text:
    John B. Colegrove, Appellee, v. W. W. Berry, Appellant.
    1. Verdicts—what does not determine preponderance of evidence. The preponderance of evidence does not depend solely upon the number of witnesses.
    2. Verdict—when not disturbed. A verdict will not be set aside on review as against the evidence unless clearly and manifestly so.
    Action commenced before justice of the peace. Appeal from the County Court of Christian county; the Hon. James H. Morgan, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Frank P. Drennan, for appellant.
    James A. Merry, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

W. W. Berry has appealed from a judgment rendered against him in the County Court of Christian county in favor of John B. Colegrove upon return of a verdict in the sum of $172.75.

It appears from the evidence that Colegrove owned two tracts of farming land near Breckenridge, Illinois, one containing one hundred and forty acres and called by the parties the north farm, and the other containing sixty acres, called the south farm; that Colegrove rented these farms for the season of 1905, to one Jacob L. Yohoe, and that, as rent, Yohoe was to pay $360 in cash for the north farm, which was paid to Colegrove through Berry upon sale of com grown thereon, and for rent of the south farm was to deliver two-fifths of the crop grown on said sixty-acre tract; that the corn grown upon said farms was drawn and delivered to Berry, appellant, who operated an elevator at Breckenridge, about one mile from where the corn was grown; that for two-fifths of the com grown on the south place, and now claimed by Colegrove as his share of the crop for rent, Berry made payment to Tohoe instead of Colegrove, and it is to recover from Berry the value of such two-fifths of the corn grown on said south farm, together with an item of $27 for an abstract furnished to Berry by Colegrove, that this suit was brought.

Appellant contends that appellee failed to establish his claim by a preponderance of the evidence and for that reason the verdict should have been set aside. Colegrove testified that he notified Berry of what rent was due him from Tohoe and in what way and manner it was to be paid, i e. that he prepared a notice in writing stating fully his claim for rent upon the premises involved and George Synder testified that he delivered such written notice to Berry at his office on November 4, 1905. Howard Dougherty testified that he helped to gather the corn grown on the south farm and hauled it to Berry at Breckenridge; that he finished delivering such corn on November 15, 1905, and that at that time he heard his brother tell Berry that Colegrove was to get or have two-fifths of the corn; that there was 911 bushels of corn from the south farm and that Berry was to pay forty cents per bushel for it.

Berry admitted receiving the corn in. dispute and that he knew Tohoe was a tenant of Colegrove, but claimed he had paid Tohoe for it and that at the time he paid Tohoe that Tohoe said to him that he did not owe a cent. Berry did not deny that Dougherty said to him when the corn was delivered on November 15, that two-fifths of the corn was Colegrove’s.

Berry made an affidavit, upon a motion for continuance, that if Tohoe was present he would testify that there was nothing due from Tohoe to Colegrove and Colegrove admitted that Tohoe would so testify, but expressly denied that such claim of Tohoe was true or correct.

This was, in substance, the evidence bearing upon the subject of rent. While the evidence is, in some respects, conflicting, we do not think that it can be said that the jury were not justified in returning the verdict they did, or that Colegrove failed to establish his claim by a preponderance of the evidence.

The preponderance of evidence does not depend solely upon the number of witnesses and we have no doubt that the jury were impressed with what seems to us the controlling facts in the case as admitted by Berry, viz. that he was notified in writing by Colegrove on November 4, that two-fifths of the corn was his and that the proceeds thereof must be paid to him, and that on the fifteenth of the same month, when the last of the corn was drawn and delivered to Berry, he was again told by Dougherty that Colegrove was to get two-fifths of the corn.

Berry knew that he was receiving corn that belonged to Colegrove and not to Tohoe and if, with such knowledge upon his part, he saw fit to pay Tohoe for it, it was his place to know that the latter had authority to accept such payment.

. The case seems to have been tried upon its merits and the judgment is right and therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Ramsay

license: Public Domain

text:
    Mary E. Stanley, Appellant, v. Charles H. Stanley, Appellee.
    1. Chancery—what sufficient adoption of verdict of jury. A chancellor adopts the verdict of a jury, and the findings of that jury as effectively as though he enters an order explicitly to that effect where he overrules of record a motion to set aside such verdict and to grant a new trial and dismisses the bill at the costs of the complainant who was defeated by such verdict.
    2. Appeals and errors—when findings of fact in chancery will not be disturbed. Where the evidence in a suit in chancery is conflicting, the witnesses having been examined orally in open court, an error in a finding of fact must be clear and palpable to authorize a reversal

      3. Sepabate maintenance—when form of issue submitted to jury cannot be complained of. Where the court has submitted to the jury the issue presented by the bill in the form in which it is so presented, no complaint can thereafter be made by the complainant in such bill of the form of issue submitted.
    Separate maintenance. Appeal from the Circuit Court of Fulton county; the Hon. Habby Higbee, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Chiperfield & Chiperfield, for appellant.
    O. J. Boyer, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Mary E. Stanley filed a bill for separate maintenance and support against her husband, Charles H. Stanley, in the Circuit Court of Fulton county, upon which an issue of fact was submitted to a jury. There was a verdict in favor of Charles H. Stanley upon the return of which the court dismissed the bill at the costs of the complainant therein and this appeal followed.

In her bill appellant as a basis of her right to have separate support and maintenance charged that on or about July 18, 1906, the said Charles H. Stanley attempted to commit adultery with Gladys Roberts, a female child under the age of fourteen years, in the city of Canton, Fulton county, Illinois, and that following said act upon his part, and when reproached therewith, by appellant, he did desert and abandon appellant and left bis home, and has since the first of July, refused and neglected to live with appellant or to furnish her with any means of support whatever, but has left appellant to pay the bills that were incurred prior to his departure for household expenses.

This charge was denied by appellee in his answer and upon trial had, the jury returned a verdict that on the date of the commencement of the suit Mary E. Stanley was not living separate and apart from her husband without fault on her part. In the decree rendered disposition of the case was made in the following language:

“This cause- coming on to be heard upon the verdict of the jury and the complainant having moved the court to set aside the verdict of the jury and grant a new trial, and the court having overruled said motion, to which complainant duly excepted, it is ordered, adjudged and decreed by the court that the complainant’s said bill be, and the same is hereby dismissed, with costs to the defendant to be taxed.”

Appellant insists that the decree is erroneous in that it fails to show that the chancellor approved the finding of the jury. Upon this contention we hold that the language employed in the decree, overruling the motion to set aside the verdict and to grant a new trial and dismissing the bill, was in substance an adoption by the court of the verdict of the jury as its findings and as effective as though the court had in express terms found that appellant had failed to prove the charge made in her bill and upon such finding had dismissed the cause.

Appellant next contends that the issue' was improperly presented to the jury upon the ground that it ignored the question of desertion claimed to be an excuse or justification for appellant’s living separate and apart from her husband. We fail to see, however, how the jury could have been misled or appellant’s cause in any way prejudiced by the method adopted by the court in submitting the question. The issue as framed and submitted to the jury, followed the charge as made and set out in appellant’s bill. The only desertion charged was that which was alleged to follow appellant’s reproaching appellee with an attempt to commit adultery with Gladys Roberts.» There is no charge or claim of any desertion separate and distinct from the one associated with and following the reproach for the alleged adultery. Appellant in her bill has stated her claim to a right to live separate and apart from her husband to consist in such alleged associated acts, and she seems to have tried her case and to have asked instructions, upon the theory that unless the alleged adultery was established upon the part of appellee, appellant was not living separate and apart from him without her fault. The issue was one of fact and upon a mass of conflicting evidence the jury were called upon to determine whether or not appellee was guilty of the adultery alleged, and whether or not appellant had been thereby compelled to live separate and apart from appellee without fault upon her part. The jury found that the issue as presented by appellant was not sustained by her and we see no good reason for disturbing the verdict of the jury-and the finding of the chancellor. Where the evidence in a suit in chancery is conflicting and the witnesses have been examined orally in open court, the error in- the finding of fact must be clear and palpable to authorize a reversal. Ward v. Ward, 103 Ill. 482; Baker v. Rockabrand, 118 Ill. 370.

Some criticism is made by appellant upon the action of the trial court in the admission and rejection of evidence and in the giving and refusing of instructions, but we find no material or prejudicial error in either respect.

The case seems to have been fully and fairly tried; the court gave twelve instructions for appellant and seven for appellee which as a series stated the law applicable to the ease fully and fairly.

Appellant failed to establish the charge of desertion as made in her bill and her suit was properly dismissed. The decree of the Circuit Court is affirmed.

Affirmed.


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    The People, ex rel. James M. Sims, Appellee, v. Isaac N. Coolley, Treasurer, Appellant.
    Cities, villages and towns—when anticipation warrants authorized; when not. Since July 1, 1901, orders cannot be issued in anticipation of a tax to meet or pay miscellaneous items of indebtedness owing by a county, but when the board of a county shall have determined that it has insufficient money" on hand to defray necessary expenses of the county, it then becomes the duty of the county board to provide a fund for that purpose by issuing orders which draw interest after thirty days from their issuance in anticipation of taxes levied.

