas City, and also whether appellee exercised reasonable care under the circumstances to care for his stock, were questions of fact to be determined by the jury, and not questions of law for the court and therefore this instruction was improper.

Appellee’s second and fourth instructions referred to certain matters “as alleged in the first count of the declaration” which, strictly speaking, were not set out in said count and may have been to some extent misleading to the jury.

For the reasons above given the judgment of. the court below will be reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    The Philip Carey Manufacturing Company, Appellee, v. G. F. W. Weygandt, Appellant.
    1. Mechanic’s liens—when performance of contract sufficient. Substantial performance of a building contract is sufficient to entitle the award of a mechanic’s lien.
    2. Findings of court—when not disturbed on review. Where the chancellor has seen and heard witnesses, his findings of fact will not be disturbed on review unless' clearly and palpably erroneous.
    Mechanic’s lien. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed September 12, 1908.
    James O. Miller, for appellant.
    Stephen C. Rogers and Koerner & Koerner, for appellee.
   Per Curiam.

This was a proceeding in the Circuit Court of Madison county, by appellee against appellant, to enforce a mechanic’s lien. Cause heard upon bill, answer, replication and evidence produced in open court. Finding and decree in favor of appellee for $180 and an additional sum of $25 as solicitor’s fee.

Appellant and appellee entered into a contract in writing as follows;

“St. Louis, Mo., Sept. 20, ’06. Mr. Gr. F. W. Weygandt, Belleville, Ill. Dear Sir:—We hereby agree to furnish and apply our Carey’s Standard Flexible Cement Roofing on your building at Madison, Ill., according to measurements given our Mr. Vine, viz.: 80½x71, doing all necessary flushing around fire walls and skylights for the sum of one hundred and eighty dollars ($180.00).

Guarantee. We hereby guarantee the same to be free from leaks caused by imperfect material or workmanship for five years from date of application, and will assume all expenses for repairs rendered necessary within the meaning of this guaranty, free of expense to the owner, and will turn over at the expiration of the life of this guarantee a perfect roof in every respect.”

This contract was signed by the respective parties, and in pursuance thereof appellee furnished and applied the specified roofing on appellant’s specified building, completing the same on the 9th day of November, 1906.

Appellee’s bill is in the usual form of bills in such cases. Appellant’s answer admits the making of the contract, and that appellee furnished and applied roofing to his building, but avers that the material of the roofing was not of the quality specified in the contract, that it was not put on—“applied”—in a workmanlike manner, and that after it was put on it leaked and failed to keep out the water. No claim for deductions or damages by way of recoupment or set-off is made by appellant. His sole contention is that appellee had not completed its contract. His counsel say: "There must be a completion of the contract in order to give a lien; completion of the work was a condition precedent to be performed by appellee' before it was entitled to its pay.”

“As between the owner and principal contractor a substantial performance by the latter is sufficient to entitle him to a lien.” A building contract may be held to be substantially performed, although there may be some omissions or deviations from the contract, or some defects in the material or workmanship, when these are not due to bad faith, do not impair the structure as á whole, are remediable without doing material damage to other parts of the building in tearing down and reconstructing, and where they may without substantial injustice, be paid for by deductions from the contract price. 20 A. & E. Encyc. of Law, 2nd Ed., pp. 366-7.

This case turns solely upon questions of fact as to the quality of the roofing material used and the manner in which it was put on, or “applied,” the ultimate question of fact being, was there a substantial compliance with the contract on the part of appellee. The evidence was produced in open court, the chancellor saw and heard the witnesses; in such case his findings and conclusions upon questions of fact based upon the statements of such witnesses should be accepted by this court, unless they clearly impress us as being palpably erroneous. Kinnah v. Kinnah, 184 Ill. 284; Brueggestradt v. Ludwig, 184 Ill. 24; Village of Itasca v. Schroeder, 182 Ill. 192; Delaney v. Delaney, 175 Ill. 187; Dunnom v. Thomsen, 58 Ill. App. 390; Patterson v. Scott, 37 Ill. App. 520.

In this case, however, we reach the same conclusions held by the learned chancellor who presided at the trial wholly independent of the above stated rule. A fair and impartial consideration of the evidence as it appears in the “cold type” of the record clearly establishes appellee’s case.

