text:
    Matthew B. Coburn, Appellee, v. Moline, East Moline & Watertown Railway Company et al. Appellants.
    Gen. No. 5,098.
    1. Passenger and carrier—how abrogation of rule may be shown. Abrogation of a rule may be shown by proof of its habitual violation with knowledge of the party establishing the rule, and such knowledge may be constructive as well as actual; and if the practice to violate the rule is continued for such a length of time that the maker of the rule might reasonably have known of it, the knowledge of such maker will be presumed.
    2. Passenger and carrier—when riding in vestibule of car will not preclude recovery by a passenger. Even though a carrier have a rule forbidding passengers from riding in the vestibules of its ears and even though notices prohibiting passengers from riding in such vestibules be posted in such cars, yet such facts will not preclude a recovery by the passenger for injuries sustained while riding in such a vestibule if it appears from the evidence that such rule was abrogated by the carrier and such notice was not seen by the passenger.
    3. Passenger and carrier—when relation established. Held, that the evidence in this case was sufficient to establish prima facie the payment of fare by the plaintiff and that therefore the relation of passenger and care was prima facie established.
    4. Passenger and carrier—when question of cause of motorneer’s intoxication to be determined by jury. Held, under the evidence in this case, that it was a question for the jury to determine as to whether or not a condition of intoxication existed upon the part of the motorman and as to whether or not such condition was caused by the passenger who was seeking to recover for injuries sustained as the result of a collision.
    5. Evidence—when opinion of medical expert not competent. The opinion of a physician is not competent where it is based upon the self-serving statements by the patient not made in the course of treatment but with reference to a trial.
    6. Evidence—when motion to exclude properly denied. If a single motion is made to exclude the testimony of several witnesses it is properly denied if the testimony of one of such witnesses is competent.
    7. Evidence—how motion to exclude should be made. A motion to exclude should specify the particular answers or the particular parts of answers which it is claimed are incompetent.
    8. Evidence—when motion to exclude comes too late. A motion to exclude the testimony of a medical expert upon the ground that it is based upon self-serving statements, should be made while such witness is upon the stand.
    9. Instructions—as to effect to be given to depositions. An instruction is proper which tells the jury that they should give the same fair consideration to testimony contained in depositions as they would give to such testimony if it had been given in open court; but, held, in this case, that the refusal of such an instruction was not reversible error.
    10. Instructions-—must not ignore material facts. An instruction upon a particular branch of a cause should not ignore any of the elements which enter into its proper determination.
    11. Instructions1—need not repeat. An instruction correct in itself may properly be refused if its contents are contained in other instructions given.
    12. Appeals and errors—when assignment does not raise question of excessiveness of judgment. An assignment of error that the verdict is excessive does not raise the question of the excessiveness of the judgment if the verdict as originally rendered was required to be reduced by remittitur.

    13. Judgments—when not excessive. Held, that a judgment for $6,000, rendered in an action for personal injuries, was not excessive where it appears that at the time of the second trial of the cause the plaintiff was 37 years old, that at the time of the accident he was about 32 or 33 years old, that he was by trade a blacksmith, a wagon-maker and a carpenter and had spent about 15 years at the blacksmith’s trade and had been accustomed to make $3 to $4 per day at that trade; that at the time of the injury he was in the butcher business; that the evidence tended to show a partial stiffness, both in the elbow joint and in the shoulder joint, that the upper arm was shortened, the arm partly paralyzed and emaciated or wasted away, and that he had permanently lost the use of his right arm.
    Action in case for personal injuries. Appeal from the Circuit Court of Rock Island county; the Hon. Frank D. Ramsay, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed June 10, 1909.
    Searle & Marshall and Cyrus E. Dietz, for appellants.
    W. R. Moore, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

One of the appellants owns and the other appellant operates a street and interurban electric railway from a point in the city of Moline easterly and northeasterly through the village of Bast Moline to the village of Watertown some miles distant. Appellee and Harry Carraher, brother-in-law of appellee and his partner in business, lived in Watertown and on the" evening of December 4, 1903, came to Moline over said interurban railway, and started to return on a car leaving the depot of appellants in Moline at 10 o’clock p. m. They got on at a point some distance east of the depot, where the car had stopped to await the passage of some freight cars at a steam railway crossing just ahead. Appellants’ cars had enclosed vestibules in front and rear, with an open door for passengers to enter on the right hand side of the rear vestibule, and with a door for entry on the left hand side of the front vestibule, which latter door the motorneer, whose station was in the front vestibule, usually kept closed and fastenedfrom the inside. Immediately after appellee and Carraher went upon the rear platform, the conductor of the car told them to go upon the front platform. They got off, passed around the rear of the car, and went to the left hand side of the front vestibule and got on there before the car started. Ho one seems to remember whether they knocked and the motorneer opened the front vestibule door or whether the door was already opened, but the motorneer testified that he usually opened that door at railroad crossings, so that after the conductor had flagged the car across he could get on the car in front if he so wished. The car started forward and the conductor got on the rear. At a certain street corner in Bast Moline, the street railway track turned from an east and west street to a north and south street. As this car reached and approached that turn it was running at a speed of from thirty to thirty-five miles per hour. As it struck the bend in the track, the trucks went off the track, the box of " the car went off from the trucks, and slid ahead some 70 feet and turned over in the ditch. Appellee was standing on the right hand side of the motorneer in the vestibule. He was thrown underneath the box, and in some way his right arm was caught underneath the car and was broken, and was held by so heavy a weight that it was more than half an hour before he could be taken out. He was taken to a hospital and was there several weeks, and was then taken home, and his arm was treated for several months by a surgeon in the employ of the company operating the railroad. He brought this suit to recover damages for the injuries so occasioned to him. He recovered a verdict and a judgment for $5,000, which was reversed by this court in Mississippi Valley Traction Co. v. Coburn, 132 Moline, East Moline & Watertown Railway Co. App. 624, and the cause was remanded for a new trial. At a second trial appellee had a verdict for $7,000. On motion for a new trial, the court required a remittitur of $1,000, which was entered, and appellee had a judgment for $6,000, from which the defendants below prosecute this appeal.

It is undisputed that the motorneer was running this car at a very dangerous rate of speed, in view of the sharp turn in the track, and that his negligence in so running the car caused this wreck and the injury to appellee. It is contended, first, that appellee cannot recover because he was riding in the front vestibule in violation of a notice forbidding him to do so, of which he had knowledge; second, that he cannot recover because his fare had not been paid and he was therefore not a passenger; third, that he cannot recover because he was a responsible party in a drunken carousal on said front platform, by means of which the motorneer became intoxicated, and because of which intoxication the motorneer failed to properly control the speed of the car as he approached this bend in the tracks; fourth, that the court erred in refusing to exclude certain medical testimony based upon subjective symptoms; fifth, that the court erred in refusing certain instructions requested by appellants; and sixth, that the judgment is excessive.