      Mandamus. Appeal from the Circuit Court of Edgar county; the Hon. James W. Cbaig, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed.
    Opinion filed November 17, 1908.
    W. H. Clinton and J. E. Dyas, for appellant.
    H. S. Tanner and J. K. Lanher, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

James M. Sims filed a petition for mandamus in the Circuit Court of Edgar county against Isaac N. Coolley, to compel Coolley as treasurer of said county to countersign a warrant issued to Sims by the county clerk, for the sum of $308.60. There was a judgment in favor of Sims upon his petition and against Coolley and Coolley appealed.

At a regular meeting of the county board of said county, held in September, 1907, said board allowed Sims for service, as keeper of the poor farm, the sum of $308.60 and thereupon the county clerk issued to Sims an order in anticipation of the taxes levied for the year, 1907, in the words and figures, to wit:

“Edgar County Board of Supervisors.

“To be paid from taxes of 1907, when collected.

“Treasurer of said county, September term, 1907, pay to J. M. Sims or order three "hundred eight 60-100 dollars for Poor Farm, out of money in treasury not otherwise appropriated.

Countersigned: Haeby Moss, County Clerk.”

This order was presented to Coolley, as ‘county treasurer, who refused to countersign it. At the same session that the Board of Supervisors allowed the hill of Sims for his services it adopted a resolution instructing the county clerk “to issue orders payable out of the taxes levied for the year 1907, when such taxes had been collected, such claims, when allowed, not to exceed 75% of the levy.”

Section 2 of chapter 146 A of the Revised Statutes in force July 1, 1901, which authorizes the issuing of orders in anticipation of a tax in substance provides: that whenever there is not sufficient money in the treasury of the county * * * to meet and defray the ordinary and necessary expenses thereof, it shall be lawful for the proper authorities of the county to provide a fund to meet said expenses by issuing and disposing of warrants drawn against and in anticipation of any taxes already levied by said authorities, for the payment of the ordinary and necessary expenses of such county, to the extent of 75% of the total amount of any such tax levied, etc. Section 3 of the same chapter provides that such orders shall, unless paid within thirty days from their issuance, bear interest at five per cent, until paid.

The order involved, payable out of the taxes of 1907, was unauthorized. The action of the Board in adopting the resolution, contemplated the drawing of orders by the clerk, in anticipation of the tax of 1907, in payment of claims as they should be allowed. Such action directing payment of miscellaneous claims as they should be allowed would seem to have been taken under the law as it stood prior to July 1, 1901, which authorized such warrants in payment of ordinary and necessary expenses of the county, but was not what is contemplated by such sections 3 and 4 as revised in the law of 1901. Those sections seem clearly to contemplate the providing of a fund by issuing orders in anticipation of a tax against which fund orders may be drawn to meet and defray the ordinary and necessary expenses of the county. In other words, orders cannot be issued in anticipation of a tax to meet or pay miscellaneous items of indebtedness owing by the county, but when the board shall have determined that it has insufficient money on hand to defray necessary expenses of the county, it then becomes the duty of the county board to provide a fund for that purpose by issuing orders, which draw interest after thirty days from their issuance, in anticipation of taxes levied.

As the order, as drawn, was void, the judgment of the lower court is reversed, but the cause is not remanded.

Reversed.


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    City of Hillsboro, Appellee, v. J. W. Spangler, Appellant.
    Cities, villages and towns—when ordinance does not become effective. An ordinance which is neither approved nor vetoed within five days after its presentation to the mayor, does not thereby become effective; the mayor is not required to exercise his prerogative until the first regular meeting of the council occurring after the expiration of the five days, and a prior publication of such an ordinance is unauthorized.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed.
    Opinion filed November 17, 1908.
    Jett & Kinder, for appellant.
    Lane & Cooper and F. M. Ramey, City Attorney, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

This was a proceeding commenced by the City of Hillsboro against J. W. Spangler, in which Spangler was charged with maintaining a nuisance contrary to an ordinance of said city forbidding the keeping, for service, of any stallion or jack within certain territory described in said ordinance. There was a trial had before a jury in the Circuit Court of Montgomery county which resulted in a verdict finding Spangler guilty of a breach of the ordinance and fixing the amount of his fine at $25. Judgment was rendered upon the verdict and Spangler appealed.

In the view we take of the case it is only necessary to discuss one point and that is whether or not the alleged ordinance, under which the conviction was had, was valid. The ordinance in question was numbered 96 and in substance provided that the keeping of any stallion or jack for service in the territory in said city bounded by certain streets and within seventy-five feet of any residence in said city, without the consent of the property owner, occupant or agent thereof, should be a nuisance and that any person violating such provision should, upon conviction, be fined not less than $25 nor more than $100 for each offense.

The ordinance in question was passed by the city council on the 20th day of September, 1906. There was no regular meeting of such city council within five days after September 20, and no such meeting took place after that date until the 17th day of October, 1906. The mayor of said city did not approve said ordinance, nor "did he within five days after its passage file any objections thereto or veto the same. The ordinance was published on the 28th day of September, 1906.

Appellant contends that the ordinance in dispute never became operative and valid and therefore no conviction can be had under it. Section 46 of chapter 24 of the Bevised Statutes provides that all ordinances passed by the city council shall, before they take effect, be deposited in the office of the city clerk; and if the mayor approves thereof, he shall sign the same, and such as he shall not aprove he shall return to the council with his objections thereto in writing, at the next regular meeting of the council occurring not less than five days after the passage thereof. But in case the mayor shall fail to return any ordinance with his objections thereto, by the time aforesaid, he shall be deemed to have approved such ordinance and the same shall take effect accordingly.

Appellee, in its brief, insists that the disputed ordinance became operative at the end of five days from its passage, since the mayor did not veto the same or file any objections thereto, notwithstanding the fact that there was no regular meeting of the city council after the passage of such ordinance and prior to the 17th day of October, 1906; the claim being that if the mayor retain an ordinance more than five days after the same is presented for his approval, by reason of that fact alone, it becomes valid, the same as though approved and signed by him.

This is a misconception of the meaning and force of such section 46. The mayor has, in any event, at least five days in which to determine whether he will approve or veto an ordinance. King v. City of Chicago, 111 Ill. 63. And he is not required to exercise his prerogative until the first regular meeting of such city council after the expiration of the five days. City of Chicago v. Stratton, 162 Ill. 494.

This seems to be the only reasonable construction to be given to the statute involved, as in such view the mayor is not obliged to act hastily or ill-advisedly, but has at least five days in which to determine whether he will approve or veto an ordinance after it is deposited with the city clerk. In the case at bar the mayor did not have to act upon the ordinance in question until October 17, 1906, and as he did not approve the ordinance, its publication on the 28th day of September was of no force.

The ordinance in question was not in force at the time of the commission of the alleged offense, and the conviction under it cannot he maintained.

The judgment is reversed, but the cause is not remanded.

Reversed.


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    R. O. Smith, Appellee, v. George Hard et al., Appellants.

      Partition—when solicitor's fees not taxable as costs. If the complainant’s solicitor has neglected to make one having an interest in the premises partitioned a party to his bill and such interest is brought to the attention of the court for the first time by answer to the original bill and by cross-bill, an award of solicitor’s fees taxable as costs is unauthorized.
    Partition. Appeal from the Circuit Court of Pike county; the Hon. Albert Akers, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed.
    Opinion filed November 17, 1908.
    George C. Weaver and Henry Bush, for appellants.
    Jefferson Orr and Edward Yates, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Roy 0. Smith filed a bill for partition in the Circuit Court of Pike county against appellants, George M. Hard and Charles D. Hard, in which he prayed for the partition of certain premises in said Pike county. Partition of the premises was made and in the .final decree rendered, a solicitor’s fee of $100 was allowed appellee’s solicitor, from which order allowing such fee an appeal has been perfected.

In the petition for partition as presented by Smith he set up that he, George M. Hard and Charles D. Hard each owned an undivided one-third of the property sought to be divided and that no other person had any interest in the premises.

George M. Hard, Charles D. Hard and J. M. Bush, administrator of the estate of one John C. Hard, deceased, appeared and filed an answer and cross-bill in which in substance it was denied that the interests of the parties were correctly set up in the original bill; denied that no party other than Smith, George M. Hard and Charles D. Hard was interested in the premises and set up affirmatively that said John C. Hard at the time of his death owned the undivided two-twentieths of the premises involved; that J. M. Bush had been appointed administrator of his estate and that it was necessary to sell and apply all the proceeds of the sale of said John C. Hard’s interest to the payment of his debts.

There was a decree, approving the master’s report and findings, in which decree the court found that at the time of his death John C. Hard owned an undivided two-twentieths interest in the premises and that all of Ms said interest was needed to pay the debts against his estate.

Under such circumstances the solicitor’s fees were not taxable under the statute. Appellee neglected to make one having an interest in the premises, a party defendant to his bill and such interest was brought to the attention of the court for the first time by answer to the original bill and cross-bill. This was sufficient to defeat the claim for solicitor’s fees. Hartwell v. De Vault, 159 Ill. 325.

The order allowing solicitor’s fees is reversed.

Reversed.