The decree of the Circuit Court is affirmed.

Affirmed.


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    John Quandt, Appellee, v. Catherine Ernst, Executrix, Appellant.
    1. Evidence—when admission of testimony of incompetent witnesses will not reverse. The admission of the testimony of an incompetent witness will not reverse if the matter testified to by him has been fully proven by other competent evidence and no harm appears to have resulted.
    2. Evidence—as to what party in interest competent. A party in interest (the adverse party defending in a representative capacity) is competent as to all matters occurring since the death of the deceased person represented.
    3. Arbitration—when award does not bar action. In order that an arbitration award may be successfully interposed as a bar, it must be sufficiently established, first, that there was a submission, second, what was submitted, and third, what the award was.
    4. Practice—when bill of particulars binding. A bill of particulars not abandoned restricts and limits the recovery to the aggregate amount and to the specific items enumerated.

      Action commenced before justice of the peace. Appeal from the County Court of Marion county; the Hon. John S. Stonecipher, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed upon remittitur.

    Opinion filed September 12, 1908.
    Kagy & Vandervort, for appellant.
    Charles H. Holt, for appellee.
   Mr. Presiding Justice Higbee

delivered the the opinion of the court.

On December 21,1905, appellee brought suit before a police magistrate of Marion county, Illinois, against Charles Ernst, filing at the same time the following account or bill of particulars:

“Bill of Particulars, dated December 21, 1905.

Charles Ernst to John Quandt, Debtor.

“To cash paid out, costs..........................................$26.25

“ Boarding hands while threshing in 1905.... 10.00

“ Reasonable time attending suit, etc............. 5.00

“ Threshing at Kleinsmith’s & Hauling wheat................................................................ 3.00

“ Taking care of wheat in granary................ 2.00

“ Storage.............................................................. 3.75

Total........................................................................$50.00

“All the above indebtedness was made while acting as the duly authorized agent of said Charley Ernst and is now due and unpaid.

“John .Quandt.”

This account was duly verified by the affidavit of appellee. The case was subsequently taken by appellee to the County Court of said county.

Before the trial took place in the County Court Charles Ernst died and his wife, Catherine Ernst, as executrix-of his estate, was substituted as defendant. There was a verdict and judgment in the County Court against the executrix for $50, and she has brought the case to this court by appeal for review.

The controversy upon which the case was based arose out of substantially the following state of facts: In the fall of 1904 one Kleinsmith put in about twenty acres of wheat on the farm of appellee for which he was to pay as rent one-third of the crop. In December of that year Kleinsmith’s appears to have moved away and abandoned the crop, having previously given a chattel mortgage on the same to Charles Ernst. Shortly afterwards Ernst foreclosed his mortgage and took possession of the wheat. He afterwards authorized appellee to take care of the crop, cut, thresh and put the same in his granary, which appellee did. There were some 248 bushels of wheat altogether, and as it was damp, appellee had to turn it four or five times in the granary to prevent injury. Afterwards a suit in replevin for the wheat was brought against appellee by V. D. Brown, who claimed the wheat in some way through Mr. Ernst. The transcript of the justice in that trial shows that appellee was present but introduced no evidence in his behalf, that the verdict of the jury was for the plaintiff and the court entered judgment for the costs of the ease against the defendant for the amount of $25.30. An execution was issued against appellee for the costs, and later, the same having been returned no property found, a garnishee summons was issued against V. D. Brown, the plaintiff in the suit, upon affidavit being made by John A. Phillips, his attorney in the case, that Brown had property in his possession belonging to appellee. There is nothing to show any hearing upon the question whether Brown was indebted to appellee, but subsequently the justice entered a judgment against Brown for $26.25, “for costs of suit.”

It appears to be conceded by the parties that the costs for which the last judgment was entered, were the costs in the replevin suit and are the same costs referred to in the first item of appellee’s bill of particulars.

