text:
    Myrtle Rost, Appellee, v. Kee & Chapell Dairy Company, Appellant.
    Gen. No. 24,631.
    1. Food—when declaration for permitting bottle of milk to contain broken glass is not one in case for breach of warranty. A declaration in an action against a milk company alleging negligence in permitting a bottle of milk to contain broken pieces of glass, and in delivering such bottle to plaintiff without warning her of the danger in consuming it, is not a declaration in case for a breach of warranty, there being no allegations of the warranty or its breach, and mere allegations of a contractual relation between the parties do not of themselves make out a case for breach of warranty.
    2. Food—necessity of proving negligence alleged in action for injuries from drinking milk containing glass. Where an action for injuries suffered in drinking milk containing glass was tried on the theory of negligence, the plaintiff was obliged to prove the negligence alleged.
    3. Food—what instruction proper in action for negligence in selling milk containing glass. In an action for negligence in selling milk containing glass, the giving of an instruction that the defendant was not an insurer against fragments of glass being in bottles sold and delivered, but was required to exercise due care in handling, inspection and delivery of the milk and in filling bottles, was proper.
    4. Negligence, § 185

      —evidence to prove and degree of proof required. Negligence need not be proved by absolute, ocular proof, and it need not be established beyond a reasonable doubt, and circumstantial evidence, by which the mind is compelled to make certain deductions, may be sufficient.
    5. Negligence, § 142

      —what doctrine of res ipsa loquitur connotes. The doctrine of res ipsa loquitur, acutely analyzed, merely connotes a principle of evidence and generally means the inferences drawn from knowledge obtained through the senses, chiefly that of sight.
    6. Food—when evidence establishes negligence in selling bottle of milk» containing broken glass. In an action for negligence in selling a hottle of milk containing broken glass, where the evidence showá the manner in which defendant conducted its business, that the bottle was under the control of defendant until delivery to the plaintiff, and that such plaintiff was injured by drinking the milk contained therein, such evidence sufficiently establishes negligence of the defendant somewhere between the cleaning of the hottle and its final delivery, it not being important just where the negligence occurred.
    7. Food—what evidence irrelevant in action for negligence in selling bottle of milk containing broken glass. In an action for negligence in selling a bottle of milk containing broken glass, evidence as to the condition of the defendant’s machinery and its inspection was irrelevant, as the use of machinery while tending to increase output, and the saving of hand labor, does not reduce the obligations of due care nor condone negligence.
    8. Food—what evidence too remote in action for negligence in selling bottle of milk containing broken glass. In an action for negligence in selling a • bottle of milk containing broken glass, testimony of a driver as to regulations requiring delivery of milk after 8:00 a. m. was too remote and was properly rejected, as such witness had no knowledge of the delivery of the milk causing the injury.
    9. Food—when refusal of instruction in action for negligence in selling bottle of milk containing broken glass not erroneous. In an action for negligence in selling a bottle of milk containing broken glass, the refusal of an instruction that the defendant did not warrant the milk delivered was not error, being inapplicable, and in any event the refusal of the instruction was not erroneous "as it was superfluous in view of another instruction given.
    10. Food—when instruction in action for negligence in selling bottle of milk containing broken glass properly refused. In an action for negligence in selling a hottle of milk containing broken glass, an instruction that the defendant was not liable unless it had knowledge of the glass was properly refused, as it undertook to relieve the defendant of its full duty.
    11. Food—when instruction in action for negligence in selling bottle of millc containing broken glass properly refused. In an action for negligence in selling and delivering a bottle of milk containing broken glass, an instruction as to control and management was properly refused, as such control and management were not involved, and by the voluntary delivery of the instrument causing the injury so that its contents might be consumed, the relationship between the parties, out of which the liability grew, was established.
    Thomson, P. J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Robhbt E. Cbowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 11, 1920.
    Castle, Williams, Long & Castle, for appellant.
    Cuthbert D. Potts and James L. Bynum, for appellee ; James L. Bynum, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

By this appeal, the defendant, Kee & Chapell Dairy Company, seeks to reverse a judgment for $3,500 which the plaintiff, Myrtle Bost, recovered, based upon a verdict of a jury finding the issues in her favor.

The declaration consists of one count: It is alleged therein that the defendant was engaged in the dairy or milk business and, in connection therewith, used a large number of glass bottles, and certain machinery and appliances for cleansing the bottles; that after the bottles were cleansed, they were filled with milk and cream for distribution among the defendant’s customers, among whom was the plaintiff; that the defendant, for a certain consideration paid by the plaintiff, delivered milk and cream in said glass bottles for her use and consumption; “that it then and there became and was the duty of the said defendant to use due and proper care and caution in the washing, cleansing and in the preparation of the said glass b'ottles for the reception and distribution of said milk, cream and other dairy products and in such a manner as not to break, or causé to be broken, or suffer, or permit, or allow, certain parts of the glass bottles or any small particles of glass or any other sharp and broken material to come, be and remain in said bottle or bottles and to place the milk, cream and other dairy'products in said glass bottles while the said glass bottles contained broken fragments and pieces of glass or any other dangerous materials.

“Yet the defendant, well knowing * * *, did then and there carelessly, negligently and improperly break or caused or permitted to be broken,- certain parts or particles of said glass bottles. And did then and there carelessly, negligently and wrongfully place or cause to be placed, suffered, permitted and allowed various small pieces of glass to be and remain in said bottles and carelessly, negligently and improperly fail to inspect the said glass bottles and the condition of the same so as to ascertain the dangers connected with the broken glass in said bottles. And while the said glass bottles containing the said small and broken pieces of glass and broken fragments of other materials as aforesaid, carelessly, negligently and improperly filled the said bottles with milk * * * and did then and there carelessly, negligently and improperly deliver * * * said bottles, so filled, to the plaintiff for her consumption * * *. And did then and there carelessly, negligently, wrongfully and recklessly fail to warn and notify and point out to the plaintiff the danger of using said milk, * * * so placed, .contained, taken and consumed from said bottles. And by means and in consequence of the said several acts of negligence as aforesaid, * * * while the plaintiff, in the exercise of ordinary care for her own safety, was consuming said milk,' * ,. * (she) did then and there take into her month, throat, stomach and intestines, with the said milk, - * * certain sharp, jagged pieces of broken glass * * * taken from said bottles as aforesaid; and thereby * * the injuries set forth were suffered by the plaintiff to her damage, etc.

We are unable to agree with the contention of the-plaintiff that this is a declaration in case for a breach of warranty. It is quite true that an action may be brought in case for a breach of warranty. Greenwood v. John R. Thompson Co., 213 Ill. App. 371, and cases there cited. But such an action should contain appropriate allegations in the declaration, as was done in the declaration filed in the ease cited, which alleged that the defendant was a restaurant keeper and that the deceased purchased certain food from it for immediate consumption. “Whereby the said defendant warranted that the food so sold * * * was good and wholesome food and safe to be eaten, but the said defendant * * * then and there so carelessly, improperly and wrongfully * * * sold the said food * * * when it was not then and there good and wholesome food, but * * * was, in fact, unwholesome, poisonous, dangerous and unfit to be eaten, * * * that by reason thereof, the said deceased, * * * relying on said warranty of the defendant that the said food was then and there good, pure and wholesome food and fit to be eaten, did then and there eat and partake of the said food * * by reason whereof he was poisoned and died.

We find no such allegation in the declaration filed by the plaintiff in the case at bar nor any of similar import. The fact that the declaration alleges the contractual relation existing between the parties, cannot of itself make the case one for an alleged breach of warranty. The plaintiff might recover on the theory of an alleged breach of an implied warranty by the defendant, even if her declaration did' not expressly allege such a breach, provided she pleaded facts from which the law would imply a warranty and further facts which would constitute a breach of that warranty, even though she also alleged negligence on the part of the defendant. Flessher v. Carstens Packing Co., 93 Wash. 48, 13 N. C. C. A. 173. But in order to recover under such a declaration she must have tried her case on the theory of implied warranty and that must be the issue which the jury passed upon. That was the situation in the case cited. In the case at bar, however, the plaintiff alleged, as the basis for her cause of action, the defendant’s wrongful, careless and negligent conduct in causing or permitting the bottle in question to be broken and to contain pieces of broken glass, in failing to inspect the bottles and in filling said bottle with milk while it contained broken glass and in then delivering it to the plaintiff for her consumption without warning her of the danger of consuming it. And the plaintiff not only made these specific charges of negligence in her declaration, but followed that up in the trial of the case by presenting no issue for their determination other than that of the defendant’s alleged negligence.