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    Henry Swinosynski, Appellee, v. Kelly Coal Company, Appellant.
    1. Tbial—when remarles of counsel ground for reversal. In an action under the Mines and Miners Act for wilful violation of the statute, remarks of counsel as follows: “They take them down there and cripple them and then throw them hack on you citizens of this county,” is prejudicial and ground for reversal even though objection to such remarks is sustained by the trial court.
    2. Mines and Minees Act—when instruction submits improper issue. In an action to recover for the wilful violation of the Mines and Miners Act, it is error to submit the cause to the jury as one of negligence.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbbotjoh, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 24, 1908.
    Buckingham & Troup, for appellant.
    Walter V. Dysert and Thomas A. Graham, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee brought suit in the Circuit Court of Vermilion county against appellant to recover for damages alleged to have resulted to appellee, a coal miner, from the wilful failure of appellant to furnish appellee proper cap-pieces and props, for his use, while working in appellant’s coal mine. There was a verdict in favor of appellee, in the sum of $2,500 upon' which judgment was rendered. The coal company appealed.

The case was tried upon two additional counts to the declaration, the original declaration, as amended, having been dismissed. Said two additional counts alleged liability upon the part of appellant, first, because, it being necessary for appellee, as a coal miner for appellant, to have props and cap-pieces at his working place to make the roof of his room secure, and he having demanded eight-foot props of the mine manager of appellant, said coal company wilfully failed and neglected to furnish such props and caps, by means whereof a rock fell from such roof and appellee was injured; second, because after proper demand made, etc., said coal company wilfully neglected and failed to furnish to appellee proper cap-pieces and props of suitable lengths and dimensions for the purpose of securing the roof, etc.

The case seems to have been tried solely upon the ground that the coal company was guilty of wilful failure and refusal to comply with the demands of appellee for props and caps and a considerable amount of testimony was taken to show the presence or absence of props and caps in appellee’s room, at the time of his injury.

Appellant has assigned several errors upon the record, which we shall not take time to discuss as the case must be reversed for the misconduct of appellee’s counsel and because of the giving of appellee’s fourth instruction, and a discussion of the case upon its merits can serve no good purpose at this time.

Appellee’s attorney in his opening argument to the jury said: “They take them down there and cripple them and then throw them back on you citizens of this county,” to which an objection was made and sustained by the court, who remarked to the jury: < i There is no evidence of the kind in the record. The jury are instructed to disregard statements not supported by evidence.”

This remark of counsel could not have failed to be highly prejudicial to appellant’s cause, as it clearly implied a charge by counsel that appellant was disposed, or by custom was willing, to take miners into its service and cripple them and then throw them upon the county so that they should become a pubhc charge upon the citizens of the county. No other interpretation could attach to the words used, under the circumstances, and appellee’s argument that counsel’s meaning was that upon being injured such miners must bring suit to recover their damages seems strained and unreasonable.

It is true that the trial court attempted to overcome the effect of the remark and told the jury to disregard the statement, yet the harm had already been done, and its nature was too serious to be eradicated from the minds of the jury by anything the court could say.

In Chicago Union Traction Co. v. Lauth, 216 Ill. 176-183, the court say: “A ruling does not always remove the ill effects of misconduct of counsel. The rule is that although the trial court may have done its full duty in its supervision of the trial and in sustaining objections, a new trial should be granted where it appears that the abuse of argument has worked an injustice to one of the parties.”

Appellee’s fourth instruction as given was as follows:

’ “You are instructed that a corporation is a creature of the law and is an intangible being only; that its functions are necessarily performed by means of agents and servants; that the act of an agent or servant of a corporation acting within the scope of his employment or authority is in the law the act of the corporation principal, and in this case and if you believe from the preponderance of the evidence that the servants or agents of the defendant acting within the scope of their respective authority and employment were guilty of the negligence charged in the two additional counts of the declaration then such negligence is to be imputed to the defendant corporation and in arriving at your verdict is to be considered by you as the negligence of the defendant.”

This instruction was misleading. It called the attention of the jury to the charge in the additional counts of the declaration as being “negligence” and wrongfully submitted the case to the jury as one of “negligence” whereas the action or right of recovery rested solely upon an alleged wilful violation of the provision of the statute, under which provision no recovery can be had unless there was a wilful or conscious failure to comply therewith. Furthermore the duty to furnish props and caps, which was the duty alleged to have been wilfully neglected, rested upon the mine manager, by the provisions of the statute, and no recovery can be had by showing that some one else, although an agent or servant of the corporation, had neglected or failed to furnish caps and props upon demand of the miner.

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

Reversed and remanded.


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    Curtis Callahan, Appellant, v. George Beaver, Appellee.

      Vebdict—when not disturbed. A verdict will not be set aside on review as against the evidence unless clearly and manifestly so.
    Replevin. Appeal from the County Court of Moultrie county; the Hon. E. D. Hutchinson, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    R. M. Peadro, for appellant.
    E. J. Miller and John E. Jennings, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Curtis Callahan brought suit in replevin in the County Court of Moultrie county against George Beaver to recover possession of a frame building, ten by twelve feet in size, and some household goods contained therein. Trial was had before a jury and a verdict returned in favor of Beaver. Judgment was entered upon the verdict and Callahan appealed.

In the declaration filed by Callahan it was expressly charged that Beaver had wrongfully taken the property from the possession of Callahan and wrongfully detained the same from him and upon these charges alone the issues were closed and trial had. The burden of proof was therefore upon Callahan to show that Beaver’s action in taking the property was wrongful, or that at the time of suing out the writ of replevin he was wrongfully detaining it.

The evidence does not sustain Callahan upon either of these issues and as no demand was made for a return of the property before suit was commenced, no verdict in Callahan’s favor could have been sustained.

From a careful review of the evidence, it would seem that the building and its contents stood upon an acre of ground owned or claimed by one Jeff Williams, from whom Beaver leased the land. Beaver, in order to plant the field, moved the building by the permission or direction of Williams, to another piece of land across the road. At the time of the removal of the building no one objected to what Beaver did or notified him to desist and -on the following morning Callahan said to Beaver that he did not care what he did with the property, that it was nothing to him.

The evidence shows no wrongful taking or wrongful detaining by Beaver, and as no demand was made for a return of the property the judgment must be and is affirmed.

Affirmed.


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    Petroneli Belskis, Appellee, v. Dering Coal Company, Appellant.
    1. Instructions—must not ignore material issue. An instruction which concludes with a direction is erroneous if it omits an element essential to recovery, and such an .omission cannot be supplied by other instructions given in the cause.

      2. Instructions—when upon credibility of witnesses invades province of jury. An instruction which tells the jury that “although some of the witnesses are not able to speak or understand the English language, yet if you believe they have told the truth by means of an interpreter, then the testimony of such witnesses is entitled to the same amount of credibility as the testimony of such witnesses who may have spoken to the jury directly in the English language,” is erroneous in that it invades the province of the jury.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 24, 1908.
    Buckingham & Troup, for appellant.
    Keeslar & Gunn and H. E. Hutton, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Petroneli Belskis brought suit in the Circuit Court of Vermilion county ag’ainst the Bering Coal Company to recover damages claimed to have been sustained by her as the widow of John Belskis, by reason of the alleged wilful failure of the servants of said coal company to comply with the statute relating to mines and miners resulting in the death of the said John Belskis. There was a verdict in favor of the plaintiff in the sum of $1,999.00 upon which judgment was entered. The coal company appealed.

Appellant insists that the verdict was contrary to the weight of the evidence and that the court erred in giving instructions for appellee.

The first of these assignments we do not deem it necessary to discuss for the reason that the judgment must be reversed for error in the giving of instructions, and a discussion on the merits could be of no avail.

Appellee’s right of recovery was based upon the following alleged condition of things: John Belskis, deceased, husband of appellee, was employed as a coal digger by appellant in its mine, and while deceased was at work under such employment appellant, not regarding its duty as fixed by the Eevised Statutes governing mines and miners, wilfully failed to have the room, where deceased was at work, examined and marked by the mine examiner, and permitted deceased to enter and work in said room while there was a dangerous condition, because of a large loose rock in the roof of said room, and that by reason of such wilful failure to mark said loose rock as dangerous, deceased, while working thereunder, was killed by the falling of such loose rock.

Appellee’s first instruction as modified, after defining the duties of the mine examiner, directed the jury in the following words:

“So in this case if you believe from the preponderance of the evidence that John Belskis, at the time in question, was in the employ of the defendant as a coal miner in room No. 5 of the Third Southwest entry, in Dering Mine No. 3-as alleged in the declaration and that on said occasion the mine examiner of the defendant had wilfully failed to inspect said room, or inscribe upon the walls of said room with chalk, the month and day of the month of his visit as evidence of his examination, and if you further believe from the evidence, that the said John Belskis, on the day in question entered said room when the same had not been examined by the defendant, and while engaged in the usual course of his occupation was killed by reason of a fall of rock from the roof of said room, which could have been discovered by the mine examiner had he examined the same, and that the failure to examine the room was the proximate cause of the death of said John Belskis, and if you further believe that at the time of his death the said John Belskis was the husband of the plaintiff, and lived with her and contributed to her support as alleged in the declaration, then in that state of the proof, if such a state of proof exists herein, your verdict should be for the plaintiff.”

