text:
    Marion F. Winn, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company et al., Appellants.
    1. Evidence—what essential to overcome prima facie proof of ordinance. To overcome the prima facie case made by the introduction of a competent pamphlet showing the ordinance in question, it is not sufficient to cast a doubt upon the question of the time of the adoption of such ordinance but it is necessary to show that it was not in fact adopted at the time indicated by the pamphlet.
    2. Contbibtjtory negligence—what does not constitute, in times of peril. A person in imminent peril is not required by law to exercise the same presence of mind and degree of care which an ordinarily prudent man would exercise under ordinary circumstances.
    3. Contributory negligence—when failure to logic and listen does not constitute, as a matter of law. If the view of tracks is obstructed, the question as to whether a failure to look and listen is contributory negligence, is one of fact to be determined by the jury from all the facts and circumstances in evidence.
    4. Evidence—what competent to show expectancy of life. Standard life tables may properly be admitted in evidence to establish the probable duration of life, where such element is proper to be considered in a case.
    5. Judicial notice—of what talcen. Judicial notice will be taken that Dr. Wigglesworth’s tables of life expectancy are standard.
    6. Pleading—what admitted by general issue. The plea of the general issue admits the character and capacity in which the defendant is sued.
    7. Verdict—what does not establish that amount was determined by averaging individual computations. The finding in the jury room of a paper in the handwriting of one of the jurors containing computations, indicating that the amount of the verdict returned had been arrived at by adding together twelve widely varying amounts and then dividing the total by twelve, is not sufficient to overturn the verdict in the absence of evidence that each juror agreed to be bound by such amount thus determined and afterwards abided by such agreement.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.

      George B. Gillespie, for appellant; L. J. Hackney, R. L. McKinley, H. S. Tanner and Hamlin & Gillespie, of counsel.
    F. T. O’Hair and J. E. Dyas, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by appellee as administrator of the estate of James R. Shively, deceased, against appellants for the recovery of damages for wrongfully causing the death of said Shively.

At the close of the plaintiff’s evidence in chief and again at the close of all the evidence, motions to direct a verdict for the defendants were overruled by the court.. The jury returned a verdict against both of defendants and assessed the plaintiff’s damages at $5,400. The court overruled a motion for a new trial and rendered judgment upon the verdict. To reverse said judgment this appeal is prayed.

The first count of the declaration charges that the defendant, the Cairo, Vincennes & Chicago Railway-Company, was the owner of a railway; that defendant, the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, was engaged in operating the same under and by virtue of a certain lease or operating contract, and that the death of Shively was -caused by the negligence of the defendants in failing to maintain either a flagman or gates at the crossing of said railway with Front street in the village of Kansas.

The second count charges that the former company was the owner of said railway; that the latter company then was and had been for many years prior thereto operating the same with the consent and knowledge of the former company, and that the deceased was killed as the result of the defendants running a train over said crossing at a rate of speed prohibited by an ordinance of the village of Kansas. A plea of the general issue was interposed by both defendants.

The evidence discloses the following facts: Front street runs north and south through the village of Kansas and the railway of the defendants crosses said street nearly at a right angle. Immediately north of the crossing was an electric gong which was operated by the telegraph operator at the station about 800 feet west of the crossing. The deceased, a farmer, aged fifty-nine years, lived upon a farm near Kansas and visited the village several times a week and when going to and therefrom usually crossed the railway of the defendants on Front street. On the afternoon of February 10,1905, while returning home in an ordinary farm wagon loaded with lumber and drawn by a team of young horses, he attempted to cross the railway at said crossing, but failing to notice the approach of one of appellant’s trains from the west his wagon and team were struck thereby and he was thrown out of the wagon and killed. That the train was at the time running at the rate of forty miles an hour is not dis.puted by appellants but it is insisted that the court erred in admitting in evidence a purported ordinance of the village of Kansas which prohibited the running of passenger trains through the village at a rate of speed in excess of ten miles per hour. On the trial appellee introduced and the court admitted in evidence a printed pamphlet containing the speed ordinance in question upon the first page of which pamphlet appeared the following words: “Revised ordinances of the Village of Kansas, Edgar County, Illinois. Revised and compiled by order of the Board of Trustees by R. S. Dyas, City Attorney, 1905.” Under section 4, article V of the Cities, Villages and Towns Act, this constituted sufficient prima facie proof of the passage and legal publication of the ordinances as of the date mentioned in such pamphlet. Rev. Stat. 1905.

Appellee also offered in evidence what purported to be the original copy of the ordinance which was identified by the village attorney as that which was published in the pamphlet. Upon the back of said copy there was written: “Passed and approved this 7th day of March, 1907. William Juntgen, president of the Board of Village Trustees. Attested: Clyde L. Smith, Village Clerk.”

It is urged that the indorsement upon the original ordinance showed that the same was passed after the present .cause of action had arisen, and-that such proof was sufficient to overcome the prima facie case made by the introduction of the pamphlet. The evidence fails to show when or by what authority the indorsement in question was made, or that William Juntgen was ever president of the board of trustees, and it was therefore incompetent and ineffective for any purpose. To overcome the prima facie case made by the introduction of the pamphlet it was not sufficient to cast a doubt upon the question of the time of the adoption. of the ordinance but it was necéssary to show that it was not in fact adopted at the time indicated by the pamphlet. C. & A. Ry. Co. v. Wilson, 225 Ill. 50. The introduction of the pamphlet sufficiently established the existence of the speed ordinance at the time of the accident, and we think that the jury were warranted in finding not only that appellants were guilty of violating the same at the time the deceased was killed but that had it not been for such violation the collision would not have occurred.

It is contended that a verdict in favor of appellants should have been directed for the reason that the evidence failed to show that the deceased was in the exercise of due care for his own safety at the time he was killed; that on the contrary the only reasonable inference that can be drawn from the facts disclosed by the evidence-is that he was guilty of contributory negligence. ■

There is evidence tending to show that the crossing was about 400 feet north of the main east and west street of the village; that on the west side of .Front street were- a number of buildings and that on the south side of the railroad track there was, a line of buildings for- a distance of at least 800 feet;. that a person driving north on Front street after leaving the main street was unable to see a train approaching from the west until he had arrived within some thirty feet of the track and that on the day of the accident the weather was cool, the ground rough and frozen and that the- wind was blowing; that the deceased started at a blacksmith shop on Front street about 225 feet south of the crossing;-that the horses at first trotted and. then slowed into a walk. The evidence as- to ■ the actions of the deceased when he reached a point where he could see the train approaching is conflicting. One witness testified that he looked to the east and then to the west and another that he looked to the east but that the witness could not remember whether he looked in any other direction or not; All agreed that when his horses were almost upon the track he tried first to urge his horses over the track and then to pull them back. When he arrived at the track and first saw the train approaching the deceased was undoubtedly surprised at the perilous position in which he found himself and had no time for deliberation as to what it was best to do under the circumstances. A person in imminent peril is not required by law to exercise the same presence of mind and degree-of care which an ordinarily prudent man would exercise under ordinary circumstances. In this state of the evidence we are not prepared to say that the conduct of the deceased as he approached the crossing amounted to contributory négligence as a matter of law. The- issue, therefore, wás one of fact for the jury in the determination of which both the failure to look and listen, the existence of - obstruction to the view and all' other surrounding circumstances and the fact that the "deceased had the right to assume that the village ordinances would be complied with, were proper to be considered. While obstructions to' the view or hearing may require greater care and attention to ascertain whether a train is approaching, they some times have a tendency to render such care and attention unavailing. The finding of the jury upon this issue was not manifestly unwarranted" by the évidence, and we are, therefore, not at liberty to disturb the same.

As tending to prove the probable expectancy of the continued life of the deceased had he not been killed by the "accident, the court admitted and there was read in evidence what are known as Dr. Wigglesworth’s tables of life expectancy. Notwithstanding counsel for appellants objected to questions propounded to one J. W. Howell, a practicing attorney in good standing, tending to show such fact, they now inconsistently urge that the table was incompetent because it was-not shown that it was standard. Such contention is without "force or merit. The probable duration of the life lost is an element to be considered in assessing the damages in eases of the present character and as bearing-on such question standard life tables may properly be admitted in evidence. Calvert v. Springfield L. & P. Co., 231 Ill. 290. The evidence of Howell tended to show that the table was. standard. Moreover, the table is so well known to and frequently used'by the profession that courts may properly take judical notice of the fact that the same is standard.