Appellee claimed that in taking possession of and caring for the wheat, he was acting as agent for and under the direction of Ernst. What became of the one-third part of the wheat dne to appellee for rent and whether that portion was included in the wheat replevied, or was set off to appellee, are matters which are not shown by the record. After the replevin suit, appellee made a demand on Brown for harvesting, threshing and caring for the wheat, which Brown refused to satisfy, but afterwards, some arrangement was orally entered into between them for submitting their dispute to other persons for settlement, and each party picked a man to act a,s arbitrator. John A. Phillips, who had acted as attorney for Brown, swore on the trial that in case these two men did not agree, he was to be the third man. The two men selected, however, met later without notifying the parties and determined that Brown should pay Quandt $45. How' they arrived at this conclusion and what evidence they had before them upon which to base it, if any, is not shown by the record in this case. The amount of $45 so found to be due to appellee was in fact never paid to him, but Brown testified that he paid $17 of it to Phillips, as agent or attorney for appellee, and the rest of the amount to the justice of the peace. His testimony as to what he paid to the justice of the peace was objected to and the objection sustained by the court. It does not appear that the $17 which Brown claims to have paid Phillips for appellee, was ever paid to appellee or that Phillips, who had apparently throughout been acting as attorney for Brown, had any authority whatever to act either as attorney or agent for appellee. In fact, Phillips himself testified that he did not have any relation to Mr. Quandt after the matter was taken out of the justice’s hands.

Appellant claims that the court erred in submitting improper evidence on the part of appellee, in refusing to admit proper evidence on the part of appellant, and in giving instructions for appellee, and insists that under the facts in this ease there should be no recovery by appellee.

Appellant defended the suit as executrix and for that reason claims that appellee, who testified briefly in the case, was not a competent witness. He was first asked to identify a letter purporting to have been received by him from Charles Ernst. Objection was made to his testimony and the court said he would hear it subject to the objection and it does not appear that he afterwards passed upon this objection, but the answer to the question was objected to and the objection sustained. He was then asked two other questions as to how he received the letter, which, were substantially the same, to one of which there was no objection and to the other an objection was made.

We think the court below should not have permitted appellee to testify upon that subject but only one improper question was answered, to which objection was made and overruled, while practically the same question was answered without objection. The identity of the letter was also fully proven by other witnesses who were entirely unobjectionable so that no material injury could have resulted to appellant’s cause in this matter.

Appellee was also asked whether he had been paid for any part of the services performed by him or for the board of the threshing hands and replied that he had not. Counsel for appellee, however, stated in asking the question that he simply desired to ascertain whether or not appellee had been paid for his services rendered since the death of decedent, and that he understood witness was not competent to testify to transactions occurring prior to the death of the decedent. It was not error to permit appellee to testify as to anything which had occurred since the death of Mr. Ernst, or whether he had been paid for services rendered since that time. Appellee was also permitted to testify over the objection of appellant that he was acting as the agent of Mr. Ernst at the time Mr. Brown made demand for the possession of the wheat. The court erred in admitting this testimony but it related solely to the right of appellee to recover for costs and expenses attending the trial of the replevin suit and will he considered in that connection. The other objections urged as to the admissions of testimony are immaterial.

Appellant claims that the witness Brown, who had answered that he came into possession and control of the wheat in question, when asked if he had then sold and marketed this wheat, was, when objection was made by counsel for appellee, not permitted to answer the question. We think it was immaterial what Brown did with the wheat after it came into his possession, as the question between the parties in the replevin suit was the right of possession and that the objection was properly sustained to the same.

The instructions given on behalf of appellee with one exception, stated simple propositions and were free from error. The single erroneous instruction referred to the costs in the replevin suit and was not proper under the evidence in this case.

The claim of appellant that the facts in this case do not warrant a recovery is one deserving serious consideration, and is not wholly without merit. If appellee made the same claim against Brown which he after-wards made against Ernst and the matters in' controversy between them were settled by arbitration, and appellee received the award made by the arbitrators, from Brown, then he should not be permitted to make the same claim against appellant and receive satisfaction therefor. The evidence concerning the arbitration, however, is so indefinite that it is impossible to determine whether any formal submission was.ever made and if so what matters were submitted. Three witnesses testified upon this subject, but the evidence of one of them, Mr. Hinderer, who claimed to have been an arbitrator, was excluded by the court on the ground there was no evidence that the arbitrators had complied with the statute, and while this was excepted to by appellee, no cross-errors are assigned.