This instruction allows a recovery without requiring the jury to find from the evidence that the rock in question was loose and dangerous before or at the time that the mine examiner inspected the room or should have examined its roof to determine its safety.

This element, omitted, was a matter material to a recovery and is so conceded by appellee, but it is contended by appellee in excuse for the giving of the instruction that the element omitted from this instruction was fully covered by the instructions given upon the part of appellant. This, however, does not cure the infirmity here involved, for the reason that the instruction criticised directs a verdict for appellee in case the jury find the facts therein recited to be proven.

“The law applicable to different questions may be stated in separate instructions and the entire law applicable to all questions involved in a case need not be stated in each. In such cases the instruction supplement each other, and if they present the law fairly when viewed as a series, it will be sufficient. But if an instruction directs a verdict for either party, or amounts to such a direction in‘case the jury find certain facts, it must necessarily contain all the facts which will authorize the verdict directed. ’ ’ Montgomery Coal Co. vs. Barringer, 218 Ill. 327-337. The instruction in question directed a verdict and was subject to the rule above quoted.

It was also error for the court to tell the jury in appellee’s fifth instruction that “although some of the witnesses are not able to speak or understand the English language, yet if you believe they have told the truth by means of an interpreter, then the testimony of such witnesses is entitled to the same amount of credibility as the testimony of such witnesses who may have spoken to the jury directly in the English language. ’ ’

The credit which the jury may give to the testimony of the several witnesses is a matter solely for the jury and not for the court. It was an invasion of the jury’s province to instruct them that the testimony of one witness was entitled to the same amount of credibility as the testimony of another witness.

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

Reversed and remanded.


text:
    Joseph A. Miller, Administrator, Appellant, v. Nora Webb, Appellee.

      Verdict—when not disturbed. A verdict will not be set aside on review as against the evidence unless clearly and manifestly so.
    Assumpsit. Appeal from the Circuit Court of Moultrie county; the Hon. W. G-. Cochran, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    Walter Eden and Eden & Martin, for appellant.
    R. M. Peadro and F. M. Harbaugh, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellant as administrator of the estate of Salathiel Miller, deceased, brought suit in the Circuit Court of Moultrie county against appellee upon two promissory notes made by appellee to deceased. Appellee filed two pleas, upon which issue was joined, which pleas set up in substance that said notes had been fully settled, paid and adjusted. There was a verdict returned in favor of appellee upon which judgment was rendered and this appeal followed.

While there is a conflict upon some of the facts involved, we think a careful consideration of the whole evidence fully establishes the following condition of things: Sometime prior to October, 1893, appellee bought a farm in Shelby county, Illinois, at $6,400 from J. T. Herrick, paid thereon $1,400 in cash and gave five notes for the sum of $1,000 eacii at 6% interest, due respectively in one, two, three, four and five years, which were secured by a mortgage given back upon said farm. Default was made in payment and suit begun to foreclose said mortgage at the October term, 1893, of the Circuit Court of Shelby county. While said suit to foreclose was pending, an arrangement was made between appellee and Salathiel Miller by the terms of which said Salathiel Miller paid off the amount of said mortgage indebtedness, then unpaid, and costs of suit, and appellee, with his wife, ma.de a deed for said premises to said Salathiel Miller, and received thereupon a bond for a deed by force of which deceased agreed to reconvey said premises to appellee upon payment by appellee of the amount represented by notes described in the bond, two of which notes are the notes sued upon in this case.

While matters rested in this condition and in 1903 said Salathiel Miller sold the farm to Albert Meitzner for the sum of $8,000,.and received payment therefor.

Appellee contended and we think the jury were not unwarranted in finding that at sometime during the dealing between Salathiel Miller and appellee, the bond for a deed made by said Miller to appellee was surrendered and given up by the latter to the former. There seems to be no question that at the time Meitzner bought the farm and for four or five years prior thereto appellee was living upon said premises as tenant of Miller and was paying him rent therefor, whióh tenancy seems strongly corroborative of the theory that the bond was either surrendered and given up by appellee to Miller, or by the parties treated as inoperative.

The evidence also showed that when appellee purchased the farm it was without improvements and that appellee, besides breaking and fencing the land, expended nearly $1,000 in other improvements. It also appeared in evidence that Salathiel Miller said to oné of his neighbors, in speaking of his business dealings with appellee, that “Webb and he had settled, that he had a deed” and to two or three others of his neighbors he said, while negotiations were pending for the sale of said farm, that he had agreed to give appellee $1,000 for his improvements when he sold the place and got the last payment thereon. Upon this showing it is difficult to conceive how the jury could have returned any verdict other than the one they did.

To allow a recovery upon the notes sued on would be to permit the retaining by Salathiel Miller, or by his estate, of the entire proceeds of the sale of the farm involved, and to further permit the administrator of the estate to recover upon notes which stood for or represented the value or proceeds of the same land.

The record is free from any prejudicial error and the judgment is affirmed.

Affirmed.


text:
    Joseph Cracchiolo, Appellee, v. Antone Palmersino, Appellant.

      Verdict—when not disturbed. A verdict will not be set aside on review as against the evidence unless clearly and manifestly so.
    Action on the case. Appeal from the City Court of Mattoon; the Hon. T. N. Cover, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    Bryan H. Tivnen, for appellant; John S. Hall, of counsel.
    Andrew L. Chezem, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee brought suit against appellant in the City Court of the city of Mattoon to recover for money alleged to have been wrongfully converted by appellant to his own use. There was a verdict in favor of appellee in the sum of $500. A remittitur was entered to the amount of $132.50 and judgment rendered in favor of appellee in the sum of $367.50, from which this appeal has been prosecuted.

Appellee in the first count of his declaration claimed that in June, 1907, he delivered to appellant for safe keeping the sum of $500 which was to be returned to him upon request and that appellant wrongfully and wilfully converted the same to his own use, etc. The second count was similar to the first count except that the amount of money alleged to have been converted was $350. The third count was for the wilful and wrongful conversion of personal property, consisting of fruit, candy, etc., owned and held by appellee in connection with a fruit store in Mattoon, Illinois. The fourth count was for the wrongful and wilful conversion by appellant of appellee’s business and personal property used in his business as a fruit and candy merchant in said city. Appellee filed his plea of not guilty and a plea setting up an accord and satisfaction. Issue was joined on these two pleas and a verdict returned for appellee as hereinbefore stated.

We have examined the evidence and are fully satisfied that the verdict and judgment involved are in accord with the merits of the case and that recovery was proper under the first or second counts of the declaration.

The issue was purely one of fact. Appellee testified that he let appellant have money which appellant was to return to him on demand; that a part had been returned and the balance wrongfully converted by appellant. In this claim he was corroborated to quite an extent by the testimony of several other witnesses. Appellant claimed that the money had been paid to Mm by appellee in the purchase of appellant’s business and also claimed that he had settled with appellee and had given to Mm a diamond ring in full accord and satisfaction and in these claims he was to some extent corroborated by other witnesses. Both of these claims so made by appellant, appellee expressly denied. The parties were foreigners who spoke our language imperfectly and, as witnesses, found great difficulty in making themselves understood. The record shows that in many instances the meaning of the expressions employed by the parties, as well as some of the witnesses, was not free from doubt; that in some instances repetitions of testimony at considerable length were had and even then the meaning left uncertain.

The jury saw the parties and their witnesses, and heard them give their testimony and we are not disposed to set aside the verdict, which does not appear to be against the weight of the evidence, which the trial court, after remittitur approved, and whereby, by such verdict, substantial justice seems to have been done between the parties.

Appellant has argued at considerable length several errors which we do not deem it essential to discuss. There is no prejudicial error in the record and the judgment is affirmed.

Affirmed.


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    John F. Miller et al., Appellants, v. Walter F. Benson et al., Appellees.
    1. Mechanic’s liens—when sufficiency of petition as to contract set forth not subject to review. A defendant is not entitled to raise on appeal the question of the sufficiency of the allegations of the petition as to the contract sought to be made the basis of the relief, where such defendant has answered the petition and made no objection to the competency of the contract under the petition.
    2. Mechanic's mens—when subcontract sufficient under law of 1905. If the time fixed for the completion of the original contract is within the provisions of the Mechanic’s Lien Act of 1895, the subcontract will support a decree as against the owner who is a party to the original contract notwithstanding the subcontract may not fix the time for completion and payment.
    Mechanic’s lien. Appeal from the Circuit Court of Moultrie county; the Hon. William C. John, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded with directions.
    Opinion filed November 24, 1908.
    Edward C. & James W. Craig, Jr., and John E. Jennings, for appellants.
    Edwin J. Miller, for appellees.
   Mr. Justice Ramsay

delivered the opinion of the court.

John F. Miller and George W. Miller, partners doing business under the firm name of Miller Brothers, filed their petition for a mechanic’s lien in the Circuit Court of Moultrie county against Walter F. Benson, The Grand Lodge of the State of Illinois Free and Accepted Masons, and others, in which it was alleged that said Grand Lodge, being the owner of certain land in said county, entered into a contract with said Walter F. Benson to build a Masonic Home for said Grand Lodge upon said premises; that said Benson in pursuance of the terms of said contract erected and completed said home, which had been accepted by those in authority upon the part of said Grand Lodge; that about the first day of May, 1903, said Miller Brothers entered into a contract with said Benson to do the brick masonry upon said building and furnish sand, lime and necessary scaffolding for which they were to be paid the sum of $2,650; that said Miller Brothers entered upon the performance of such contract in June, 1903, and also at Benson’s request had furnished extras in the sum of $118.05, and that their contract had been completed on October 10, 1904, and that there was then due for such work and material, after allowing all proper credits, the sum of $517.80; that due notice of such claim had been given to such Grand Lodge and a claim therefor, in due form, filed with the circuit clerk of said county on the 29th day of December, 1904. There was the usual prayer for process and relief.

