text:
    Max Loescher, Appellee, v. Consolidated Coal Co., Appellant.
    1. Master and servant—fellow-servants defined. Fellow-servants are servants of the same master, who are directly co-operating with each other in the particular business in hand, or whose usual duties bring them into habitual association so they may exercise an influence upon each other, promotive of proper caution. -
    2. Mines and miners—fellow-servants. Where mine employees are divided into gangs to sprinkle entries, haul dirt' and to perform other work at night to keep the mine in condition, so as not to interfere with the operating of the men during .the day, a dirt loader riding on a car, who is injured by a sprinkling car being negligently left in an entry, is not, as a matter of law, a fellow-servant of employees in charge of the sprinkling car.
    3. Master and servant—vice principal. Where a dirt loader and hauler, riding in a mine on a car, hauled by a mule, is injured on jumping from the ear which was coming out of an entry, round a curve and at down grade, to avoid a collision with a sprinkling car that had been left near the junction point of an intersecting track, the negligence in leaving the sprinkling car in such position is attributable to a vice principal, who knew that the plaintiff was liable to come out of the entry at any moment and that the position of the sprinkling car was dangerous, and reasonable care on the part of the vice principal required that he should see that the men on the sprinkling car, under his direction, should move it back from the danger point.
    4. Master and servant—notice to master of defects. The rule that notice to the master of defects and dangers in appliances and places is necessary before he can be held liable for an injury to a servant, has no application when the dangerous condition is caused by the act of the master himself or by his vice principal.
    5. Master and servant—notice to master of obstruction in mine. Where a mine employee riding on a car jumps therefrom to avoid collision with a sprinkling car obstructing the passage, it cannot be contended that as the obstructing car only remained there three minutes it was not notice to the master of the dangerous condition, when the negligence causing such condition to arise is attributable to a vice principal.
    6. Master and servant—leaving place of safety to avoid sudden peril. Where a mine employee, riding on a car hauled by a mule, jumps therefrom as it comes around a curve and at a down grade to avoid the sudden peril of a collision with an obstructing car, and he would have been safe from injury if he had remained upon the car, he is not guilty of contributory negligence as a matter of law. ■
    7. Master and servant—instruction: Where a mine employee riding on a car jumps therefrom to avoid collision with an obstructing car, an instruction that if a person could have remained on the car with safety and a person of reasonable prudence would have done so, then if plaintiff did become badly frightened and jump , from the car and was injured he could not recover, may be rejected where other instructions inform the jury, that if plaintiff was not in the exercise of reasonable care when he jumped from the car he could not recover.
    8. Master and servant—instructions. Where a mine employee riding on a car is injured in jumping therefrom to avoid a collision with an obstructing car and the evidence is undisputed, that the obstructing car was placed in position by the direction of a vice principal, there is no evidence to support an instruction that although such car was left on the track, yet if no officer or agent of the mining company had reasonable time to know the fact and have it removed, the plaintiff could not recover.
    9. Damages—excessive. A mule driver in a mine had his wrist broken and lost several finger joints in an accident and was confined to his bed for three months. His wrist and a finger joint remained more or less stiff and he suffered some pain when he worked, but he resumed his occupation and earned the same wages, two dollars and seventy-five cents a day. Held, a verdict for $5,000 was excessive and would be reduced by requiring a remittitur to $3,500.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    Wise, Keefe & Wheeler, for appellant; R. B. Hendricks and Mastin & Sherlock, of counsel.
    Webb & Webb, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This cause was submitted to a jury on the second count of appellee’s declaration which charged that appellant was operating a coal mine; that among its entries were the main north and first west leading therefrom, that each contained hauling roads; that the road in the first west entry connected with the road in the main north and that they were used by men, mules and cars in the operation of said mine; that appellee was in the employ of appellant; that it became his duty to drive a mule in hauling dirt, rock and other substances from the first west to a certain third east entry and in doing so he was required to pass over the hauling road in said first west entry and thence on the hauling road in the main north, and thence over that to the road to the third east-; that appellant negligently suffered a water ear to be and remain on the road in said main north entry at a point where it knew, or could have known by the exercise of due care, that appellee was required to pass in hauling said material; that while appellee was driving a mule hitched to two loaded cars near said water car, and in the exercise of due care and without notice of the existence of said car, his mule saw the car and' turned from the track whereupon appellee, fearing injury to himself if he remained on said car, jumped therefrom with due care and was thereby thrown to the track and his hand was run over, cut and mashed by one of said cars, and he was permanently injured, etc.

There was no conflict in the testimony. Appellee who was employed in the mine of appellant on the evening of the accident which resulted in his injuries, was directed by his superior, the pit boss, to hitch a mule to two empty cars, and go to an entry called the “first west off the north” and load them with dirt. The mule was hitched to the front car by a tail chain about five feet long fastened to the car at one end and to the mule’s harness at the other end. After hitching the mule, appellee with four other men who went along to load the cars, went into the first west entry about three hundred and fifty feet off the main north where the cars were loaded, and appellee started out with his trip. One of the loaders was riding on top of the dirt on the first car and the other three were riding on the second car. As they came out of the entry appellee was riding on the front end of the front car next the mule with his feet dangling. No lines were used on the mule and he was driven and governed by the driver’s, voice. If the mule was to stop the driver would say “whoa” and put his hands on the mule’s hips. As appellee came round the curve leading out of the first west towards and near its junction with the main north, he saw some one flagging him with a lamp to stop. The light was about fifteen feet in front of him when he first saw it. The man flagging was at the water car standing on the track in the main north entry at a point just beyond where the track out of the first west intersected it. Appellee did not see the water car in the darkness but the mule coming to it turning out off the track, and the flagging apprised him there was an obstacle in front, and becoming alarmed he jumped from the car. The mule after turning out, turned clear around just as appellee jumped and shoved him under the front car where the hind wheel passed over his hand. The water car was not at that place on the track when appellee went into the first west after his loads, and he had no knowledge of its presence there when he came out.

It is first insisted that if appellee’s injury was the result of any negligence other than his own, it was that of fellow-servants, and as the testimony was undisputed, that the question was one of law for the court and it was error hot to direct a verdict for appellant.

Appellant had a class of labor called company work which was performed during the night time so as not to interfere with the operation of the mine during the day in mining and hoisting coal.

In this work appellant employed a number of men among whom was appellee, and the work consisted in repairing, tracks, sprinkling entries, hauling dirt, etc. In the distribution of the work to be done the night boss who had supervision of all the men so engaged would separate them into gangs to perform the various kinds of work and distribute them in various parts of the mine. On this occasion appellee and the four men with him were placed in one gang to load and haul dirt and debris in the manner and from the place already described. Another gang consisting of two persons were detailed to take the water car and sprinkle the roads of the mine which included the road appellee was required to drive over. Neither gang had any connection with or anything to do with the performance of the duties of the other; each gang performing its own duties entirely distinct from the other.

Fellow-servants are defined to be servants of the same master who are directly co-operating with each other in the particular business in hand, or whose usual duties bring them into habitual association so they may exercise ah influence upon each other pro-motive of proper caution. C. & N. W. R. R. Co. v. Moranda, 93 Ill. 302; Same v. Snyder, 117 Ill. 376; Coal Co. v. Holenquist, 152 Ill. 591.

It is not claimed that appellee and those operating the water car were directly co-operating with each other in the particular business, but it is said they were a body of men whose general duties were to keep the mine in condition; that they were co-operating to the same purpose and that there was a code of signals in the mine used to avoid collisions. Notwithstanding the general purpose, appellee had nothing whatever to do with the water car or its operation and there was no habitual association among them in the performance of their several duties when divided into gangs, whereby each might have an influence upon the other promotive of proper caution, so as to bring them within the second branch of the rule defining fellow j^P.'TVfl.TlfiS

In C. & A. R. R. Co. v. Kelly, 127 Ill. 644, it was said “That in order to constitute servants of the same master fellow-servants within the rule respondeat su perior, it is not enough they are engaged in doing parts of the same work or in the promotion of some enterprise carried on by the master not requiring cooperation nor to bring the servants together or into such personal relations that they can exercise an influence upon each other promotive of proper caution in respect of their mutual safety, but it is essential they shall be at the time of the injury directly co-operating in the particular business in hand or that their mutual duties shall bring them into habitual consociation so that they may exercise an influence upon each other promotive of proper caution.” To the same effect is Rolling Mill Co. v. Johnson where it was also said: ‘' The relations of the servants must be such that each as to the other by the exercise of ordinary caution can either prevent or remedy the negligent acts of the other or protect himself against its consequences.”