The notice is set out in 132 Ill. App. 624. It stated that no person except the dispatcher was allowed to ride on the front platform with the motorneer without a written permit. A copy of this notice was posted on the inside of the vestibule about six feet above its floor, in front of the motorneer and above his head. There were curtains hung between the inside of this car and the front vestibule which excluded the light of the car from the vestibule. There was no light in the vestibule. Appellee therefore would be much less likely to see this notice than if the vestibule had been lighted. He testified that he did not see it. Appellants proved by the conductor and the motorneer of another car that appellee had frequently ridden upon the car in their charge, and had frequently gotten into the front vestibule and had been excluded therefrom by the conductor, and that on one such occasion the conductor pointed out to him a like notice in that vestibule and read it to him, though the motorneer retracted some of his testimony after leaving the stand and reading a transcript of his testimony on the former trial. Appellee testified that he never was excluded from the vestibule by said conductor or motorneer and that such notice was never read to him. By an appropriate question and by an offer of proof appellee sought to show in rebuttal that before this accident he had several times ridden on the platform of other cars of appellants, and that his attention had never been called to this rule, and that he had never been requested to leave the platform, and that on many occasions before the accident he had seen other passengers riding on the front platform of vestibuled cars. Appellants objected to this proof and the court sustained the objection, and cross errors are assigned upon this ruling. No reason appears to us why this proof was not competent as tending to rebut appellants’ claim that appellee was negligent in riding upon the front platform, and also as tending to show that the rule had been practically abandoned by the company. Abrogation of a rule may "be shown by proof of its habitual violation with knowledge of the party establishing the rule, and such knowledge may be constructive as well as actual, and if the practice to violate the rule is continued for such a length of time that the maker of the rule might reasonably have known of it, the knowledge of such maker will be presumed. Hampton v. C. & A. R. R. Co., 236 Ill. 249; C. & W. I. R. R. Co. v. Flynn, 154 Ill. 448, and cases there cited. Appellee was not required to introduce this evidence in chief. It was properly rebuttal after appellants had shown their reliance upon the rule as a defense. It may well be that if the introduction of this testimony had been permitted it would have appeared that in actual practice appellants had treated the rule as abrogated. The conductor of the car in question testified that he was in the habit of directing passengers who had packages to go upon the front vestibule. In view of this conflicting testimony, and of the fact that appellee went into the front vestibule by express direction of appellants’ conductor in charge of the car, and in view of the darkness in the vestibule and of the testimony by appellee that he did not see the rule there posted, we are of opinion that the jury were not required to find that appellee could not recover because of that rule posted in that vestibule,-or otherwise known to appellee.

Appellee testified that he did not know that his fare had been paid and Carraher testified that he did not know whether he paid it or not, and our former opinion was in part based upon the proposition that his fare had not been paid. Appellee at the last trial called the conductor, who testified positively that soon after the car got beyond the railroad crossing referred to he went forward through the car and into the vestibule and called for the fares, and that Carraher then paid the fares for himself and for appellee. One of appellants’ attorneys at the former trial was a witness for appellants at this trial, and it appears from his testimony that he had said conductor present to use as a witness at the former trial, hut learned from him that he would testify that appellee’s fare was paid, and therefore did not put him upon the stand. The conductor was discharged immediately thereafter. In view of this positive testimony hy the conductor of the car on which this accident occurred that Carraher paid appellee’s fare soon after their journey began, and in the absence of any positive testimony that it was not so paid, it is impossible that this court should find that appellee’s fare was not paid and that therefore he was not a passenger. He entered the car for the purpose of riding from that point to his home in Watertown, and the proof is that his fare was paid for him by his brother-in-law immediately upon its being called for by the conductor shortly after the journey began.

"Appellants’ chief contention is that the motorneer ran his car recklessly because he was intoxicated, and that this intoxication was produced by Carraher, and that appellee is responsible therefor and therefore cannot recover. Appellee had a relative named Young in Moline who conducted a restaurant. Appellee and Carraher spent the evening with Young at his restaurant. During the evening on the invitation of Carraher, the three visited a neighboring saloon, where Carraher treated the party. Carraher drank one glass of beer and appellee drank a glass of wine. While there Carraher bought a pint bottle of whiskey and put it in his pocket. Appellee testified that he did not know that Carraher bought or had this whiskey till after they were in the front vestibule. On cross-examination Carraher stated that either the conductor asked him if he had whiskey or he told the conductor that he had whiskey, before the conductor told him to go upon the front platform. The conductor denied that anything of that kind was said to him, and appellee testified that if that was said on the rear platform he did not hear it, and that he did not then know that Carraher had the bottle of whiskey. When the conductor called for the fares on the front platform and Carraher paid them, Carraher then produced the hot-tie from his pocket and asked the conductor if he would have a drink. The conductor did take a drink from the bottle, which he claims was a single swallow. The conductor insists that that was the only drink he took that night, and that he did not see the motorneer drink anything. He also testified that when he and the motorneer started to run the car that afternoon he noticed that the motorneer had been drinking, and thought bim not in a fit condition to run the car. The proof by appellants tended to show that the conductor was in the front vestibule twice afterwards before the accident, and that he took at least one other drink. There was proof tending to show that Carraher gave the motorneer two or three drinks from the bottle. Appellee testified that he did not drink anything while in that vestibule. Two passengers who were in the inside of the car testified that the curtain was at one time removed or lifted so that they could see out into the vestibule for a short time. One of them testified that he saw both of the passengers on the front platform drinking. The other testified that he saw one of the passengers drinking, but did not know whether it was the one who was afterwards injured. There was proof that the motorneer did not appear to be intoxicated and that just before the accident he was looking ahead and standing in his proper position with his hands upon the levers which controlled the operation of the car. There was other proof that just before the accident his hands were hanging by his sides and that he was looking sideways and not ahead. "While appellee lay under the car some one gave him whiskey to drink, and after he was removed a medical man who attended him discovered traces of whiskey in his breath. Appellants were entitled to argue to the jury that the conductor sent these passengers to the front platform because Carraher had the bottle of whiskey and he expected to be invited to drink some of it, and that the two passengers and the conductor and the motorneer were engaged in a drunken carousal, and that the failure of' the motorneer to know that he was approaching a curve in the track and to reduce the speed was due to the influence of the whiskey which Carraher gave him. Appellee was entitled to argue from this evidence that he knew nothing of the presence of the whiskey till a drink was offered to the conductor in the front vestibule, and that he drank nothing and took no part in the drinking, and that he was not responsible for anything that was done there by the others. Carraher was old enough to be in business for himself. Appellee was not his father nor his guardian. We cannot say as a matter of law that appellee was responsible for Carraher ’s conduct. It was a question of fact for the jury to decide what conclusions should be drawn from this testimony. They have in effect decided that appellee was not responsible for the motorneer’s condition, and that appellee was not negligent in remaining upon the front platform after he saw that the motorneer was drinking. We do not feel warranted in disturbing their conclusion, which has the approval of the trial judge, who could determine better than we can which witnesses were the more worthy of credit.