At the plaintiff’s request the jury were instructed on that theory, and no instructions were submitted by her, based on the theory of breach of warranty. Furthermore, at the request of the defendant and without any objection or exception being noted by the plaintiff, the court instructed the jury “that the defendant is not an insurer against fragments of glass being in the bottles of milk sold and delivered by it, but, on the contrary, the defendant’s duty to its customers, including the plaintiff, is to exercise due and proper care in the handling, inspection and delivery of the milk and in the cleaning of the bottles before filling * * * and if you find from a preponderance of the evidence that the defendant exercised due and proper care in these respects, then it is not liable for the injury to the plaintiff sued for * * On the issue before the jury under the allegations of the plaintiff’s declaration and the defendant’s plea of the general issue, and the theory on which plaintiff had tried her case, that instruction was correct. Having brought her action and tried her case against the defendant on the theory of its alleged negligence, the plaintiff was obliged to prove the negligence alleged and may be allowed to recover on that theory, if at all. In Sheffer v. Willoughby, 163 Ill. 518, our Supreme Court so decided and by the reference made to that case by the same court in Wiedeman v. Keller, 171 Ill. 93, at page 99, it is apparent that the court did not wish to be understood as passing upon any question in the former case beyond the question of whether the charge of negligence brought by the plaintiff in that case was made out by the proof. Crocker v. Baltimore Dairy Lunch Co., 214 Mass. 177, is to the same effect.

The crucial question, then, that remains, is whether the plaintiff sufficiently proved that the defendant was negligent. There is no testimony that any one saw the bits of broken glass put in the bottle. The evidence simply shows the way the defendant conducted its business, and that up to the time the bottle was delivered to the plaintiff it was under its sole control, save while it was in the sealed car, and that when the plaintiff undertook to drink the milk, there was present in the bottle bits of broken glass, which caused the injury. What does that evidence prove? Does it give rise in the mind, reasonably considered, to a satisfactory conclusion? The machinery used in the cleaning, filling and sealing of the bottle and turning out the cases ready for shipment may have been very wonderful and labor saving, but, of course, that is not enough, if the defendant failed in his duty by delivering to the plaintiff a bottle containing broken glass whereby she was injured. The verdiet of the jury means that they believed that the evidence showed the defendant was careless; that they believed that the evidence of the presence of broken glass in the bottle, under the circumstances, was sufficient to justify the conclusion that the defendant was guilty of negligence. Bearing their verdict and the evidence in mind, we may ask, how may it be said, within the bounds of reáson, that any one was to blame but the defendant? It seems like playing with fanciful conjectures, to say that it might be attributed to some other agency and that the plaintiff has not reasonably made out a case. Absolute,, positive, ocular proof, the law, wisely, does not require. Nor does negligence have to be proven beyond a reasonable doubt. Circumstantial evidence, such as exists here, and by which the mind is impelled to make certain deductions, is sufficient. Of course, we may be wrong, but as long as by the evidence we are persuaded that we are right, that must suffice. That' the law requires, and only that. Res ipsa loquitur is ancient law. Acutely analyzed, it merely connotes a principle of evidence. It generally means the inferences we draw from knowledge we obtain through our senses, chiefly that of sight; in other words, common sense applied to physical things. The law is that not only what is spoken by the scene itself, the res gestee, may be considered in conjunction with other evidence, but may, by itself make out a case. The books are full of cases illustrating its nature and application. Chicago City Ry. Co. v. Barker, 209 Ill. 321; Wigmore on Evidence, vol. 4, sec. 2509, notes 1 and 2; 29 Cyc. 592; Scott v. London Docks Co., 3 H. & C. 596; Drake Standard Mach. Works v. Brossman, 135 Ill. App. 209. In most of the cases it will be observed the machine or apparatus, place or thing, that was the cause of the injury at the time, was under the exclusive control and management of the defendant. In the instant case, however, as the evidence shows that the cause of the injury was the. voluntary delivery by the defendant to the plaintiff of the instrument itself, and with the intention that its contents should be consumed, physical control and management at the time of the injury, that is, at the time the milk was being drunk, and with it the broken bits of glass taken in, was unimportant and immaterial. Further, the defendant did not receive the bottled milk as a finished product, already manufactured and ready for consumption. He, alone, was responsible for all that was done from the time the raw milk was delivered to him. No one else had the bottles. They were originally his and he alone filled them, and so could not blame any one for acts anterior to his own. . "We arc of the opinion, therefore, that the evidence sufficiently shows that somewhere, and it is not important just where, between the cleaning and the final delivery of the bottle to the plaintiff, the defendant was guilty of negligence.

That most of the work done was accomplished by machinery, under inspection, and not by hand, malees no difference. The use of machinery may lend to increased output, and save hand labor, but it does not reduce the obligation of care nor' condone negligence.

It is contended that the court erred in rejecting proof by one Sumner that he knew of the Milk Drivers’ Union regulations, that under those regulations milk was to be delivered after 8:00 a. m. on the day in question, etc. All such testimony was too remote and properly rejected. He had no actual knowledge of the delivery of the milk. As to the evidence offered concerning the condition and inspection of the machinery, as we have already said, that is irrelevant.

It is contended that the trial judge gave an erroneous instruction for the plaintiff and erroneously refused certain instructions offered by the defendant.

Thirteen instructions were given for the plaintiff and ten for the defendant. The jury were quite elaborately instructed; and from a perusal of the instructions it is quite obvious they, on the whole, emphasized the law favorable to the defendant. Instruction No. 11 for the plaintiff, in view of defendant’s instructions Nos. 9 and 11, was not erroneous. Although No. 11 may seem to assume that no proper inspection was made, yet Nos. 5 and 9 are so positive on that subject, there could be little .if any danger of the jury being misled. Counsel for the defendant complain of refused instructions Nos. 1, 2 and 3, but do not point out the error of refusal.

Considering defendant’s given instruction No. 9, it is obvious the refused instruction No. 1 was superfluous. Further, the first part of the instruction that the defendant did not warrant, etc., was inapt. Refused instruction No. 2, that defendant was not liable without knowledge that the broken glass was in the bottle, was unsound as it undertook to relieve the defendant of his full duty. Whether he knew or not is unimportant. _

Refused instruction No. 3 pertains to control and management. The instruction misconceived the law. Control and management are not involved in the case. As we have already intimated, the instrument causing the injury was voluntarily delivered by the defendant to the plaintiff that its contents might be consumed. That established the relationship out of which the liability grew.

Finding no error in the record the judgment is affirmed.

Affirmed.

Mr. Presiding Justice Thomson

dissenting: In my opinion, the doctrine of res ipsa loquitur, invoked by the plaintiff in the case at bar, does not apply to the situation disclosed by the evidence. That doctrine will not be applied where the instrumentality causing the injury is not in the exclusive possession of the party charged and under his control at the time of the injury. 29 Cye. 592; Wigmore on Evidence, vol. 4, sec. 2509, p. 3556; Hart v. Washington Park Club, 157 Ill. 9; Bjornson v. Saccone, 88 Ill. App. 6. This was not the situation in the case at bar. The plaintiff testified that the defendant’s driver left the bottle of milk in question on her back porch between 4 and 4:30 o’clock in the morning; that she brought it in and placed it on the kitchen table and left it there while she dressed,, after which she prepared, the breakfast; that she and her husband had breakfast in the kitchen; that they had breakfast food; that she poured the top of the bottle off into a pitcher for their coffee and then used some of the balance for the breakfast food; that “three or four inches” was left in the bottle; that after breakfast she read the morning paper and then cleared up the table, putting the dishes in the sink; that she took her coffee cup, rinsed it out but did not wipe it, poured some of the milk out of the bottle into the cup and drank it; that she felt something sharp in her throat and then picked up the bottle which still contained “one inch of milk,” and held it up so she could look through the bottom and there she saw several bits of broken glass; that she had taken three or four swallows of milk from the coffee cup; that she took a drink of milk from the cup, set it down, cleared off some of the dishes, took another swallow, cleared off some more dishes, then took another swallow of milk and so on; that it was between 7:30 and 7:45 o’clock when she drank the milk containing the glass. The bottle was not chipped nor broken and showed no evidence of having been damaged. It is apparent that, for the reason heretofore given, the doctrine of res ipsa loquitur cannot apply to such a state of facts, especially where the thing which caused the injury consisted, not of anything which had been incorporated into or became a part of the milk itself, but of foreign particles which in some way had come to he in the milk. This bottle of milk not only was not in the exclusive possession of the defendant when the injury complained of was received by the plaintiff but, on the contrary, it was in the exclusive possession of the plaintiff and had been, according to her testimony, for over three hours before the injury was received, during most or all of which time the bottle had been open on the Idtehen table, breakfast had been prepared, the table set and the breakfast eaten and the dishes gathered and removed. Under such circumstances it cannot be said that'this “is an unexplained accident which, according to the common experience of mankind, would not have happened, without fault on the part of the defendant,” in which case, the doctrine of res ipsa loquitur might be invoked. Ash v. Child’s Dining Hall Co., 231 Mass. 86; St. Louis v. Bay State St. Ry. Co., 216 Mass. 255.