The evidence did not as a matter of law bring appellee and those who controlled and operated the water car within the rule of fellow-servants.

Aside from the question raised that appellee and those in charge of the water car were fellow-servants there was evidence that the negligence complained of in leaving the water car on the track in the way of appellee was attributable to the boss Powell, who was a vice principal. Powell knew appellee had gone into the first west entry after his loads and that he might come out at any moment, and he knew that to leave the water car on the track of the main north at a point close to and south of the junction of the first west, would be a dangerous obstacle to appellee in coming out round a curve and at down grade. When the water car came from the north over the main north track it ran about twenty-five feet south of the junction of the track of the first west where the men in charge found an empty car standing on the track. Just then Powell reached there from the south end and he says it was necessary for the men in charge of the water car to back up in order to get the empty car out of the way onto a switch that extended east. The water car was backed to a point near to but not beyond the junction, leaving it in a dangerous place for appellee in case he came out while it remained there. With Powell’s knowledge of the situation and the dangers of leaving the water car in the way of appellee, it cannot be said that reasonable care on his part did not require that he should see that the men on the water car then under Ms direction and control should move it back beyond the junction where there was no danger of a collision.

It is urged, however, that the water car only remained there about three minutes while the men were getting the empty out of the way and that was not notice to the master of the dangerous condition.

The rule that notice • to the master of defects and dangers in appliances and places is necessary before he can be held liable, has no application when the dangerous condition is caused by the act of the master himself or by his vice principal, as was the case here.

It is next contended that appellee was guilty of contributory negligence. One confronted with sudden peril cannot be expected to act with the same degree of care and caution that is to be expected of one who has ample opportunity for the full exercise of his judgment and reasoning faculties. Appellee would have been safe from injury if he had remained upon the car, but he is not as a matter of law to be held guilty of contributory negligence under the circumstances shown, where the conditions which occasioned his fright and caused him to jump were made by the negligence of the master. Wesley City Coal Co. v. Healer, 84 Ill. 126; Dunham Towing & Wrecking Co. v. Dandelin, 143 Ill. 409. Whether appellee was guilty of contributory negligence was a question for the jury.

Complaint is made of the action of the court in refusing to give appellant’s first and third refused instructions. The first told the jury that if a person could have remained on the car with safety and that a person of reasonable care and prudence would have done so, then although appellee did become badly frightened and jump from the car and was injured he could not recover. The instruction in substance and effect only told the jury that if appellee was not in the exercise of reasonable care when he jumped from the car he could not recover, and this the jury was told in appellant’s two last instructions. The third refused instruction was based on the proposition that although the water car was left on the track, yet if no officer or agent of appellant had reasonable time to know the fact and have it removed, appellee could not recover. Kostich testified that Powell said' push water box back and switch empty in the first east. I pushed water box back two or three feet and Powell told us what to do.” This testimony is undisputed and shows the water ear was pushed back by Powell’s direction and that he knew it was not pushed back beyond the junction with the first west entry. Powell does not dispute this and says it was not his duty to flag appellee or have him flagged and he took no means to do so. There was no evidence upon which to base the instruction that no agent of appellant had reasonable time to know the water car was on the track and it was properly refused.

Finally it is claimed the damages are excessive. The amount recovered was $5,000. There was no evidence of the extent of appellee’s injuries except the testimony of appellee himself. He said he suffered a broken wrist (whether of one or both bones does not appear); that he lost the first and second joints of the first finger; the second finger up to the hand; that the third finger was stiff, the joint at the end being broken; and all of the joints of the fourth finger were stiff; that the nerve at the end of the first finger was exposed; that his wrist was a little stiff and pained him when he worked with it; that his thumb was all right and that he had to grip with it and the stub of the first finger. He further said he was confined to his bed nearly three months and did not work for eight months. Since then appellee has been working as. a driver, the same occupation he had before he was injured, and earns the same wages, two dollars and seventy cents per day. His injuries do not incapacitate him for a driver. There is no evidence of any expense for medical or surgical attention. It would serve no good purpose to cite and comment upon the great number of cases where the measure of damages has been considered. Just compensation in money is the measure to be awarded him under the law. He is able to earn as much since his recovery as before but he is entitled to compensation for the injury to his hand and the loss of some of its members, and also for his pain and suffering and loss of time. There is no rule by which such damages are to be measured except a sort of general rule which arises from what is usually recovered in such cases. Tested thus, it seems to us that the amount recovered is excessive and that thirty-five hundred dollars would be a full compensation. The court erred in not allowing the motion for a new trial on this ground. In all other respects the judgment is affirmed. If appellee will file a remittitur in this court within thirty days of fifteen hundred dollars the judgment will be affirmed for thirty-five hundred dollars; otherwise it will be reversed and remanded.

Affirmed on remittitur.


source: Caselaw Access Project

author: Mr. Justice Shirley

license: Public Domain

text:
    Romono Oolitic Stone Co., Appellant, v. Missouri Valley Bridge & Iron Company, Appellee.
    1. Building and construction contracts—construction. Where a quarry company contracts to furnish stone for a bridge company and there is a doubt under its terms, whether the stone should be coursed to suit the convenience of the quarry company, or should be coursed subject to the approval of the bridge company, the interpretation which the parties themselves have by their conduct practically given the contract will prevail.

      2. Building and construction contracts—specifications. Where specifications given a quarry company bidding on a contract to furnish stone for a company constructing a municipal bridge, state that certain stone may be coursed to suit the convenience of the quarry company, but subject to the approval of the bridge company, and the engineers of the bridge furnish the plans after the contract is entered into, which contract provides that the stone should be cut and dressed in accordance with the plans and specifications of the engineers and should be furnished according to the course plans furnished by the bridge company and approved by the engineers, it is apparent that the parties understood and construed the bidding specifications to mean that the course plans were not fixed but were to be fixed by the engineers.
    3. Building and construction contracts—specifications. A quarry company contracted to furnish stone for a company building a municipal bridge and claimed that ambiguous specifications, under which they bid for the contract, were a part of the contract and permitted them to course certain stone to suit their convenience and that they are entitled to extra compensation on being compelled to course the stone under the specifications of the engineers of the bridge. The engineers’ specifications were furnished after the contract was entered into, which contract provided that the stone should he furnished' and coursed according to plans furnished by the bridge company and approved by the engineers. Letters from the quarry company to the bridge company, subsequent to the contract, indicated that they knew that the engineers’ specifications were to be followed. Held, that under the terms of the contract and the construction placed thereon by the plaintiff, it was not entitled to recover.
    4. Building and construction contracts—oral evidence. Where a quarry company contracts in writing to furnish certain stone for a bridge company at a certain price, in an action to recover a greater amount, oral evidence that the real consideration was the greater amount and that both parties subsequently agreed that the greater amount was to he paid and that the original price was a mistake is inadmissible.
    5. Appeals and errors—when presumed that trial court disregarded improper testimony. Where objection is made to an offer of inadmissible evidence and there is no specific ruling made on the offer, if it appears that the court trying the case without a jury said he would not consider anything but proper evidence, it will be presumed he disregarded the improper testimony.
    Appeal from the Circuit Court of East St. Louis; the Hon. M. Millard, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.

      Wise, Keefe & Wheeler, for appellant; R. B. Hendricks, of counsel.
    Whitnel, Browning & Gillespie, for appellee; Allen C. Orrick and Nagle & Kirby, of counsel.
   Mr. Justice Shirley

delivered the opinion of the court.

This was an action in assumpsit by appellant to recover from appellee damages resulting from an alleged breach of contract. The declaration contained three special counts also the common counts. The first special count alleged a completion of the contract, and claimed the sum of $4,043.67 as the balance due which was the amount retained by appellant until the contract was completed, and as the court found for appellant on that count and rendered a judgment for the sum claimed, it is unnecessary to set it forth.

The second special count among other things averred that appellant agreed to furnish appellee all Bed-ford stone required for the four main piers of the Municipal Bridge which was being constructed by the City of St. Louis across the Mississippi Eiver, cut and dressed according to the plans and specifications of the engineers of said bridge; that prior to entering into said agreement appellee furnished appellant specifications of the engineer of said bridge for appellant’s examination in order that it might make a bid upon the stone which was to be furnished for the stonework of the bridge; that of said specifications clause 26 provided :

“The general form, character and details for the masonry of the piers are shown upon the drawings. In general it will consist of first class rock faced Ashlar facing, with concrete hearting, coping, pedestal blocks, and special corners and shapes will be made to detail drawings furnished by the president; the balance of the Ashlar to be coursed to suit the convenience of the quarry, but subject to the approval of the President. Preference is hereby expressed for two foot courses.”

