author: Mr. Justice Harris Mr. Justice Boggs.

text:
    Robert M. Hunt, Appellee, v. Illinois Southern Railway Company, Appellant.
    1. Master and servant, § 98

      —how Federal Employers’ Liability Act limited. The application of the Federal Employers’ Liability Act is limited to injuries occurring while the particular service in which the employee is engaged is a part of interstate commerce.
    2. Commerce, § 4

      —what constitutes prima facie case that employee engaged in interstate commerce. In an action under the Federal Employers’ Liability Act, the fact that at the time of the injury sought to be recovered for, plaintiff was engaged in interstate commerce is prima facie proved by uncontradicted testimony that at such time plaintiff was engaged as employee of a railroad company in handling a train in which part of the cars were billed from a point in one State to a point in another State.
    3. Master and servant, § 537

      —what counts declaration for damages for personal injuries sustained hy employee engaged in interstate commerce may contain. In an action by a freight conductor to recover for personal injuries sustained while handling one of defendant’s trains, where a count of the declaration alleges facts sufficient as a basis for prima facie proof that at the time of the injury plaintiff was engaged in an interstate commerce service, it is proper for plaintiff to include in his declaration counts alleging common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act so as to meet the evidence which may be offered at the trial, since defendant may at any time by its records, or other competent evidence, rebut such prima facie case.
    4. Master and servant, § 537

      —whew defendant need not object to declaration becausé containing several counts. In an action by a freight conductor to recover for injuries, received while handling one of defendant’s trains, defendant need not object to the declaration because it contains counts alleging common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act.
    5. Master and servant, § 706

      —when question whether employee engaged in interstate commerce for jury. In an action by an employee to recover for personal injuries where in different counts plaintiff alleges common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, the question whether plaintiff at the time of the injury was engaged in an interstate commerce service must be submitted to the jury like other questions of fact where such question is raised, there being no question of election of remedies in such case.
    6. Master and servant, § 706

      —when question whether employee engaged in interstate commerce for court. In an action by an employee to recover for personal injuries, where in different counts plaintiff alleges common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, the question whether at the time of the injury plaintiff was engaged in an interstate commerce service is a question of law where it is not disputed that plaintiff was so engaged at such time.
    7. Master and servant, § 98

      —when Federal Employers’ Liability Act affords exclusive remedy. In an action by an employee, to recover for personal injuries sustained while engaged in an interstate commerce service, the Federal Employers’ Liability Act controls, and a recovery cannot be had at common law or under a State statute, the Federal act being exclusive, and not cumulative.
    8. Trial, § 91

      —when objection to admission in evidence of State statute based upon more than one ground. In an action by an employee to recover for personal injuries where in different counts of his declaration plaintiff alleged common-law negligence, the violation of a State statute and of the Federal Employers’ Liability Act, where defendant objected to the introduction of the State statute in evidence, “for the reason that those sections have no application to the case, and for the reason that this train was stopped and the engine cut off, etc.,” held that the objection was based on two grounds: (1) that the statute had no application, and (2) that the train was stopped and the engine cut'off, etc.
    9. Master and servant, § 599

      —when State statute incompetent as evidence in action by servant for damages for personal injuries. In an action by an employee to recover for personal injuries, where in different counts plaintiff alleged common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, and where there was no doubt of the application of the latter act under the evidence, held that an objection to the admission of the State statute in evidence should have been sustained, such evidence being incompetent as the statute had no application, the Federal act exclusively applying in such case.
    10. Trial, § 247

      —when verdict will be set aside because of instruction on bad counts. The rule that a verdict will not be set aside when supported by one good count in a declaration does not apply where the court gives an instruction on bad counts which would authorize a verdict on such counts which would have been erroneous.
    11. Appeal and error, § 573

      —when exceptions as to instructions preserved for review. Exceptions not taken at the time of the giving of an erroneous instruction are preserved for review where the giving of such an instruction is assigned as error on a motion for a new trial.
    12. Appeal and error, § 1560

      —when refusal of instructions not reversible error. Where a declaration charging negligence contains both good and bad counts, the refusal of instructions to find defendant not guilty under the bad counts is not reversible error, although such instructions might properly have been given.
    13. Master and servant, § 799

      —when instruction on liability of master under Federal and State statute erroneous. In an action by an employee to recover for personal injuries, where in different counts plaintiff alleged common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, and the application of the latter statute was clear under the evidence, an instruction that if the jury found that defendant had violated the State statute declared on and that such violation had caused the injury sought to be recovered for, a verdict of guilty might be found under the count charging such violation, held error since the jury might infer that if they found that defendant had not violated the Federal statute they might find defendant guilty if they also found that defendant had violated the State statute.
    14. Appeal and error, § 1478