It is contended that the court erred in admitting in evidence over objection of appellants secondary evidence of a certain deed conveying the railway in question. Any error in this particular could not have been prejudicial for the reason that in the absence of special pleas neither the character nor capacity in which the defendants were sued was in issue in this case. McNulta v. Lockridge, 137 Ill. 270; Penn. Co. v. Chapman, 220 Ill. 428; Chicago Union Traction Co. v. Jerka, 227 Ill. 95.

Counsel seek to impeach the verdict on the ground that after the jury had returned their verdict and had been discharged a paper was found in the jury room containing computations in the handwriting of one of their number indicating that the amount of the verdict returned had been arrived at by adding together twelve widely varying amounts and then dividing the total by twelve, the quotient being approximately the amount of the verdict returned. In the absence of further proof that each juror agreed in advance to be bound by the amount thus determined and afterward abided by such agreement, the facts shown were insufficient to warrant the court in disturbing the verdict.

We have considered all other grounds urged for reversal and find no prejudicial error. The damages awarded we do not deem excessive.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    A. H. McClain, Appellee, v. C. F. Adams Co., Appellant.
    Malicious prosecution—what defense to action for. Advice of counsel given as the result of a full and fair disclosure of the facts is a good defense to an action for malicious prosecution.
    Action in case. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed with finding of fact.
    Opinion filed April 21, 1908.
    Hamlin, Gillespie & Fitzgerald, for appellant.
    James Reilly and Robert H. Patton, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case by A. H. McClain against C. F. Adams Co., a corporation. Upon a trial by jury a verdict was returned finding the defendant guilty, and assessing the plaintiff’s damages at- $900. Motions for a new ■ trial and in arrest - of judgment were overruled, and judgment entered on the-verdict from which the defendant appeals. The declaration charges that the defendant- on or about January 2, 1906, in Springfield, Sangamon county, Illinois, maliciously and without cause procured the return of an indictment by the grand jury of said county charging the plaintiff with the crime of embezzlement, by -reason whereof the plaintiff was arrested,- deprived of his liberty for the space of one hour and then brought before a judge of the Circuit Court of said county and caused to give bail for his appearance; that upon said appearance he was duly discharged, fully acquitted of the offense charged against him. The defendant pleaded not guilty.

The evidence shows that appellant corporation wás engaged in the sale of furniture and other merchandise upon the instalment plan; that appellee was employed by it to collect instalments as they became due upon sales made in the city of Springfield, his compensation being a certain percentage of the amounts collected by him. When merchandise was sold, the purchaser signed a lease by the terms of which he agreed to pay for the same in instalments as therein specified. These leases were executed in duplicate, one copy being retained by the purchaser and .the other -returned to the appellant’s main office at Peoria, Illinois. The latter copies were forwarded to appellant weekly and. when payments were made by purchasers, the same were credited upon each of said copies by writing the amount thereof in figures in a form printed upon the backs of the leases. .Appellee was so employed for about six months until April, 1905, during which time he collected'instalments upon some 900 leases.' During March, 1905, he wrote to the head office of appellant stating that he intended to quit their employment and requesting them to send some one to take his place. Pursuant to such request appellant sent one Stout from Peoria to check up appellee’s collections and close his account with the company. Stout in checking- the collections on April 4th discovered that appellee had failed to report the sum of $104.71 collected by him. He then engaged assistants and proceeded to call upon each of the customers holding leases and investigate the state of their respective accounts. He also notified appellee of the shortage mentioned. Appellee acknowledged that said sum had been collected by him and that he had failed to account therefor, and several days afterwards paid the same to Stout. During the progress of further investigation additional alleged shortages were discovered in the sum of $24.50, $15.50 and $18.25. The first twp amounts were paid by appellee upon demand but he failed to pay the latter sum. The shortages in question were discovered by interviewing the various customers and comparing the copies of leases held by each of said customers with the copies of the sainé retained by the company. Upon the failure of appellee to pay the last sum mentioned, Stout, acting for the company, called upon the assistant state’s attorney of Sangamon county, who had been engaged in active practice of the law for more than ten years, and stated the foregoing and other facts to him. The assistant state’s attorney then advised Stout that appellee was guilty of embezzlement and that criminal proceedings would lie against him. When the grand jury of Sangamon county was impaneled Stout, who had returned to Peoria, appeared before said body in response to a summons and testified. An indictment was returned against appellee charging him with embezzlement but the same was afterwards in some manner mislaid or destroyed, and at a later term of court a similar indictment was returned. Upon the return of each of said indictments appellee appeared in court and gave bond for his appearance. Upon the trial under the second indictment, at the close of the Peopie’s case, upon motion of appellee’s attorney, the court, under the rule announced in McElroy v. People, 202 Ill. 473, instructed the jury to find him not guilty. Appellee then brought the present suit.

“The policy of the law is to encourage prosecutions where there are facts and circumstances that would induce the belief in the mind of a reasonably cautious man of the guilt of the party accused. In such cases the advice of competent counsel, if given and acted upon in good faith, upon a full disclosure of all the facts, has uniformly been held to constitute probable cause for instituting a criminal prosecution, notwithstanding it may afterward appear that the party accused is not guilty.” Murphy v. Larson, 77 Ill. 172; Palmer v. Richardson, 70 Ill. 544; Anderson v. Friend, 71 Ill. 475; Wicker v. Hotchkiss, 62 Ill. 107; Schattgen v. Holnback, 149 Ill. 646; Neufeld v. Rodiminski, 144 Ill. 83.

A careful perusal of the evidence satisfies us that the jury would have been unwarranted in finding that Stout, the.agent of appellant, acted in other than good faith. It cannot be said that the undisputed facts and circumstances appearing in evidence were clearly insufficient to create in the mind of a reasonably cautious man, a belief that appellee was guilty of embezzlement. We are further convinced that Stout made a full, fair and truthful statement of all the facts and circumstances within his knowledge to the assistant state’s attorney. Mr. Wines testified that after hearing Stout’s statement, he advised him that a criminal prosecution would lie. He further testified that when Stout appeared before the grand jury he testified to the same facts that he had stated to the witness and that prior to appearing before the grand jury he stated to the witness all the material facts testified to by him before that body. Appellant was therefore fully protected from an action of the present character. The verdict of the jury was manifestly contrary to and unwarranted by the evidence and it therefore becomes our duty to set the same aside.

The judgment of the Circuit Court will be reversed and the cause not remanded.

Reversed.

Finding of fact, to be incorporated in judgment. We find that probable cause existed for the prosecution instituted at the instance of appellant.


text:
    Austin H. Thompson, Appellee, v. Springfield Consolidated Railway Company, Appellant.

      Evidence—lohen exclusion of ordinance regulating speed error. In an action to recover damages for an injury resulting from a collision with a street car by one driving in a buggy, it is error to exclude an ordinance providing that no person should drive any horse in or through any street of the city in which the collision occurred at a greater rate of speed than six miles per hour, the plaintiff in the action having admitted that at the time of the accident he was driving at a rate of speed in excess of six miles per hour.
    Trespass on the case. Appeal from the County Court of Sangamon county; the Hon. George W. Murray, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    W. J. Lawler and A. F. Bernard, for appellant; Wilson, Warren & Child, of counsel.
    John C. Snigg, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action by appellee for the recovery of damages to his horse and buggy occasioned by a collision of the same with one of appellant’s streets cars through the alleged negligence of appellant’s servants in running said car at a high and dangerous rate of speed and in failing to give warning of its approach. A trial by jury resulted in a judgment against appellant for $350. Various grounds for reversal are assigned and urged, of which it will be necessary to consider but one.

Appellee admitted when testifying .that immediately prior to and at- the time of the collision, he was driving at a rate of speed in excess of six miles an hour. Counsel for appellant offered a valid and existing ordinance of the city of Springfield which provided that no person should ride or drive any horse in or .through any street or avenue of the city with greater speed than six miles an hour, but the court refused to admit the same in evidence.' This ruling, of the court was reversible error. Brink v. Kinnare, 168 Ill. 643; Lind v. Beck, 37 Ill. App. 430.

The judgment must therefore be reversed and the cause remanded.

Reversed and remanded,


text:
    Charles E. Ross et al., Appellants, v. The People ex rel. Chris Demlow et al., Appellees.