It was further averred that appellant in making its bid for the stone and for which said contract was after-wards made based it upon said clause 26 of the specifications ; that relying upon such specifications that the Ashlar which was the courses of layers of stone with which the piers were veneered would be coursed to suit the convenience of the quarry, appellant agreed to furnish said Ashlar stone for the sum of $9.10 per cubic yard f. o. b. cars East St. Louis; that after making said contract appellee elected to change the terms of said contract in this, that instead of appellant furnishing the Ashlar to suit the convenience of the quarry appellee ordered appellant to furnish Ashlar in courses of two feet; that appellant when so ordered informed appellee that furnishing the Ashlar that way would make an extra cost of $1.50 per cubic foot above the contract price; that appellant forwarded the Ashlar as so required and which appellee accepted and used and which amounted to the extra sum of $5,421.72.

The court (a jury being waived) found the issues raised by the second count and plea thereto in favor of appellee, and found there was nothing due appellant on that count. Error is assigned on the finding on the second count and that will be first considered.

The clauses of the contract which are material were, that the stone should be cut and dressed in accordance with the plans and specifications of the engineers and subject to the inspection, approval and acceptance of the engineers of the Municipal Bridge, and for all rock faced stone appellant should be paid $9.10 per cubic yard f. o. b. cars East St. Louis. It was further provided that the stone should be furnished in accordance with the course plans furnished by appellee and approved by the engineers.

Appellant insists that requiring it to furnish the stone in two-foot courses was not according to the written contract, which it is claimed included clause 26 of the specifications, hut a departure therefrom, which necessitated the furnishing of additional labor and material for which appellant had a right to recover under the second count and also under the common counts.

Clause 26 of the specifications in evidence standing alone is somewhat ambiguous. There arises some doubt whether it is to be interpreted as providing that the stone should be coursed to suit the convenience of the quarry as claimed by appellant, or should be stone coursed subject to the approval of the president of the Municipal Bridge Company. Assuming that said clause should be regarded as entering into and being a part of the contract between the parties it is' a familiar rule that in a doubtful case the interpretation which the parties themselves have by their conduct practically given the contract will prevail. Bishop on Contracts, 598. “The construction which the parties have by their acts placed on an ambiguous instrument is entitled to great if not controlling weight in determining its proper construction.” Am. & Eng. Ency. 2nd Ed., Vol. 17, p. 24, and cases cited.

At the time said clause 26 of the specifications was furnished appellant, the engineers of the Municipal Bridge had not furnished the plans for the stonework in the piers. They were furnished later and after this contract between appellant and appellee was made. Appellant had clause 26 before it, and says it contracted in view of its provisions. Yet by the terms of the contract it agreed that the stone should be cut and dressed in accordance with the plans and specifiecations of the engineers of the bridge, and should be furnished according to the course plans furnished by appellee and approved by the engineers. It is apparent from these provisions of the contract that appellant and appellee understood and construed clause 26 to mean that the course plans were not fixed by clause 26 but were yet to be fixed by the engineers.

That this was appellant’s construction of the contract at that time is also quite apparent from the correspondence between the parties after the plans of the engineers providing for two-foot courses were furnished. In a letter to appellee’s engineer appellant wrote: “The plans have been received and we note you have 2,0" almost throughout. This makes it rather hard for our work and cutting would be greatly facilitated if you could make your courses, some a little greater and some a little smaller so as to allow it some leeway on the bed.”

■ Again appellant wrote: “We shall thank you very much for course plans above the starling coping as we are in hopes that these shall show some course of less than 2'0" rise so we may take advantage of the way our stone works.” Appellant had been advised that by the plans of the bridge all courses were two feet thick and that the engineer insisted on all courses being within an inch or two of that thickness. The contract was entered into on September 13, 1909, and these letters were written by appellant on September 30, and October 26, 1909, following. It was not until November 8, 1909, and after, that appellant made any complaint that the engineers ’ plans for two-foot courses were not according to the specifications. On that date it wrote to appellee that it (appellant) had requested permission of the engineers to change five courses of the upper work of the piers into six courses of lesser rise so as not to hamper it in the work; that a rigid two-foot course throughout was not according to the specifications nor to practice and custom, and asking appellee to use its good offices to get a variation in the rises. Appellee, as the contractor, did use its good offices on behalf of appellant but to no avail. Appellant, however, proceeded to fulfill the contract according to the plans. After a careful consideration of the contract in connection with clause 26 and the above correspondence we conclude appellant was not entitled to recover under the second count of the declaration, or on the common counts for the alleged breach claimed therein.

The third special count alleged that appellee applied to appellant to furnish the stone in the bridge piers called backing, and it was agreed that it should be furnished for the same price that was paid for the stone in the so-called McKinley bridge and the bridge at Thebes, Illinois, and that the price paid for stone used for backing in said bridges was five dollars per cubic yard; that appellant furnished 621.40 yards for which appellee was to pay five dollars per cubic yard, and that the sum of $3,266.25 was due for said stone. The evidence showed that appellee had paid appellant at the rate of $3.25 per cubic yard for 729% yards of said stone which was the amount furnished. The court found that was all appellant was entitled to recover for said stone and the court found the issues against appellant on that count and on the common counts for the alleged breach claimed under said count. The provisions of the written contract between the parties in reference to stone to be used as backing was as follows: “In case any stone is condemned as unfit for facing bnt which the engineers will accept for backing, said condemned stone is to be used as backing and the first party agrees to pay therefor at the rate of three dollars and twenty-five cents per cubic yard.”

Some testimony of a witness Kessler was given over appellee’s objection that before the written agreement was made appellees said it would pay the same price for the backing that was paid for backing in the McKinley bridge, and that after the contract was entered into he heard from some source that the cost in the McKinley bridge was over five dollars a yard. The court seems to have heard this subject to the objection. Appellant then offered to prove by this witness that although the sum of $3.25 yer yard was named in the contract, that the real consideration for the backing was to be the same as that paid for the McKinley bridge and that subsequently both the representative of the appellant and appellee agreed that it was more than five dollars when $3.25 was named in the contract and that that part of it was a mistake. There was no specific ruling on this offer, hut as the court had said he would not consider anything hut proper evidence it will be presumed- he disregarded all such testimony.

The effect of the testimony was to vary the express terms of the written contract to furnish the backing at the rate of $3.25 per yard which could not be permitted under the plainest principles of the law of evidence. Appellant had been paid the full amount fixed by the written agreement and there was no error in finding it was not entitled to recover under the third count nor under the common counts.

Perceiving no error the judgment will be affirmed.

Affirmed.


text:
    John J. Noonan, Appellee, v. Saline County Coal Company, Appellant.
    1. Juries—ground for challenge. Challenges for cause on the ground that the juror and the plaintiffl are members of the same secret organization are properly denied where it is explained that the object of the organization is to protect its members in their contractual and business relations with their employers, and does not interfere with their duties as jurors in cases between a member and an employer.
    2. Mines and miners—evidence. In an action for injuries caused by an alleged wilful violation of the Mines and Miners Act, it is not error to admit evidence of the condition of the roof on Saturday preceding the Monday on which the accident occurred, where there was ample evidence by machine runners and others that the dangers either were the same on both days or were more imminent on Monday.
    3. Mines and miners—questions for jury. Where a mine examiner testifies that he examined an entry on the day of an accident and found only one loose spot, and put up no danger signal, but there is evidence that the roof for some distance was loose two days before the accident, it is a question for the jury whether or not the examiner consciously failed to properly examine the mine.