To this petition a demurrer was interposed and sustained and leave given to the petitioners to amend. Afterwards an amendment to such petition was presented, which amendment set up that the petitioners began the construction of said home in June, 1903, but at that time had no contract with Benson governing said work; that they continued to work without any contract until some time after the first of July, 1903, when they and Benson made an agreement governing such work. Answers were filed by the defendants to said petition denying that petitioners therein were entitled to the relief sought, and the cause was referred to the master in chancery, who took the evidence and reported to the court that said Miller Brothers were entitled to a lien as prayed for in their petition. To this report objections were filed and overruled by the master. These objections were afterward treated as exceptions to the report, sustained by the court and the petition dismissed at the costs of the petitioners. Miller Brothers bring the case to this court by appeal.

It is contended by appellees, The Grand Lodge of the State of Illinois Free and Accepted Masons, and the Board of Trustees of the Illinois Masonic Home, that the provisions of the contract between Benson and the other appellees, are not set out with sufficient definiteness in the petition to entitle appellants to a lien; that although the evidence may be sufficient to warrant a lien, no relief can be granted under the petition.

This point, however, said appellees are in no position to urge. They filed answer to the petition as amended and when the contract between Benson and the Trustees of the Masonic Home was offered in evidence they made no objection to its competency under the petition. If appellees then thought that the contract offered was not sufficiently set out in the petition, or that there was a variance between the contract set out in the petition and the one offered in evidence, objection should have been made upon that ground at that time and thus have afforded appellants an opportunity to amend. Jack v. Weiennett, 115 Ill. 105-112; Smith v. Henline, 174 Ill. 184.

It is also contended by appellees that under the contract between appellants and Benson there was no time fixed for the completion of the work by appellants" and for final payment thereof; that as the work was done under the contract entered, into by appellants prior to July 1, 1903, section 6 of the laws of 1895 governing mechanic’s liens, which provided that there should be no lien unless the work was done or the material furnished within one year from the date of the contract and final payment therefor was to be made within such time, applied and appellants could assert no lien.

The contract between Benson and the Trustees was full and explicit upon this point. It was dated March 30, 1903, and provided that the work under that contract should be completed or or before the first day of November, 1903, and that final payment should be made within thirty days after the contract had been fulfilled.

We understand the holding of our courts to be that the subcontract must be completed within the same time as the original contract, and therefore it is not essential that the subcontract provide for the completion and final payment, since the subcontract is subordinate to and controlled by the original contract. If the time fixed for the completion in the original contract is within the provision of the statute, the subcontract will support a lien as against the owner who is a party to the original contract, notwithstanding the subcontract may not fix the time for completion and payment. Von Platen v. Winterbotham, 203 Ill. 198; Merritt v. Crane, 126 Ill. App. 337.

The decree is reversed and" the cause remanded with directions to the Circuit Court to enter a decree in favor of appellants upon their lien.

Reversed and remanded with directions.


text:
    Farmers and Merchants National Bank, Appellee, v. The Illinois National Bank, Appellant.
    Banks and banking—what not ultra vires national hank. Held, that it was not ultra vires for the defendant bank in this case to promise to honor a draft upon which suit was subsequently instituted.
    Assumpsit. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    McAnulty & Allen, for appellant.
    Northcott & Orr and Alonzo Hoff, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee, a banking corporation, doing business at Tyler, Texas, brought suit in the Circuit Court of Sangamon county against the Illinois National Bank of Springfield, Illinois, to recover the amount alleged to be due from appellant to appellee by the terms of a telegram sent by the former to the latter promising to honor a draft drawn by the Woldert Grocery Co. of Tyler, Texas, upon one Puglisi of Springfield, Illinois. There was a judgment in the court below in favor of appellee for $400.50, from which this appeal is prosecuted.

It appears from the evidence that the Woldert Grocery Co. of Tyler, Texas, sold by telegram a car of berries to one Pugiisi of Springfield, Illinois, at the rate of $1.50 per crate, and in its telegram, accepting Pugiisi’s offer of $1.50 per crate, asked Pugiisi to have his bank telegraph appellee to honor their draft drawn on account of the sale. Thereupon appellant wired appellee as follows: “Springfield, Ill., May 23rd, 1907. Farmers & Merchants Bank, Tyler, Texas. Will honor draft for Pugiisi car berries dollar half per crate. Illinois Nat’l Bank.” On the same day, May 23, 1907, appellee, relying upon the terms of the telegram, paid the amount of the draft, in the usual course of business, to the Woldert Grocery Company. The evidence further shows that, while a car, if loaded to its full capacity will hold 300 crates, or more, of berries, the ear in question had only 257 crates of berries ; that there were in the car 244 crates of strawberries and 13 crates of blackberries (besides 27 crates of vegetables not covered or included in the draft involved). Payment of the draft was not made and after protest this suit was brought and judgment had, as already stated.

Appellant contends that the draft presented to it was not the draft contemplated by the parties when the berries were sold and that the draft now involved was “dated back” to have it correspond with the date of sale, but of this there is no competent evidence. Appellant concludes that “dating back” took place from the fact that the shipper first presented for payment a draft for $415 instead of $385.50 which was presented on June 7, 1907. Such inference cannot be allowed to overcome the positive and undisputed testimony of McGhee, cashier of appellee, to the effect that on or about May 22, 1907, he passed upon the sight draft drawn by Woldert Grocery Co. on Pugiisi for $385.50 and payable to appellee’s order. This was the draft drawn upon the shipment of berries here involved, and, so far as the evidence develops, was accepted by appellee and paid in the regular course upon May 23, 1907.

Counsel for appellant next contend that as the car in question was not fully loaded with berries, but only partially loaded, that the shipment did not comply with the terms of the sale and no recovery can be had on that account. The telegram, by its terms, had relation to a car of berries at $1.50 per crate, without regard to any particular number of crates, or to the capacity of the car. There was no promise made by appellant to pay a fixed or certain sum for a carload of berries, nor was there anything in any telegram as to the number of crates expected, or included, in the shipment.

We think a fair construction of the language employed in the telegram to be that the promise was not to pay for a car of berries as an entirety, but to pay by the crate and that appellant is bound by the promise to pay $1.50 for each of the 257 crates shipped.

It is next urged by appellant that the contract relied upon by appellee as the basis of recovery was ultra vires, or without the scope' of its power as a national bank; that the evidence shows that Puglisi occupied no relation, as depositor or otherwise, toward appellant and therefore it had no interest whatever in the transaction and as appellant received nothing on account of the business done, its promise to honor the draft was unenforceable. While the evidence is meager upon this subject, there is enough in the case to warrant the deduction that Puglisi was a patron or customer of appellant and was doing business through it. In the telegram of the Woldert Grocery Go. accepting Puglisi’s offer of $1.50 per crate for the berries it says: “Please have your bank telegraph the Farmers and Merchants National Bank to honor our draft, etc. ’ ’ The inference or conclusion to be drawn fi^om this language is that the promise to so honor the draft would come from the bank in which Puglisi did his banking business. There is no evidence to qualify this inference and it is fairly deducible therefore that appellant, in promising to honor the draft, did so to secure business for one of its patrons, in whose business it, in turn, had an interest and from which it hoped to derive a gain.

Doubtless the extension or encouraging of Puglisi’s dealings, was, from a business standpoint, the promotion of the interests of appellant and was so understood at the time. In that view of the case we think the doctrine of ultra vires has no application and that the holding of the court in Richelieu Hotel Co. v. Mil. Encampment Co., 140 Ill. 248, is of controlling force here.

In that case suit was brought against the Bichelieu Hotel Co. to recover the amount of a subscription, agreed to be paid by said Hotel Co. (with others) to secure the holding of a proposed military encampment in or near Chicago. The hotel company insisted that the subscription was ultra vires and therefore uncollectable, but the Supreme Court held that the object of the subscription was not so foreign to the business of keeping a hotel as to call for the application of the doctrine of ultra vires. Justice Bailey said:

“Appellant doubtless subscribed upon business principles and from a business standpoint, and because they believed that by so doing they could best promote their own business enterprise.”

There is no reversible error in this record, the merits of the case are with appellee, and the judgment is affirmed.