      Mandamus—when lies against highioay commissioners. Mandamus lies against highway commissioners to compel them to proceed to do all in their power to open up a road for public travel, the propriety of which has been finally determined by the Supreme Court.
    Mandamus. Appeal from the Circuit Court of Champaign county; the Hon. Solon Philbrick, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Savage & Woods, for appellants.
    Ray & Dobbins, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

At the April, 1907, term of the Circuit Court of Champaign county the state’s attorney upon the relation of appellees, Demlow and Holl, filed a petition for mandamus against the appellants as commissioners of highways of the towns of Tolono and Colfax, in Champaign county, to compel them to lay out and open a road on the township lines between said townships, to pay the damages occasioned by the laying out of the road and the costs occasioned by the appeal of the relators, Demlow and Holl, to the supervisors from an order refusing to grant the road made by the appellants as highway commissioners. The petition sets forth the proceedings theretofore had in reference to laying out of the road; the issuance of a writ of certiorari by the Circuit Court of Champaign county; the judgment of that court quashing the writ and dismissing the petition at the costs of the petitioners; and alleges that the Supreme Court entered judgment December 23, 1906, affirming the judgment of the Circuit Court. Commissioners v. Bear, 224 Ill. 259.

To the petition appellants filed their answer setting forth, in substance, that the defendants as commissioners could only levy a sum not exceeding 60 cents on each $100 of taxable property in their respective towns, and that the sums so realized were required for ordinary road purposes and that they had no funds on hand from which to pay the damages, costs and legal expenses connected with a laying out of said road; that they had no authority to levy an additional tax until they had certified to the town auditors of the respective towns the necessity therefor and had obtained the consent of said boards; that they had no opportunity to present the matter to said boards since the decision of the Supreme Court, for the reason that such boards had not and would not meet until in September, 1907, and that they, as commissioners, would have no legal right and it was not their duty either to certify the necessity for an additional levy to the boards of auditors of said towns, or to levy an additional tax, or to open the road, or to draw orders for the payment of damages and costs, until such boards of auditors had met and authorized such additional levies.

The relators filed a general demurrer to said answer which was sustained by the court.. The defendants elected to stand by their answer as amended, whereupon the court entered judgment against the' defendants upon thé demurrer, and ordered that the writ of mandamus issue against the defendants- requiring them- to proceed to open the road in question, and to issue the necessary warrants upon their respective treasurers as prayed in the petition.

From such ruling and judgment of the. court the defendants have appealed.

We are of opinion that the Circuit Court was warranted in issuing the order for mandamus granted. They had power to and it was the plain duty of the commissioners, after the affirming order of the Supreme Court had been filed, to proceed to do all in their power to expedite the opening of the road for public travel. Their answer discloses that they have done nothing whatever to that end.

The mere fact that in December, 1906, there were no-funds available in the treasuries of said townships for the payment of the damages, even if properly pleaded, is no legal justification for the failure to draw orders for the damages.

The statute expressly provides that such orders are payable "only out of the tax to be levied and only when the money shall be collected. Rev. Stat. 1905, p. 1725. They also had power to and it was their duty to proceed to certify to the boards of town auditors the necessity of an additional levy without awaiting the convening of the same. It is true that they had no right or power at the time of the filing of the petition to levy an additional tax. The effect of the- order appealed from was not, however, to command them to .make the levy forthwith but to do so in the due course of the proceedings provided for by the statute. No legal excuse is presented by the answer for the failure of the defendants to perform the preliminary acts mentioned, and the demurrer thereto was properly sustained. A clear, legal right to the relief granted was shown by the petition and the writ was properly awarded.

The judgment will therefore be affirmed.

Affirmed.


text:
      A. P. Smith, Appellant, v. J. L. Snyder et al., Appellees.

      Instructions—when peremptory should not he given. A peremptory instruction should not be given for the defendant where there is evidence tending to support any count of the plaintiff’s declaration.
    Assumpsit. Appeal from the Circuit Court of Vermilion county; the Hon. Morton W. Thompson, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    C. E. Russell and Rearick & Meeks, for appellant.
    Dyer & Wallbridge, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellant against appellees to recover real estate commissions. Upon the trial thereof and at the close of the plaintiff’s case,' by direction of the court upon motion of the defendants, the jury returned a verdict in their favor. Judgment was rendered thereon in bar and against the plaintiff for costs.

The declaration consists of the common counts, and three special counts, which set out a contract in writing between the parties, dated March 1, 1905, which in substance constitutes appellant the agent of appellees to obtain purchasers for lands controlled by them, and provides that for all lands which appellant should sell to customers obtained by him, or to parties who should apply for such lands through his efforts or influence, he was to receive commissions at the rate of $1 per acre, upon condition that he furnished to appellees, within two weeks from date of sale, sufficient and satisfactory evidence that such customer was obtained and such sale made through his direct influence or efforts. By written indorsement in said contract the territory allotted to appellant was restricted to Pigeon Grove township, Ashgrove township, and a portion of Milford township, all in Iroquois county, Illinois.

By the third count it is alleged that the provision of the contract limiting the territory allotted to appellant was subsequently modified so as to permit him to furnish as a purchaser, his father, William Smith, who lived without said territory, appellant’s performance of such modified contract and its breach by appellees. Appellant was a farmer residing in Iroquois county. Appellees resided at Hoopeston, Illinois, and were immigration agents for the sale of certain lands in Port Bend county, Texas. Shortly after the making of the contract set out in the declaration, appellant entered into a contract with appellees to purchase through them for himself, 152 acres of said Texas land at $20 per acre, and paid on account of the purchase price the sum of $150 and agreed to shortly thereafter pay $850 more, as the balance of the first payment. His father, William Smith, upon whom he relied to furnish the latter sum, declined, however, to advance the same until he had seen the land, and about December 1, 1905, accompanied by appellees, went to Texas, where he inspected the 152-acre tract in question and also a tract of .721 acres, which appellees also had for sale. He and appellant then entered into a written contract with appellee, by virtue of which they agreed to purchase the latter tract at $18 an acre, and, as a part of the consideration, appellees agreed to release appellant from Ms contract to purchase the 152-acre tract, and to allow him and his father credit for the $300 already paid thereon. Pursuant to said agreement appellant and his father jointly executed a check to appellees for $400, which, with the $300 allowed as a credit aforesaid, constituted the first payment of $700 on the 721-acre tract. Appellant afterward decided not to join in the purchase of the 721 acres and his father became the sole purchaser of the same, and it was afterward conveyed to him.

Appellant claims that under the original contract between him and appellees, he became entitled to a commission of $721, upon this latter sale to his father and seeks by the present suit to recover the same.

Under the terms of the original contract no commissions would have been due to appellant for the reason that his father, William Smith, at the time of the purchase by him of the 721 acres, resided without the territory expressly allotted to him by said contract. Appellant testified, however, that in May, 1905, appellee Snyder told him that he would reserve his father from the territory of Judy (another agent of appellees, in whose territory appellant’s father resided) provided appellant would induce Mm to go to Texas. He further testified that he had previously mentioned the 721-acre tract to Ms father and told him that if he purchased through the agency of appellant, he, appellant, would get a commission upon the sale. There was therefore evidence in the case tending to show that appellees had, after the making of the original contract, waived the territorial limitation in question and that the sale of the 721-acre tract was effected through the influence and efforts of appellant, in which case he became entitled to the commissions claimed under the third count of the declaration which is based upon such alleged modification of the original contract. The evidence in the record thus tended to support a verdict for the plaintiff under the tMrd count, and he was entitled to have the issues of fact passed upon by the jury. The trial court erred in directing a verdict, and the judgment will be reversed and the cause remanded.

Reversed and remanded. ■


text:
    Anna Niederer, Plaintiff in Error, v. James N. Gridley, Defendant in Error.

      Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Error to the Circuit Court of Cass county; the Hon. Harry Higbee, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    R. W. Mills, Thomas D. Masters and Hardin W. Masters, for plaintiff in error.
    Chiperfield & Chiperfield, for defendant in error.
   Mr. Justice Puterbaugh

delivered the. opinion of the court.