      4. Mines and miners—when Knowledge by miner of dangers no defense. Where a miner injured by a fall of rock was ordered to clean up a fall, and there is no evidence that he was employed to make dangerous roofs safe, knowledge by him of the dangers would be no defense to counts charging that the miner was allowed to enter the mine, not under the direction of the mine manager, and that there was wilful failure to examine and place a mark as notice to keep out.
    5. Mines and miners—instructions. An instruction to the effect that if the mine manager ordered a miner, who was injured by a fall of roof, to go to the place of the accident and directed him what to do, that he was under the direction of the manager, is properly refused where the miner was directed to clean up a fall, but not to make the roof safe.
    6. Mines and miners—duty to have mine examined and dangerous places designated. It is the duty of an owner or operator of a mine to have it examined and to have dangerous places designated by the statutory marks and if he fails, with knowledge of its condition or of facts from which he ought to have known, he is liable.
    7. Mines and miners—sufficiency of examination of mine. An instruction which tells the jury that it was sufficient if a mine examiner made an honest, reasonable and good-faith examination is properly refused, since such an examination is not enough.
    Action in case for personal injuries. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    M. S. Whitley, for appellant; Mastin & Sherlock, of counsel.
    H. Robert Fowler and John L. Thompson, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellee employed in the coal mine of appellant charged it with a wilful failure to comply with the provisions of the statute in relation to mines and miners in consequence of which he received an injury. The two first counts of the declaration were based on section 18 of the statute. Each of said counts averred a dangerous condition -in appellee’s working place and the breach charged in the first count was in allowing appellee to enter the mine to work before the dangerous condition had been made safe, not under the direction of the mine manager; and the second charged a wilful failure to examine and place a conspicuous mark there as notice to all men to keep out. The third count charged a breach of duty at common law in negligently failing to furnish appellee with a reasonably safe place to work. A trial of the issues resulted in a verdict and judgment in favor of appellee.

The argument of appellant in this court relates to the alleged errors of the court in passing upon challenges of jurors; in admitting improper evidence; in not directing a verdict for appellant at the close of the evidence, and in the giving and refusal of instructions.

It appears from the examination that four jurors called to try the case were challenged by appellant for cause, on the ground that they were members with appellee of the organization known as the “United Mine Workers of America.” The challenges for cause being overruled, four of the number were challenged peremptorily. The fifth was also challenged for the same cause and the challenge denied. Whereupon he became a member of the jury to try the case, appellant’s challenges having been exhausted before the examination of the fifth juror was reached.

It is urged by appellant that all of said jurors so challenged were disqualified on the ground that they and appellee were members of the organization above mentioned, and that the challenges for cause should have been allowed.

It is not contended that the challenged jurors lacked any of the qualifications fixed by the statute, nor were any of them interested in the result, or related to appellee by ties of consanguinity or affinity. Neither of them, had any opinion of the merits of the case, either formed or expressed. The objects and purposes of the organization, to which they belonged were explained to be for the mutual protection of its members in its contractual and business relations with the employer, and that although a secret organization in which the members took an oath there was nothing in the obligation or in the relations of the members with each other which interfered with their duties as jurors in cases between a member and an operator.

It was explained that the organization had nothing to do with the rights of the miner and operator under the law, and that it did not bind its members so as to prevent them as jurors from giving each party a fair and impartial trial. All these jurors stated that they could and would try the case fairly and impartially without prejudice, and no reason is perceived why they would be disqualified.

Membership in the organization was the only ground of challenge urged, and it has been held that it is not ground for challenge that a juror and one of the parties are members of the same corporation, association, or secret society. Am. & Eng. Ency. of Law, Vol. 17, p. 1131 and cases cited. There was no error in denying the challenges for cause.

Appellee was and had been for about two years engaged in appellant’s mine in doing jerry and brattice work under the direction of the mine manager who directed him to go to the place where he was injured and clean up a fall of rock. This fall had occurred in an entry near the face of the coal. Appellee testified he went to the place in the entry, as directed, nearly to the face of the coal; just then some one said “look out,” and he heard a crash caused by falling rock and timbers, and ran back in the effort to escape, when he was caught under some falling cross bars and injured. The fall occurred on Monday, and objection was made to the admission of testimony as to the condition of the roof of that entry on the Saturday before on the ground it did not appear the conditions were the same. The evidence is ample that the dangers of a fall of loose rock from the roof were the same. The rock was loose on Saturday as it was on Monday when it fell, as testified to by the two machine runners who undercut the coal at the face on Saturday. One of these men, Rose, says they sounded the roof and found it loose for a distance of fifty feet back, and the condition had existed a number of days, but that it had been timbered up to within sixteen feet from the face. When it fell on appellee, it fell from the face of the coal back far enough to carry some of the timbers down upon him before he could get away. This witness was corroborated by Kissel, the other machine runner, as to the condition of the roof on Saturday. He says from the cross bars to the face (sixteen feet) it did not sound solid. To the same effect is the testimony of two or three other witnesses. There was no error in admitting the evidence of the condition of the roof on Saturday. It was, according to this testimony, loose and dangerous, both Saturday and Monday; the only difference being that the danger of a fall by lapse of time was likely more imminent on Monday.

Appellant’s mine examiner testified he examined the entry on the morning of the day of the accident; that he sounded the roof and found a loose place in the righthand corner, and says this, he thinks, was the only loose place in the roof; that he didn’t notice any hanging over the track between the cross bars and the face, and that he put up no danger signal or mark as notice to all men to keep out. There being evidence that the roof for some distance back from the face was dangerous on Saturday, and before, it was a question of fact for the jury whether the examiner consciously failed to properly examine the mine and mark the dangerous place. It is insisted it was immaterial whether any examination was made, as it would have given no more information to appellee than he already had when he started to the place. The record does not disclose appellee had any knowledge then of a loose roof. He was ordered to clean up a fall, and not to take down a loose roof, and as the evidence does not show he was employed to make dangerous roofs safe, his knowledge of the dangers would be no defense to the first and second counts of the declaration. An examination of the mine, and if the place was dangerous, to make a conspicuous mark as notice to keep out was a duty appellant owed appellee. The testimony showed such danger mark was not made. The evidence warranted a recovery under the second count of the declaration for a wilful failure to mark the dangerous place. Appellee, as already stated, was sent to the place to clean up the rock by the direction of the mine manager, and it is claimed appellee was working under the direction of the manager, and Kellyville Coal Co. v. Bruzas, 223 Ill. 595, is cited as authority. That case was where the injured employee was directed to remove the dangerous condition (the loose roof). In this case appellee was not directed to remove the dangerous condition and was not, as to that danger, working under the direction of the mine manager. The evidence was sufficient to support the first count.

The evidence was also sufficient to warrant the jury in finding under the third count that appellant was negligent in not using reasonable care to furnish appellee with a reasonably safe place to work, and that he was injured while in the exercise of care for his own safety. Also that the evidence showed at least constructive notice to appellant of the danger, and that appellee did not know of it. The court did not err in refusing to direct a verdict on either count.

After a careful examination of the instructions given by the court on behalf of appellee they are found to be accurate in their statement of the law and fairly based upon the evidence.

The court’s action in refusing the first five refused instructions asked by appellant, is said to be erroneous. The first was, that if appellee was ordered by the mine manager to go to the place and was directed what to do, he was under the direction of the manager. The instruction did not state the law applicable to the facts in this case as already pointed out. The second refused instruction would bar appellee for contributory negligence and as applied to the first and second counts was incorrect. The same is true of the third and fourth instructions. The fifth would have told the jury that if the examiner made an honest, reasonable, and good faith examination, and the room was in an unsafe condition and he marked it so, that was all appellant was required to do so far as making an examination was required by law.

The mine examiner testified he posted no danger 'signal, but put a cross mark on the loose rock at the righthand corner indicating it was to be taken down, but found the remainder solid. As to the remainder of the roof, the effect of the instruction is that all he was required to do was to make a reasonable, honest examination in good faith. This was not the measure of the examiner’s duty. It is the duty of the owner or operator of a mine to have it examined, and if it is in a dangerous condition to have the dangerous places designated by the statutory marks, and if he fails with knowledge of its dangerous condition, or with knowledge of facts from which he ought to know of its dangerous condition, he is liable. He cannot excuse himself on the ground that he had the mine examined and that he or his examiner in good faith thought there was no danger. To make an honest examination in good faith is not enough. Aetitus v. Spring Valley Coal Co., 246 Ill. 32. There was no error in refusing appellant’s instructions. Finding no error the judgment will be affirmed.

Affirmed.


text:
    Burton Bros., Appellees, v. Gee Oil Company, Appellant.

      Damages—when right to recoup exists. In an action for a balance alleged to be due for sinking an oil well, defendant may recoup damages for plaintiff’s failure to pull from the ground a casing belonging to defendant, though he took possession of the well and operated it, where plaintiff agreed to pull the casing but could not, because it was unnecessarily sunk several feet below the surface by him.

      Assumpsit. Appeal from the Circuit Court of Lawrence county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1912.
    S. J. Gee, for appellant.
    McGaughey & Tohill, for appellees.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellees for the sum of $298.01 claimed by appellees to be due on a contract for sinking an oil well for appellant.