Dr. Dondanville, who had not treated appellee, examined him at length on the second Sunday before the last trial, and again in company with Dr. Sala on the last Sunday before the trial, for the purpose of giving testimony for him. Their evidence tended to show, among other things, a partial paralysis of the arm. Dr. Dondanville described certain tests which he made by sticking pins into the flesh of appellee’s arm in various places and watching whether appellee did or did not flinch, and also by applying tubes containing hot water and other tubes containing cold water to different parts of the arm and ascertaining by his answers to questions whether appellee could tell the difference between the one and the other. To some extent Dr. Dondanville’s conclusions appeared to be founded upon these tests. No objection was made to this testimony at the time it was introduced. At the close of defendant’s evidence and a very brief time before the close of all the evidence, appellants made the following motion: “We now move to strike out all of that or those portions of the evidence of the witnesses Dr. Dondanville and Dr. Sala with reference to their examination of this plaintiff and upon which they predicated or based any opinions or statements relative to his condition that is based or predicated upon any statements made to them or either of them by the plaintiff as to his conditions then past or present, or his sensations or feelings consequent or incident to their examinations or the tests made by them.” That motion was denied and it is urged that the ruling was erroneous. The opinion of a physician is not competent evidence where it is based upon self-serving statements by the patient not made in the course of treatment but with reference to a trial. Fuhry v. Chicago City Ry. Co., 239 Ill. 548. But yet we conclude that this error is not well assigned for several reasons. First, it was but a single motion and it included the evidence of Dr. Sala. Dr. Sala testified that he did not make any such tests or experiments, and a reading of his entire evidence in the record shows that his conclusions were not based upon any subjective symptoms. He was afterwards asked to state the nature of tests made by pin pricking and by hot and cold water tubes, and he did show that they involve in part subjective symptoms, but he did not state that any such tests were made by him or in his presence. The court therefore could not grant this motion as to the evidence of Dr. Sala. While the court would no doubt have a right to rule separately as to the evidence of Dr. Dondanville and the evidence of Dr. Sala, yet it was not required to do so under this motion and it was not error for the court to refuse the motion as made. If appellants desired to move to exclude the evidence of Dr. Dondanville only, and to assign error upon the refusal of the motion, they should have made that motion separately. Second, the motion did not point out any answer made by Dr. Dondanville which appellants desired to have excluded. If this motion had been granted as to Dr. Dondanville, the jury would not be able to know what particulars were excluded. The motion should have pointed out the particular answers which appellants desired to have excluded, or the particular part of an answer, as the case might be. Third, a careful reading of the evidence of Dr. Dondanville in the record makes it very doubtful whether his conclusions of the existence of partial paralysis in appellee’s arm were in fact based upon subjective symptoms. Schmidt v. Chicago City Ry. Co., 239 Ill. 494. On page 196 of the record Dr. Dondanville stated that he did not determine entirely by what the patient said whether or not the pin sticking hurt him, because there was a reflex action of the skin when a pin was stuck into it which was not subject to the control of the will. On page 160 of the record he was asked the following question and gave the following answer: “Q. I understand you, doctor, to say that in your opinion he will never have the use of his arm. Now, will you state in a general way how you form that opinion, aside from what you have already stated? A. I form that opinion judging from the displacements of the bond in the region of the shoulder joint, and the amount of mobilization at the two joints, the one at the shoulder and the other at the elbow, and the amount of paralysis lasting this long a time, and the amount of—those, I believe, would be the principal reasons.” Fourth, appellants examined appellee as to these tests made by Dr. Dondanville by sticking pins into his arm and by applying hot and cold water tubes, and when all of that examination on that subject is read from the record, we think it clear that appellee meant to be understood that he correctly announced to Dr. Dondanville what sensations he felt when these tests were applied. This motion to exclude was not- made until after that fact was drawn out on the cross-examination of appellee, so that before the motion to exclude was made there was in the record testimony tending to show that if Dr. Dondanville relied at all upon subjective symptoms in forming his conclusion that there was a partial paralysis of the arm, these subjective symptoms were true. Finally, the motion to exclude should have been made while Dr. Dondanville was on the stand, so that it could then have been ascertained by further examination whether these subjective symptoms of the flinching or failure to flinch of the patient, and his answers whether the water felt cold or hot to him, were in fact the basis of the doctor’s conclusion. It was very late to make this motion just at the close of the trial, when the evidence had been heard without objection.

Appellants read in evidence the depositions of Henri Beauprez, taken in Belgium, and of Leon Yon Es-lander, taken in Manitoba. The court refused instruction No. 2, requested by appellants, which was to the effect that the jury should give the same fair consideration to the testimony contained in the depositions as they would give to said testimony if it had been given by witnesses in open court. Section 34 of Chapter 51 of the Revised Statutes, relating to evidence and depositions, provides that every deposition taken and returned under the provisions of that act may be read as good and competent evidence in the cause in which it is taken, as if such witness had been present and examined by parol in open court, on the trial thereof. It was held in Olcese v. Mobile Fruit & Trading Co., 211 Ill. 539, that a similar instruction was properly given. No reason is suggested why this instruction should have been refused. The question remains whether its refusal was so serious an error as to require the reversal of the judgment. The witnesses in question sat inside the car near the front end, and testified they saw drinking on the front platform and saw the motorneer drinking. This, however, was not disputed. Von Eslander testified that he saw one of the passengers drinking but did not know that it was the one who was afterwards injured. As there was no dispute hut that Carraher did drink, that deposition added nothing to the force of appellants’ other testimony. Beauprez made some statements in his deposition which the court excluded, and it is not argued' that there was any error in the exclusion of those statements, which were not responsive to the questions propounded. He further testified that he saw the motorneer drinking whiskey with the two others, by which he apparently meant with the two passengers. He is the only witness who testified that appellee drank upon the front platform. If it was material to determine whether appellee did or did not drink upon the front platform—if his drinking there would defeat his recovery in this action—then we would regard the refusal of this instruction as reversible error. But under the proof appellee did not buy the whiskey or bring it upon the platform or offer it to the motorneer. There is nothing in the evidence which makes him responsible for Carraher’s act in giving whiskey to the motorneer. We fail to see that the fact that he accepted a drink from the bottle when offered to him by Carraher, if the jury had found that he did só take a drink, would defeat his right to recover in this action. We therefore conclude that the testimony of Beauprez, which was mainly in harmony with the other testimony, was not of such importance to appellants that we should reverse this judgment because of the refusal of that instruction.

Complaint is made of the refusal of instructions Nos. 6, 7, 8 and 9, requested by appellants. They relate to the presence of appellee on the front platform. Nos. 6, 7 and 9 would present that subject to the jury without reference to the direction by the conductor to appellee to go upon that platform, and they were therefore erroneous. No. 8 was to the effect that though appellee went upon the platform by direction of the conductor, yet if the appellee knew, or by the exercise of reasonable care might have known, that such direction was in violation of the rules of appellants and that such platform was not used or provided for carrying passengers, then appellee could not recover. ¡Reliance is had upon a case where a party, having written permission to ride upon the caboose of a freight train, rode upon the engine by permission of the conductor, and it was held that the conductor could not abrogate the rules of the company. We do not think this case parallel. An engine at the head of a freight train it is well known is not intended for the carrying of passengers, and it is a dangerous place for passengers to ride upon. The vestibule of this car was easily accessible, not only by the outside door, but also by a door in the middle of the car. There is nothing in the record to indicate that it was any less safe a place for a passenger than the inside of the car, but it was less comfortable because no seats or heat were provided there. The purpose of the regulation no doubt was that the action of the motorneer in managing his car might not be hindered by passengers pressing too closely about him. In this case, a passenger inside this car was seriously injured by this accident, so that it cannot be said that if appellee had been inside the car he would not have been hurt. But further than this, the numerous instructions given by the court at the request of appellants covered this and every other point in the case, except the effect of the depositions, quite as fully as the refused instructions. For instance, the 9th instruction, given at the request of appellants, told the jury that if appellee was riding on said platform, of which he had notice, and if his so riding contributed to the accident, then he could not recover. As to other instructions offered by appellant and refused, of which complaint is made, it is also true that they were substantially embodied in the given instructions.

It is contended that the judgment is excessive. The only assignment of error on this subject is that the verdict is excessive. The trial court so held and required a reduction of $1,000. It is not assigned for error that the judgment for the reduced amount is excessive. The point now made that the judgment is excessive seems not therefore included within the assignment of errors. Penna. Co. v. Purvis, 128 Ill. App. 367. If, however, we consider the evidence, we are not satisfied that a further reduction should be required. At the second trial in February, 1908, appellee was less than 37 years old, so that he was some 32 or 33 years old at the time of the accident. He was by trade a blacksmith, a wagonmaker, and a carpenter, and spent about fifteen years at the blacksmith’s trade, and had been accustomed to make $3 to $4 per day at that trade. At the time of the injury he was in the butcher business. The evidence for appellee tended to show a partial stiffness, both in the elbow joint and in the shoulder joint, that the upper arm was shortened, the arm partly paralyzed and emaciated or wasted away, and that he had permanently lost the use of his right arm. Appellants’ evidence tended to show that his injuries were much slighter. The extent of his injuries was a question of fact for the jury. If he had permanently lost the use of his right arm, then he cannot work at the trades which he has learned, and is permanently incapacitated from manual labor. We are not able to say that the judgment is more than fair compensation to a man of these trades and of appellee’s age, and who had been theretofore capable of earning the wages stated. Certainly, the judgment is not so excessive that we would be justified in interfering on that ground.