This is an action in assumpsit by Anna Niederer against James N. Gridley for the recovery of the sum of $250, which she alleges he wrongfully obtained from her in payment of a purported claim for legal services claimed to have been rendered by him at her instance and request. The cause was tried before the court, a jury having been waived, and judgment rendered against plaintiff in bar of the action and for costs of suit. To reverse such judgment this writ of error is-prosecuted by Anna Niederer,

The facts involved briefly stated are the following: Arnold Niederer, the husband of Anna, died leaving a last will under and by which he devised to her the use, income and profit of and from his, entire estate, for and- during her natural life, with the remainder therein to his six children in equal shares. His wife was nominated as executrix of the will with power to sell any or all of his real estate and convert the proceeds into other real estate or personal property. At the time of his death, the testator was the owner in fee of a tract of land in Mason county known as the Grand Island property. In April, 1905, the widow and children were desirous of selling said propérty, Edward Niederer, one of the children, having found a purchaser for the same at the agreed price of $18,000. On about April 10th, the parties all met at Chanderville for the purpose of agreeing upon the sale and the distribution of the proceeds. It was understood between the parties that there should be deducted from the share of each of the sons, such amount as might be due from him to the executrix for money advanced. Differences arose as to the amounts that should be so deducted, considerable controversy resulted, and an agreement seemed improbable. At this time, Gridley, who was a practicing attorney at Virginia and who had prior to that time acted as the attorney of the widow, was by telephone called to Chanderville by Edward Niederer, who accompanied him to the home of the widow, where she and the other children had assembled. Through the efforts of Gridley an agreement was finally reached, which was reduced to writing and signed by all parties. The agreement provided that the Grand Island property should be sold for $18,000; that the proceeds should be paid to the widow and by her distributed to the children, deducting from the share of each of those who were indebted to the estate, certain specified amounts, and that whatever should remain of the proceeds, should be used by the widow in repairing a building upon certain other real estate in Chanderville, in which she also had a life estate. Pursuant to said agreement, a deed for the Grand Island property was executed by all of the parties and delivered to the purchaser. The proceeds were paid to the widow, who first paid certain indebtedness of the testator and then distributed the balance in accordance with the terms of the agreement. The distribution was made by means of checks prepared by Gridley and signed by the widow, to whose credit the purchase money had been deposited in bank. Among the checks so prepared and signed was one payable to Gridley for the sum of $325 being a balance of $75 due him for legal services rendered to the widow prior to that time and as to which there is no dispute, and $250 for his charge for services in assisting in bringing about the execution of the contract in question, and in connection with the sale of the property and distribution of the proceeds; which check was retained by him. Some time thereafter the widow, Anna Niederer, made demand upon Gridley for the sum of $250 claiming that he was not employed by her to perform the services rendered in connection with the sale of the Grand Island property, but that he was employed by Edward, acting for the children; that she did not understand at the time she executed the check in question that it included his fees therefor; and that the check was procured from her by fraud.

There was no controversy upon the trial as to the value of the services performed by Gridley. Upon the issues as to by whom Gridley was employed, for whom the services were rendered, whether Mrs. Niederer was benefited thereby, and.as to whether or not at the time Mrs. Niederer executed the check in question, she understood the purpose for which it was given, the evidence is conflicting and irreconcilable. It is urged that the judgment is contrary to and not supported by the evidence. We have carefully read the evidence, and applying the well-settled rule that where the cause is tried by the court, who sees and hears the witnesses while testifying, his finding is entitled to the same weight as the verdict of a jury and should not be disturbed by a court of review unless manifestly unwarranted by the evidence, do not feel at liberty to disturb the findings of the trial judge as to the facts. There is ample competent evidence which, if credible, warranted the finding of the court that the services were rendered under such circumstances as would reasonably imply that they were performed by Gridley with the assent and upon the request of Mrs. Niederer. She was therefore bound to pay him what the same were reasonably worth. Cooper v. Hamilton, 52 Ill. 119; Town v. Thomas, 82 Ill. 259; Price v. Hay, 132 Ill. 543.

No complaint is made as to the rulings of the court upon the propositions of law submitted, which correctly state the law. The judgment will therefore be affirmed.

Affirmed.


text:
    Lucy N. Hampton, Administrator, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    1. Contributory negligence—what constitutes. The violation by a servant of a rule of his master made for his protection constitutes contributory negligence which will bar a recovery if such violation concurred with the negligence charged against the master in causing the accident complained of.
    2. Master and servant—what essential to establish abrogation of rule. In order to establish that a rule adopted by a master for the protection of his servant has been abrogated through habitual disregard, actual or constructive notice of such habitual disregard must be brought to the master.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Patton & Patton, for appellant; F. S. Winston, of counsel.
    Thomas D. Masters and Hardin W. Masters, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court rendered in an- action on the case by appellee as administratrix of the estate of William II. Hampton, deceased, against the appellant for the recovery of damages, for wrongfully causing the death of her intestate. The declaration charges in substance that the defendant negligently permitted the cross -ties in the track of its railroad to become rotten, the spikes to become loose and the track to become out of repair, - so that while Hampton, who was in its employ as a locomotive engineer, was driving an engine over the track it became derailed by reason of such condition of the track, whereby he was killed.

The general issue was filed, a trial had and judgment rendered against the defendant for $5,500 to reverse which this appeal has been perfected by the defendant.

The evidence shows that appellant operates a railroad'Consisting of a main line running from Chicago to East St. Louis and of several branch lines, one of which is known as the “Peoria Branch.” William II. Hampton, the intestate, had been in the employ of appellant company for about two years prior to the day of his death. In the month of June, 1906, he was promoted from the position of fireman to that of engineer. He had no regular .run but most of the time had been working with construction trains principally on the main line of appellant’s railway between Bloomington and Springfield, and occasionally between Blooming-ton and San Jose on the Kansas City division and between San Jose and Springfield on appellant’s Peoria Branch. The Peoria Branch and the Kansas City division met at San Jose, where there was maintained by the company a number of switch tracks, but no turntable, so that engines proceeding from Bloomington to Peoria reaching San Jose head on, would necessarily have to run backwards from San Jose to Peoria. The branch line from Peoria to San Jose consisted of but a single track. Hampton had, as engineer, occasionally driven his engine over the same.

On the morning of October 21, 1906, a train composed of an engine, tender and caboose, the crew of which consisted of Hampton as engineer, a conductor and two brakemen, left Bloomington for Pekin. Upon arriving at San Jose, Hampton backed his engine around the “ Y” from the Kansas City Branch to the Peoria Branch and proceeded northward toward Pekin. When the train had run about four miles the tender of the engine suddenly lurched, left the track and ran upon the ties for from fifty to one hundred feet at .which point the engine also became derailed, tearing up the ties and wrecking the roadbed for about 100 feet and then turned over, killing Hampton.

The evidence adduced by the plaintiff tended to show that on the day of and before the accident the track at the point where the derailment occurred was.not in a reasonably safe condition in that a large number of the ties were rotten; that many of the spikes were loose, and a number of the ties had no spikes, and that immediately after the derailment the rails were spread at the point where the wheels left them, and further that Such defective condition of the ties had existed for some time prior to the accident. The evidence introduced by appellant tended to show that at the point in question the track and ties were in a reasonably safe condition and that there were no loose spikes and spreading rails; that the tender was caused to leave the track for the reason that the engine was backing át a high rate of speed which caused the water in the tank of the tender to surge from side to side thereof, and so shift the weight that one wheel left the track; causing the derailment of the tender. ■ •

The evidence for the appellant also tended to show that upon the time card issued by the company, in force June 3, 1906, there was printed the following rule for the government of trains and trainmen: “On branch lines an engine running backward must reduce speed to ten or less miles per hour according to the condition of the track; the object being to obtain absolutely safe movement,” and that Hampton had received a copy of such time card on June 2, 1906.

The appellee in rebuttal introduced evidence tending to show that the rule in question had never been in force and further that engines had habitually for from six months to a year prior to the date of the accident been run over the Peoria Branch at a rate of speed from fifteen to forty miles an hour.

The following controverted questions of fact were thus presented for the determination of the jury: (1.) Was the track defective as alleged. (2.) Was the proximate cause of the derailment the condition of the track or the speed at which the train was being run? (3.) Was the rule invoked in force at the time or had it been so frequently violated for such length of time that appellant could have by the exercise of ordinary care ascertained its non-observance whereby it could be said to have been abrogated? (4.) Was Hampton in the exercise of ordinary care at the time of the derailment?

While the evidence relating thereto is in serious conflict we cannot say that the jury were not justified in finding that the track was in the defective condition charged and that such condition and not the speed of the train was the proximate cause of the derailment of the tender. Therefore the existence or abrogation of the rule referred to need only be considered upon the question of due care upon the part of the deceased. If the rule had not been abrogated the violation thereof by the deceased constituted negligence and if such negligence concurred with that of appellant in causing the derailment and consequent injury to the deceased, it is clear that appellee cannot recover. I. C. R. R. Co. v. Hauck, 72 Ill. 285; I. C. R. R. Co. v. Patterson, 93 Ill. 290; Abend v. T. H. & I. Ry. Co., 111 Ill. 202; L. S. & M. S. Ry. Co. v. Parker, 131 Ill. 565.