      —when admission in evidence of foreign laws reversible error. In an action by an employee to recover for personal injuries, where in different counts plaintiff alleged common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, and there was no doubt of the application of the latter act, the admission of evidence of the State statute declared on held reversible error.
    15. Master and servant, § 770

      —when not error to refuse peremptory instruction. In an action by an employee against the master to recover for personal injuries, it is not error to refuse a peremptory instruction to find defendant not guilty where sufficient facts are in dispute as to how the injury occurred.
    16. Master and servant, § 706

      —when question as to master's liability properly submitted to jury. In an action by an employee to recover for personal injuries sustained while plaintiff was engaged as a freight conductor in setting out cars from his train to a siding, as required by defendant’s train order, where the declaration contained a count alleging a violation of the Federal Employers’ Liability Act, and the application of such act was clear under the evidence, held that the case was properly submitted to the jury, there being disputed questions of fact as to the control of the track where the accident occurred, and as to whether a coupling was defective, uncoupled or broken.
    17. Witnesses, § 224

      —when witness may be examined as to written statements> It is not error to refuse to permit cross-examination of a witness as to statements made by him in writing where the record does not show the statement claimed to have been made.
    IS. Evidence, § 153

      —when exhibition in evidence of bones permissible. In an action to recover for injuries to plaintiff’s spine caused by being thrown from a car and falling a distance of 37 feet, which injury resulted in temporary paralysis of plaintiff’s legs,, held that the exhibition in evidence of the fourth .and fifth lumbars of the spinal column was properly permitted.
    19. Evidence, § 151

      —when explanation of X-ray pictures proper. In an action to recover for injuries to plaintiff’s spine, explanation of X-ray pictures of the injury held proper.
    On Rehearing.
    1. Master and servant, § 98

      —when employee deemed to rely on Federal Employers’ Liability Act. In an action by an employee to recover for personal injuries, where counts in the declaration allege a violation of a Federal statute and where it is not clear whether plaintiff relies on the Federal Employers’ Liability Act, or the Federal Safety Appliance Act, a separate statute, plaintiff of necessity relies on the former, since such act regulates and controls the liability of the employer to the employee, whether the employer has violated the Safety Appliance Act or has been guilty of general negligence.

      2. Master and servant, § 98

      —when remedy provided by Employers’ Liability Act exclusive. The remedy provided by the Federal Employers’ Liability Act for injuries to an employee while engaged in an interstate commerce service is exclusive and supersedes all remedies provided by State legislation.
    3. Master and servant, § 98

      —when remedy provided by Employers’ Liability Act exclusive. In an action to recover for personal injuries sustained by plaintiff while working as a freight conductor, the Federal Employers’ Liability Act applies exclusively where it appears by uncontradicted testimony that in plaintiff’s train at the time of the injury there were cars billed from a point in Illinois to a point in Missouri.
    4. Appeal and error, § 369

      —when not necessary that question of exclusion of application of State statute by Federal statute be raised in trial court. In an action by an employee to recover for personal injuries, where in different counts plaintiff alleged common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, it is not necessary that the question of the exclusion of the application of the State statute by the Federal statute be raised at the trial in order to enable defendant to raise such question on review, since if it appeared at the trial that at the time of the injury plaintiff was engaged in an interstate commerce service, the Federal act would apply and supersede the State legislation.
    5. Courts, § 150

      —when immaterial that Appellate Court misconstrued decision of Supreme Court. It is unimportant on rehearing whether the Appellate Court misconstrued an opinion of the Supreme Court where the Supreme Court in a case later than that on which the Appellate Court based its decision used language confirming the construction given to the former case by the Appellate Court.
    6. Commerce, § 5

      —when Federal law exclusive. Wherever Congress sees fit to legislate concerning interstate commerce, its legislation is exclusive.
    7. Commerce, § 5

      —when jurisdiction of Congress exclusive. In an action by an employee to recover for personal injuries where in different counts plaintiff alleges common-law negligence, a violation of a State statute and of the Federal Employers’ Liability Act, it is immaterial that the act alleged to have caused the injury be a violation both of the Federal act and the State act, it appearing that at the time of the injury plaintiff was engaged in an interstate commerce service, since in such case the jurisdiction of Congress is exclusive when once it acts.

      Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed May 1, 1915.
    Rehearing granted and opinion filed December 1, 1915.
    R. J. Goddard and Kagy & Vandervort, for appellant.
    J. J. Burlington and Holt & Wilson, 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.

      See Illnois 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.

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

   Mr. Justice Harris

delivered the opinion of the court.

The original declaration filed in this case consisted of five counts. The first two counts based upon the common-law duty of appellant to furnish appellee with a reasonably safe place to work and to keep the switch and side tracks upon which he had orders from appellant to place cars free from obstructions. The third count was based upon the statute of Missouri and the statutory duty of appellant to equip its cars in accordance with the statute. Demurrer was sustained to these three counts and appellee, by leave of .the court, filed three amended counts in lieu thereof.