This being an action involving solely the alleged, negligence of the defendant, and not being one based on such facts as permit the application of the doctrine of res ipsa loquitur, in .order to sustain the judgment recovered by the plaintiff, the negligence, or some one of the acts of negligence, alleged by her in her declaration must be established by the evidence in the record. In my opinion such is not the case. ■ The plaintiff introduced no evidence whatever showing or tending to show negligence of the defendant as charged by her in her declaration and all the evidence on this subject, introduced by the defendant, tended strongly to show an absence of negligence on its part. The substance •of the plaintiff’s testimony has been referred to. All the other evidence introduced in her behalf was in corroboration of her testimony or had to do with the effect she suffered from swallowing the glass. Even if the jury did not believe the defendant’s testimony as to the care it exercised in cleansing, filling and handling its bottles and straining and purifying the milk it delivered to its customers, that could not take the place of evidence of negligence. Ash v. Child’s Dining Hall Co., 231 Mass. 86. I have been able to find nothing whatever in the record fr’om which it can be inferred that the injury to the plaintiff resulted from any negligence on the part of the defendant, as charged by the plaintiff in her declaration. The carelessness of some person for whom the defendant was in no way responsible might have caused the presence of the glass in the milk at the time the plaintiff drank it. The plaintiff, having charged the negligence, has not introduced evidence beyond the mere fact of injury, which, of course, does not prove negligence.

I am further of the opinion that the trial court erred in rejecting the evidence of the witness Sumner. I am unable to see that the evidence was too remote and it seems to me to have been material on the question of the hour of the delivery of the milk by the defendant to the plaintiff. That matter was in sharp conflict and if the hour of the delivery, contended for by the defendant and testified to by its witness, was correct, the facts to which the plaintiff testified were impossible so far as' they involved a bottle of milk delivered to the plaintiff by the defendant on the morning in question, and, therefore, I feel that the rejection of the evidence would warrant a reversal of the judgment and a remanding of the cause.

For the reasons which I have already stated, I am of the opinion that the trial court further committed reversible error in refusing to give to the jury the instruction designated as refused instruction 3.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Rand McNally & Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 24,736.
    1. Municipal corporations, § 106

      —when purpose of ordinance cannot be shown by parol. Parol evidence is not admissible to show that a vacation ordinance was passed for private benefits where such parol evidence is dehors the provisions of such ordinance.
    2. Dedication, § 2*—who may make. As a general rule only the owner of the fee is able to make a valid dedication, but'where the owner of the fee objects to a dedication and has by ordinance provided that its lessee shall dedicate, and the lessee has done all in its power to accomplish the owner’s requirement, it is inequitable and unreasonable to claim a failure to perform.
    3. Estoppel, § 94*—when applies to municipal corporations. The doctrine of estoppel applies- to municipal corporations.
    4. Dedication, § 37*—when city estopped to object. Where an owner of leasehold interests was induced to make great and valuable improvements by relying upon the acquiescence and even the desire of a city, the owner of the fee, as to the dedication of a portion of its leasehold estate for alley purposes, the city would be estopped to urge that such owner could not dedicate the property.
    5. Pleading, § 431*—what not a variance. Where an owner of a leasehold interest sought the recovery of money paid to a city to become a fund for the payment of damages which might be claimed because of the vacation of an alley, and the proof showed that the' money was paid into an account for corporate purposes, there was no variance, as the plaintiff was not bound by the acts of the city with respect to the money.
    6. Limitation oe actions, § 24*—when cause of action matures. In an action to recover money paid to a city to become a fund for the payment of damages which might be claimed because of the vacation of an alley, the plaintiff’s right of action did not mature until 5 years after the money was paid over to the city.
    Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 11, 1920.
    Rehearing denied February 21, 1920.

      Samuel A. Ettelson, for appellant; Henry T. Chace, Jr., Frank S. Bigheimer and Chester E. Cleveland, of counsel.
    Morrill, Shannon & Triska, for appellee; Donald L. Morrill and Nahum Morrill, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

The plaintiff, Band McNally & Company, brought suit in assumpsit against the defendant, the City of Chicago, to recover $6,000 paid to the city under the terms of an ordinance which was passed for the purpose of vacating an alley.

The theory of the plaintiff is that the $6,000 was paid in to the City of Chicago to become a fund for the payment of damages which might be claimed because of the vacation of the alley, and that as 5 years had elapsed, the maximum time within which suit could be brought for such damages and no claim had been made, it was now entitled to have the money paid back. ■

It is the theory of the defendant (1) that the ordinance provided that the plaintiff should, within 90 days of its passage, “dedicate to the public and open up for public use as an alley, or cause to be dedicated and opened up for public use as an alley,” the north 20 feet of a certain lot 8, but that the plaintiff, being only the owner of a leasehold estate in lot 8, did not and could not make a valid dedication in compliance with the ordinance; and, further (2), that the $6,000 which was paid to the City of Chicago under section 2 of the ordinance was not an indemnity fund but money paid to the city as compensation for the land vacated; in other words, that the city and the plaintiff entered into an illegal contract, the terms of which were that the city would vacate a certain alley for the benefit of the plaintiff, and in consideration of the vacation the plaintiff paid to the City of Chicago the sum of $6,000.

The locus in quo as to the vacated part is the south 300 feet of a 10-foot alley extending from Harrison street north in block 113, School Section Addition to Chicago. Prior to the passage of the ordinance in question, the alley extended north and south through the center of the block from Harrison street to Van Burén street. The plaintiff became the owner of long term leases, most of them expiring on April 30, 2000, of practically the whole of the south 300 feet of the block; and substantially all of them being given by the Board of Education of the City of Chicago. In nearly all the leases it was provided that the plaintiff should within a fixed time erect upon the demised premises a modem fireproof building costing not less than a certain, agreed upon, figure. On March 27, 1911, the City Council passed an ordinance the material parts of which are as follows: Section I provides: ‘ That all that part of the north and south alley, ten (10) feet in width, * * * lying between the north line of Harrison street and the south line of the north twenty (20) feet of lot eight (8) * * * be vacated and closed, the same being no longer necessary for use as an alley and the public interest being subserved by the vacation thereof. ’ ’ Section II provides: The vacation herein provided for is made upon the express condition that Band McNally & Company, a corporation, shall within ninety (90) days after the passage of this ordinance dedicate to the public and open up for the public use as an alley, or cause to be dedicated and opened up for the public use as an alley, the north twenty (20) feet of lot eight '(8),” and “shall within ninety (90) days after the passage of this ordinance pay to the City of Chicago the sum of $6,000 toward a fund for the payment and satisfaction of any and all claims for damages which may arise from the vacation of said alley.” Section III provides that “this ordinance shall take effect and be in force from and after its passage, subject to the conditions of Section II hereof, provided said Rand McNally & Company shall within ninety (90) days after the passage of this ordinance file for record in the office of the Recorder of Deeds of Cook County, Illinois, a certified copy of this ordinance and a plat properly executed and acknowledged showing the vaoation and dedication herein provided for.”