There was evidence tending to show that the jury were not unwarranted in finding that the rule had been violated by the engineers on a number of occasions. It was not shown that appellant had actual knowledge of such violation. It was therefore essential before an abrogation could be presumed that constructive notice to appellant be shown. The law applicable was correctly stated to the jury by the fourth instruction offered by appellee by which they were told that if the defendant company had before the occurrence of the accident made and published the rule in question but that such rule had been openly, commonly and habitually violated and disregarded prior to the accident and for such length of time that the defendant might reasonably have been expected to know of such violation and that the defendant took no action to enforce the rule, then they would be warranted in finding that such rule was not in force at the time of the accident and injury.

Upon this question Milton Willis testified that for a month prior to October 21, 1906, he had frequently observed freight, construction and gravel trains running backward on the Peoria Branch at the rate of from 15 to 20 miles an hour and that there would be periods when this would be almost of daily occurrence ; Samuel Lawson that he had seen freight and gravel trains propelled backward on the Peoria Branch on an average of one a day for a year prior to October 21, 1906, at the rate of from fifteen to twenty miles an hour; Eugene Bailey that he had seen at least one freight or passenger train running backward over the Peoria Branch every day for a year at the rate of fifteen or twenty miles an hour; Amos Crawford that he saw "about two a week for four weeks prior to October 21,1906, running backward over the Peoria Branch at the rate of fifteen or twenty miles an hour; Harry Morrison testified that he saw trains running backward as often as twice a week for two or three weeks prior to October 21,1906, at fifteen to twenty miles an hour; Charles Bright that he had seen five or six gravel trains running backward prior to October 21, 1906, within a period of a month or six weeks at the rate of from fifteen to twenty miles an hour; George Davis that he had seen trains during the summer of 1906 running backward very frequently on an average of three a week at the rate of eighteen to twenty miles an hour.

It is insisted that the foregoing evidence should have been excluded for the reason that of itself it did not tend to prove any habitual violation of the rule; that there was no evidence tending to prove any knowledge of or notice to appellant of any habitual violation or that the deceased had any knowledge thereof. If the jury believed the testimony of thesé witnesses they were warranted in finding that the rule was abrogated by habitual violations and so frequently and for such length of time that appellant could properly be held to have had constructive notice thereof. This question and the further one as to whether the violation of the rule in force contributed to the accident were properly submitted to the jury with the other questions of fact in issue and there was evidence tending to support their findings.

We do not think it was essential to show that the deceased knew of the abrogation of the rule. If the rule was for any reason not in force and effect deceased was not bound thereby.

We find no prejudicial error in the rulings of the court upon the evidence. The instructions given fully and fairly state the law applicable: The principles

announced in appellant’s refused instructions ‘.‘A” and “B” were fully covered by the too numerous instructions given in its behalf.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Burchard-Hulburt Investment Company, Plaintiff in Error, v. Nels Hanson et al., Defendants in Error.
    1. Instructions—upon what complaint cannot be predicated. Complaint cannot be made that the court instructed the jury upon a particular theory if the party making such complaint had proceeded in the trial court upon such theory.
    2. Instructions—use of phrase “bearing upon the plaintiff’s case’’ criticised. The use of the phrase, “bearing upon the plaintiff’s case,” held, subject to criticism, but, in this ease, not ground for reversal.
    3. Instructions,—effect of giving or refusing abstract proposition of law. It is not error to refuse an instruction which is in form but an abstract proposition of law; neither is it error to give one of that character unless it be misleading.
    4. Contracts—what essential to constitute valid. To constitute a valid and binding contract, it is essential that both parties assent to the same thing in the same sense.
    5. Contracts—when acceptance of proposition does not effectuate. Acceptance of a proposition with a condition attached does not establish a contract until the condition has been assented to.
    6. Estoppel—when principle of, in pais, arises. It is only where an act is done or a statement made by a party which cannot be contravened or contradicted without fraud on his part, and injury to others whose conduct has been influenced by the act or omission, that the doctrine of estoppel in pais arises. •
    Assumpsit. Error to the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Schneider & Schneider, for plaintiff in error.
    A. L. Phillips, for defendants in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit brought by plaintiff in error against defendants in error upon an alleged written contract for the purchase and sale of certain real estate. The trial in the Circuit Court resulted in a ,verdict and judgment for the defendants, whereupon the plaintiff sued out from this court a writ of error. The instrument the breach of which is the basis of this action, bears the date of September 23, 1905, and recites that it is made between Bnrchard-Hulburt Investment Company, a corporation, and Neis Hanson; that the Company, in consideration of the sum of $14,000, to be paid as thereafter specified, agreed to sell to Hanson certain real estate in the State of Minnesota therein described; that Hanson agreed to purchase said real estate and to pay therefor the sum of $14,000, that is to say, $1,200 at or before the execution of the contract, the receipt of which is thereby acknowledged, and the balance at the times and in such installments as are therein specified, at the office of the company at St. Paul, and that upon the full performance of said contract by Hanson, the Company should convey said described real estate to him. It further provided that upon the failure of Hanson to pay the respective instalments of the purchase price when due, the company may, at its option, declare the whole consideration due and payable, and that in case there should be a crop failure on the lands then there should be no payments of principal or interest due on account of said contract, but that the company should carry over to the next year the payments of principal and interest then due.

The contract further recites that the parties had thereunto subscribed their names in duplicate on the day of its purported date, and is signed by the president of the company and by Neis Hanson and Kate Hanson, who are described as “purchasers.”

• The declaration consists of the common and four special counts, two of which allege the failure to pay the entire consideration and two to pay the first instalment. The second special plea of the defendants alleges that the writing set out in the declaration was but a written proposition for the purchase of the lands therein described and that such proposition was not accepted by the plaintiff, and the plaintiff refused to deliver a copy of said instrument to the defendants unless the defendants would sign certain promissory-notes not mentioned in the instrument. The third special plea contains similar allegations to the second and further alleges a tender by the defendants to the agent of the plaintiff, the refusal of such agent to deliver such copy to the defendants, and that the defendants then withdrew said written proposition. ' Demurrers to said pleas were interposed and overruled. The plaintiff then filed a replication to the pleas setting forth that on October 13, 1905, the defendants delivered to the plaintiff a written notice reciting that they had elected to declare the contract between them forfeited because of the failure of the plaintiff to comply with the same, and praying judgment if they, the defendants, should be received or admitted to aver contrary to what they had before said. A demurrer to said replication was sustained. By failing to abide by its demurrer to the special pleas after demurrer overruled or by the replication after demurrer sustained, appellant elected to proceed to trial upon the issue as to whether or not the instrument was a proposition or a completed contract. At the conclusion of the. evidence, it offered instructions upon the same theory.

It cannot therefore now insist that the rulings of the court upon the demurrers or the submission of such issue to the jury for their determination was error.

While the evidence relating to several minor issues of fact is in conflict, the jury were not unwarranted in finding the following facts which the evidence adduced by the defendants tends to establish: Appellant was a corporation organized under the laws of Minnesota, having its general office at St. Paul and was engaged in selling lands. On September 20, 1905, appellee, Neis Hanson, who was a farmer living near Gibson City, Illinois, and the husband of appellee, Kate Hanson, in company with James Gilliland, an agent of the appellant company, went to Minnesota to inspect land which it had for sale. He selected a tract which he decided to purchase and then went to the office of appellant at St. Paul where, after a conference with Bur-char.d, the president of the company, a draft of the alleged contract in question was prepared but was not executed by Hanson for the reason that he desired to first consult his wife. He then, in company with Gilliland, returned to Gibson City. Upon their arrival Gilliland went to the home of appellees with the notes and duplicate copies of the contract for the purpose of procuring their signatures to the same and closing the transaction. They refused, however, to sign the contract unless the consideration was reduced from $14,400 to $14,000. Gilliland then altered the contracts accordingly, whereupon appellees signed the same upon the express condition however that if the contract as changed was approved by the company and signed by it and a duplicate thereof delivered to appellees the contract was to become effective and they would then make the first payment of $1,200, but not otherwise. Upon the following day the parties by appointment met at a bank in Gibson City when Gilliland reported that the company had approved the contract as altered and. requested appellees to sign the notes and make the first payment. They declined to do so for the reason that the notes contained no provision for extending the maturity thereof in the .event of crop failure, as provided by the cóntract. Nothing further was done in the matter utitil October 2, 1905, when the bank received by mail a letter from the company enclosing a copy of the contract as altered, signed by the company, together with notes for the deferred payments and requesting the bank to close the transaction by having the notes signed by appellees and collecting from them the first payment with directions that upon this being done to deliver to appellees a duplicate copy of the contract. On October 13th following, in response to a notice, appellee, Neis Hanson, went to the bank, tendered a check for the first payment and demanded a duplicate copy of the contract. The cashier refused to accept the check or deliver the contract unless the notes were signed. Shortly thereafter appellees served upon the hank written notice described in the replication. On October 18, 1905, the company, by its attorneys, tendered to appellees a duplicate copy of the contracts and demanded in writing the first payment of $1,200. They refused to accept said copy or to make the payment, whereupon the company instituted the present suit.