Without setting forth the various terms of the agreement between the parties, the evidence shows that appellees performed the agreement to drill the well and it was accepted by appellant. The evidence justified the court in finding as it did find, that the total amount due appellees for the work performed by them was the sum of $2,718.01, and the amount paid them by appellant to be $2,420. This would leave a balance on the face of these figures of $298.01 due appellees, and for which the court entered judgment. The real controversy as to the amount due arose over the alleged failure of appellees to comply with the contract to pull from the ground a twelve and one-half inch casing, two hundred and six feet in length, which appellant furnished and which appellees, by the agreement were to pull after the well was drilled (the court having correctly found against appellees on all other claims) and the said balance of $298.01 for which the court rendered judgment was retained by appellant for its damages in the loss of the casing.

The court necessarily found by its verdict appellant was not damnified in this failure and was not entitled to recover the value of the casing by way of recoupment. If there was a breach of the contract in this regard the finding was erroneous. The agreement was that appellees were to pull the casing, and the evidence shows they did make the effort to do so. When the casing had been sunk to the level of the surface, the lower end extending two hundred and six feet in the ground, it became necessary to sink a ten inch casing below that and it was necessary to sink it through the inside of the twelve and one-half inch' casing. In doing this appellees rested the weight of the nine hundred feet of the ten inch casing, weighing thirty-two pounds to the foot, on the twelve and one-half. The result was that the weight sunk the twelve and one-half inch casing until the top was twelve feet below the surface, in which condition appellees claim it could not be pulled out. Appellee N". S. Burton, himself, testified it was not necessary to rest the ten inch casing on the twelve and one-half and that he did not know it was going to sink. Appellant had no hand in putting in the casing, and whatever mistake was made in sinking the twelve and one-half inch twelve feet below the surface, was made by appellees. Appellees’ obligation to pull the casing arose from that part of the agreement about which there was no dispute, that the parties were to be governed in drilling by the terms of the contracts made by the Ohio Oil Company, and the testimony clearly shows that the Ohio Oil Company’s contracts required the contractor to pull the casing. Burton himself understood and testified it was the duty of the contractor to pull the casing. The evidence shows that if it became impossible to pull the twelve and one-half inch casing that it arose from the improper manner in which appellees burdened and sunk it below the surface with the weight of the ten inch, without taking precautions to prevent sinking the twelve and one-half inch, which as appears from the evidence could have been done.

Appellant had the clear right under the testimony as it appears in this case to recoup damages for a breach of the contract in the failure by appellees to pull the twelve and one-half inch casing, whereby it was lost, and appellant had a right to recoup its value, notwithstanding appellant took possession of the well and operated it. Crabtree v. Kile, 21 Ill. 180.

In our opinion the weight of the evidence also shows that all matters of difference were settled by the payment of a balance of $75 after $2,245.93 had been paid.

The verdict and judgment of the court were manifestly against the weight of the evidence, and for this reason the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Smith

text:
    Joseph Halsted, Appellee, v. Richard A. Griefen, Appellant.
    Gen. No. 16,431.
    1. Payment—application. In general a guarantor cannot control the application of a - payment by either the debtor or the creditor.
    2. Suretyship—surety bound by application of payments. The guarantor of part of an account is bound by the application of payments made as between the debtor and creditor.
    3. Payment—application. Where payment of an account for certain construction work is guarantied, but payment for extra work is not included, a payment which is credited on the account for extras, when no amount appears on the debit side of that account, must be applied on the guarantied account, though the evidence tends to show that certain extra work was not paid for, but does not show that it was then due.

      4. Payment—application. On payment to a creditor without directions as to its application the creditor may apply it to either a guarantied or an unguarantied account.
    5. Payment—change of application. After a payment has been applied by a creditor who has an unguarantied and a guarantied account, it cannot be changed without the consent of the parties.
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the March term, 1910.
    Reversed.
    Opinion filed October 7, 1912.
    Rehearing denied October 21, 1912.
    Schmitt & Wise, for appellant.
    Rush & Holden, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The facts in this case are practically uncontroverted and are substantially as follows: The appellant entered into a contract with the government to construct a post office building at New Brunswick, New Jersey. He thereupon made a sub-contract with the appellee to do certain of the structural iron work on said building for $2,788.00. Subsequently the government declared its said contract with the appellant forfeited and entered into a contract with the- Merrick Construction Company of New York to construct the said building. The appellant, being obligated to appellee under their said contract for certain structural iron work, requested the appellee to do said work for the Merrick Construction Company, to which appellee agreed upon the appellant guaranteeing all payments thereunder. The appellee completed the work as provided by said contract in October, 1903.

In addition to doing the work for the Merrick Construction Company as provided by the said contract, the appellee made another contract with the Merrick Company, whereby he agreed to erect iron fences, etc., for $1,545.00, and he also furnished to said Merrick Company certain extras amounting to about $400.00, which work was completed by November 15,1903. The said amounts to be paid under the fence contract and for extras were not included in the appellant’s said guarantee. The appellee introduced in evidence his books showing all these transactions entered therein under one account with the Merrick Company as follows :

(Page 290)
MERRICK CONSTRUCTION CO.
1903
1903
May 29 Mdse. c 2,225.00 May 9 Cash 77.00
June 30 Mdse. c 563.00 May 16 Cash 60.00
July 8 Mdse. ex 51.29 May 23 Cash 70.00
Sept. 30 Mdse. ex 108.05 May 29 Cash 60.00
Sept. 30 Mdse. ex 12.80 June 13 Cash 19.00
Sept. 30 Mdse. ex 8.50 June 15 Cash 20.00
Sept. 30 Mdse. ex 12.00 June 20 Cash 100.00
Sept. 30 Mdse. ex 25.18 June 25 Cash 50.00
Sept. 30 Mdse. ex 25.68 July 22 Cash 500.00
Nov. 20 Mdse. ex 1,545.00 July 30 Cash 250.00
Nov. 14 Mdse. ex 169.82 Nov. 16 Cash extra
(P.O.Bldg.) 700.00
Sept. 19 Cash extra
23.00 40.00
Sept. 26 Cash extra
49.00 70.00
Oct. 3 Cash extra
50.00 60.00
Oct. 10 Cash extra
67.75 cont.
12.25 80.00
Oct. 17 Cash 35.10 60.00
Oct. 23 Cash extra 70.00
Oct. 31 Cash extra 100.00
Nov. 7 Cash extra 35.16
Nov. 13 Cash extra 60.00
Balance to page 280 2,265.16
$4,746.32 $4,746.32
(Page 280)
MERRICK CONSTRUCTION CO.
1904
1904
Feb. 1 Balance from Feb. 15 Cash contract $ 500.00
290 2,265.16
Feb. 27 Cash extra. 1,100.00
1905
April 1 Inv. freight 70.00
In the account on the books the letter ‘ ‘ c, ” the abbreviation “ex” and the words “extra” and “extra P. 0. Bldg.” were pencil memoranda.

In reply to appellant’s request for a statement of the account the appellee under date of December 8, 1903, wrote appellant, saying in substance that the work was completed by the middle of November, complaining that he had not been paid and urging the appellant as a guarantor of the account to see that prompt payment was made of the same; also enclosing the account itemized down to that date, showing a total debit of $4,746.32 and the cash payments thereon, amounting to $2,481.16, leaving the balance of $2,265.16 due thereon. In this statement to appellant the letter “c,” the abbreviation “ex” and the words “extra” and “extra P. 0. Bldg.” appearing in pencil on the account in the appellee’s books, were omitted. The appellee testified they were made simply as memoranda and he “would not transcribe the memorandums on these accounts in sending them out.” The appellant testified that he secured the payments to be made by the Merrick Co. of $700 of November 16,. 1903, $500.00 of February 15, 1904, and $1,100.00 of February 27, 1904. The appellee testified that he did not know the appellant had caused the said payments to be made. No directions were given appellee as to the application of any payments except the payment of $500.00 of February 15th. The cause was submitted to a jury, who found the issues for the plaintiff and assessed his damages at the sum of $769.98, and judgment was entered on the verdict.

The appellant contends that under the law and the evidence the court should have instructed the jury that there could be no recovery. The correctness of that contention depends upon the determination of the law as to the application of payments on the facts as stated.