It is admitted that on April 7, 1911, the plaintiff paid to the City of Chicago the sum of $6,000, and also that a plat of dedication of the north 20 feet of lot 8 was seasonably filed for record in the recorder’s office. It is further admitted that the city paid out no claims for damages arising by reason of the vacation of the alley. The form of the ordinance is not objected to and' it is not contended that it was not passed in strict accordance with the technical requirements of the statute. At the close of the plaintiff’s evidence, counsel for the city stated to the trial judge that they desired to prove that the plaintiff applied to the City of Chicago, in writing, to have the alley vacated in their interest; that subsequently they took up with the City of Chicago, through the subcommittee of the Council of Compensation and Bureau of Compensation, the question of the amount that they should pay in consideration of having the ordinance passed and the alley vacated in their interest; that it was thoroughly understood by Rand McNally and Company and the city officials that this alley was being vacated solely in the interests of Rand McNally and Company, and that the money they were paying was computed upon the basis of compensation and was paid as compensation and for no other purpose; that the ordinance was put in the form of protecting them against a claim for damages to give it the appearanee of legality whereas the parties well knew the actual transaction was entirely different. Accordingly, the defendant offered in evidence certain letters, one from the Mayor to the City Council, one from the plaintiff to the City Council, one from the Superintendent of Public Works to the City Comptroller, one from the City Real Estate Agent to the Chairman of the Committee on Compensation, one from the Chairman of the Committee. On Local Industries, and the Journal of the proceedings of the City Council of October 10,1910, February 14,1911, February 20, 1911, March 20, 1911 and March 27, 1911. They also offered in evidence the testimony of one McGurren, Superintendent of Compensation of the City of Chicago, to the effect that representatives of the plaintiff were present at meetings of the Committee on Compensation; that the question involved mainly was whether it was a public or a private alley; that the plaintiff claimed that no compensation should be paid for the alley as it was a private alley and the city had no jurisdiction over it; that an appraisal of the value of the space was made by one Peacock, the City Real Estate Agent; that it was a rule of the Compensation Committee that 75 per cent of the appraised value should be taken and fixed as proper compensation; that he redrafted the ordinance and was present in the Committee of Compensation when the amount was considered ; that representatives of the plaintiff also were present; that these matters took place before the passage of the ordinance; that he discussed compensation with plaintiff. Counsel for the defendant produced a letter signed by Peacock, the City Real Estate Agent, to the Chairman of the Committee on Compensation which contained the following: “In regard to the proposed vacation and dedication of alleys in block bounded by Van Burén, Clark, Harrison and La Salle streets, for the benefit of Rand McNally & Company, it is my opinion that the value of the 400 square feet in question is $8,000, being figured at the rate of $20 per square foot.” At the close of all the evidence, the trial judge, upon motion of the plaintiff’s counsel, struck out all the defendant’s evidence, and directed a verdict in favor of the plaintiff in the sum of $6,000. A verdict in that amount was brought in, and judgment entered thereon.

"Whether or not the evidence offered and which the trial judge refused to entertain should have been admitted and considered is a question somewhat difficult to answer. Apparently there is an -irreconcilable conflict between People v. Corn Products Refining Co., 286 Ill. 226, and Lockwood & Strickland Co. v. City of Chicago, 214 Ill. App. 25, which latter case was decided by this court on April 7, 1919, and as to which, subsequently, a writ of certiorari was refused. Prior to the Corn Products Refining Co. case, supra, the tendency of the law was to exclude all evidence tending to vary the terms of vacation ordinances. City of Amboy v. Illinois Cent. R. Co., 236 Ill. 236; Hill v. Kimball, 269 Ill. 398. In the latter case, Mr. Justice Carter said: “Parol evidence is not admissible to show that a vacation ordinance was passed for private benefit or was otherwise invalid.” The Corn Products Refining Co. case, supra, on the other hand, holds that parol testimony may be received to show the purpose of an ordinance. The court in that case said: “To hold otherwise would be to subject the public to the loss of its streets through an ordinance, by merely avoiding in such ordinance, or the record connected therewith, any disclosure of its real purpose. Such should not be the law.” .And, further: “We know of no rule limiting an inquiry into the purpose of an ordinance to such evidence as appears in the ordinance or the petition, only, and can see no good reason for such a rule.” The ruling of the trial judge followed the law as announced in Lockwood & Strickland Co. v. City of Chicago, supra. We there said: “Parol evidence is not admissible to show that a vacation ordinance was passed for private benefits where such parol evidence is dehors the provisions of such ordinance.” (Citing Hill v. Kimball, 269 Ill. 398.) And as a writ of certiorari was refused in that case and at a date later than the filing of the opinion in the Corn Products Refining Co. case, we are of the opinion that that is a true statement of the law as it is today.

It is contended by the defendant that the plaintiff did not within 90 days after the passage of the ordinance, “dedicate to the public and open up for public use as an alley, or cause to be dedicated and opened up for public use as an alley the north twenty (20) feet of lot eight (8).” The plaintiff put in evidence a “plat of dedication” of the north 20 feet of lot 8. It is marked “Approved April 7, 1911. Jno. D. Riley, Examiner.” There also appears upon it the following “Owner of leasehold estate in lot 8, Block 113, 'School Section Addition to Chicago under lease from Board of Education of City of Chicago dated May 1, 1902.” The plaintiff’s lease of lot 8 ran from May 1, 1902 to April 30, 2000. As a general rule, only the owner of a fee is able to make a valid dedication. As said in People v. Herbel, 96 Ill. 384: “One person cannot plat the land of another.” Fisk v. Town of Havana, 88 Ill. 208; Baugan v. Mann, 59 Ill. 492. Yet, where the one objecting to the dedication owns the fee, and has by ordinance provided that its lessee shall dedicate, and the lessee does all in his power to accomplish the owner’s requirement, it is obviously inequitable and unreasonable then to claim a failure to perform.

It is a perfect type of estoppel. Further, the law is well established that where, as here, one is induced to make great and valuable improvements by relying upon the seeming acquiescence and even desire of another, the latter is estopped. Of course, a city may be estopped. As said in People v. City of Rock Island, 215 Ill. 488: “It has frequently been decided that the doctrine of estoppel in pais is applicable to municipal corporations, but that they will be estopped or not, as justice and right may require. There may be cases where, under all the circumstances, to assert a public right would be to encourage and promote a fraud.” Such an estoppel is recognized in People v. Wieboldt, 233 Ill. 572; People v. Blocki, 203 Ill. 363. Further, the defendant sanctioned plaintiff’s dedication. Section 2 of the ordinance provided that the plaintiff should within 90 days after the passage of the ordinance make a sufficient deposit with the defendant “to defray all cost and expense of paving and curbing the return into the alley (being the south part of lot 8) herein dedicated,” etc. Accordingly, the plaintiff deposited $150 for that purpose; the plaintiff did the paving and subsequently the defendant repaid the cost. That conduct and recognition, with full knowledge of the plaintiff’s limited title, suggests, at least, that it would be highly inequitable to entertain any objection now. Would it not smack of stultification?

It is contended that there was a variance between the declaration and the proof; that the declaration announces the theory that the money was paid towards a fund for the satisfaction of any damages which might arise by reason of the vacation of the alley, whereas the proof shows that the money, the $6,000 was paid into the “account of corporate purposes.”, The answer to that is, the plaintiff, who paid in the money to the city, was not bound by what the city saw fit to do with the money, nor was it the function of the plaintiff, nor its right, to direct the application of, the fund. It was sufficient that the plaintiff paid and the city admittedly received the money pursuant to the ordinances.

As to the contention that the 5-Year-Limitation Statute has run against the plaintiff’s right of action, it must be borne in mind that the plaintiff’s right of action did not mature until 5 years after the money was paid over to the city. Lockwood & Strickland Co. v. City of Chicago, supra.

Finding no error in the record the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Boggs

text:
    The People of the State of Illinois, Appellee, v. John Mussatto, Appellant.
    1. Injunction, § 375

      —when motion to dissolve essential to review. A judgment finding a person guilty of contempt in violating an injunction will not be reversed, although the appellant claims that he was not served with process, where the record does not disclose a motion to dissolve the injunction made on a limited appearance, as it is not the duty of the Appellate Court to search for errors or enter upon an independent investigation in order to find material on which to base a judgment of reversal.
    2. Injunction, § 254*—power to punish violation of temporary injunction issued without notice. A court has jurisdiction to punish a party for contempt for violation of a temporary injunction issued without notice and without the respondent having been served with a summons, where the respondent has been served with the injunction writ.
    3. Injunction, § 39*—power to enjoin nuisance. Courts of equity have jurisdiction of proceedings to enjoin the maintenance of a nuisance.
    4. Intoxicating liquors, § 167*—right to enjoin keeping of place for illegal sale. Under section 38 of chapter 43, Hurd’s Rev. St. (J. & A. 1i 4650), the keeping of a place where intoxicating liquors are sold in violation of the statute may be enjoined as a nuisance.
    5. Injunction, § 269