The decisive and controlling question involved is whether or not a valid and binding contract at any time existed between the parties. To constitute a valid and binding contract it is essential that both parties assent to the same thing in the same sense. The first draft prepared and signed by the company was but a proposal to enter into such a contract. The execution and return by appellees of such draft to the company, after the same had been materially altered, may properly be treated as a rejection of the original and the submission of a counter-proposition in effect offering to enter into the contract as altered, if the same was satisfactory to the company, subject to the further condition that they may be furnished a duplicate copy thereof before the same should become effective and binding. The approval and execution of the altered draft by the company and the instructions to the bank to deliver -a duplicate copy of the same to appelleés upon their signing notes for the deferred payments, manifestly did not constitute an acceptance of the counter-proposition of the Hansons, but was in effect an offer by the company to accept the same upon the further condition that appellees should execute such notes for the deferred payments. The refusal of appellees to execute such notes amounted to a refusal to accept the latter proposition. The subsequent tender by appellees of the first payment and demand for a duplicate copy of the proposed contract was but a further proposition and the failure to furnish such copy a refusal thereof.

It follows that there was no time during the negotiation when it could be said that the minds of the parties met and the precise alleged contract sued upon assented to by all of the parties. In this view of the law the contentions and arguments of counsel as to the law relating to the rescission of the contracts necessarily predicated upon the assumption that a valid and binding contract was at any time in force, became .unimportant.

While we do not approve of the expression “bearing upon the plaintiff’s case” as used in appellees’ first given instruction we are satisfied that the jury must have understood the instruction as it was obviously intended, and we do not think that the jury were misled thereby to the prejudice of appellant. The giving of appellees’ second instruction could not have prejudiced appellant. It pertained only to the joint liability of appellee, Kate Hanson, with her husband, and under the views already expressed.no liability existed against either or both. Although it is not error to refuse an instruction which is in form but an abstract proposition of law, neither is it érror to give one of that character unless it be misleading. Appellees’ third and fourth instructions when read together may be said to be concrete. They correctly state the law applicable to the issues framed by the pleadings, and the court did not err in giving the same. Appellant’s refused instructions numbered two and three were cautionary in character. It was discretionary with the trial court whether or not they should be given and we cannot say that such discretion was abused to the prejudice of appellant. Appellant’s seventh instruction was offered upon the theory that there was evidence tending to show that a full and complete contract existed between the parties. It was therefore not error to refuse the same for reasons hereinbefore stated.

It is urged that the demurrer to the replication to appellees’ third and fourth pleas should have been overruled. That having by their written notice declared “the contract entered into September 23, 1905, for the purchase of land, etc., forfeited” acknowledged and assumed that the writing was a contract, they were estopped to claim that it was merely a written proposition. It is only where an act is done or statement made by a party which cannot he contravened or contradicted without fraud on his part, and injury to others whose conduct has' been influenced by the act or admission, that the doctrine of estoppel in pais arises. Notwithstanding appellees may have been mistaken as to the legal effect of the transaction in question, it is manifest that their act of admission after all negotiations have ceased, could not have influenced the subsequent conduct of appellant to its disadvantage.

For this reason alone the ruling upon the demurrer was proper.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Frank H. Meyer, Appellant, v. City of Decatur, Appellee.
    1. Municipal corporations—when dram-shop ordinance not invalid. An ordinance which gives to a city council “the exclusive right to be the sole judge to whom licenses shall issue” is not for that reason invalid.
    2. Dram-shops—when refusal to license, arbitrary and illegal. While a city council may have power in the exercise of a reasonable discretion of which it is possessed to limit the number of licenses that shall be granted on a particular street and within a certain block, such limitation should be definitely established by prescribing through legal enactment the number of such licenses to be issued, for the guidance of applicants, providing a method by which, in the event that applications were presented in excess of the number, it would be determined which of them should be granted; but where no such limitation has been so imposed, it is arbitrary, unreasonable and an abuse of discretion to deny a license to a particular applicant merely because the city council at the time of considering such application is of opinion that no more licenses for dram-shops should be granted with respect to the particular locality involved in the application.

      3. Mandamus—when answer to petition for, insufficient. An answer to a petition for mandamus charging arbitrary refusal to issue a dram-shop license, should do more ’ than deny in general terms that the application of the petitioner' was refused without reasonable cause; such answer should set up facts from which .the legal sufficiency of the denial can be determined.
    Mandamus. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the November term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    C. E. Schroll, for appellant.
    W. Nay Boggess, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

Appellant,' Frank H. Meyer, filed a petition in the Circuit Court for a peremptory writ of mandamus to compel the appellee, the city of Decatur, to grant him a license to sell intoxicating liquors at retail. To the petition appellee filed an answer to which a demurrer was overruled. Appellant elected to abide by his demurrer to said answer,' whereupon the court entered judgment dismissing the petition and awarding the costs against appellant.

The appeal involves the question as to the legal sufficiency of the answer to the petition." The ordinance of the city of Decatur under which application was made by appellant .for such license, in substance, provides that such a license cannot be granted for a term less than three months or exceeding one year; that all licenses granted shall begin "and expire on either the 9th day of August, November, February or May; that the city council reserved the exclusive right to be the sole judge to whom license should issue and to limit the number of licenses to be issued; that before a license should issue to any person, the applicant should give a bond in accordance with section 5 of the Dram-shop Act; that no license should be granted for the location of any dram-shop in that part of any block on which any religious, educational, reformatory or eleemosynary institute might then or should thereafter exist or within the limits of certain territory within said city, the boundaries of which are specified in said ordinances.

. The petition after alleging that the relator is a resident of the city of- Decatur, a municipal corporation duly organized under the general law, sets out in full all the ordinances of said city relating to dram-shops. It then alleges that the place where the petitioner sought to sell intoxicating liquors was not within the district or localities prohibited by the ordinance; that state and city bonds were filed by him on April 16, 1906, which were duly approved by the city clerk who accepted and still retained the sum of $125 as petitioner’s license fee for the three months from May 9th to August 9, 1906; that an application by the petitioner for a license to sell intoxicating liquors in the city of Decatur and of which due notice was given by publication, was presented to the city council on April 16, 1906, and by it refused; that at various meetings of said city council held between April 16 and May 7, 1906, three persons were granted licenses for dram-shops upon the same side of the street and in the same block where petitioner so applied for a license, and that there were three saloons in said block upon said street operating under licenses granted by said city council at or about the time the application of the petitioner was refused.

It is further alleged that the petitioner was qualified and competent to conduct a dram-shop under the ordinances of the city; that no reason was assigned by said city council for refusing petitioner’s application for a liquor license.

The answer denies that the license was refused without any good reason or sufficient cause or that the refusal was prompted by caprice or favoritism and alleges that the premises wherein petitioner desired to conduct said dram-shop were located and faced on Merchant street in said city; that said street was extremely short and narrow, being in length. about 240 feet, and was one of the principal business streets of the city; that for several years prior to and at the time of the application of the petitioner for a license there were three dram-shops located on one side of the street and that the building in which petitioner asked license to conduct a dram-shop was located on the same side of the street as those occupied by the other three dram-shops; that the refusal of the defendant to grant a license to the petitioner to conduct the dram-shop in his said application mentioned was because in its opinion property along said street would be injured thereby and that the granting of a license for an additional saloon on said street would be highly detrimental to the business interests of the merchants engaged in business on said street.

It is first urged that the provision of the ordinance reserving to the city council the right to be the sole judge as to whom license should issue and to limit the number of licenses to be issued, lodged in the city council an arbitrary and unlimited discretion and that the same is therefore void.