It seems to be agreed by counsel that the general rule is that a debtor has the right to control the application of his payments, but if he does not make application thereof, the creditor has the right to apply them to any demand then due and payable that he may desire. Another general rule is that a guarantor can not control the application of a payment by either the debtor or the creditor. Hansen v. Rounsavell, 74 Ill. 238; Munger on the Application of Payments, p. 75, and 30 Cyc. 1251, and cases cited in each of said authorities. The appellant, as guarantor, having no right to control the application of the payments, is bound by the application thereof as between the appellee and the Merrick Construction Co,

On an examination of the said account introduced in evidence, upon which the appellee relied to prove his case, it will be seen that November 15, 1903, there was charged against the Merrick Construction Co. a total of $3,201.32, and the total of the credits was $1,781.16. The first two debit items were those guaranteed and amounted to $2,788.00. The other items were for extras and amounted to $413.32. The credits consisted of items amounting to $1,346.65, admitted to have been applied to the guaranteed account; the other credit items were against extras and amounted to $434.51, including the item of $35.10 claimed by appellee in his testimony in payment of an extra. It thus appears that there was then credited for extras, allowing the credit of $35.10 as claimed, $21.19 more than charged for extras. The account then showed all the extras paid and a balance of $1,441.35 unpaid on the guaranteed items, not considering the question as to the said $35.10 or the over credit on the extras of $21.19. On November 16, 1903, a payment of $700 was made by the Merrick Co., which in some way unexplained was entered on the account between the July and September credit entries. This $700.00 was credited by the appellee for extras. At that time there was no charge on the debit side of this account for extras to which it could be applied, and the only debit entry it could be applied upon was the unpaid balance of $1,441.35 of the guaranteed items. The crediting of this payment in this account by the appellee necessarily applied on the only amount appearing on the debit side of the account. In answer to this the appellee contends that the evidence shows all the work termed extra was then completed, and this payment was therefore properly credited upon the same. While the evidence tends to show that the work had then been completed as appellee contends, yet we find no evidence, and none is pointed out by counsel, that the payment for said extra work was then due. Even if this $700.00 credit could be held in abeyance, to be applied upon the subsequent debit entry of $1,545.00 of November 20th, which we doubt, it certainly could not be so held under the circumstances without proof that said $1,545.00 was then due and payable. Hunger on the Application of Payments says on p. 48 that a creditor cannot apply a payment to a debt not then payable if there be another then due, nor retain the payment in his hands to apply on a future indebtedness, leaving a prior demand unpaid, and cites authorities in support thereof. Applying the said $700.00 to the payment of the said $1,441.35 balance on the items guaranteed, leaves a balance of $741.35. Subsequently a payment of $500.00 was made, with directions to apply same on the account guaranteed, and was so applied, leaving a balance of $241.35 unpaid. On February 27, 1904, the appellee was paid $1,100.00 by the Herrick Co. without any directions as to its application. The said account shows that the same was credited by the appellee to apply on the said extra work. He undoubtedly had the right to make such application, and had he done so, we could not, under the law, have denied lim that right. The fact is he applied $401.69 of the said $1,100.00 on the account guaranteed by the appellant. The appellee so testified and his books containing an account, kept by himself, of the appellant’s guarantee of the said Herrick Co. contract so showed, and also a statement rendered by him to appellant, all in evidence, showed the application of said $401.69 to the account guaranteed by appellant, and same is not controverted. After a payment has once been applied, it can not be changed without the consent of the parties. Miller v. Montgomery, 31 Ill. 350; U. S. Rubber Co. v. Peterman, 119 Ill. App. 610, and 2 Am. & Eng. Ency. of Law (2nd ed.) 471, and authorities there cited. The amount thus applied more than paid the then balance of the amount guaranteed by appellant, and there was therefore no right of recovery and the court should so have instructed the jury.

The judgment is reversed.

Reversed.


author: Mr.. Presiding Justice Smith

text:
    The People of the State of Illinois, Defendant in Error, v. John Tynan, Plaintiff in Error.
    Gen. No. 16,592.
    Criminal law—verdict. Where an indictment charges assault with a deadly weapon, with intent to kill and murder, and assault to commit bodily injury with a deadly weapon, without considerable provocation, and under circumstances showing an abandoned and malignant heart, a verdict which merely finds defendant guilty of assault with a deadly weapon, with intent to do a bodily injury in manner and form as charged in the indictment, is fatally defective.
    Appeal from the Criminal Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 7, 1912.
    Louis Greenberg, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr.. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff in error, hereinafter called the defendant, was tried and convicted on an indictment containing three counts; one count charging an assault with a deadly weapon with an intent to kill and murder, and two counts charging an assault to commit bodily injury with a deadly weapon without any considerable provocation and under circumstances showing an abandoned and malignant heart. The jury returned the following verdict: “We the jury find the defendant John Tynan guilty of assault with a deadly weapon with intent to do a bodily injury in manner and form as charged in the indictment.” A motion for a new trial was denied and the defendant sentenced to the House of Correction for one year and to pay a fine of one thousand dollars.

The defendant urges that the judgment he reversed under the authority of The People v. Lemen, 231 Ill. 193, where a like verdict was held reversible error. We are of the opinion that the said authority is controlling on this court in the case at bar.

The judgment is reversed and the cause remanded.

Reversed cmd remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. William Ripstein, Plaintiff in Error.
    Gen. No. 17,204.
    1. Criminal law—shooting, with intent to do bodily injury. To convict of the crime of shooting with intent to do bodily injury, without considerable provocation and with an abandoned and malignant heart, it must be proved beyond a reasonable doubt, that the defendant either had a wicked or malignant heart, or that no considerable provocation existed.
    2. Criminal law—shooting with intent to do bodily injury. A conviction for shooting without considerable provocation or under circumstances showing a malignant heart is not sustained where defendant shot after a quarrel during which the prosecuting witness threw beer glasses at him, and while such witness testified that he started to walk out after throwing the glasses, the defendant and other witnesses testified that the prosecuting witness started behind the bar after the defendant who then shot, and the testimony of the physician as to the course of the bullet tends to support the defendant.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Brake, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 7, 1912.
    Robert J. Nordhold and Edmund K. Jarecki, for plaintiff in error; Symmes & Kirkland, of counsel.
    J. E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff in error, hereinafter called the defendant, was found guilty on a trial by the court, without a jury, of an assault with a deadly weapon with intent to do bodily injury where no considerable provocation appeared and under circumstances showing an abandoned and malignant heart, and sentenced to the House of Correction and to pay a fine.

The undisputed evidence was that the defendant conducted a saloon on the corner of Ashland avenue and .Otto street, Chicago; that the complaining witness, Meyer, entered the saloon about 7:30 in the evening in question and remained there drinking, playing cards and shaking dice until about midnight, when he became involved in a dispute with the defendant; that Meyer was druuk and threw two beer glasses at the defendant, who was behind the bar, and was thereupon shot in the left shoulder by the defendant with a revolver.

Meyer testified in substance that the defendant and he were throwing dice at the bar and-had a dispute over a six or four, when the defendant called him a vile name and because of that he threw two glasses at Mm and then picked up his coat and started out, when the defendant shot him.

The defendant and a witness in his behalf testified in substance that Meyer was having trouble with an old man and was ordered out by the defendant; that Meyer took off his hat and coat, called the defendant a dirty name and threw two beer glasses at him, which he dodged, and while Meyer was partly on the bar and as he threw a tMrd beer glass at him, the defendant fired, as he claimed, in self defense; that Meyer then left and the defendant was arrested. There were other persons in the saloon, and although the police appeared immediately, it is not shown by the State or the defendant who the persons were or any explanation given for not having them present at the trial. The doctor testified that the bullet struck Meyer in the left shoulder and ranged downward and lodged between the fifth and sixth ribs near the spinal column. The course of the bullet is a very strong circumstance tending to discredit Meyer’s statement and tends to corroborate the testimony of the defendant and the witness in his behalf.

To convict of the crime charged it is necessary to prove beyond a reasonable doubt that the defendant either had a wicked or malignant heart or that no considerable provocation existed for the shooting. We are of the opinion that the evidence as disclosed by the record on these two propositions is not sufficient to sustain the judgment.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. Mary Barrett, Defendant in Error, v. August Anders, Plaintiff in Error.
    Gen. No. 17,713.
    1. Municipal court—jurisdiction of bastardy. The Municipal Court of Chicago has jurisdiction of a prosecution under the statute for bastardy.
    2. Bastardy—waiver of irregularity. If a proceeding in a prosecution for bastardy is irregular as to the filing of a supplemental complaint after the beginning of the trial, alleging the birth of the child, such irregularity is waived where the defendant proceeds to trial without objection.
    3. Costs—bastardy. Costs follow a conviction under the bastardy statute.
    Error to the Municipal Court of Chicago: the Hon. Chas. N. Goodnow, Judge, presiding. Heard in this court at the October term, 1911.
    Opinion filed October 7, 1912.
    Lee & Lee, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff in error, hereinafter called defendant, was found guilty in a prosecution under the statute upon a complaint for bastardy.