      —what is effect of motion to dissolve. A motion to dissolve a temporary injunction is in the nature of a demurrer to the bill, and a defendant making such motion thereby enters his appearance and obviates the necessity of service of summons.
    6. Intoxicating liquors, § 167*—when owner of premises may he enjoined. In contempt proceedings for violation of an injunction prohibiting the keeping of a place where intoxicating liquors are sold, a contention that the defendant has rented the building and has no power to abate the nuisance cannot be sustained when the evidence shows that not only the tenant sold liquor with the knowledge of the defendant, but also that defendant sold liquor in the building.
    7. Injunction, § 256*—when defendant cannot complain that injunction is too hroad. In contempt proceedings for the violation of an injunction prohibiting the sale of liquor in a building, the defendant cannot contend that the injunction is too broad in that the giving away of liquor is also enjoined, it appearing that the defendant was convicted for selling liquors and not for giving them away.
    8. Injunction, § 256*—when defendant cannot complain of want of hearing on merits. In contempt proceedings for the violation of ap injunction prohibiting the sale of liquor in a building, the defendant cannot contend that he has had no opportunity for a hearing on the merits as to the issuance of the injunction, as an answer might have been filed and a hearing had on the question of dissolution of the injunction, it being the rule that so long as an injunction is in force the court has jurisdiction of the subject-matter, even though the defendant may not have been served with process.
    9. Injunction, § 253*—nature of proceeding for violation. A contempt proceeding for the violation of an injunction is neither a criminal nor quasi criminal proceeding, and the rules of evidence are not the same as in a criminal proceeding.
    10. Injunction, § 260*—when punishment for violation not excessive. Punishment imposed for contempt in violating an injunction prohibiting the sale of intoxicating liquors at a certain place cannot be contended as being unusual and excessive, although in excess of the fine and imprisonment which might have been imposed in a criminal proceeding, on indictment. ,
    Appeal from the Circuit Court of Franklin county; the Hon. Julius C. Keen, Judge, presiding. Heard in this court at the October term, 1919.
    Affirmed.
    Opinion filed March 25, 1920.
    R. E. Smith and W. C. Choisser, for appellant.
    Rot C. Martin- and S. M. Ward, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

An order was entered by the circuit court of Franklin county adjudging appellant guilty of contempt of court, fining him $500, and ordering him committed to the county jail for a period of 6 months. The record discloses that on February 11, 1918, the State’s Attorney of Franklin county, on behalf of the People, filed a bill in the circuit court of said county alleging' that the appellant had for more than 3 years last past been the owner of a two-storv brick building located in the City of Christopher in the town of Tyrone in said county, and that said town was anti-saloon territory; that appellant had during the 3 years preceding the filing of said bill been selling liquor in said building contrary to law; that he had been arrested and convicted or had pleaded guilty to a charge of selling liquor in said town at the July term, 1915, the January term, 1916, and the January term, 1917, of the county court of said .county; that on July 1, 1917 an internal revenue tax stamp or receipt had been issued to him as a retail liquor dealer in said City of Christopher; that said premises so owned by appellant were equipped with a bar, ice chest, mirrors and the usual fixtures of a regular licensed dramshop; that for 3 years last past, appellant had openly, notoriously, continuously, wilfully, day and night and in open defiance and disregard for law and in contempt of the authorities of the county and State, kept and maintained a common nuisance in said building for the illegal sale of intoxicating liquors. Said bill further alleges that the authorities of said city and county had been unable, although diligent in their efforts, to stop appellant from so violating said anti-saloon law and that the ordinary methods of procedure were inadequate to prevent appellant from maintaining said nuisance, praying ■ a temporary injunction without bond and without notice to appellant. Said petition was verified by said State’s Attorney and was supported by some six or seven affidavits made by officers of said city and other of its citizens, the tenor and effect of said affidavits being that appellant in open violation of the law was selling intoxicating liquors in said building. A temporary writ of injunction was issued by the court without bond and without notice to appellant. So far as the record shows, no summons was ever served on appellant and no hearing was had on said bill. Thereafter, at the February term, 1919, of said court, said State’s Attorney on behalf of the People filed a petition in said court setting forth that appellant had continued to sell intoxicating liquors in said building in violation of said injunction and in total disregard and in defiance thereof; that no change had been made in the equipment and appearance of the place and praying that appellant be attached forthwith and brought into court and ruled to show cause why he should not be held to be in contempt.

Appellant was served with notice of said rule and thereupon made answer under oath. Said answer in large part purported to answer the allegations of said original bill, in and by which said answer appellant denied the sale of intoxicating liquors by him in said building and alleges that before said bill for 'injunction was filed that he had rented said building tó one Joe Bazei and had executed a bill of sale to him for the furniture and fixtures owned by him, in said building and that he had attempted to see to it that no liquors were sold in said building in violation of said law. A hearing was had on the original bill filed in said cause, the affidavits accompanying the same, the sworn petition praying for an order adjudging appellant to be in contempt, the affidavits accompanying said petition, the answer of appellant and oral testimony heard by the court on said hearing. The court found and adjudged appellant to be in contempt of court for violating the temporary injunction theretofore entered by the court and entered an order fining appellant and sentencing him to the county jail as hereinabove stated. To reverse said judgment this appeal is prosecuted.

It is first contended by the appellant that the court was without jurisdiction in said contempt proceedings for the reason that appellant had not been served with process. Appellant, however, admitted he was served with said writ of injunction on the same day it was issued, and further states that he very shortly thereafter on limited appearance made a motion to dissolve said injunction. The record does not disclose that appellant made such motion on limited appearance. Appellant has not pointed out such motion and we have not been able to find the same in such examination as we have made. It is not the duty of the court to search for errors or enter upon an independent investigation in order to find material on which to base a judgment of reversal. Wickes v. Walden, 228 Ill. 65; Jacksonville & St. L. Ry. Co. v. Wilhite, 209 Ill. 84; Duggan v. Ryan, 211 Ill. 133.

Appellant misconstrues the law as laid down by the Supreme and Appellate Courts of this State when he states that a court is without jurisdiction to punish a party for contempt or violation of a temporary injunction issued without notice and without the respondent having been served with summons, but where the respondent has been served with the injunction writ.

In Court Rose No. 12, F. of A. v. Corna, 279 Ill. 605, the court at page 607 says: “Where an injunction, order, mandate or decree of a court has been disobeyed or disregarded and there is a proceeding for contempt of the court for such disobedience or disregard, the only question to be considered is whether the court had jurisdiction to make.the order or decree. Jurisdiction is the power to hear and determine a matter in controversy, and if the power existed, the question whether the court erred or the power was improperly exercised is not involved and errors of the court constitute no defense whatever. An injunction void because of want of jurisdiction in the judge who entered it may be disregarded and the person disregarding it is not guilty of contempt (People v. McWeeney, 259 Ill. 161, Ann. Cas. 1916 B 34); but a party enjoined cannot refuse to obey the injunction upon the ground that it is erroneous or improvidently granted. If the bill upon which an injunction is granted is defective, it must be tested by demurrer in court and not by disobedience to the writ. The jurisdiction of a court of equity does-not depend upon the correctness of the decision made, but an order made in the exercise of jurisdiction must be obeyed until the order is modified or set aside by the court making it or reversed in a direct proceeding by appeal or on error. (Leopold v. People, 140 Ill. 552; Clark v. Burke, 163 Ill. 334; People v. Weigley, 155 Ill. 491; O’Brien v. People, 216 Ill. 354; Franklin Union v. People, 220 Ill. 355; Christian Hospital v. People, 223 Ill. 244.) The power of the courts to enforce their orders and judgments is a necessary incident to the administration of justice, and if they were without power to compel obedience or to prevent unwarranted interference with the administration of justice they could not perform their functions or secure the rights of litigants, however important. The only questions, therefore, in this case, are whether the City Court of Spring. Valley had jurisdiction to make the order in question and whether it was violated by the defendants.”

Courts of equity have jurisdiction of proceedings to enjoin the maintenance of a nuisance. Section 38, ch. 43, Hurd’s Rev. St. ('J. & A. ft 4650) provides that “all places where intoxicating liquor is sold in violation of any of the provisions of this act shall be taken and held and are declared to be common nuisances and may be abated as such.” A court exercising equitable jurisdiction will not restrain, by injunction, the commission of illegal or immoral acts and will not enjoin one engaged in the sale of liquor from making-sales which are punishable by the criminal law. But that is not the object of this proceeding. Its object is to prohibit the use of property for illegal purposes. It is the keeping of a place which our statute has determined to be dangerous to the health, morals, safety and welfare of the public.

The record discloses that prior to the filing of said bill by the State’s Attorney, the sheriff of said county had served a notice on appellant to abate the nuisance complained of in said bill. Appellant offered no evidence on said hearing. The evidence on the part of the complainant fully established that appellant had violated the anti-saloon law and had been himself selling liquors in said building and was allowing others to sell, either as his tenant or his agents, while said territory was anti-saloon territory. Appellant held an internal revenue stamp or receipt for the sale of liquors in said territory; he had been arrested and had pleaded guilty on several occasions to having violated said law. Counsel for appellant in his brief at page 103 says: “The record is wholly void of any evidence showing a wilful disobedience of the injunction or disrespect for the court in the slightest degree. It abundantly appears from the record that when the defendant has been charged with violating the dramshop act he has shown due respect for the court by entering a plea of guilty when he was, in fact, guilty, and the fact that he entered a plea of guilty is not to his discredit. It is always creditable to enter a plea of guilty where the defendant is, in fact, guilty.” It will be observed that appellant practically concedes 'that he has been violating the law. It might also be observed in answer to the contention made by appellant with reference to the jurisdiction of the court that a motion to dissolve a temporary injunction is in the nature of a demurrer to the bill, and a defendant or respondent making such motion thereby enters his appearance and obviates the necessity of service by summons. High on Injunctions, sec. 1469; White v. Y. M. C. A. of Chicago, 233 Ill. 526; Champion v. Hannahan, 138 Ill. App. 387.