The first two amended counts are founded on the common-law duty of appellant to furnish appellee a reasonably safe place to work, a switch and side track, upon which he was ordered to place ears, so that the cars might pass over without endangering life or limb of appellee, and charging that appellant disregarded its duty and negligently and carelessly permitted a wire to extend along and over and in close proximity to the side or switch track aforesaid and to swing along in close proximity and against the cars of appellant as they moved along upon said switch or side track, by means whereof, while appellee was in the performance of his duty in pursuance to orders given him, by appellant and while in the exercise of due care, was caught by the wire and thrown from said train into a ravine some 37 feet below, by reason of which he sustained serious and permanent injury; and that he sustained damages in the amount of $25,000.

The third amended count of the declaration was based upon a Missouri statute, making it the duty of appellant to equip its locomotive engine with power drive wheel brakes and fully and properly equip air brake appliances so that the engineer operating locomotives could fully and completely control the air brakes on the cars attached to the said locomotive engine without recourse to the hand brakes so that at least seventy-five per cent, of the cars composing such train should be equipped with air or power brakes, and that appellant neglected its duty in this behalf by reason whereof appellee was required to go on the moving cars and while exercising due care was injured in the manner as charged in the first two amended counts.

The fourth and fifth counts of original declaration charged appellant with the duty of equipping its train in accordance with the Federal statute in regard to power wheel brakes and appliances for the operation of train and brake system and to equip the train with automatic coupling, continuous brakes, etc., so that not less than fifty per cent, of the cars of such train would have their brakes used and operated by the engineer engaged in moving the cars so associated together and trains of cars without requiring the use of hand brakes for that purpose, and not to move or operate the said cars or trains of cars, or the standing cars on its railroad track, switch or side track being used by appellant without being equipped as aforesaid. That said train of cars was being used in moving interstate traffic, being hauled and conveyed from points-in State of Illinois to points in State of Missouri but that appellant neglected its duty in this behalf by reason whereof appellee, while obeying orders of appellant, and in the exercise of due care, was seriously and permanently injured in manner as charged in first two amended counts.

To this declaration appellant filed plea of general issue and the trial proceeded to the offering of evidence by appellant, when by leave of court appellant filed four special pleas. A demurrer was sustained to the third special plea. The other three averred in substance:

First. That track where injury occurred was not the track of appellant, nor under the control of appellant; that the wire that caused the injury was not the wire nor under the control of appellant.

Second. That the track on which injury occurred was the track of the St. Louis Smelting Company.

Third. That appellant did not own, use or operate railroad and bridge over Flat River and for more than 1,000 feet on either side of said River, and did not have permission to use it's cars on or over same.

A trial upon the issues so joined resulted in a verdict in favor of appellee for $10,000. Motion for new trial overruled, judgment on verdict, and this appeal.

Some of the undisputed facts are: That appellee, a man thirty-two years of age at the time of the trial, entered the service of appellant as train conductor in July, 1912. That he was at that time and prior to the accident had been a man in good health and physically able to perform manual labor; that the railroad of appellant extends from Salem, Illinois, to Bismark, Missouri, with a branch line to Chester, Illinois. That appellee .did in the handling of trains for appellant have charge of trains containing cars whose destination was from points in Illinois to points in Missouri and vice versa. At the time bf the injury appellee left Little Rock yards at 8:30 p. m., September 16, 1912, in charge of a train which had three cars of coal destined from a point in Illinois to Bismark, Missouri. That appellee at Little Rock yards, which is St. Glenevieve, Missouri, had seventeen empties, known as “chat cars” destined to what was known as the “National switch” at Flat Eiver, Missouri. That about 7:30 p. m. of said day appellee received from appellant a message as follows: “Conductor Extra 312 South leave your chat empties on National switch.” That appellee arrived with his train at the National switch, Flat Eiver, Missouri, at about 11:45 p. m., of said day. The chat cars were next to the caboose. The caboose was cut off on the main track and the train was pulled down over the switch leading to the National switch. The rear brakeman Merritt, under instructions of appellee, walked back to see if switches were properly set and if there were any cars there. There were cars standing on the main line of this National switch. There was also behind these chat cars a car with an iron tank chained to the rails. About five car lengths from where the National switch leaves the main track of appellant, there is another switch which will hold twelve or fourteen cars, and on that siding there was about twelve to fourteen loads of chat, but by lining the switches for this siding they could shove around the car that was chained to the rail. The brakeman made a coupling at the end of the cars next to the tracks of appellant on the siding. Appellee walked to rear end of the cut of cars and gave the back up signal for them to couple up. The brakes were set on the loads and the éngine could not shove them back. Appellee and rear brakeman commenced releasing brakes on these loads. There was not room to place seventeen cars on the National switch without moving the cars on the siding of the National switch. The engineer to move this train of cars started all cars forward, then in a quarter or a half car length reversed his engine and got them to moving back to the National switch. Appellee moved to rear end of train and the train was then moving towards National Lead Company’s mine rapidly. Appellee commenced to set brakes. At that time the cars were on the track leading to the bridge or trestle. Appellee moved to the side of the car, and was looking west when a wire over the left shoulder began to draw down and forced appellee to lose his grip and fall 37 feet over the bridge or trestle into the bed of Flat Biver. That he suffered an injury causing pain and for a time the lower limbs were paralyzed.