We find no reversible error in the record. The judgment is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Me. Justice Dibell

license: Public Domain

text:
    Jessie R. Thren, Appellee, v. Sarah J. Ames, Appellant.
    Gen. No. 5,115.

      Damages—when new trial will not he awarded. A new trial will not be awarded to permit the recovery of merely nominal damages.
    Trespass on the case. Appeal from the Circuit Court of Winnebago county; the Hon. Charles H. Donnelly, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed June 10, 1909.
    Rehearing denied July 15, 1909.
    James R. Jaffray and William L. Pierce, for appellant.
    H. S. Hicks, for appellee.
   Me. Justice Dibell

delivered the opinion of the court.

Mrs. Thren, the appellee, and Mrs. Ames, the appellant, exchanged real estate properties at an agreed valuation of $5,000 for each, and pursuant thereto Mrs. Ames deeded to Mrs. Thren, under date of January 8, 1903, lot 13 in block 37, in the Gregory addition to the city of Bockford, on the east side of Bock river, excepting the north ten feet thereof, reserved for an alley. On September 7, 1903, Mrs. Thren began this suit against Mrs. Ames, to recover damages for a deceit alleged to have been practiced upon her in the making of said trade. The suit has been tried five times in the Circuit Court, and this is the third time it has been before this court upon appeal, our former reviews of the case being reported under the title of Ames v. Thren, in 125 Ill. App. 312; and 136 Ill. App. 568. The present appeal is from a judgment in favor of Mrs. Thren for $600.

The alleged deceit is in respect, to two matters. The first relates to a conversation when Mrs. Ames was showing Mrs. Thren this Bockford property. Mrs, Thren testified that Mrs. Ames then pointed to a fence standing three or four feet east of the dwelling house upon said lot (which house faced south) and said, “There is the lot line.” Mrs. Heimert, a tenant, was present, and testified that Mrs. Ames then said to Mrs. Thren, “There is the line fence,” pointing’ to the fence between the property of Mrs. Ames and the property next east, owned by the Ekeberg family. It was proven that at a former trial, Mrs. Heimert testified that Mrs. Ames said to Mrs. Thren, “There is your line.” Mrs. Ames denied that she made this statement, but testified that if she had been asked where the line was, she would have said that that fence was the line, as she believed it so to be. The other alleged deceit consisted in the failure to disclose this fact: Some time before this, the city surveyor had driven an iron pin in the street, nearly three feet west of this fence, as the line between said lot 13 and the lot next east thereof belonging to the Ekebergs, which was lot 14. If this pin was at the true line, then the eaves of the dwelling house on Mrs. Ames’ lot projected over on to lot 14, and some two feet of a barn in the rear stood over on lot 14. "When Mrs. Thren viewed the premises before buying, there was snow and ice in the street, and this iron pin was out of sight. Mrs. Ames knew of its existence, but did not call the attention of Mrs. Thren to it. This survey had not been made at the instance or with the 'co-operation of Mrs. Ames. It was an ex parte survey, and not binding upon her. Mrs. Thren introduced evidence of conversations by Mrs. Ames with others, before this exchange of properties, which tended to show that Mrs. Ames supposed that the iron pin was at the true line, and that she did not desire to disclose that fact. Mrs. Ames testified denying these conversations. Mrs. Ames also proved that, prior to the exchange of properties, she talked with Mrs. Ekeberg, who was living on lot 14, having a homestead and dower right therein, and that Mrs. Ekeberg told her that there would never be any trouble with her family about the line; and that she talked with a real estate dealer, who assured her that there was nothing in the report that her line fence was not on the true line. It will therefore be seen that if the real boundary between the two lots is on the line where the iron pin is driven, then there was evidence which would warrant the jury in finding either that Mrs. Ames had or had not been guilty of deceit.

The fence in question was built in 1888. The part nearest to the street on the south was built by Mr. Ekeberg, now deceased, the husband of Mrs. Ekeberg, and the then owner of the east lot, or by Mrs. Ekeberg’s father under her direction. While the proof on that subject is not as clear as in former records before this court, yet it sufficiently appears that that fence was built upon the same line as an old fence previously dividing the properties. For many years back, that fence has been treated by the owners of lot 13 and the owners of lot 14 as being the dividing line between the lots. The owners of lot 13, including both Mrs. Ames and her predecessor in title, have held and claimed to own to that fence. No suit has ever been brought to dispossess the owner of lot 13 of the land immediately west of that fence. Mrs. Ames delivered to Mrs. Thren possession to that fence, and she has ever since retained that possession. It appears that some time within a year preceding the last trial, the fence has been taken down, but there is no proof that the possession of Mrs. Thren has thereby been changed, nor anything to show that she does not yet possess the premises up to the line of that fence. She therefore obtained possession of all that she supposed she was buying, and she has ever since retained, and still has, that possession. As against Mrs. Ames, she is not at liberty to surrender that possession to the Ekebergs, if they should demand it of her. Both the original and amended declarations allege, as the only damage which Mrs. Thren has suffered by this alleged deceit, that she has. been cheated of her money and property, and deprived of the use thereof for a long period of time, and has been put to much trouble and expense in trying to recover the same. The proof shows that she has not been deprived of the use of any property, and she does not show that she has been put to any trouble and expense in trying to recover the same. That allegation, of course, must be held to refer to the condition existing when she commenced this suit, and not to the money she has spent in this suit. She called several witnesses to prove her damages. The questions upon that subject were objected to by Mrs. Ames, and the objections were overruled, and exceptions were duly preserved. These expert witnesses were first asked their opinion as to the fair market value of lot 13 at the date of the deed, assuming that the fence was the east line of the lot. After each of these witnesses had fixed a valuation upon the lot if the fence was its east line, they were then asked to give its fair market value at the date of the deed, if the line of the lot in fact ran along the east wall of the house, underneath the eaves, so that the eaves projected over the lot line, and if the lot line ran through the outbuildings on the rear of the lot, and they gave their estimates of that value, the difference in value being generally estimated by them at about $1,000. These questions entirely ignored the fact that Mrs. Thren received from Mrs. Ames and is still in possession clear to the fence. She has at least a possessory title clear to the fence, and there is nothing to show that she will ever be disturbed in her possession of the three feet, more or less, here in question. If the fact should turn out to be that the original fence, upon the line where the present fence stood when this suit was begun, was placed there by an agreement between the owner of lot 14 and the owner of lot 13, that that should be treated as the true line between those lots, then, the Ekebergs could not recover possession of said three feet from Mrs. Thren, and she would have a perfect title thereto; though that title would not be of record, if the pin is at the theoretically true line between the lots. In that event the statement by Mrs. Ames, if she made it, that that fence was the lot line, would not be false. The proof does not show that Mrs. Thren has sustained any actual damage by reason of the alleged deceit. It is not shown that the property was worth any less when she bought it because of the possibility that the Ekebergs might seek to recover said three feet of land, and because of the possibility that they might succeed in such litigation if they should institute it, or because of the possibility that it might turn out that, though she had a perfect possessory title to the fence, yet her paper title of record would begin three feet further west. Under all these circumstances it is clear to us that this record does not disclose that she has been injured in the sum of $600 or in any other sum. If she is never ejected from this three feet, and is never sued for possession thereof, she will retain all that she supposed she was buying, and will have the amount, of the judgment besides, if the judgment stands and is paid; whereas the only witnesses upon whose testimony the judgment is founded based their estimates upon the supposition that she is to lose three feet from the east side of the property.

A new trial will not be granted to permit the recovery of merely nominal damages. Hyatt v. Wood, 3 Johns. 239; Johnson v. Weedman, 4 Scam. 495; Comstock v. Brosseau, 65 Ill. 39; Thisler v. Hopkins, 85 Ill. App. 207; People v. Petrie, 94 Ill. App. 652, and the same case 191 Ill. 497. Upon the proofs in the present record, we are of opinion that not more than nominal damages could be recovered.