Another witness, Phillips, who acted as attorney for Brown, and says he. was also selected as the third arbitrator in case Ms services should he needed, testified that he could not swear as a matter of fact as to what was submitted between the parties; that Mr. Brown talked to him about the matter but the other party did not. Brown swore that they agreed to settle their dispute about hauling, cutting and threshing the wheat and that $45 was awarded to appellee, but he fails to show that appellee was paid that sum or any part of it. Appellee was never given the opportunity of appearing before the arbitrators and they made no award in writing, and the fact is the whole proceeding was so irregular and indefinite that in the absence of proof of receipt of the award or ratification of the proceedings by appellee it could not be said that there was any legal arbitration.

The question whether appellee was entitled to recover for cash paid as costs in the replevin suit and for his reasonable time in attending the trial, depended largely upon whether he was at the time the agent of Ernst in that behalf and whether or not he paid said costs. There appears to be no proof whatever that he paid the costs and the proof that he was acting at the time as agent for Ernst, depended largely upon his own testimony which, as we have before seen, was incompetent. We therefore think that appellee should not have been allowed to recover the item of $26.25 claimed to have been paid out for costs and $5 for his reasonable time in attending suit, etc.

It does not appear what became of appellee’s one-third interest in the wheat. If that was also involved in the law suit certainly he would not be permitted to charge Ernst for services which he rendered and costs incurred in looking after his own property. But it is claimed by appellee the original bill of particulars was abandoned on the trial and that there was sufficient evidence to sustain a verdict for the amount of $50, even if the two items last above mentioned be excluded. ' It is sufficient to say that there is nothing in the record wMch shows that the original bill of particulars was ever abandoned; and as it was never withdrawn and the verdict was given for the amount claimed by it, we must assume that the case was tried upon the account presented. We are of opinion that appellee should enter a remittitur for the two items above mentioned amounting to $31.25. Should he do so within twenty days from the filing of this opinion, the judgment-will be affirmed for the sum of $18.75, otherwise the judgment will be reversed and the cause remanded.

Affirmed upon remittitur.

Remittitur filed and judgment affirmed.


text:
    Jesse King, Appellee, v. The Consolidated Coal Company of St. Louis, Appellant.

      Vebdict—when set aside as against the evidence. A verdict will be set aside on review as against the evidence where clearly and manifestly so.
    Action in case. for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    Wise & McNulty, for appellant.
    D. J. Sullivan, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee recovered a judgment against appellant of $2,750 for injuries to his arm, received on May 2,1907, while employed in appellant’s mine. There were only four witnesses in the case, including appellee, two on each side.

The facts which were not in dispute, were substantially as follows: Appellee, who was 24 years of age, had worked for appellant at the top of its mine trimming cars, for several years. Some thirty dáys prior to the time he was injured, he was laid off or discharged. He had applied for further employment several times and on the day in question was re-employed and placed at work down in the mine. The manager of the mine, Mr. Hayes, met him at the bottom of the mine, pointed out the place he was to work and explained to him his duties, which consisted in pushing empty cars away from the cage. In the shaft were two cages, one on the east and one on the west, operated up and down by power at the surface, on each of which there was room for a coal car about four by six feet in dimensions. There were two tracks on each side leading from the mine to and on the cages, so that the cars could be pushed directly on them. The cage going up took the loaded car while the one coming back brought an empty one. As the cage stopped at the bottom, a loaded car was pushed on from one side which struck the empty car on the cage and pushed it off on the other side. It was the duty of the empty car pusher to take this car as it came off the cage and push it back-on the track some forty feet, where it was taken by the driver on into the mine to be reloaded. One track on each side was used to run the empty cars back on and the other to bring forward the loaded cars. The inside rails of the two tracks were from three and a half to four feet apart. The loaded cars were brought by the driver to within about forty feet of the cage, where a sprag-ger took charge of them. From that point to the cage, there was a decline so that the cars would run by the force of gravity to the cage but not onto it. On each side there were two eagers, whose duty it was to push the loaded cars onto the cage on one track and two empty car pushers .who pushed the empty cars out into the mine on the other track. The duties of the cagers and the empty car pushers were separate and distinct and the former received $2.56 a day each while the latter received $2.36 each. Appellee had working with him a foreigner, who did not understand English. The track at which appellee was set to work was on the north side of the east cage. After he had been at work about an hour and a half, he stepped over from the track at which he was employed to the other track beside it, and while there his arm was in some manner caught and injured between a loaded car standing at the bottom of the shaft and another loaded car, which came down the incline and struck it.