Affirmed.


author: Mb. Justice Bamsay

text:
    Charles H. Dunham, Appellee, v. Black Diamond Coal Company, Appellant.
    1. Miners and Miners Act—extent of duty to mark dangerous places. The provisions of the Mines and Miners Act which provide that no one shall be allowed to enter a mine to work therein except under the direction of the mine manager “until all conditions have been made safe” and that when any dangerous condition is discovered to exist the examiner shall place a notice to all men to keep out, while it is made the duty of the mine manager to “see that all dangerous places above and below are properly marked and that danger signals shall be displayed wherever they are required,” apply to all dangerous places in a mine whether such places are dangerous by virtue of their original construction or by reason of conditions subsequently arising.
    2. Pleading—what allegations of declaration may he rejected as surplusage. In an action of tort all allegations not essential to the cause of action may be rejected as surplusage and a recovery sustained if proof is made of the essential allegations.
    Action in ease for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 24, 1908.
    Conkling & Ibwin, for appellant.
    Bobebt H. Patton, for appellee.
   Mb. Justice Bamsay

delivered the opinion of the court.

Appellee brought suit in the Circuit Court of Sangamon county against appellant to recover for damages sustained by him through the wilful failure of appellant to comply with the Bevised Statutes governing mines and miners. There was a verdict and judgment in favor of appellee in the sum of $365 and this appeal followed.

Appellee’s declaration contained three counts: The first count charged that appellee was working as a mule driver in appellant’s coal mine; that there was in an entry of said mine in which appellee worked, and within reach of the mule while in use, a live electric wire which was not properly insulated or otherwise protected; that appellant wilfully failed to comply with the statute in this, that it did not have its mine examiner visit said mine and inspect the same and observe any unsafe conditions, and mark the same as a dangerous place, etc., and had not prevented appellee from entering to work in said mine until all conditions had been made safe; that appellee entered said mine to work, and while driving the mule hitched to a coal car, and because of the unprotected condition of said wire, said mule received a shock by coming in contact with said live wire and because thereof became unmanageable and pulled the coal car from the track and against a post standing close to the track and caught appellee between the said car and post and injured him, etc.

The second count contained the same allegations, in substance, as to the unprotected condition of the live electric wire, the shock to the mule and injury to appellee, etc., and charged the negligence to consist in appellant’s wilful failure to have its mine manager see to it that all dangerous places were properly marked and that danger signals were displayed and that the place in question was not marked as dangerous, etc.

The third count is based upon the alleged wilful failure of appellant to observe that provision of the statute relating to mines and miners 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” and that appellee was wilfully permitted to enter the mine to work while the conditions therein were unsafe and while there at work was injured, etc.

Issue was taken by plea of not guilty upon these three counts and a verdict returned for appellee as hereinbefore stated.

The undisputed evidence shows that in June, 1907, appellee was at work for appellant in its coal mine, as a mule driver, hauling coal cars in the entry; that over a part of the roadway, which he used in his work, there ran a trolley wire to convey an electric current to a motor used in the entry of the mine. This trolley wire was only about five pr five and a half feet above the bottom of the entry and about twelve inches outside the rail and was uninsulated and unprotected. While there is some conflict in the evidence, we think the jury were warranted in finding that at the time in question there was a current of electricity passing through the wire and that the mule’s head came in contact with the wire whereby he received a shock and became unmanageable and injured appellee in the manner set up in his declaration.

Appellant insists that the material question is whether the wire used by appellant uninsulated and when used to carry an electric current constituted “a dangerous condition” within the meaning of the statute governing miners, which it was the duty of the mine examiner to mark, and argues that the duties of the mine examiner and mine manager do not apply to defects in construction which are of a permanent nature and intended to be such, but apply only to places that become dangerous or unsafe by reason of new conditions or changes which make such places dangerous or unsafe.

The statute in question 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 have been made safe” and that when any dangerous condition is discovered to exist, the examiner shall place a notice to all men to keep out; while it is made the duty of the mine manager to “see that all dangerous places above and below are properly marked and that danger signals shall be displayed wherever they are required.”

This language clearly implies that all dangerous' places in a mine shall be marked and made safe whether of a permanent nature or made so by changed conditions. What appellant terms in its brief a “sporadic” dangerous condition may become a permanent one by lapse of time. Under appellant’s contention there would be a time before the transition from a “sporadic” to a permanent condition when' there would be a liability in case of injury, while after the transition there would be no liability solely because the dangerous condition had become permanent, which would involve the task of determining just when the transition from “sporadic” to permanent condition became complete.

In our judgment it can make no difference that the condition became or was dangerous by reason of defective permanent conditions. If the dangerous condition in fact exists at the time the miner is allowed to enter the mine to work in the mine, the statute above referred to fixes the duties of those in charge of the mine and a conscious failure to observe these duties is wilful negligence.

Appellant next insists that it was error upon the part of the trial court not to instruct the jury to find for defendant as to the second count of the declaration upon the claim that it charges the duty to mark and display a danger signal at the place in question to have been imposed upon the mine manager personally and not that it was his duty only to see that this was done. It is true that the second count contains the allegation, among others, that the mine manager failed to mark and display danger signals, but these' allegations can well be treated as surplusage, especially after plea filed, for without them there were allegations in the count sufficient to charge that appellant’s mine manager did not see to it that all dangerous places above and below in said mine were properly marked, and that danger signals were displayed, etc.

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

Affirmed.


text:
    Standard Distilling and Distributing Company, Appellee, v. Springfield Coal Mining & Tile Company et al., Appellants.
    1. Corporations—what not essential to maintenance of proceeding under section 25 of act. A judgment at law is not essential to the maintenance of a bill filed under section 25 of the Corporation Act.
    2. Corporations—when “cease to do business” within meaning of section 25 of act. Held, that the purpose of the corporation in question in this case could not have been less than to end its existence as a corporation at a time when it had contracts to fulfill and to remove its assets beyond the reach of those having claims against it.
    3: Equity—when use of assumed name does not preclude relief. A corporation by using a name other than that of its incorporation will not be denied relief in equity in the absence of a showing of injury or loss to the other party by reason thereof.
    4. Contracts—when offer to perform excused. An offer to perform an act required by contract is not essential where the other party to such contract has peremptorily refused to perform the same.
    5. Contracts—what not gambling option. Held, under the authority of Consolidated Coal Co. v. Jones & Adams Co., 232 Ill. 327, that the contract in question in this case did not confer a mere gambling option.
    Bill in chancery. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed.
    Opinion filed November 17, 1908.
    Hamilton, Catron & Sampson, for appellants.
    Mayer, Meyer & Austrian, James H. Matheny and Edmund Burke, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

The Springfield Coal Mining and Tile Company, The Jones & Adams Company, H. C. Adams, John S. Jones, Joseph Trutter and Thomas R. Gray have appealed from a decree of the Circuit Court of Sangamon county rendered against them in the sum of $1,626.77 in favor of the Standard Distilling and Distributing Company.

The bill of appellee, as amended, on which decree was rendered, in substance charged that on the 24th day of May, 1889, appellee (a New Jersey corporation) under the name of “The Globe Distillery,” entered into a contract with the Springfield Coal Mining and Tile Company (an Illinois corporation) in the words and figures following:

“Pekin, Ill., May 24, 1899.

We, the undersigned, Springfield Coal Mining and Tile Company, of Springfield, Illinois, agree to furnish the Globe Distillery of Pekin, Illinois, one to three cars of coal per day (at their option) at following rates, Mine run 70 cents, nut at 65 cents, pea at 30 cents per ton and pea and slack at $6.00 per car (f. o. b. Springfield) destination weights to rule.

It is herewith understood and stipulated that the said Springfield Coal Mining & Tile Co. is to give said Globe Distillery all of such coal as is within their power of the grade known as pea and slack coal, this contract to remain in force for one year, beginning July 1, 1899, ending July 1, 1900.

This contract is subject to strikes, unavoidable accidents at mines and transportation on railroads.

The Globe Distillery agrees to take coal on terms as above 'specified conditioned however that said Globe Distillery is to have the privilege of waiving the rights of said Springfield Coal Mining & Tile Co., for such periods as said Distillery may have occasion to shut down or on account of fire, or any other unforeseen and unavoidable accident.

All coal unloaded during any month by the Globe Distillery is to be paid for the month following.

The Sprihgeield Coal Mikthg & Tile Co.

By Joseph Trutter, President.

The Globe Distillery,

By C. H. Herget, Manager.”

In said bill it was further alleged that at the time of the making of said contract such coal mining company was a going concern, operating a coal mine in Sangamon county and was solvent and pecuniarily responsible; that under said contract it furnished coal to appellee from July 1, 1899, up to November 6, 1899, after which date last mentioned it failed and refused, though often requested, to comply with the terms of said contract; that during all that period appellee was ready and willing to accept shipments of coal and pay for the same as specified in said contract whereof the coal mining company had notice; that by reason of the failure of said coal mining company to so furnish coal appellee was compelled to and did purchase from other parties for its needs in lieu thereof, and was compelled to pay and did pay for such coal so purchased $1,626.77 in excess of the amount it would have been compelled to pay under said contract; that on or about October 25,1899, defendants Trutter, Gray, Jones and Adams entered into a fraudulent combination and conspiracy to wreck the coal mining company and to divide among themselves its assets and to hinder and delay complainant in the enforcement of its contract and the collection of its just demands; that in pursuance of said conspiracy, on October 31, 1899, said Trutter, Gray, Jones and Adams caused a deed to be made by said company whereby said coal mining company conveyed all its tangible property to the Adams Coal Company for the consideration of $50,000, which deed, it was alleged, was a sham and designed as a means to aid in such appropriation of the resources of said coal mining company among said Trutter, Gray, Jones and Adams; that in further pursuance of said conspiracy said Trutter, Gray, Jones and Adams at the same time caused to be assigned by said coal mining company all claims and accounts due and owing to it to said Adams Coal Company, which assignment was also a sham; that said coal mining company had no property subject to execution and that soon after said October 31, 1899, it ceased doing business; that on February 21, 1900, the name of Adams Coal Company was changed to the Jones & Adams Company. There was the usual prayer for process, etc., and that said Trutter, Gray, Jones and Adams might be each required to pay his pro rata share of the debts, and, if necessary, that said deed be set aside, and for such other relief as to the court might seem meet. The issues were closed upon said bill and the cause referred to the master in chancery who took and reported the evidence and his findings thereon to the court. In his report the master in chancery found against the claim as made by appellee and that it was not entitled to the relief prayed for.