We conclude that we ought not to permit appellee to further experiment with the case. The judgment is therefore reversed.

Reversed,.

Finding of facts to be incorporated in the judgment:

We find that appellee received from appellant all that she supposed she was purchasing, and that she has ever since retained possession thereof, and that there is nothing to show that she will ever be disturbed in that possession, and that there is no proof that she is entitled to recover more than nominal damages, if she has a cause of action.


author: Mr. Justice Dibell

text:
    William L. Sackett et al., Appellants, v. City of Morris et al., Appellees.
    Gen. No. 5,119.
    1. Cities, villages and towns—power of city council to compromise litigation. It is peculiarly within the province and power of the city council of a city to compromise litigation which affects the business affairs of the city.
    2. Cities, villages and towns—power and duties of city attorney. It is the duty of a city attorney to obey the orders of the city council with respect to litigation which affects the business affairs of the city and he has no power with respect to such litigation superior to such city council.
    3. Cities, villages and towns—when resolution deemed carried. The declaration of the mayor that a resolution presented to a city council is lost, is not conclusive; such a resolution will be deemed to have carried if the records of the meeting of such council show facts from which such legal conclusion, namely, that the resolution carried, may be drawn.
    4. Cities, villages and towns—what resolutions pertaining to water meters adopted and valid. Held, that the resolutions in question in this case were not designed to repeal an ordinance, that the same were lawfully adopted and were valid. Such resolutions provided in substance, first, that certain kinds of meters could be installed by consumers of water; second, that such meters need not be purchased from the city but could be purchased direct by such consumers, and, third, that until such time as said meters were installed (a time limit being fixed by the resolution) the previous prevailing flat rate for the use of water would be charged.
    5. Injunctions—when damages upon dissolution should not he allowed. If an injunction is obtained against a city and subsequently dissolved and the bill dismissed at the instance of the complainant, damages should not be awarded if such dissolution and dismissal were the result of a settlement made pursuant to negotiations regularly initiated by the city council with such complainant and finally concluded by a settlement made in writing with a majority of such city council, competent to pass the resolution of settlement provided for, which said resolution of settlement was subsequently duly passed.
    6. Injunctions—when city officials not entitled to damages upon dissolution. City officials made defendants in their official capacities are not entitled to an allowance of damages upon dissolution if such city is not entitled to damages.
    Bill in equity. Appeal from the Circuit Court of Peoria county; the Hon. L. D. Puterbaugh, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed June 10, 1909.
    C. F. Hanson for appellants.
    J. W. Rausoh, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

William L. Sackett and twenty-two others, residents and taxpayers of the city of Morris, filed a bill in equity in the Grundy Circuit Court against the city of Morris and its mayor and superintendent of waterworks, and obtained an injunction restraining the defendants from enforcing certain ordinances concerning water meters, and from shutting off water from complainants and others similarly situated, and from engaging in the business of buying and selling water meters. The cause was removed to the Circuit Court of Peoria county, where, on motion of the defendants, the complainants were ruled to file an injunction bond in the penal sum of $1,500 by a certain day, and a motion to dissolve the injunction was continued till 10 o’clock a. m. of the same day. On that day complainants dismissed the bill without prejudice. The defendants filed a suggestion of damages by reason of the wrongful suing out of said injunction, the several items of the suggestion amounting to $1,836.13. Thereafter they filed a bill of particulars, amounting to $2,857.65. There was a hearing upon said suggestion of damages and a decree against complainants for $387.15, from which complainants appeal. Defendants did not appeal from the disallowance of the major part of their claim, nor have they assigned cross errors. Besides other objections to the allowance of damages, it is claimed by complainants that the bill was dismissed as the result of a settlement and compromise between the complainants and the city council, and that therefore the complainants are not liable in damages to the defendants; and also that nearly all of the expenses for which allowance was made were incurred by the city attorney in violation of the direction of the city council in a matter within its control.

The city of Morris has operated a public waterworks plant since 1894, and supplies many citizens with water for domestic and other uses. It charged what is known as “flat rates” for the water. On July 8, 1907, the city adopted an ordinance abolishing its tariff of rates and requiring all water consumers to use a meter to be thereafter approved by the city, and to pay meter rates. It provided that the city of Morris should within thirty days decide upon a proper meter and that all water consumers must furnish one of said meters on or before October 1, 1907. On August 12, 1907, the city, by another ordinance, adopted certain styles of water meters, and provided that they should be purchased by the city and sold to the consumers at cost. The bill assails the . validity of these ordinances for various reasons, charging, among other things, that the practical operation of these ordinances would be to give one particular manufacturer a monopoly of the sale of water meters to be used in Morris; that other styles of water meters manufactured by other concerns were better and could be purchased at a lower cost;.that the city council had no authority of law to enter into the business of buying and selling water meters; and that if it had that power, its annual appropriation bill covering that period did not contain any appropriation of money to be used in buying water meters, and that it had no funds which it could lawfully use for that purpose. The filing upon the hill does not appear in the record, and witnesses for defendants testified that it was filed on December 4,1907, but the record shows that it was sworn to on January 3, 1908, and the summons and injunction were issued on January 4, 1908, so that this suit seems to have been commenced on January 4, 1908. Another bill had been filed by one Eldred about December 4, 1907, and an injunction had been issued thereunder enjoining the enforcement of said ordinances as against Eldred. There was also another case pending affecting the validity of these ordinances, known in this record as the Bridge case. The Eldred case and the Bridge case were pending on December 23, 1907, when, at a meeting of the city council, a motion was adopted that the mayor appoint three members of the city council to act with the city attorney “in hiring an assistant attorney to help defend the injunction suits that have been brought against the city,” the mayor to be a member of the committee. Three aldermen were appointed upon the committee. This resolution by its terms only related to injunction suits then pending,' and the record seems to show that this suit was not begun until later. It was a disputed question of fact whether the aldermen of this committee who constituted the majority thereof were ever called together or held a meeting or took any action. The allowance here appealed from was chiefly for the fees of other attorneys in Morris and in Peoria hired by the city attorney in this case without any authority from the city council save the above resolution.