The contested questions of fact were, (1) what was told appellee when he was employed by the manager, (2) his reason for being by the loaded cage, where he was injured, and (3) what was afterwards said by appellee as to the cause of his injury.

Appellee testified that the mine manager told him ■ at the bottom of the shaft, before he went to work, that his duties were to pull the empties and to assist the eager when called upon; that immediately before he was injured a eager, Mr. Bunton, called him to help push a car on the cage; that in obedience to this request or order, he went behind the car to push and while there was struck by the other loaded car coming-down the incline. His testimony upon this subject is not corroborated in any manner by other testimony, nor does it seem to be by other circumstances. One of the cagers, who worked on the same side of the shaft as appellee, testified that he was present at the time and heard the mine manager give his instructions and that he told appellee his job was to pull the empties; that the manager never told appellee he must obey witness or the eager who worked with him; that at the time appellee was injured witness and the eager working with him were standing on opposite sides of a loaded car when the cage stopped a second; that appellee stood on the side of the car with his arm on the end behind it; that appellee was not assisting the- cagers in any way; that witness did not know what appellee was doing there and gave him no instructions to assist in pushing the car.

The mine manager, Mr. Hayes, testified that he told appellee to assist his buddy in handling the empties, to get the empties off the cage; that he never said anything about loaded cars and never told appellee to obey the eager or'do what he asked him to do; that the duties of the eager and the empty pusher were separate and distinct; that he should be careful in handling the empty cars that he did not get squeezed or his arm hurt; that after appellee was injured, on the same day, appellee told him that the cage had stopped and the eager stopped for a load and he, appellee, walked up to the loaded car and put his hand on the corner of the car and the spragger dropped two cars on him which caught his arm as he was standing behind; that the eager, Mr. Bunton, was standing there.

Appellee denied any conversation with the manager on the day of the injury but said he had only one conversation with him which was some five days later and that he did not in that conversation tell Mr. Hayes that he had placed his hand on the car and was standing-on the side of it.

The only witness who testified for appellee, besides himself, was Mr. Schmidt, who was a eager on the opposite side of the shaft at the time appellee was injured. He testified only as to a description of the surroundings at the bottom of the shaft and the manner in which the work was carried on. He knew nothing-concerning the directions given appellee at the time he was employed or as to the manner in which appellee was injured or how he happened to leave the track at which he was employed. He also testified that he heard Bunton tell appellee on the day before the trial that he did not remember whether he had ordered appellee behind that car or not.

It clearly appeared from the evidence that it was the duty of the two cagers alone to push the loaded cars on the cage and that the duties of those who took away the empty cars, were entirely different; that the two sets of men worked on different tracks and received different measures of compensation.

No good reason was shown why the cagers should have needed any assistance from, appellee and appellee ’s own witness, the eager on the opposite side, testified that the two cagers on appellee’s side had done this work for two years prior to the injury. Appellee’s case so far as the facts about which there is any controversy are concerned, depends solely upon his own testimony, while he is contradicted on nearly every material point by two witnesses. Moreover, the circumstances attending the employment of appellee and the extent of his injury, sustained appellant’s position, while they are inconsistent with the testimony of appellee.

It is difficult to imagine how, if appellee was pushing the loaded car at the bottom of the shaft towards the cage, a loaded car of great weight could come up behind him and catch him only by one arm against the next car and not injure him elsewhere, while if he was standing as claimed by appellee with one hand or arm leaning on the back of the forward car, the extent of the injury is easily explained.

Upon the whole record we are of opinion that the verdict is so manifestly against the weight of the evidence that the jury must have been influenced by prejudice or by some motive or condition which could not properly have any weight in determining their 'verdict in this case or have wholly misconceived the effect of the evidence as applied to the issues in this case and it therefore should not be permitted to stand. St. L. National Stock Yards v. Godfrey, 101 Ill. App. 40.

The judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.