In Meyer v. City of Decatur, 125 Ill. App. 556, which was a similar proceeding to that at bar, between the same parties and involving substantially the same questions, we held that the city of Decatur had power to enact an ordinance limiting the number of dram-shops to be licensed, prescribing certain prohibited districts and determining the terms and conditions upon which such licenses should be granted, but that the power could only be exercised through general ordinances operating uniformly upon all persons of the class to which the ordinance refers and that the city could not by ordinance reserve to itself an arbitrary discretion to license one person and refuse to license another having like qualifications, through mere caprice or favoritism, but that such an ordinance must prescribe certain fixed rules and regulations whereby its impartial enforcement can be secured. These views, to which we adhere, are amply supported by the authorities cited in our former opinion. We further held that the provisions of the ordinance reserving to the city council the exclusive right to be the sole judge to whom license should issue was the reservation of an arbitrary discretion subject to be exercised through considerations of caprice and favoritism and were therefore discriminating and illegal; and that the further provision reserving the right to limit the number of licenses to be issued was merely declaratory of a right vested in the city council by the legislature but that such a right could only be exercised through an ordinance fixing the number of licenses to be issued or providing some uniform method by which the number should be determined. Since such former opinion was filed it has been held in Harrison v. People, 222 Ill. 150, that notwithstanding an ordinance may provide that upon compliance by the applicant with the terms and conditions therein specified, the licensing officer or body shall grant the license, and an applicant has in all respects complied with such terms and conditions, such officer or body may, in the exercise of a reasonable discretion, refuse to grant the license and that the issuance thereof will not be coerced in cases where such discretion has been fairly and reasonably exercised. We therefore conclude that neither of the provisions in question reserve greater powers than .the council would have otherwise possessed. The power conferred by use of the words “the exclusive right to be the sole judge to whom license shall issue” may be properly held to be subject to the qualification that the same is to be fairly and reasonably exercised. For this reason we are not prepared to hold that the ordinance is invalid for the reason urged.

The ordinances considered in Cicero Lumber Co. v. Cicero, 176 Ill. 27, Noel v. People, 187 Ill. 591, and Monmouth v. Popel, 183 Ill. 634, did not pertain to the regulation of the liquor traffic and hence are inapplicable. .

It is also contended that even if a reasonable discretion in the matter existed in the city council, its action in rejecting appellant’s petition was arbitrary, unreasonable and discriminatory. . Such position seems to be well founded. .Where an ordinance authorizes, the issuing of a license to keep a dram-shop upon certain terms and conditions, the licensing authorities cannot arbitrarily refuse to grant the license nor discriminate between persons, places and regulations pertaining to the business without reasonable grounds therefor. Harrison v. People, supra; Meyer v. People, supra. While the city council of the city of Decatur had power, in the exercise of the reasonable discretion with which, it was vested, to limit the number of licenses which should be granted on the street, and within the block in question, such limitation should have been definitely established by prescribing by legal enactment the number of such licenses to be issued, and for the guidance of applicants providing a method by .which, in the event that applications were presented in excess of the number, it would be determined which of them should be granted. As has been said, a licensing officer or body has' no right to arbitrarily select among several the person or persons to be thus favored, and through favor, caprice or prejudice discriminate between citizens equally qualified and entitled to the privileges sought. “Unlimited power to be exercised according to the will and caprice of officials is inconsistent with our system of government.” Moore v. Mayor, etc., 232 Ill. 307.

It- is alleged in the petition and admitted by the answer that applications for licenses upon - the street and in the-block,in question were presented to the city council at or about the same time by four different persons each of whom, so far as the pleadings disclose, had complied with the requirements of, the statute and ordinance; that three of such applications were granted and that of appellant refused. It was not sufficient to deny in general terms that the application of appellant was refused without reasonable cause. Facts should have been alleged in the answer from which such conclusion could be legally and properly drawn. While those averred might constitute-reasonable grounds' for limiting by proper ena'ctment the number of licenses to be granted in the particular street and block they do not justify the apparent arbitrary discrimination between the several applicants. For aught that appears in the answer the discrimination against appellant was purely arbitrary. In the exercise of its power of judicial revision of the discretionary powers of appellee the Circuit Court should have sustained the demurrer to the answer.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Frank Cook, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company et al., Appellants.

      Evidence—what incompetent upon damages' in action for death caused by alleged wrongful act. In an action for death caused by alleged wrongful act, it is incompetent to permit a widow, a child of the plaintiff's intestate, to testify as to the number, ages and sex of her children and that such intestate had supported them for a number of years during which time they had attended school; and the error in the admission of such evidence cannot be cured by remittitur.

    Action in case. Appeal from the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding.
    Heard in this court at the May term, 1907.
    Reversed and remanded.
    Opinion filed April 21, 1908.
    George B. Gillespie, for appellants; L. J. Hackney, Hamlin & Gillespie and R. L. McKinley, of counsel.

      F. W. Dundas and F. T. O’Hair, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

In an action in case, by Frank Cook, administrator of the estate of William Gillum, deceased, against the C., C., C. & St. L. Ry. Co. and the C., V. & C. Ry. Co., the jury returned a verdict in favor of the plaintiff and against both defendants for $1,221. A remittitur of $421 was entered and judgment rendered upon the verdict for $800.

The declaration charges that it was the duty of the defendants not to place obstructions upon the crossings of public highways or in any way to render such-crossings unfit or dangerous for public travel thereon; that disregarding said duty the defendants negligently strung certain semaphore wires at right angles across the sidewalk of a public street in the city -of Paris, at the height of twelve inches above the ground, thereby forming a dangerous obstruction to said sidewalk, and that while the deceased was walking upon and along the same, and in the exercise of due care, he struck against said wires and was thereby caused to fall with great force to the ground, receiving injuries from which he afterwards died. The usual motions for directed verdicts were made at the close of plaintiff’s case and again at the close of all the evidence. It is urged that the trial court erred in denying the same. The evidence adduced by the plaintiff tended to establish the following facts: Cherry street, which lies near the western boundary of the city of Paris, Illinois, is and has been for a number of years a public street of said city. It begins about tyro blocks north of the “Big Four” railroad .tracks and runs due north. The land upon either side of that part of the street which lies north of the tracks is unenclosed and forms a part of the railroad yards. The street is well-defined and many vehicles pass over it. South of the tracks, the street has been graded by the city, is fenced upon either side and the adjoining land is subdivided into lots upon which there are buildings. Upon the east side of this portion of the street was a gravel and cinder sidewalk which extends to the point where the accident occurred. A few feet south of the tracks, semaphore wires had been strung, running east and west and parallel with the tracks. In the center of the street such wires were placed underground, but where they were exposed, were from twelve to fourteen inches above its surface and were then run through the board fence which formed the eastern boundary of the street. Several persons had heretofore fallen over the wires during the time they were in the same position as when the present accident happened. About dusk on the evening of March 7, 1905, the deceased, who was about 71 years of age, accompanied by his daughter-in-law, was walking north along the sidewalk on the east side of the street. When he reached the wires in question, while attempting to step over them his foot caught between two of them and he was thrown backward to the ground. As the result of his fall, he suffered a fracture of one of his hips. He was thereafter confined to his bed for about four weeks, when death ensued from heart failure caused by exhaustion and confinement. There was some conflict in the evidence upon the question of contributory negligence and the approximate cause of death. As the judgment must be reversed for errors hereinafter indicated, we shall not discuss nor determine the weight of the evidence further than to hold that the trial court did not err in refusing to direct a verdict for the defendants.

The deceased was a widower with nine children. One of them was Mrs. Waters, a widow having two children, aged fourteen and sixteen years respectively. On the trial, the court, over objection, permitted her to testify as to the number, ages and sex of her children and that the deceased had supported them for fourteen years, and that during such time the children had attended school. This evidence was wholly incompetent. It tended to arouse the sympathies of the jury and warp their judgment. Steel Co. v. Ostrowski, 194 Ill. 387; Jones & Adams Co. v. George, 227 Ill. 64. We are unable to say that it did not thus affect the jury and result in an enhancement of the damages,. or unconsciously influence the jury in the decision, in appellee’s favor of other material controverted questions. The error was not one which could be cured by remittitur and the judgment must therefore be reversed and the cause remanded. Jones & Adams Co. v. George, supra.

Reversed and remanded.