The errors complained of are that the Municipal Court of Chicago had no jurisdiction of the subject-matter ; that after the trial began a supplemental complaint was filed alleging the birth of the child, which submitted another issue to the jury, on which the defendant did not plead, and that the defendant was erroneously ordered to pay the costs. We think that the Municipal Court had jurisdiction under the Municipal Court Act; also that even if the proceeding was irregular as to the supplemental complaint, the defendant, proceeding in the trial without objection, waived same. The costs followed the conviction under the statute.

The judgment is affirmed.

Affirmed.


text:
    The City of Chicago, Defendant in Error, v. Rosa Westergren, Plaintiff in Error.
    Gen. No. 18,058.
    1. Criminal law—fraudulent mediumship. A complaint against a medium, for having received unlawfully, money, by fraudulent devices and practices in violation of Sec. 1988, of the Chicago Code of 1911, cannot he maintained where the evidence shows that all the defendant did was to give a reading which the recipient knew was not true and which was not believed or acted upon by him.
    2. Criminal law—fortune telling. The honest claim of and attempt at fortune telling by means of spirit mediumship is not fraudulent within the meaning of Sec. 1988 of the Chicago Code of 1911.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed.
    Opinion filed October 7, 1912.
    Alonzo M. Griffen and William C. Myer, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Edward J. Raber and George L. Reker, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff in error, hereinafter called defendant, was prosecuted on a complaint charging that she unlawfully received and obtained the sum of fifty cents from Peter Sicokis by fraudulent devices and practices in the name of spirit mediumship, fortune telling, etc., etc., “in violation of Section 1988 of the Chicago Code of 1911.” The said section is as follows: “Any person or persons who shall obtain money or property from another by fraudulent devices and practices in the name of or by means of spirit mediumship, palmistry, card reading, astrology, seership, or like crafty science, or fortune telling of any kind, shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine,” etc. On a trial the defendant was found guilty and fined the sum of fifty dollars, and comes here on writ of error.

Mr. Sicokis was a police officer who called upon defendant for what was called a reading, and made an appointment for the next day. The next day he called and had the reading and paid therefor fifty cents. He told her he had lost a brother and asked her to locate him. The defendant closed her eyes and said, “It seems to me he is sick; I can’t find him; he is not dead.” Sicokis had not in fact lost a brother. Other things the defendant told Sicokis that he said were not true. The court erroneously limited the cross-examination of Sicokis as to his belief in the statements made to him by the defendant, but it is clear from the record that he did not rely upon or believe the said statements and was in no manner deceived or defrauded thereby. It is apparent that under such circumstances the defendant cannot be held guilty of obtaining money by false pretenses. 1 McLain on Criminal Law, Sec. 684.

There is no evidence whatever of any “fraudulent devices and practices” unless it be held, as contended by the counsel for the City, that the belief in spirit mediumship and the claim of and attempt at fortune telling by means thereof are of themselves fraudulent within the terms of the ordinance. We are not disposed, nor is it here necessary, to attempt any discussion of spirit mediumship. We wish only to observe that in this age of marvelous advancement in science, when all the energies and abilities of learned and sincere men are devoted tó study, experiment and research on these questions, we have not the temerity to mark limitations therein. However unreasonable such ideas and beliefs may appear to many, it is certain, and so indicated in this record, that a large number of people have faith and confidence in spirit mediumship; and we are of the opinion that the belief therein and honest practice thereof without fraudulent means, tricks or devices cannot be held criminal. City of Chicago v. Payne, 160 Ill. App. 641.

The judgment is reversed.

Beversed.


text:
    The People of the State of Illinois ex rel. State’s Attorney, Defendant in Error, v. Henry Peters, Plaintiff in Error.
    Gen. No. 18,505.
    1. Appeals and errors—proceeding to compel support of pauper. A proceeding to compel a person to support a pauper, Is not within the meaning of Sec. 8 of the Appellate Court Act, “a suit or proceeding at law or in chancery,” but a summary proceeding.
    2. Appeals—when decision final. Where a particular jurisdiction is conferred upon an inferior court, its decision when acting within the jurisdiction conferred is final, unless provision is made by statute for an appeal.
    3. Appeals and errors—what appealable. An appeal does not lie from the county court in a proceeding to compel the support of a pauper.
    Error to the Circuit Court of Cook county; the Hon. H. Steeling Pomeroy, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed October 7, 1912.
    Rehearing denied October 21, 1912.

      Edward H. Kubitz, for plaintiff in error.
    Francis Wilson, for defendant in error; John Stelk and Louis B. Anderson, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

A proceeding was begun in the County Court of Cook county under the Pauper Act, against the plaintiff in error, Henry Peters, hereinafter called defendant, to compel him to support his grandchild, Eddie Peters. The County Court entered an order that the defendant pay five dollars a week toward the support of the said grandchild, from which order the defendant appealed to the Circuit Court of Cook county. On motion of the People the Circuit Court dismissed the said appeal for want of jurisdiction on the ground that no appeal lies from the County Court on an order of this character. An appeal from the order dismissing the said appeal was denied by the Circuit Court and the defendant comes here by writ of error. On motion and agreement of the parties the cause was advanced because of the public importance of the question of the right to appeal in such cases.

The defendant insists that he has the right of appeal to the Circuit Court under Section 122 of “An Act to extend the jurisdiction of the County Courts, and to provide for the practice thereof,” etc., as follows: “Appeals may be taken from the final orders, judgments and decrees of the County Courts to the Circuit Courts of their respective counties in all matters except as provided in the following Section, upon the appellant giving bond and security in such amount and upon such conditions as the court shall approve, except as otherwise provided by law. Upon such appeal the case shall be tried de novo.”„ The following Section, 123, provides for appeals and writs of error in certain designated cases directly to the Supreme or Appellate Courts. The Act to revise the law in relation to paupers, Hurd’s Stat., chap. 107, approved March 23, 1874, gave the County Court jurisdiction of all complaints to enforce the support of poor persons by certain of their relatives. The Act made no profusion for an appeal from an order entered in proceedings thereunder.

It is first to be observed that said Section 122 has been repealed by Section 8 of the Appellate Court Act in so far as the former Section is in conflict with the Appellate Court Act. Union Trust Co. v. Trumbull, 137 Ill. 146; Sellers v. Thomas, 185 Ill. 384.

If the said proceedings under the Pauper Act be held a “suit or proceeding at law” or in chancery, then the order of the Circuit Court dismissing the appeal was proper, not because there was no right of appeal, but because the appeal should have been to this court. Section 6 of the Pauper Act provides: " The defendants being duly notified, the court shall proceed in a summary way to hear the proofs and allegations of the parties, without further written pleadings, and if satisfied by the allegations and proofs * * * make any and all necessary orders in regard to the custody of such poor person and for the payment weekly,” etc. The orders of the court are enforceable by attachment as for contempt and by execution against the property of the defendant. It is probable that the orders of the court as to the custody of the poor person might be enforced only by attachment. It would seem from a study of the language of the statute that the proceedings thereunder were not suits or proceedings at law or in chancery, but tended to some considerable extent to be summary. They are so termed in The People v. Hill, 163 Ill. 186. This view is also supported in the reasoning of the court in Grier v. Cable, 159 Ill. 29, where the court held the presentation and adjudication of claims against an estate in probate was a summary proceeding and appeals therefrom were to the Circuit Court, saying: “In all its essential features this proceeding is distinctively statutory. The mere fact that when a claim is contested, so as to necessitate a trial, the trial is to be conducted in the same way in which suits at law are tried, can not of itself have the effect of converting a purely statutory proceeding into a suit or proceeding at law. In all other respects the proceeding is sui generis, and bears no analogy to proceedings conducted according to the forms of the common law. No written pleadings are required. (Thorp v. Goewey, 85 Ill. 611; Wolf v. Beaird, 123 Ill. 585). The proceeding is not governed by the technical rules which apply to suits at law. (Scheel v. Eidmah, 68 Ill. 193.) A suit or proceeding at law, as those terms are used in section 8 of the Appellate Court Act, must be understood to mean a suit or proceeding instituted and carried on in substantial conformity with the forms and modes prescribed by the common law.” Under the Michigan statute of 1871, providing for the care of poor persons, Section 3 was in part as follows: “The court to which such application may be made shall proceed in a summary way to hear the proofs and allegations of the parties and shall order such of the relatives,” etc., and the court in Smith v. The Superintendent of the Poor, 34 Mich. 58, Mr. Chief Justice Cooley writing the opinion of the court, said: “The proceeding in the court below was had under the statute, to compel a son to support his mother. The statute contemplates that it shall be summary in its character, and it is in no sense after the course of the common law. The order which the Circuit Court makes is not properly a judgment, and the method of enforcing it is by attachment.” We are of the opinion that within the meaning of Section 8 of the Appellate Court Act, the proceeding at bar is not a “suit or proceeding at law or in chancery,” and in relation thereto Section 122 of the County Court Act is not in conflict with Section 8 of the Appellate Court Act.