On January 18, 1908, défendants entered a motion in vacation before a judge of the Circuit Court to dissolve the injunction. The judge continued the hearing of the motion to the March term. Thereupon the defendants filed a petition for a change of venue, alleging the prejudice against the defendants of all of the judges of that circuit, and, on January 25, that motion was granted, and the parties then agreed that the venue should be. changed to the Circuit Court of Peoria county. Thereafter, and before a transcript for the transfer of the record of said cause had been completed, the city council held a meeting on January 27. The city of Morris contains four wards, and a full council consists of the mayor and eight aldermen. Under the general act for the incorporation of cities a majority of the aldermen elect constitute a quorum to do business, and a majority of a quorum present can transact all ordinary business, but the concurrence of a majority of all the members elected is necessary to the passing of any proposition or any ordinance involving the expenditure or appropriation of money. At that meeting a resolution in regard to the pending water meter injunction suits against the city of Morris was presented and declared out of order by the mayor. An appeal was taken from this decision. There were six aldermen present and the appeal was sustained by a vote of four to two. The resolution was then changed so as to contain a direction to the superintendent of waterworks to take no further action to install water meters or shut off water from any consumer till further instructions from the city council and to instruct the fire and water committee to consult with the parties to the injunction suits and see if negotiations could not be entered upon for the settlement of the differences between the water consumers and the city that expense might be saved and harmony among the people restored; and that the committee should report at an adjourned meeting on February 1. The records of the city council do not show that this motion was adopted and an effort to prove by the city clerk that it was in fact adopted was objected to and the objection sustained. On February 1 the adjourned meeting was held. At that meeting the fire and water committee reported that progress had been made in negotiating a settlement of the meter suits pending against the city and that a settlement had been partly arranged; that the committee had been able to see only a part of the complainants in those cases, but that assurance had been given that all would join in so adjusting the matter with the city as not to interfere with putting in meters. The committee asked that their time to act be extended till the next regular meeting, and they recommended that the city attorney do nothing in connection with these cases in court till the further report of the committee and instruction by the city council. The record of this meeting shows that, at the request of the mayor, the city attorney informed the council that the ordinances hereinafter referred to gave him power to prosecute or defend in behalf of the city all cases in which the interests of the city were involved and empowered him to dismiss any suit on just and equitable terms, and that the city council had no power to act in the matter; that anything the city council might do would be null and void; that any action by the city council to prejudice the interests of the city would be disregarded by him; that if the complainants offered a fair and honest proposition of settlement he would settle with them, but he would not permit the rights of the city to be bartered away; and if he doubted the wisdom of the propositions submitted, he would submit them to the city council before accepting them; and that the members of the city council would lay themselves personally liable if they made a settlement by which the city became liable for one cent. The motion to adopt the report was then voted upon under a call of the yeas and nays. Six aldermen, a quorum, were present. Four voted to adopt the report and two against it. The motion was adopted and the mayor so declared. By the adoption of this report the city attorney was directed to do nothing in connection with these cases till the further report of the committee and instruction by the city council. Thereafter some one, and evidently the city attorney, caused the transcript on change of venue to be completed and the record and files to be transmitted to the Circuit Court of Peoria county. The city attorney thereafter hired other attorneys, resident in Peoria, to represent the city in this case, and after the cause reached that court he filed an answer, and moved to dissolve the injunction, and moved for and obtained an order for an injunction bond; and these acts were done by the city attorney without any further instructions from the city council.

The general act for the incorporation of cities provides for the election of a city attorney, and does not prescribe his powers or duties. In Agnew v. Brall, 124 Ill. 312, a city attorney had prosecuted a defendant before a justice of the peace for the violation of a city ordinance, and had recovered a judgment in favor of the city for $200. During the time allowed for an appeal defendant petitioned the city council to release the judgment on his payment of $100 and the costs. The city council adopted the offer and directed the release of the judgment upon the payment of that sum, and defendant paid the $100 into the city treasury and paid the costs. The city attorney claimed that the city council had no right to accept a part of a judgment in satisfaction of the whole, and, disregarding the action of the city council, sued out an execution to collect the full amount of the judgment. Defendant filed a bill to enjoin the collection of the execution. It was held that the city council could not give away the property of the corporation without consideration nor discharge the debt of a solvent party without payment, where no controversy exists as to its validity, but that it had power to settle disputed claims and pending suits and to compromise doubtful controversies; and that while the defendant in that case still had a right of appeal, the city council had a right to settle it, for the final result might be adverse to the corporation. The contentions of the city attorney were overruled. In City of Lewiston v. Hummel, 38 Ill. App. 326, after a fine had been assessed against defendant, but before his right to appeal had expired, the city council remitted the fine, but afterwards undertook to enforce it. It was held that as the claim might have been defeated on appeal it was within the power of the city council to settle it as it thought best, and that it could legally remit the fine. In Flynn v. City of Springfield, 120 Ill. App. 266, the foregoing authorities were not strictly followed; but upon the present subject it was there said: “In suits that concern the city regarded as an individual, the city attorney is required to follow the direction of the city council.”

The present suit relates to the management and method of conducting the business affairs of the municipality. The answer of the defendants alleges that the flat rate had proved insufficient to defray the expenses of conducting the waterworks, and that the purpose of requiring the universal use of water meters was to make the waterworks self-sustaining and to prevent waste of water by requiring each consumer to pay for all the water he actually used. It is obvious that these were matters wholly within the control of the city council, and that it could make any honest compromise of any litigation which had arisen concerning these matters; and that the city attorney was in duty bound to obey the directions of the city council in regard to such litigation. But it is argued that because of certain ordinances adopted by the city council of the city of Morris relative to the office of city attorney, that officer became the sole authority in behalf of the city which could settle this suit. These supposed ordinances are set out in appellee’s brief, but we do not find them in the record, though the certificate of evidence purports to contain all the evidence offered at the hearing. But if the ordinances are as stated in the brief they relate chiefly to the duties of the city attorney, and they do not purport to deprive the city council of its authority to compromise litigation concerning the business affairs of the city, and, if they did, they would be invalid, for the legislature has placed the control of the business affairs of the city in the city council, and the city council cannot deprive itself of the duty to exercise that control. The only authority of this kind which these ordinances purport to confer upon the city attorney is that where he becomes satisfied that a complaint of the violation of any ordinance has been instituted maliciously or vexatiously, and without probable cause, he is authorized to discontinue such proceeding upon just and equitable terms. That provision does not apply to this case, and even it does not deprive the city council of power to control the proceeding. We are satisfied that the city council had ample power to make any honest settlement of this controversy with the consumers of water, and that the city attorney had no authority to interfere with the complete control of the matter by the city council.

Subsequent proceedings by the city council assume that on January 27 the fire and water committee was directed to endeavor to obtain a settlement. For example, the proceedings of the meeting of March 16 contain the following: “The mayor then requested that the committee on fire and water bring in their report on settlement of the meter injunction suits referred to them January 27, 1908.” On February 1, that committee made the report already mentioned. On February 10 the committee, styling themselves the committee to whom had been referred for a settlement the pending meter injunction suits against the city, reported that they had taken legal advice outside of Morris, and had ascertained that the city council of Morris had authority to settle this litigation and that the members would not be personally liable; that they had been halted in their negotiations for a settlement; and that they believed it would be beneficial to have a committee of citizens to act with them in an advisory capacity. They asked the adoption of their report as authority in the committee to continue in charge of the matter of settlement. The report suggested the names of three citizens to act as such advisory committee. The recommendations were concurred in by a vote of four to one. On March 16 the committee, at the request of the mayor above mentioned, reported that the complainants were quite willing to settle if the people were given the rights people are legally entitled to when called upon to spend their own money; that they were not seeking to bankrupt the waterworks or prevent meters being installed, if that was considered public policy and a remedy for existing evils; that they were willing to give the city the right to make such tests of service as were necessary for the yitv’s protection, but that they demanded the right to spend their own money without coercion or limitation by the city or the creation by the city of a monopoly in the interests of any particular company, by which the price is made greater than the meters can be bought for. The committee stated that they presented an ordinance which they had prepared which provided for the installation of water meters but did not restrict the consumer in his purchase. The report stated that this was the unanimous action of the committee of the city council and of the committee of the citizens; that both committees believed it fair to the consumers and that it gave adequate protection to the city; that when the ordinance was passed and took effect the complainants securing the injunction would dismiss and pay the costs accruing to them, the city to pay its own costs, and that the committee had found from the records that the costs of the city would be seventy-five cents up to the time when the city attorney was instructed by the council to take no further action in the pending suits till the council could act, and that if there were any costs incurred later by the city attorney, they would be a small item compared to the benefit to the city. The committee stated in their report that they introduced the ordinance for the purpose of settling the litigation and securing the dismissal of the injunction suits. A motion was made that, the recommendations of the committee be concurred in. The mayor declared the motion out of order. An appeal was sustained by a vote of four to two, there being six aldermen present. A vote by yeas and nays was then taken on the motion to concur in the recommendations of the committee. Four voted for and two against the motion. The mayor declared it lost. This was followed by a motion to read the ordinance, and it was read. The record of the council proceedings shows that there was then a motion that it be read the first time by its title. A title was added to the ordinance and it was read by its title. There was then a roll call, but the record does not disclose what was voted upon. There were four yeas and two nays, and the mayor declared the motion lost. If this was a motion to adopt the ordinance, the ruling was correct. The ordinance itself is not in the record. These votes, however, show that a majority of those attending that meeting, and a majority of a quorum, were in favor of a settlement with complainants, and that the committee and the complainants had reached a basis of settlement if the council would approve it. So far as appears, the settlement did not involve the creation of any liability against the city. It did not involve the abandonment of any right claimed by the city except the right to compel consumers to buy certain specified kinds of meters and to buy them from the city.