In Champion v. Hannahan, supra, the court at page 398 says: “When'defendants to a bill appear in a cause and file a plea to the bill and move to dismiss or dissolve the preliminary injunction, as did Hannahan and Carter, appellees, they submit themselves to the jurisdiction of the court and are not in a position thereafter to question the jurisdiction of the court over them. Appellees Coding and Dixon appeared in the cause and demurred to the bill, and moved the court to dissolve the preliminary injunction. The appearances of appellees were not limited in any way or for any purpose. In our opinion the superior court had jurisdiction of the parties.”

It is further contended by appellant that he had rented the building in question and that he had no power to abate the nuisance if one existed. We fail to see the force of this argument. The record discloses that not only did the tenant of appellant sell liquors in said building in violation of law with the knowledge of appellant, but appellant himself sold liquors therein.

It is also contended by appellant that the injunction issued by the court was too broad and that he was enjoined from giving away liquors in said building as well as selling the same. The record in this case discloses that the fine and jail sentence imposed on appellant were not for giving away liquors but were for maintaining a building where liquors were sold in violation of the statutes of this State.

■ Counsel for appellant devotes a considerable part of his argument to the fact that no hearing had been had in this case within a year or some 14 months before the contempt proceedings were instituted, and that he had been anxious to have the same heard on the merits. We fail to see the force of this argument for the reason that appellant had been served with the writ of injunction very shortly after the bill had been filed, and if he had been desirous of having a hearing on the merits he could easily have brought it about by filing his answer and by insisting on a hearing, or that the temporary injunction be dissolved. So long as an injunction is in force, if the court has jurisdiction of the subject-matter, a party served with the writ must obey, even though he may not have been served with process.

Lastly, it is contended by appellant that the punishment imposed is unusual and excessive, appellant’s contention being that the fine and imprisonment is largely in excess of the fine and imprisonment the court could have imposed in a proceeding where a party has been indicted or has been brought to trial on an information. A contempt proceeding for the violation of an injunction writ is neither a criminal nor quasi criminal proceeding, and the rules of evidence are not the same as in a criminal proceeding.

In Flannery v. People, 225 Ill. 62, the court at page 69 says: “The contention that the proceeding is criminal or quasi criminal, and therefore the evidence must be sufficient to establish the guilt of the acts beyond a reasonable doubt, is more fanciful than real, as applied to this case. If the evidence in this record was sufficient to justify the conviction, the question of the degree of proof required in such cases is unimportant, because if it tends to prove the guilt it does so beyond all doubt. * * * It is admitted that a proceeding for contempt in such cases is civil in its nature in this State, however it may be held in other jurisdictions; therefore the statement that the proceeding is criminal or quasi criminal is not correct. ’ ’

The law further is that a court in a contempt proceeding is not limited in the imposition of the punishment for such contempt to the punishment fixed by statute for criminal offenses which may incidentally be involved in the contempt proceedings.

In Hake v. People, 230 Ill. 174, the court at page 195 says: “It is finally urged by appellants that the punishment inflicted upon each of them is unconstitutional and void, in that it is disproportionate and oppressive. Appellants cite a number of provisions of the Criminal Code where certain offenses, such as assault and assault and battery, are defined,, and the- punishment fixed by a fine of not less than $3 nor more than $100, and, from this and other statutes supposed to bear some sort of analogy to the offenses committed by appellants, the argument is drawn that the punishment inflicted upon" appellants is unconstitutional and void because it is a greater punishment than the criminal statutes imposed for like offenses. For the reasons already pointed out, these several statutes have no application whatever to the appellants’ case. The law is well settled that a court of chancery may impose a fine alone for the violation of an injunction, and commit the party until the fine and costs are paid, or, in its discretion, may fix a definite period of imprisonment, either with or without a fine. The court granting the injunction is necessarily invested with large discretion in enforcing obedience to its mandate, and upon proceedings for attachment for its violation the extent of the fine and imprisonment to be inflicted as a punishment for the contempt rests in the sound legal discretion of the court itself. Courts of Appellate jurisdiction are exceedingly averse to interfering with the exercise of such discretion, and will not ordinarily reverse the action of the inferior courts in such matters. High on Injunctions, sec. 1458, and cases there cited.”

While the punishment inflicted is more or less severe, at the same time in view of the evidence showing the repeated violations of the law by appellant, we are not able to say that the trial court was not justified in imposing the punishment it did.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Charles W. Parks, Plaintiff in Error.
    1. Husband and wife, § 272

      —when instruction erroneous in prosecution for nonsupport. In a prosecution for nonsupport, an instruction undertaking to define destitute and necessitous circumstances as a legal proposition by stating that such circumstances arose if the wife’s property was insufficient for her support, was misleading.
    2. Criminal law, § 310*—when instruction on reasonable doubt erroneous. In a prosecution for nonsiyiport, an instruction as to reasonable do.ubt stating that if they “have no reason to believe any other hypothesis than that of the guilt of the defendant, you are satisfied beyond a reasonable doubt,” is misleading and confusing.
    3. Costs, § 114*—right to tax on prosecution for wife abandonment. In a prosecution for nonsupport, the court may tax a fee of $15 to which the State’s Attorney is entitled as part of the costs, under section 8 of chapter 53 of the Fees and Salaries Act (J. & A. 1f 5600), but the taxation of another fee of $25 for the wife’s attorney is error.

      4. Husband and wife, § 272

      —What is nature of prosecution for nonsupport. A proceeding for the violation of section 1 of chapter 68 of. Hurd’s Rev. St. [Call. 1913 Stat. f 3433(1)], as to desertion or refusal to support a wife or child under the age of 18 years, is criminal in its nature, and the evidence of the violation of the statute should be sufficient to prove the plaintiff guilty beyond a reasonable doubt.
    5. Husband and wife, § 273*—when desertion t>y wife shown. In á prosecution for nonsupport, where it appears that the defendant’s wife left him without cause and voluntarily, and such wife returned at one time without notice and accompanied with two witnesses, at that time acting under advice of counsel, the return was not of the character that it should have been, and the evidence was insufficient to establish a violation of section 1 of chapter 68, Hurd’s Rev. St. [Call. 1913 Stat. If 3433(1)], as to desertion or refusal to support a wife and minor child.
    6. Husband and wife, § 275*—when allowance of temporary alimony pending appeal on prosecution for nonsupport erroneous. On a conviction for the violation of section 1 of chapter 68, Hurd’s Rev. St. [Call. 1913 Stat. If 3433(1)], the entry of an order allowing a certain sum as temporary alimony pending the decision of the Appellate Court is erroneous, as there is no statutory provision therefor, the only provision being in section 3 []f 3433(3)], as to an allowance to the wife before the hearing in the trial court.
    Error to the County Court of Effingham county; the Hon. Babnet Ovebbeck, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed March 25, 1920.
    Jacob Zimmerman and Harry J. Rickelman, for plaintiff in error.
    Byron Piper and Gr. P. Denton, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

An information as filed in the county court of Effing-ham county charging that plaintiff in error (hereafter called plaintiff), without reasonable cause, did neglect and refuse to provide support and maintenance for his wife, Mary J. Parks, she being in destitute or necessitous circumstances. A plea of not guilty was entered and a trial was had resulting in a verdict of guilty. A new trial was denied, judgment was entered on the verdict and a fine of $200 was assessed against plaintiff to be paid to his wife in monthly instalments. The court also assessed an attorney’s fee of $25 for one Gr. P. Denton as a part of the costs.

A writ of error being prosecuted to reverse said judgment, the court entered an order requiring plaintiff to pay to his wife $10 per month, commencing on the 1st of August, 1919, and to continue until the final order of the Appellate Court.