The counsel for the People urge that: ‘ ‘ The general statute upon the subject of appeals refers to the usual and ordinary civil proceedings and does not embrace proceedings under special act, and if a special act does not include a provision authorizing an appeal, no appeal can be taken,” citing Allen v. Hostetter, 16 Ind. 15, and In re Goldsmith, 12 Oregon, 420.

In Allen v. Hostetter, supra, the court held: “That the general statute, upon the subject of appeals, was enacted in view of usual and ordinary proceedings and did not embrace proceedings under that special act; and as that act did not include a provision authorizing an appeal, therefore one could not be taken.” In re Goldsmith, supra, the court held: “The general statutes of this State only authorize an appeal from a judgment in an action or decree in a suit. The determination in this proceeding is neither, and it will require a special enactment to give an appeal therefrom.”

The County Courts by Section 5 of the said County Court Act were given jurisdiction of probate matters, and by Section 7 were given jurisdiction of certain cases at law and misdemeanors. Section 122 provided for appeals as heretofore quoted. The County Court was created by statute with certain limited jurisdiction, and by said express provision all matters within its jurisdiction as therein defined might be appealed to the Circuit Court with a trial de novo, except those matters Section 123 provided might be taken by appeal or writ of error to the Supreme Court or the Appellate Court. It would therefore seem that the provisions for appeal therein could only apply to the jurisdictional matters as therein defined. In the Matter of Storey, 120 Ill. 244, the court say, p. 252: “Appeals for the removal of causes from an inferior to a superior court, for the purpose of obtaining trials de novo, are unknown to the common law, and can only be prosecuted where they are expressly given by statute. See, also, Edwards v. Vandermack, 13 Ill. 633; Horton v. Critchfield, 18 Ill. 133; Kemper v. Town of Waverly, 81 Ill. 278. The principle is too well settled by repeated decisions of this and other courts to require even a reference to authority to support it, that where a particular jurisdiction is conferred upon an inferior court or tribunal, its decision, when acting within the jurisdiction conferred, is final, unless provision is made by statute for an appeal from such decision. In no case has the Circuit Court inherent power to entertain appeals from inferior tribunals. Ward v. The People, 13 Ill. 635; Skinner v. Lake View Avenue Co., 57 Ill. 151.”

The argument is made by the defendant that under the County Court Act appeals are allowed from “orders * * * in all matters,” that it must mean what it says, and includes the order in the case at bar. By reference to the Section giving the County Court jurisdiction of probate matters it is quite apparent that the language quoted is in reference to orders in probate matters, and is perhaps necessary to provide for appeals from orders of the court entered in the exercise of its probate jurisdiction. Complaint is also made of the harsMess of such a rule. If the law be considered unwise, the remedy is with the legislature.

The case of The People v. Hill, 163 Ill. 186, is relied upon by the defendant. In that case the appeal in a similar case was taken from the County Court to the Circuit Court and thence to the Supreme Court. That authority would of course be controlling in the case at bar had the point been there raised. As it does not appear to have been presented to the court in that case, we conclude the proper determination of the question is as indicated, and the appeal was properly dismissed.

The judgment is affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Delta Bag Company, Appellant, v. William H. Kearns, Appellee.
    Gen. No. 15,539.
    Appeals and errors—remand to appellate court. Where the Supreme Court remands a case to the Appellate Court with directions to recite in its final order the facts upon which a judgment of reversal was predicated, and to enter a final judgment if it shall still be of the opinion that it should be entered, the Appellate Court, on being of such opinion and having recited the facts in its final order, will adhere to and refile its original opinion.
    Replevin. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the March term, 1909.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and judgment here.
    Opinion refiled October 7, 1912.
    Helmer, Moulton & Whitman, for appellant.
    William A. Doyle, for appellee; Joseph J. Thompson, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This cause was first passed on in this court February 25, 1904, and again on March 16, 1911.

It was taken to the Supreme Court after the last judgment of this court. The Supreme Court reversed the judgment of this court on February 23, 1912 (235 Ill. 365), and remanded the cause to this court “with directions to recite the facts in its final order upon which the judgment of reversal is predicated, and if it shall still be of the opinion that the final judgment should be entered in that court, to so enter it.”

This court is still of that opinion. It has recited the facts in its final order on which the judgment of reversal is predicated, and now refiles its opinion of March 16, 1911 (already reported in 160 Ill. App. 93), changed only in the statement in the last paragraph of the opinion of the amount of interest which is included in the judgment which is now entered.

Reversed and judgment here for $3,307.87.


text:
    Chicago Railway Equipment Company, Appellant, v. National Hollow Brake Beam Company, Appellee.
    Gen. No. 15,948.
    Appeals and errors. The Appellate Court overruled a plea of release of errors founded on acceptance by defendant, the appellant, of money under a decree ordering such reception to be without prejudice to a right of appeal. Four days after this decree had been entered a decree was entered on a cross-bill ordering the defendant to receive the same money without prejudicing its right to appeal, and finding other issues in favor of complainant who appealed, assigning error in the refusal to dismiss the cross-bill, for want of equity, and in the entering of the decree for such money, and in permitting its reception to be without prejudice to a right to appeal. Held, the question had become at most academic, and that any technical error in not dismissing the cross-bill was harmless.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1909.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 7, 1912.
    H. H. C. Miller and W. S. Oppenheim, for appellant.
    Depress, Buckingham, Ritter & Campbell and Randolph Laughlin, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This appeal is practically an adjunct of the cause No. 16001 in this court, in which a decision has been contemporaneously rendered and an opinion handed down. In that opinion, the plea of release of errors by the Equipment Company, founded on the acceptance by the Beam Company, the appellant, under the decree of the court below of certain sums of money awarded to it by that decree, was noticed. The plea had on full consideration been overruled, and in the final disposition of the case we again approved the action of the Chancellor in expressly allowing the reception of the money by the Beam Company under his decree to be without prejudice to the Beam Company’s right of appeal. (See post, p. 595.)

The Beam Company, however, had filed in the cause a cross-bill, and on May 25, 1909, four days after the decree oh the original bill was rendered, the Chancellor entered a decree on the cross-bill, reciting those portions of the decree of May 21st on the original bill which pertained to the payments aforesaid, declaring that the court “doth again find (based solely upon said former adjudication) that the Equipment Company was on May 21, 1909, so indebted to the Beam Company,” and ordering the Clerk of the Court, to whom the money had been paid by the Equipment Company, to pay it to the Beam Company, without prejudice to the right of the Beam Company to appeal from the decree. The decree found the other issues of the cross-bill in favor o'f the Equipment Company, and the Beam Company has appealed from that portion of the decree.

The Equipment Company, objecting to so much of the decree as allowed the Beam Company to receive said sums of money without prejudice to its right of appeal, appealed to this court and assigns as error:

1. That the court erred in not dismissing the cross-bill for want of equity.

2. That the court erred in entering a decree against appellant for $38,891.50.

3. That the court erred in ordering that the appellee should receive the said sum of $38,891.50 without prejudice to its right of appeal.

In its argument in this court the appellant says: The decree’s “main object was to violate the right of appellant to plead a release of errors to the appeal taken by the Beam Company from the decree of May 21, 1909,” and again: “The only excuse for the entry of the decree was to enable the Beam Company to attempt to defeat the plea of the release of errors by showing that it had taken this money, not under the terms of the decree ordering its payment, but by virtue of an independent decree.”

It will be quite evident, therefore, that in view of our holdings in the appeal from the decree on the original bill, the question in this cause has become at the most academic, and that if there was any technical error in not dismissing the bill for want of equity, it was harmless.

The decree in the particulars urged against it in this appeal is affirmed.

Affirmed.