Up to this time all the proceedings indicated that it was the view of the city council that the bill of complaint in this case correctly interpreted the ordinance of August 12, 1907, as compelling consumers of water to purchase their meters from the city. But on March 10 the city attorney filed the answer of the defendants in this case, and that answer alleged that the ordinance of August 12, 1907, did not prohibit the installation of an approved meter purchased from any source whatever, whether of the city or not, and that the object of the provision on that subject in that ordinance was only to prohibit the city from charging more than cost to any one who bought a meter from it. This was an apparent abandonment of one of the chief causes of the contention between the complainants and the city. The defendants, by the city attorney and the other attorneys hired by him, then entered a motion to dissolve the injunction upon the bill,- answer and affidavits; the complainants, by a solicitor specially engaged for that purpose, entered a motion to continue the motion to dissolve till a later date when the solicitor of record for complainants could be present; and the defendants entered a cross motion for an injunction bond; and the court continued said motion to dissolve to March 23 at 10 o’clock a. m. and required complainants to file an injunction bond in the penal sum of $1,500 on or before March 23.

The next council meeting after that adjourned meeting of March 16 was to be held on March 23 at 7:30 p. m., which would be after the hour fixed by the court for hearing the motion to dissolve. Unless a special meeting was called there would therefore be no further opportunity for the city council to act till after the court had heard the motion to dissolve. In taking a transcript of the record, filing it in the Circuit Court of Peoria county, hiring additional counsel in Peoria county, filing the answer and moving to dissolve the injunction, and thus actively continuing the litigation while negotiations for a settlement were being carried on between the city council and the complainants, the city attorney had disregarded the directions of the city council given him on February 1 to do nothing further with these cases in court till report by the committee and instruction by the city council. This was a disobedience of the directions of the city council in a matter over which the city council had complete control, and in which it was the duty of the city attorney to execute the directions of the city council. In this condition of affairs, the time for active hostilities in court forced by the city attorney, in disobedience of the directions of his superior, being just at hand, and no council meeting intervening, five members of the city council, being the entire fire and water committee which had the matter of settling this litigation in charge and two others, constituting a majority of the entire council and able therefore to pass whatever ordinance or order might be necessary, entered into a written agreement with the complainants.

The five aldermen agreed that at the next meeting of the city council they would introduce and pass the following resolution:

“Whereas, it has been ascertained that there are many other standard water meters in use in various cities of the United States, some of which are much less in price than any now approved by the city council, and Whereas, it is the desire of the city council that water consumers be given all opportunity to get any class of meter they may wish to install; therefore be it resolved, that the city council hereby approves for use in the city of Morris, in addition to other meters heretofore approved, the Buffalo meter, the Niagara meter and Worthington disc meter. Resolved, that the time for installing meters in Morris is hereby extended to August 1, 1908, and that the superintendent of waterworks is hereby instructed to collect water rentals on old flat rates to that period. Resolved, that water consumers shall have the privilege of buying water meters of dealers or manufacturers direct, if they prefer.”

This was signed by the five aldermen. Underneath this was the following, signed by two of the complainants and by the solicitor for all the complainants:

“Whereupon the complainants in a certain injunction proceeding now- pending against the city of Morris, by the undersigned, one of the complainants, as well as one of the attorneys for the complainants, hereby agree that the above embodies all they have contended for on behalf of the people, to wit, a reasonable length of time in which to install meters and the privilege of buying any standard meter in use in other cities, when the same could be bought for less money than meters heretofore offered by the city and approved by the council, and on behalf of the complainants we hereby agree to dismiss all pending proceedings against the city wherein injunctions have been granted.”

Thereafter, on March 23, and presumably before or at the hour of 10 a. mv on motion of complainants, the injunction was dissolved and the suit was dismissed without prejudice, costs paid. This was in strict compliance with the agreement which the complainants had made with the majority of the entire body of aider-men of the city. Thereafter the city attorney, without any authority from the city council to take that or any further action in the cause, so far as this record discloses, filed the suggestion of damages and procured the allowance here complained of.

Where a statute or a bond provides for an allowance of damages for the wrongful suing out of an injunction, if it shall be dissolved, this means a dissolution by order of court, or upon the failure of complainant to prosecute his suit. We held in Cassem v. Ernst, 84 Ill. App. 70, that it did not include a dissolution by agreement of complainant and defendant upon a settlement of all or a part of the controversies involved in the suit. It is true that in Cummings v. Mugge, 94 Ill. 186, Landis v. Wolf, 206 Ill. 392, and Brown v. Peterson, 117 Ill. App. 401, it was said that the dissolution of the injunction and dismissal of the bill were conclusive that the injunction was wrongfully sued out, but there the injunctions had been dissolved on the motions of the defendants. In Railway Co. v. Burke, 54 Ohio St. 98, it was held that to make complainant liable to such damages there must be a judicial determination of the merits of the case in favor of the defendant, either in a trial on the merits or on a motion to dissolve the injunction, except where the plaintiff dismisses his action without the consent of the defendant. It was there said that “any agreement between the parties, subsequent to the allowance of the injunction, by which the action is dismissed and the injunction dissolved, is not sufficient in an action on the bond, where there has been no judicial determination that the injunction should not have been allowed.’’ In Palmer v. Foley, 71 N. Y. 106, it was held that where there had been no judicial determination that the plaintiff was not entitled to the injunction, but it was dissolved by the voluntary and amicable agreement of the parties, there was no liability by the plaintiff for damages. This was approved in Johnson v. Elwood, 82 N. Y. 362. Appellees cite St. J. & E. P. Co. v. Graham, 165 Ind. 16, where it is held that a voluntary dismissal of an injunction suit by plaintiff gives defendant a right to damages, on the ground that by dismissal plaintiff confessed that he had no right to the injunction, and that such dismissal is the same as a judgment to that effect. But the same case also holds that the dismissal of the action by an amicable and voluntary agreement of the parties is not a confession by plaintiff that he has no right to an injunction, and does not operate as a judgment to that effect, and it was there held that the lower court erred in sustaining a demurrer to an answer which set up that the dismissal of the injunction suit was a material element in a settlement had between the parties. The eases above cited comment on other cases illustrative of the rule.