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    The People, ex rel. Charles F. Easterday, Plaintiff in Error, v. James S. McCullough, Defendant in Error.
    1. Statutory law—when repeal By implication effected. When a statute' completely revises the suhject-matter of an existing statute and provides a new and different system for the control and government of such suhject-matter, the latter act repeals the former by implication, and the provisions of the new act must prevail as a substitute for the provision of the former one, and this is so even though there is no inconsistency or repugnancy between the provisions of the two acts.
    2. Schools-—what allowances to county superintendent not authorized By act of 1905. Allowance for the expenses of a county superintendent of schools incurred in visitations provided for by the act of 1889 is repealed by the act of 1905.
    3. Pees and salaries—when compensation inclusive of expenses. Where compensation for the services of a public official is provided and no provision is made for his expenses incurred in rendering such services, such expenses as are incidental to the services are to be regarded as a part thereof and as covered by'the compensation specified.
    Mandamus. Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Brown & Burnside, plaintiff in error.

      W. H. Stead, Joel C. Fitch and Charles E. Woodward, for defendant in error.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a petition filed on the relation of C. F. Easterday praying that the writ of mandamus issue against the auditor of public accounts directing him to issue a warrant to the relator in payment of $41 as expenses incurred in visiting schools while acting as county superintendent of schools of Fayette county. The petition alleges that the relator was duly elected to the office of county superintendent of schools of said county; that during the quarter year ending March 3, 1907, he had visited schools 41 days in his official capacity; that he had made the required report to the county board of Fayette county and that his bill of $41 was duly audited and allowed and was duly certified by the county clerk to the state auditor; that at the time the said bill was so certified to said auditor there was in the state treasury sufficient amount of the state school fund apportioned to Fay-' ette county to pay said bill and that the auditor refused to execute his warrant for the payment of said bill. A general demurrer was interposed by the defendant to the petition, which was sustained by the court. The relator elected to stand by the petition, whereupon the court entered judgment dismissing the same and the petitioner sued out this writ of error.

The questions presented by the assignments of error involve the construction of the various statutes relating to the payment of compensation and expenses to the county superintendent of schools in this state.

•In 1872, section 27 of the Fees and Salaries Act was adopted, providing that “The fees of county superintendents of schools shall be as follows: Three per cent, commissions upon the amount of sales of school lands, or of sales of land upon mortgage, or sales of real estate taken'for debt, including all services connected therewith. Two per cent, commission upon all sums distributed, paid or loaned out by them for the support of schools. For all other duties required by law to be performed by them for such number of days as may be designated by the county board, in counties of first and second class, the sum of $4 per day; in counties of the third class, the county superintendent of schools shall be paid $8 per day, provided, that the entire compensation received by him shall not exceed the sum of $3,000 per annum.”

In 1889, section II of article 2 of the School Act was adopted, providing’ that “County superintendents shall receive in full, for all services rendered by them, commissions as follows: Three per cent, commissions upon the amount of sales of school lands,'or of sales of land upon mortgage, or sales of real estate taken for debt, including all services connected therewith. Two per cent, commission upon all sums distributed, paid or loaned out by them for the support of schools. For all other duties required by law to be performed by them, four dollars ($4) a day for such number of days as shall be spent in the actual performance of their duties, not exceeding the number fixed by the county boards in counties in which the boards are given power to fix the number of days by section 9 of this Article of this Act, and one dollar a day for expenses for the number of days actually spent in school visitation.”

In 1905 an act was passed amending section 27 of the Fees and Salaries Act so as to read as follows: “County superintendents elected hereafter shall receive in full for all services rendered by them, in counties of the first class, twelve hundred and fifty dollars per annum; in counties of the second class sixteen hundred and fifty dollars per annum; in counties of the third class, seventy-five hundred dollars per annum; payable quarterly from the State school fund; provided, however, that the board of supervisors or board of county commissioners may allow additional compensation for such services, payable quarterly from the county treasury. The auditor, in making his warrant to any county for the amount due it from the state school fund, shall deduct from it the several amounts for which warrants have been issued to the county superintendent' of said county, since the next preceding apportionment of the state school fund.”

Plaintiff in error contends that the last clause of the section in the act of 1889, “and one dollar a day for expenses for the number of days actually spent in school visitation” was not repealed by implication by the act of 1905, while defendant in error insists that the act of 1905 takes the place of all former legislation on the subject.

It is well established that when a statute completely revises the subject-matter of an existing statute and provides a new and different system for the control and government of such subject-matter, the latter act repeals the former by implication, apd the provisions of the new act must prevail as a substitute for the provision of the former one, and this is so even though there is no inconsistency or repugnancy between the provisions of the two acts. I. & M. Canal v. City, 14 Ill. 334; People v. Town of Thornton, 186 Ill. 162; State Board v. Ross, 191 Ill. 91.

We are of the opinion that the act of 1905 quoted was intended by the legislature to be a complete revision of the subject of compensation of county superintendents of schools, and that it is obviously intended thereby to fix such gross sums to be paid in the several classes of counties, as will not only compensate such officials for services performed but to cover as well the expenses necessarily incident to such services. That such intention existed is evidenced by the use of the words “in full for all services rendered by them” and the fact that the language of the former acts is retained in the act of 1905 except in so far as the provision for a per diem, expenses of visitation and the auditing of claims therefor by the county board, all of which are discarded, and the provisions for fixed salaries substituted. If the. legislature intended that the allowance for the expenses incurred-in visiting schools should remain in force, it would have unquestionably so provided at the time when the subject of a new and complete scheme of compensation was doubtless under consideration. We recognize the etymological distinction between the. words “compensation” and “expenses” urged by counsel. It is the law, however,- that where the compensation for the-services of a public official is provided and no' provision is made for his expenses incurred in rendering -such services, such expenses as are incidental to the services are to be regarded as a part thereof and as covered by the compensation specified; Yost Co. v. Scott, 25 Minn. 366.

The action of the Circuit Court in sustaining, the ■ demurrer to the petition- was therefore ■ proper and the judgment is affirmed. • ’ - •

Affirmed.'.


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    A. L. Viney et al., Appellees, v. W. D. Bird et al., Appellants.

      Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence, unless clearly and manifesly so. , .
    Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the November term, 1907.
    Affirmed.
    Opinion filed April 21, 1908.
    Welty, Sterling & Whitmore, for appellants.
    Frank B. McKennan and Hart & Fleming, for appellees.
   Mr. Justice Puterbaugh

delivered the opinion' of the court.-

This is an action in assumpsit by the firm of Viney' & Welch against the firm of Bird & Smith for the recovery of commissions claimed to be due the plaintiffs for services as brokers in effecting the sale of certain real estate in South Dakota. Upon the verdict of a jury, judgment was rendered by the trial court in favor of the plaintiffs for $240, to reverse which the defendants appeal.

Appellees were real estate agents of Bloomington. Appellants were engaged in the same business at Sioux City, Iowa, and were handling South Dakota land upon commissions.

It is' not controverted that a contract existed between the parties whereby appellants agreed with appellees to pay them commissions, based upon acreage, upon all- sales of land to customers introduced to appellants by appellees. As' to the terms of the contract in other respects the evidence is conflicting. Appellees claimed and the evidence introduced in their behalf tends to show that they were to receive one dollar per acre for all lands sold to customers introduced by them, and that if such customers afterward made other purchases of land of appellants, appellees were to receive commissions thereon at the same rate without regard to whether or not they assisted in bringing about such subsequent sales.

The evidence adduced by appellants tends to show that the commission agreed to be paid appellees was to be one-half of the commission which appellants themselves were to receive upon sales, to be paid only when appellants had collected the same. The jury evidently concluded from the evidence that the terms of the contract were as claimed by appellees. If they gave credence to the testimony adduced by appellees, it cannot be said that such finding was clearly unwarranted, and we are therefore not at liberty to disturb the same. The evidence discloses that four quarters were sold to Bust and Beam, and that upon the first one sold, which belonged to Buffer, and Shaw, appellees had been paid commissions. The controversy seems to have been as to what amount of commissions, if any, they were entitled upon the remaining three quarters. Inasmuch as it is not denied that the sale of the Buller and Shaw quarter was brought about through the introduction of the purchasers by appellees, it follows that under their theory of the contract, they were entitled to commissions upon the two quarters subsequently sold to the same parties although they may not have been the direct and efficient cause of the sale, and regardless whether the commissions due appellants from their principal had been received by them. The jury were therefore warranted in returning a verdict for $240 which was less than the sum claimed by appellees.

It is urged that the court erred in admitting in evidence certain letters which passed between the parties.. We think the letters were competent, notwithstanding they may have had but slight probative effect. We find no prejudicial error in the rulings of the court upon the instructions.

The judgment will be affirmed.

Affirmed.