Appellee excepted to the findings of the master and upon a hearing the trial court sustained such exceptions and found the equities of the case to rest with appellee and entered a decree directing said appellants to pay to appellee the sum of $1,626.77.

There is no dispute or controversy as to the material facts in the case, appellants basing their contention for reversal upon the claims, first, that a judgment at law was necessary before any relief could be granted to appellee under its bill; second, that upon the facts as admitted appellee was not entitled to any relief; third, that appellee was doing business under an assumed name, to wit, “The Globe Distillery,” and not the “Standard Distilling and Distributing Co.;” fourth, that under the contract the purchaser of the coal was bound to furnish cars to appellants for the receipt of its coal at Springfield, which appellee did not claim it had done; and fifth, the contract by its terms was a gambling contract and therefore void.

Appellants first insist that appellee’s bill is, of necessity, either a creditor’s bill, or a bill in the nature of a creditor’s bill, and that in either event, under the rule as announced in Ladd v. Judson, 174 Ill. 344, Austin v. Bruner, 169 Ill. 179, and Dormueil v. Ward, 108 Ill. 216, a judgment at law was necessary, with return of execution nulla bona, before such a bill could be maintained. These cases, it will be noticed, had relation to claims made Tby one individual or firm against another individual or firm and in no way concerned, an attempt to assert a liability where, as here, a corporation had, in effect, ceased to do business, leaving debts unpaid.

Section 25 of Chapter 32 of the Revised Statutes provides that: “If any corporation * * * shall dissolve or cease doing business, leaving debts unpaid, suits in equity may be brought against all persons who were stockholders at the time, or liable in any way for the debts of the corporation * * * and each stockholder may be required to pay his pro rata share of such debts,” etc.

The meaning of this section would seem to be that in case a corporation ceased to do business, leaving-debts unpaid, the remedy of the creditors was primarily in a court of equity, and that no judgment at law was requisite to the maintaining of a suit in equity. In Butler Paper Co. v. Robbins, 151 Ill. 588-620, which was a bill against a corporation charging a conspiracy to wreck the same and asking relief akin to that sought to be had in this case, it was held that, although no judgment at law had been obtained, the bill could be maintained. It is true that in that case the court said that the objection to the jurisdiction of the court had been waived by the party making it, yet in Parmelee v. Price, 208 Ill. 544-566, the court there say in effect, in reviewing the Butler Paper Co. v. Robbins case, that such a suit against a corporation and its stockholders could be maintained in equity without the recovery of a judgment and the return of an execution unsatisfied when such corporation shall cease doing business leaving debts unpaid.

The trial court in its decree found that “on October 31, 1899, said Springfield Coal Mining and Tile Company conveyed all its property and accounts receivable to the Adams Coal Company and ceased to do business on or about that date. ’ ’

The finding of the court seems to have been warranted "by the evidence and under the statute entitled appellee to the right to present its bill in a court of equity without having first reduced its claim to judgment in a court of law.

It is not necessary to review the claim of appellant that, upon the facts, the trial court was not warranted in "entering the decree appealed from further than to say that the transaction as a whole seemed to have for its purpose one result and only one, and that was to put the Springfield Coal Mining and Tile Company, and its holdings, beyond reach of its creditors. The purpose could not have been less than to end its existence as a corporation at a time when it had contracts to fulfill, and remove its assets beyond the reach of those having claims against it.

Appellants next contend that because appellee was doing business under an assumed name and made the contract in question by the name of “The Globe Distillery,” no relief could be awarded appellee. In the bill it was alleged that appellee “The Standard Distilling and Distributing Company,” was a corporation organized under the laws of the state of New Jersey, and that it conducted business at Pekin, Illinois, under the name and style of “The Globe Distillery,” by which name it executed the contract involved.

No serious question seems to have been made by appellants upon this point in their answer, as they there content themselves by saying that they are not advised that appellee conducted its business at Pekin under the name of “The Globe Distillery” without denying that appellee had a right to.so conduct its business if it saw fit.

In the absence of injury or loss to appellants by reason of the use of the name “The Globe Distillery” instead of the “Standard Distilling and Distributing Co.,” we see no reason for releasing appellants from the force of a contract entered into by it with appellee under the former title. In the N. W. Distilling Co. v. Brant, 69 Ill. 659, it was held that where a' deed was made to a corporation by a name varying from the true one, the corporation might sue in its true name, and aver in the declaration that the defendant made the deed to it by the name mentioned in the deed.

. Appellants next insist that under the contract involved appellee was bound to furnish cars or offer to do so, at Springfield, in which the seller could load the coal before recovery can be had upon the contract. This contention can have no controlling influence here in view of the fact that the Springfield Coal Mining & Tile Company refused peremptorily to perform the contract sued upon and in no way based such refusal upon appellee’s failure to furnish cars.

Appellants’ claim that the contract involved gave appellee a mere gambling option and was therefore not enforceable is fully met by the holding in Consolidated Coal Company v. The Jones & Adams Co., 232 Ill. 327, where the contrary doctrine is announced.

The holding of the trial court that the transactions involved were fraudulent as against appellee, was warranted by the evidence, and we are not disposed to disturb the decree.

The decree is affirmed.

Affirmed.


text:
    Harrison F. Pinnell, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Evidence—when admission .of, which invades province of jury, not ground for reversal. In an action for damages for failure of a carrier to transport within a reasonable time, it is error to permit a witness to state what was a reasonable time for such transportation, but such error will not reverse in the absence of prejudice appearing.
    2. Common carriers—-what not error to exclude, in an action for failure to transport within a reasonable time. Held, not error in this case for the court to refuse to allow the defendant carrier to prove that the delay of the train upon which the merchandise was being carried was unavoidable by the exercise of reasonable care and diligence, it appearing that such train was the second section of the train upon which such merchandise was to be carried and that no evidence was introduced tending to show a good excuse why such merchandise was not placed upon the first section of such train.
    3. Common cabbiebs—when not error to exclude evidence tending to show shipper’s assent to restrictive conditions. Held, that while it was error to sustain an objection to a question of the carrier put to the shipper asking him if he knew what the contract (known as a shipper’s contract) was at the time he signed it, yet that such error was harmless in view of the fact that such shipper afterwards testified that he simply signed the contract, took it without reading it and did not know its terms.
    4. Common cabbiebs—effect of presentment of claim for damages. A shipper who has made a claim for damages against a carrier for failure to transport within a reasonable time, is limited in his recovery to the amount claimed of such carrier in his first presentment of claim thereto.
    Action in case. Appeal from the Circuit Court of Edgar county; the Hon.' James W. Cbaig, Judge, presiding.
    Heard in this court at the May term, 1908.
    Affirmed on remittitur.

    Opinion filed November 24, 1908.
    George B. Gillespie, for appellant; L. J. Hackney, Hamlin, Gillespie & Fitzgerald and R. L. McKinley, of counsel.
    J. E. Dyas and H. S. Tanner, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Appellee brought suit in the Circuit Court of Edgar county against appellant to recover for damages sustained by appellee through alleged negligence of appellant in failing to transport within a reasonable time, fifty head of cattle from Kansas, Illinois, to Chicago. There was a verdict in favor of appellee in the sum of $240 upon which judgment was rendered and this appeal followed.

On the 23rd day of November, 1903, appellee engaged three cars from appellant in which to ship from Kansas, Illinois, to Chicago, fifty head of fat cattle on the next day. On November 24, appellee was told by appellant’s agent at Kansas that the three cars would arrive at Kansas on the local freight train, which was due at that station between 10 and 11 o’clock a. m. Appellee took his cattle to the yards of appellant ready to load about 12 o’clock m. on the 24th. The local freight train failed to bring the cars and the agent of appellant advised appellee that the cars would be brought to Kansas on train No. 99, which would be there in the afternoon, and which train would then stay at Kansas until appellee could load his cattle. The cattle would then have been transported by that train to Mattoon, Illinois, and from there to Chicago, over the Illinois Central, on a through stock train, where they would have arrived in time for sale on the market of November 25.

On November 24, train 99 was run in two sections, the first section brought three or four cattle cars to Kansas, which were there set out, about 4 or 5 o’clock p. m., but that train did not take the cattle, nor would those in charge of the train receive them, the conductor of that section saying that he had “no time to fool with them.”