It is argued that this agreement between the five aldermen and the complainants was illegal. This is based, first, on the contention that the sole power of settlement was vested in the city attorney. We have already shown that the position is unsound. Second, it is urged that the city council, even, could not make a donation of the costs to complainants. This was not a donation. The settlement proposed did not require the city to pay any costs made by complainants, but only the costs, if any, made by the city and for which the city became liable when the costs were incurred. But the record does not disclose that the city had made any costs whatever. The costs attending a change of venue are to be paid by the party asking for the change and are not a part of the costs of the suit. Hurd’s E. S., chap. 146, sec 12. The city therefore could never recover from complainants the cost attending the change of venue. As section 14 of the statute relating to fees read prior to July 1, 1907, defendants were required to pay an appearance fee of $1. But that part of the section was repealed by the act of 1907, amending that section. Laws of 1907, p. 324. The record therefore does not show that the city had incurred any costs. The proposed settlement did not place any additional charge upon the city. The questions whether the ordinances attacked by the bill of complaint were in excess of the authority of the city and whether the city could use its general funds with which to buy a large number of meters when it had made no appropriation for that purpose, and whether this ordinance was in fact so worded as to create a monopoly in favor of a particular manufacturer of water meters, and whether the true meaning of the ordinance required consumers to buy their meters of the city, and whether the city had power to compel that, were matters of serious import, upon some of which, at least, the city might ultimately be defeated. Therefore the city council had a clear right to settle these matters. Indeed, when the city council found that a large number of its citizens felt aggrieved at its action, even if the alleged grievances seemed to it unreal, it had a right to seek a reasonable and satisfactory settlement of the controversy. The question whether a settlement should be effected and what the, city should yield, rested wholly with the city council. The mayor is a member of the city council and had the right to exercise such authority on the subject, and such only, as the charter vested in him as mayor. The city attorney had no duty or authority in the matter except to protect the interests of the city in litigation when not directed by the city council, and to obey its directions when it did direct him. Third, it is said that the agreement of March 21 was not made by the city council, and that five aldermen acting outside of a council meeting could not bind the city unless they had been empowered to do so by a vote of the city council. These positions are sound. Yet it- does not follow that complainants or the five aldermen were acting illegally or improperly. They were driven to this step by the action of the city attorney in disregarding the directions of the city council and pressing the litigation and getting the motion to dissolve set to be heard before the next regular council meeting. The resolution was a proper one' to be adopted, and when five aldermen agreed to vote for it, it was certain that if they did so the settlement would be effected. Complainants agreed in writing that this was a satisfactory settlement, and agreed that if it was adopted they would dismiss their suit and have the injunction dissolved, and pay the costs. Thereupon, as the motion to dissolve was set for 10 a. m., of March 23, while the council would not meet till 7:30 p. m., of that day, the complainants in reliance upon the stipulation signed by the fire and water committee which had the negotiations in charge and by two• other aldermen, making a clear majority of the council, competent to pass an ordinance if one was needed, procured the dissolution of their injunction and the dismissal of their bill, and paid the costs without waiting for the session of the city council that evening. It is clear that the complainants considered that the controversy was settled, and that they dismissed the bill in that belief. We are of opinion that such a dismissal ought not to be considered equivalent to a judgment that the injunction had been wrongfully sued out.

It is contended that the city council did not concur in the proposed settlement at its meeting in the evening of March 23, but defeated the same. At that meeting resolutions in the main like the one which the five aldermen had agreed with complainants to introduce and pass, were presented, and a motion to adopt them was made and seconded. The mayor ruled the motion out of order. There was an appeal from that decision, and the chair was overruled by a vote of five to one. The yeas and nays were then called upon the motion, and four voted for it and two against it, one of those who signed the agreement to pass these resolutions voting against the motion. The mayor declared the motion lost. This declaration by the mayor was not necessarily conclusive. The yeas and nays were inscribed upon the record. A quorum was present and voting. If a majority of the quorum had statutory authority to adopt these resolutions, then the affirmative vote of four out of the six aldermen present constituted an adoption of the resolution, and the mayor could not defeat that result by declaring the motion lost. There were three of these resolutions.

The first resolution offered is slightly different from that embodied in the agreement. It reads: “That the city council of Morris hereby approves for use in said city, in addition to the other meters heretofore approved, any standard water meter that may be in use and proved satisfactory in various cities.” This did not repeal or conflict with the ordinances attacked by the bill. The first ordinance enacted that water consumers were required to use a meter to be hereafter approved by the city, and that the city should within thirty days decide upon a proper meter. The ordinance of August 12 provided that certain meters named, “or any other meter approved by the city council of Morris, with straight reading registers, be adopted as the standard water, meter for use in connection with the water department of the city of Morris, or any other make of meter of like principle and equal merit as the Crown and Empire meters, with straight reading dials, to be approved by the city council.” The ordinance did not require that the subsequent approval of another meter should be by ordinance, and no reason is perceived why the majority of a quorum present could not adopt this first resolution approving for use in the city of Morris any standard water meter in use and proved satisfactory in other cities. Whether it would still be subject to the requirement of a “straight reading dial” is not material here. We therefore hold that the first resolution was adopted.

The third resolution gives consumers the privilege of buying meters of dealers or manufacturers direct, if they prefer. The ordinance of August 12, 1907, read: “All meters shall be purchased by the city and sold to the water consumers at cost.” As already said, various proceedings of the city council show that it had been the contention of the city that the ordinance compelled consumers to buy their meters of the city. That was one of the chief points of the controversy. On March 10, the city attorney had filed an answer in this case disclaiming that meaning, and asserting that all that was meant by this language was that if consumers bought their meters of the city, the city must sell to them at cost. The third resolution was a ratification by the city council of that interpretation of the ordinance. If the city attorney could bind the city by an answer setting up that meaning, certainly a majority of a quorum could ratify that concession. We hold that the third resolution was adopted.

The second resolution presents a more difficult question. If it was intended thereby to repeal the ordinance that could not be done by resolution nor by four votes. The ordinance of July 8, 1907, repealed all flat rates and required all consumers of water to use water at meter rates as previously established by the revised ordinances, and required meters to be furnished by October 1, 1907. It did not establish a penalty for failure to put in a meter by that date, nor direct that the water should be shut off from those who did not insert a meter by that date, nor did it provide how consumers should be charged for water who failed to put in a meter by that time. When this resolution was voted upon a new condition had arisen. Almost six months had passed since the date when the ordinance required meters to be installed, and the complainants and apparently many others had not installed meters and yet had used the water continuously. The city had now conceded that they need not buy meters of the city, and that they might install any standard meter which had been used and found satisfactory in other cities, and the complainants had conceded that they would put in meters. But the meters could not instantly be procured and put in place. That would necessarily be a slow work. No ordinance required that the water should be shut off. It was impossible to measure the water those had used since October 1, 1907, who had no meters, nor to ascertain how much they would use before the meters could reasonably be procured and put in place. To meet this emergency the second resolution extended the time for putting in meters to August 1, 1908, and directed that water rates be collected on the former flat rate till that date. We are of opinion that the ordinance of July 7, 1908, did not prevent a majority of a quorum from providing for that contingency which had arisen after the ordinance was adopted, and that the resolution did not repeal the ordinance. It is worthy of note that in the answer defendants set up a resolution alleged to have been adopted by the city council on September 9, 1907, extending the time to December 1, 1907, for putting in meters, and another resolution, alleged to have been adopted on November 25, 1907, authorizing the superintendent of water works to extend the time for putting in meters so long after December 6, 1908, to those who had by that time placed an order for a meter, as would enable them to put in their meters by the use of reasonable diligence. In view of these allegations of its answer, the city can hardly be permitted' to deny that the extension provided for by the second resolution of March 23, 1908, could be established by resolution. We conclude that the second resolution was adopted.

It follows that the written arrangement for a settlement, made March 21, 1908, by the fire and water committee and two other aldermen, acting for the city, and by two of the complainants and the solicitor for all the complainants in the bill in this case, was fully carried out on March 23. The fact that the motion for a dissolution of the injunction was set down for 10 A. M.z of that day, while the city council would not meet till 7:30 P. M., caused the agreed order to be departed from. Instead of the resolutions being first adopted, and then the injunction being dissolved and the bill dismissed, the bill was (apparently) dismissed early in the day, while the resolutions were adopted in the evening. But the settlement was fully effected during that day. The injunction was therefore dissolved in carrying out a settlement agreed upon between the parties. In such a case, upon the authorities already cited, the complainants are not liable for damages. It is argued that as the mayor and the superintendent of waterworks were defendants, and were enjoined, and did -not agree to the settlement, they therefore are entitled to damages. They were made defendants only in their official capacity. They had no private interest in the suit. The injunction would have been equally effective against them in their official capacity if they had not been named as defendants. An injunction against a city binds its officers.

The decree awarding damages is therefore reversed.

Reversed.