The record discloses that plaintiff was married to Mary J. Parks on August 20, 1916; both of said parties had been previously married and both had children, plaintiff having five children living with him and his said wife having one son living with her at the time of said marriage. Plaintiff and family resided on a farm in Effingham county. On the 10th day of March, 1917, said Mary J. Parks with her son, Earl, removed from the home of the plaintiff to a farm of 22 acres owned by her in said county. Thereafter on October 10, 1918, she filed a bill for separate maintenance, averring among other things: “That she had been and is now ready and willing to live with him (plaintiff in error) as his wife, if he could treat her as a wife should be treated.” In the answer of plaintiff, he averred among other things: “And the defendant further answering says that he earnestly and honestly endeavored to persuade complainant not to leave him, and he further says that at all times since she left she has been and is now welcome to return to his home.”

No trial was had of said separate maintenance suit and on February 15, 1919, it was dismissed by the complainant. On February 20, 1919, on the advice of her attorney, plaintiff’s wife went to the house of plaintiff taking with her, her son and two other persons. Plaintiff was not at home when his wife arrived and she was refused admittance by a son and daughter of plaintiff. Thereupon Mrs. Parks returned to her farm, where she has resided ever since.

The record further discloses that plaintiff’s wife thereafter attempted to purchase goods on the credit of her husband but was refused such credit by the merchants.

It is insisted by plaintiff that the court erred in its rulings on the evidence and on the instructions, in taxing said fee of $25 in favor of attorney Denton as costs, and in overruling the motion for a new trial.

We have examined the record and are of the opinion that there is no serious error in the rulings of the court on the evidence. Instruction 5, given on the part of the People, is as follows: “The court instructs the jury as a matter of law that the words destitute and necessitous circumstances do not mean without any means of support whatever, and in this-case although you may find from the evidence that the prosecuting witness has some property of her own, and did have property of her own on the 20th day of February, 1919, yet unless you further find from the evidence that she had sufficient property of her own out of which she could properly maintain and support herself, then you are warranted in finding that she now is and on the 20th day of February, 1919, was in destitute and necessitous circumstances.” This instruction is misleading in that it undertakes to define ás a legal proposition what in the particular case would amount to destitute and necessitous circumstances.

Instruction No. 7 in attempting to explain the meaning of the expression, “that the guilt of the defendant must be proven beyond a reasonable doubt” tells the jury if after hearing all of the evidence, “yon have no reason to believe any other hypothesis than that of the guilt of the defendant, you are satisfied beyond a reasonable’ doubt.” This instruction was misleading and tended to confuse the jury and should not have been given.

The taxing of the fee of $25 for attorney Denton as part of the costs in this proceeding was clearly without warrant of law. The statute under which this information was filed does not provide for the assessing of attorney’s fees as costs. Section 8 of chapter 53, being the chapter on Fees and Salaries (J. & A. If 5600), however, provides, with reference to the fees of State’s Attorneys, that: “For each conviction in other cases in courts of record, including cases brought to such courts by appeal from justices of the peace and police magistrates, $15.” In our judgment, a fee of $15 was properly taxed as a part of the costs but the court taxed in all a fee of $40, $15 for the State’s Attorney and $25 to attorney Denton. The court erred in taxing said fee of $25 as costs.

It is next contended by the plaintiff that the court erred in overruling the motion for a new trial. The principal ground urged in support of this assignment of error is that the evidence does not disclose that ¡plaintiff in error was guilty of a violation of section 1 of chapter 68 of Hurd’s Devised Statutes [Call. 1913 Stat. f[ 3433(1)] being the statute under which this information was filed. That statute provides as follows: “That every person who shall, without any reasonable cause, neglect or refuse to provide for the support or maintenance of his wife, said wife being in destitute or in necessitous circumstances, or any person who shall, without lawful excuse, desert or neglect or refuse to provide for the support or maintenance of his or her child or children under the age of eighteen years, in destitute or necessitous circumstances, shall be deemed guilty of a misdemeanor and on conviction thereof shall be punished by a fine of not to exceed six hundred dollars or by imprisonment in the county jail, house of correction or workhouse, not to exceed one year, or by both such fine and imprisonment. ’ ’

The principal facts in this case are not disputed, and are as above set forth, and we are clearly of the opinion that the evidence wholly fails to support the verdict and judgment in this case. So far as the record discloses, plaintiff’s wife left him voluntarily and without cause and we do not think that the facts and circumstances in connection with her visit to the home of plaintiff on February 20, 1919, were in and of themselves suEcient on- which to base a criminal prosecution under the above statute. The record discloses that plaintiff’s wife gave him no notice of her intended return, either directly or indirectly; that she was accompanied by two witnesses besides her son and was acting under advice of counsel in so doing. In our judgment, her return was not of the character it should have been in view of the evidence disclosed by the record. There is nothing in the record to show that when she left plaintiff she had any cause justifying her in so doing.

In People v. Honaker, 281 Ill. 295, the court at page 298 says: “The statute makes it an offense to desert or neglect or refuse to provide for the support or maintenance of a child, under the age of 18 years, in destitute and necessitous circumstances. The defendant was. charged with that offense, but there was no evidence tending to prove him guilty of desertion, the fact being that the child was taken away by his wife. It is also an offense to neglect or refuse to provide for the support and maintenance of a wife who is in destitute and necessitous circumstances, and there was no evidence tending to prove that offense. . The defendant provided a home for his wife and provided for her support and maintenance there, and there was no evidence, even after his wife deserted him and took from the home practically everything and left him in a dismantled home, that the defendant was called upon and refused to contribute to her support or the support of the child, although she was dependent for maintenance on her own family, where she had voluntarily gone. Even if there was ample justification for her leaving him, the statutory offense of which he was convicted was not proved. The finding and judgment were contrary to the evidence.”

In Buchan v. Buchan, 201 Ill. App. 349, the Appellate Court of the Third District held: “In a suit for separate maintenance where, after leaving her husband without due cause, the complainant, two days before filing her bill, and after having consulted with her attorney in regard to bringing-suit, went to her husband’s house in company with a person whom her husband had objected to her associating with and offered to live with him if he would do what was right, meaning thereby to be allowed to do things which her husband justifiedly objected to, held insufficient to sustain a finding that such offer was made in good faith, and a decree in her favor should be reversed.”

This proceeding is criminal in its nature, and the evidence of the violation of the statute should be sufficient to prove the plaintiff guilty beyond a- reasonable doubt. In our judgment it does not do so and the motion for a new trial should have been granted.

Plaintiff also urged as error the entering of the order for an allowance of $10 per month alimony to be paid during the pendency of this proceeding in this court. There is no statutory provision allowing such an order to be made. The only provision in the act under which this proceeding is brought with reference to an allowance for support of the wife pending a trial is section 3 [Call. 1913 Stat. [f 3433(3)], which is as follows: “Any time before the trial, upon motion of the complainant and upon notice to the defendant, the court at any time or a judge thereof in vacation, may enter such temporary order as may seem, just, providing for the support or maintenance of the wife or child or children of the defendant, or both, pendente lite, and may for violation of such order punish the offender as for contempt of court.”

This section, however, has reference to an allowance to the wife before the hearing in the trial court and not to an allowance to he made after the judgment and sentence pending an appeal.

The court erred in entering said order. For the reasons above set forth, the judgment of the trial court will be reversed and said cause will be remanded.

Reversed and remanded.


text:
    Tresa Gerard, Administratrix, Appellee, v. Walker D. Hines, Director General of Railroads, and Louisville & Nashville Railroad, Appellants.
    1. Master and servant, § 782

      —when instruction on contributory negligence erroneous. In an action under the Federal Employers’ Liability Act for injuries to a switchman, an instruction defining contributory negligence and stating the effect of the defense is erroneous when it fails to provide that such negligence is to be considered by the jury in fixing the amount of damages, unless the injury was the result of some violation of the Safety Appliance Act.
    2. Master and servant, § 786*—when instruction erroneous as omitting element of assumed rislc. In an action for injuries sustained by a switchman, an instruction directing a verdict, but which omits the question of assumed risk, one of the defenses of the railroad, is erroneous. .
    3. Master and servant, § 777*—when instruction on Federal Safety Appliance Act abstract. In ah action for injuries sustained by a switchman due to the absence of a handhold on a car, an instruction stating that there was in force an act of Congress requiring cars used in interstate commerce to be equipped with handholds or grabirons at the end and side of each car, was abstract and incomplete, and misleading, under the evidence.
    4. Master and servant, § 784

      —when instruction on absence of handholds erroneous as omitting engagement in interstate commerce. In an action for injuries to a switchman claimed to have been caused by the absence of handholds on a car, an instruction directing a verdict if the car was not equipped with handholds on the end, and that by reason thereof the deceased was injured, ignored the question of whether the deceased was engaged in interstate commerce, which was an issue in the case.
    5. Commerce, § 4*—when engagement in interstate question for jury. Evidence held sufficient to present a question for the jury as to whether a deceased switchman, injured by the absence of handholds on a car, was engaged in interstate commerce at the time of his injury.
    6. Master and servant, § 715*—when violation of Federal Safety Appliance Act question for jury. In an action for injuries to a switchman claimed to have been injured by the absence of handholds on a car, the evidence was sufficient to present a question for the jury as to whether there was a violation of the Safety Appliance Act.
    7. Master and servant, § 302a*—when assumed rish no defense where federal statute violated. In actions for injuries causing death based upon a violation by a railroad company of any federal statute enacted for the safety of employees, where the injury was due to a violation of the statute, the doctrine of assumption of risk is no defense.
    Appeal from the City Court of East St. Louis; the Hon. Silas Cook, Judge, presiding. Heard in this court at the October term, 1919.
    Reversed and remanded.
    Opinion filed March 25, 1920.
    Charles P. Hamill, for appellants.
    Louis Beasley, for appellee.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vois, XI to XV, ajuJ Cumulative Quarterly, same topic anfl section number.