The second section of train 99 arrived in Kansas about 8 o’clock p. m. and took the cattle of appellee, but failed to arrive at Mattoon in time to connect with the through stock train on the Illinois Central to Chicago, so that the cattle did not leave Mattoon for Chicago until about 9 a. m. on November 25, and reached Chicago on the morning of Thursday, November 26. The 26th of November was Thanksgiving day and as there was no market for cattle in Chicago on that day they had to be kept over. By reason of the delay there was a shrinkage in said cattle and for the loss occasioned thereby this suit was brought.

Appellant first contends that it was error for the trial court to permit witnesses for appellee to state what was a reasonable time within which to transport cattle from Kansas, Illinois, to Chicago. This was error, as that question was one for the jury to determine, but in our judgment it was not so prejudicial under the circumstances, as to warrant a reversal. It is evident from an inspection of the record that the witnesses were speaking of the time usually employed in making such shipment. The witness Juntgen said, in this connection, that “it didn’t make much difference whether we went from Kansas at 2, 3, 4, 5, or 6 o’clock, they got to Chicago about 4, 5 or 6 o’clock the next morning” and there was no controversy at all that if connection had been made at Mattoon with the through stock train on the Illinois Central the cattle would have reached Chicago on November 25, in time to have been sold that day.

Appellant next insists that it was error for the trial court not to allow appellant to prove that the delay in the second section of train No. 99 from Kansas to Mattoon was unavoidable by the exercise of reasonable care and diligence. Even if this was error as contended, it was not prejudicial to appellant’s cause for the reason that no sufficient excuse was shown why appellee’s cattle were not taken from Kansas on the first section of train 99. That section was in Kansas as early as 4 or 5 o’clock p. m., nearly four hours before the arrival there of the second section. It brought the empty cars there and remained at that station for a considerable time and no good reason appears from the evidence justifying the refusal of the conductor of the first section to take said cattle to Mattoon.

Appellant next assigns as error the action of the court in sustaining an objection to the question of appellant put to appellee asking him if he knew what the contract (known as a shipper’s contract) was at the time he signed it. This ruling was erroneous as appellant had a right to ask appellee whether he knew of the contents of the contract and the limitations therein expressed, as tending to defeat or limit a recovery; but the error was harmless in view of the fact that appellee afterwards testified that he simply signed the contract, took it without reading it and did not know its terms. Whether or not appellee did know the terms and limitations of the contract was a question of fact for the jury and their finding in this respect is not so clearly against the weight of the evidence that we feel warranted in disturbing the verdict on that account.

Appellant argues at considerable length that the trial court was in error in refusing to give its instructions tendered upon the subject-matter of the shipper’s contract involved and upon the subject-matter that the appellant would be excused from liability if an accident happened to said second section of train 99, and if appellant used reasonable diligence to transport the cattle.

These instructions were rightfully refused as those relating to the “shipper’s contract” failed to require appellant, who had the burden of proof upon that subject, to show that appellee knew of the terms and limitations expressed in the contract, and assented thereto, and those relating to reasonable diligence upon the part of appellant in transporting the cattle from Kansas to Mattoon had reference to the second section of train No. 99 and not to the first section of that train, which under the evidence, was the train on which the cattle should have been shipped to Mattoon in time to connect with the stock train on the Illinois Central Railroad at that point.

Appellee’s claim for damages as first presented to appellant was in the sum of $145.34 and this, in our judgment, is all he should be permitted to recover. If he will within ten days enter a remittitur in this court of so much of the judgment as is. in excess of that amount the judgment will be affirmed for such sum of $145.34, otherwise the judgment will be reversed.

Affirmed on remittitur.

Remittitur filed and judgment affirmed.


text:
    Mary Hart et al., Appellees, v. Penwell Coal Mining Company, Appellant.
    1. Mikes and Miners Act—in whom, right of action for death resulting from, wilful violation lies. The Mines and Miners Act gives a right of action for death caused by a wilful violation of its provisions, first, to the widow if she survives, and, second, to the lineal heirs or adopted children in case the widow does not survive; a joinder of the widow and the lineal heirs is improper.
    2. Evidence—when invades province of jury. It is error to permit a witness to state whether a particular room in which the deceased was working at the time of his death was or was not a dangerous place; conditions may be described by an expert, but the ultimate conclusion must be left to the jury.
    Action in case for death caused by alleged wrongful act. Appeal from City Court of Pana; the Hon. Jqsiah P. Hodge, Judge, presiding.
    Heard in this court at the May term, 1908.
    Reversed and remanded.
    Opinion filed November 24, 1908.
    J. C. & W. B. McBride, for appellant; Mastin & Sherlock and McQuigg & Dowell, of counsel.
    J. W. Preihs, E. A. Humphreys and Hogan & Wallace, for appellee.
   Mr. Justice Ramsay

delivered the opinion of the court.

Mary Hart, widow, and Maggie, Mamie, Emma and Oneita Hart, children of Louis Hart, deceased, brought suit in the city court of Pana against the Penwell Coal Mining Company to recover for damages sustained by them through the death of said Louis Hart, alleged to have resulted from the wilful failure of the coal mining company to observe the statute relating to mines and miners. There was a verdict upon which judgment was rendered in favor of appellees in the sum of $5,000 and the coal mining company appealed.

Appellees’ right of recovery was based upon the claim that the death of Louis Hart, who was killed in appellant’s coal mine, was caused by the wilful violation by appellant of the provision of chapter 93 relating to mines and miners; that the deceased was working as a coal digger in appellant’s mine and while he was so engaged appellant suffered and permitted a cross-cut to be driven from a room adjoining that in which deceased was at work at an improper distance from the next nearest cross-cut and in advance of the face of the room in which Hart was then at work; that because of such cross-cut being made or attempted at such improper distance, and in advance of the room deceased was working in, the coal over the place where deceased was working was loosened and caused the fall, whereby Hart was killed. The wilful neglect charged was that appellee was permitted to enter said mine to work, not under the direction of the mine manager, when there were unsafe and dangerous conditions in the mine; that the mine examiner had failed to inspéct the mine and mark dangerous places and notify men to keep out, and that appellant had made a cross-cut between the rooms involved at a greater distance than sixty feet from the one next nearest to it.

At the conclusion of the evidence for appellees and again at the conclusion of all the evidence appellant entered its motion to exclude all the evidence and direct a verdict for defendant upon the ground, among others, that there was a misjoinder of parties. This motion was, in each instance, overruled and this action of the court is now assigned as error.

Section 33 of Chapter 93 provides that in cases of this kind “a right of action shall accrue to the widow of the person so killed, his lineal heirs, or adopted children, or to any person or persons who are, before such loss of life, dependent for support on the person or persons so killed.”

Appellees argue that it is proper to join the widow and children of decedent as parties and cite the cases of Kellyville Coal Company v. Bruzas, 125 Ill. App. 468, and Beard v. Skeldon, 113 Ill. 584, in support of that contention. These authorities do not, in our judgment, support that claim. All that was said, upon this subject, in the Bruzas case was that in a suit by a widow under this act, in view of the fact that the law permitted only one recovery, it was competent for a widow to show that she had minor children, but it was not held that the children could bring suit, by themselves or jointly with the widow while she remained alive. In the Beard v. Skeldon case the court say that the widow, under the statute, is entitled to sue and recover for the loss, whatever it may be, but in case there should be no widow, but lineal heirs or adopted children, then the right of action is conferred upon them. In our opinion the statute gives the right of action first, to the widow if she survives; second, to the lineal heirs or adopted children in case the widow does not survive. It was error to overrule appellant’s motion and to enter judgment in favor of all the appellees.

It is next insisted by appellant that the trial court was in error in permitting appellees to ask for the opinion of witnesses as to whether or not dangerous conditions existed in Hart’s room; that witnesses were allowed to say, over objection by appellant, that the room would be a dangerous place to work in, because of the opening of a cross-cut from another room towards Hart’s room and in advance of the face of his room.

Appellees argue that it was proper to permit experienced miners to give their opinion in reference to what constitutes a hazardous or dangerous condition in a coal mine and cite Kellyville Coal Co. v. Strine, 217 Ill. 531, in support of that claim.

In the Strine case expert testimony was admitted to show the fitness of certain timbers or cross-bars to be used as props to support the roof of a coal room. In passing upon the competency of that evidence the court say: “In the case at bar, the witnesses were not asked as to the safety of using the timbers or cross-bars in question, but simply as to whether the use of such bent and broken cross-bars was a proper method of propping the roof of the mine.” We have no doubt, under the holding in that case, that it would be competent to show by' expert witnesses the proper method of cutting cross-cuts from one room to another, but that it would not be and was not competent to ask such witnesses whether or not the room where Hart was at work was rendered a dangerous place in which to work because of the opening of the cross-cut as described by the witnesses. Whether or not the room was rendered dangerous and unsafe, was a conclusipn to be drawn by the jury, from all the facts and circumstances proven upon the trial. The admission of this evidence was error.

Some of appellees’ instructions, instead of stating the law as applicable to the facts which the evidence tended to establish, in our judgment tended to confuse the jury; in several of them there was an attempt made to state the averments of the declaration and also to state the duties of appellant as fixed by the statute while in others the terms “mine manager” and “mine examiner” were used indiscriminately.

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

Reversed and remanded.