   Mr. Presiding Justice Boggs

delivered the opinion of the court.

An action on the case instituted by appellee as administratrix of the estate of Charles L. Gerard, in the city court of East St. Louis, against appellant to recover for the death of said Charles L. Gerard while in the employ of appellant railroad, resulted in a verdict and judgment against appellant for $5,000. To reverse said judgment this appeal is prosecuted.

The declaration as it stood at the time of the trial consisted of two counts, designated the second and the third amended counts, to which the L. & N. Railroad filed a plea of the general issue. The Director General of Railroads was thereafter made a defendant and was a party to the suit before judgment was rendered. The second count of the amended declaration alleged that the appellant was operating a switch train in interstate commerce and that a tank car in said train was not equipped with handholds, which was in violation of the Federal Safety Appliance Act; that it became necessary for appellee’s intestate to get upon this car for the purpose of adjusting the brakes, and while endeavoring so to do was thrown therefrom and in consequence of the lack of a proper handhold was fatally injured.

The third amended count alleged that appellant failed to furnish a sufficient number of switchmen and alleged that on account of the youth and inexperience of appellee’s intestate he was subjected to extraordinary danger of which he was ignorant and of which the appellant had knowledge, or might have had knowledge by the exercise of ordinary care; that on account of such failure to furnish sufficient help, appellee’s intestate was thrown from a moving car in interstate commerce and was fatally injured.

The record discloses that appellee’s intestate was employed as a switchman by the L. & N. Railroad in Bast St. Louis'; that he had been employed by said railroad in one kind of work or another since he was 17 years of age; that at the time of the accident he had been working as a switchman for about 7 months.

On the night of the accident, appellee’s intestate was acting as foreman of the train-yard crew, the man who was to have acted as foreman having failed to report. At .11 p. m., when the crew went on duty, appellant’s yardmaster asked Gerard to act as foreman. About 6 o’clock in the morning, Gerard’s crew went on track 9 to get a cut of twelve cars.' The last car in the cut was a tank car which it was intended to separate from the other cars in the cut and leave on track 9. It being an incline track, it was necessary to set the brakes when the car was cut off to keep it from running back, and the only way by which the brakes could be set was by climbing upon the ear.

The evidence tends to show that while attempting to set the brakes on this car, appellee in some way fell and received the injury which resulted in his death, a recovery for which is here sought.

The disputed questions in the record were as to whether or not the car in question was equipped with grab irons or handholds as provided by the act of Congress and as to whether, if not so equipped, that that fact was the cause in whole or in part of appellee’s intestate receiving said injury, and also as to whether or not appellee at the time of receiving said injury was engaged in interstate commerce, and as to whether, if engaged in interstate commerce, he assumed the risk of the work that resulted in his injury and as to whether appellant was guilty of negligence that contributed in whole or in part to appellee’s intestate’s injury and death.

Instructions were offered and were given by the court, both for appellee and for appellant, presenting the different theories of the case. It is contended by appellant that the court erred in giving instructions 4, 5, 6, 7 and 8, given on behalf of appellee.

"Instruction 4 is as follows: “The court further instructs the jury that contributory negligence is the omission on the part of the employee to use those precautions for his own safety that an ordinarily prudent person would have used under like or similar circumstances. But in this case, if you believe from a preponderance of the evidence that the said Charles L. Gerard was, at the time of the accident, engaged in switching cars that were moving in interstate commerce, then what is known as contributory negligence is no defepse. ’ ’

This instruction is erroneous for the reason that it fails to provide that contributory negligence, if any, on the part of the person injured is to be taken into consideration by the jury in fixing • the amount of damages for which the injured' party is entitled to recover, unless the jury finds that the injury was the result of a violation of some Safety Appliance Act.

The fifth instruction directs a verdict and is erroneous for the reason it omits the question of assumed risk, one of the defenses made by appellant in this action.

The sixth instruction given on behalf of appellee is as follows: “The court further instructs the jury that there was in full force and effect on the 20th day of April, 1918, a certain Act of Congress which provides among other things, as follows: ‘That it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab irons or handholds in the end and side of each car. ’ ’ ’ This instruction is abstract in form, is incomplete, and under the facts in this case was misleading to the jury and should not have been given.

The seventh instruction directed a verdict, if the jury believed from the evidence that the car in question was not equipped with handholds on the end and that by reason thereof deceased was injured. This instruction ignores the question of whether deceased was engaged in interstate commerce, which was alleged and which was one of the issues in the case. There could be no recovery on this count unless the deceased was engaged in interstate commerce.

Instruction 8 is erroneous for the reason that it fails to submit to the jury, the question of assumed risk on the part of the appellee’s intestate, and directs a verdict. The giving of the foregoing instruction was reversible error.

It is also contended by appellant that the court erred in refusing to direct a verdict in its favor at the close of appellee’s evidence, a motion to that effect having been made by appellant.

The first ground urged on this assignment of error is that appellee failed to prove her intestate was engaged in interstate commerce at the time of his injury. Without discussing this question at length, we are of the opinion that there was sufficient evidence in the record to warrant the case going to the jury, so far as this proposition was concerned.

It is also urged in support of this assignment that there was no proof of any violation of the Safety Appliance Act. We think on this proposition the evidence was sufficient to allow the case to go to the jury.

It is further contended in support of this assignment of error that appellee’s intestate assumed the risk of the accident. The law is, in actions for injuries causing death based upon a violation by a railroad company of any federal statute enacted for the safety of employees, that if it be shown the injury was due-to a violation of said federal law the doctrine of assumption of risk is no defense. Erie R. Co. v. Purucker, 244 U. S. 320; Texas & P. Ry. Co. v. Rigsby, 241 U. S. 33; Grand Trunk Western Ry. Co. v. Lindsay, 233 U. S. 42.

In Grand Trunk Western Ry. Co. v. Lindsay, supra, the court on page 50 says: “Although by the third section of the Employers’ Liability Act a recovery is not prevented in a case of contributory negligence, since the statute substitutes for it a system of comparative negligence, whereby the damages are to be diminished in the proportion which his negligence bears to the combined negligence of himself and the carrier, —in other words, the carrier is to be exonerated from a proportional part of the damages corresponding to the amount of negligence attributable to the employee (Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 122, 57 L. Ed. 1096, 1101, 33 Sup. Ct. 654),—nevertheless, under the terms of a proviso to the section, contributory negligence on the part of the employee does not operate even to diminish the recovery where the injury has been occasioned in part by the failure of the carrier to comply with the exactions of an act of Congress enacted to promote the safety of employees. In that contingency the statute abolishes the defense of contributory negligence, not only as a bar to recovery, but for all purposes. The proviso read's: ‘Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of .any statute enacted for the safety of employees contributed to the injury or death of such employee. ’ ” '

Inasmuch as the question of assumed risk becomes important only in the event that appellant has not violated the provision of the Safety Appliance Act, we hold the court did not err in its rulings on this proposition and did not err in refusing to direct a verdict at the close of appellee’s evidence.

It was also contended by appellant that the verdict of the jury is against the manifest weight of the- evidence. Inasmuch as' this case will have' to be tried again, we refrain from discussing this assignment of error.

Lastly, it is contended by appellant that the court erred in its rulings on the evidence. There are some rulings of the court on the evidence that were objectionable. However, they are not of a serious character and we have no doubt that on the retrial “of the ease these objections will be obviated—they are not of enough importance to require a discussion of them in this opinion.

For the reasons above set forth the judgment of the trial court will be reversed and the cause will be remanded.

Reversed and remanded.