The National switch, as it is designated, is composed of a main line and side track used as interchange tracks between appellant and the St. Louis Smelting and Befining Company, a company having a place of business near Flat Biver, and a railroad operated by electricity arid steam over the bridge and trestle mentioned at Flat Biver. The ownership and possession of these tracks, their location and distances are not in dispute. The dispute arises over the right or the fact whether or not appellant, its servants and employees were confined in their work to the interchange tracks or whether or not when the interchange tracks were full they could and did use the line being a continuation of the siding between the two tracks across the bridge, appellant contending the employees had no such privilege and appellee insisting they did. About 200 feet from where the switch track leaves the main line of appellant there is a siding branching off from the switch track for a distance of 1080 feet and then connects with it again and the switch track with the line of Smelting Company 753 feet east of the bridge in question. There is about a two per cent, downward grade towards bridge from east and about four per cent, grade towards bridge from the west. That the cars in question were backed by the engine and train from this siding on to the switch track and from the switch track on the track in the use of Smelting Company over the bridge. That there were trolley wires over this line over the bridgeand telephone wires along said line connecting the smelting works with the depot of appellant at Flat Biver. That the telephone wires were not in use at the time in question and were out of repair.

The assignment of errors argued by appellant are:

First. That it is not denied that appellant was operating an interstate railroad and that appellee was at the time engaged in interstate commerce; that the Federal Employer’s Liability Law of 1908 took possession of the field to employees engaged in interstate transportation by rail and all State laws are superseded.

Second. That it was error to admit in evidence the statute of the State of Missouri and to incorporate it in an instruction directing a verdict.

Third. There is no liability on the part of appellant in this case for the reason that the engine and the cut of cars making this switching movement came to a full stop and were uncoupled by the brakeman, permitting them to roll down the steep incline. There was no speed to control. The engine and cars attached to it were standing still.

Fourth. Errors in admitting and refusing to admit evidence.

Fifth. Errors in giving and refusing instructions.

The first, second and fifth assignments of error argued by appellant were so closely associated together during the trial of this case and in the application of the law under the other assignments so that we may consider them as one. We will discuss and consider them first, as to the relation of the application of the Federal Employer’s Liability Law and the Missouri Safety Appliance Act both pleaded in the same declaration. The jury instructed upon both statutes while under the evidence the employment in which appellee was engaged was interstate and not in dispute.

The provisions of the Federal Employers’ Liability Act are limited to injuries occurring while the particular service in which the employee was engaged was a part of interstate commerce. (Illinois Cent. R. Co. v. Behrens, 233 U. S. 473, 10 N. C. C. A. 153.) That the employee of a railroad company in the handling of a train in which it is admitted are three cars, among those being then moved, which were then engaged in interstate commerce, is a prima facie case made by nncontradicted testimony of the fact that appellee was then engaged in interstate commerce. (Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248.)

Appellant with its records or any competent evidence could have met this prima facie ease and raised the question of fact whether or not appellee was at the time engaged in interstate or intrastate commerce. Therefore while appellee might properly file a declaration to meet the evidence, whatever it might be, the appellant was not bound to make objections to the declaration for that reason. It is not a matter of election, if it becomes a question of fact, it is to be submitted as any other question of fact. If, however, as in this case, it is not a matter of dispute but admitted it is a question of law, and the injury occurring in interstate commerce, the Federal act controls and a recovery cannot be had under the common or statute law of this State; the Federal act is exclusive and not merely cumulative. (Wabash R. Co. v. Hayes, 234 U. S. 86, 6 N. C. C. A. 224; Seaboard Air Line R. Co. v. Horton, 233 U. S. 492, 8 N. C. C. A. 834; Devine v. Chicago, R. I. & P. Ry. Co., 266 Ill. 248.)

The contention of appellee that both the Federal and Missouri acts are in force at one and the same time and a suit and a recovery may be had under either act on the same state of facts is based upon the ease of Luken v. Lake Shore & M. S. R. Co., 248 Ill. 385. There is no conflict between this case and the authorities heretofore cited. In the last case the question being considered by the court was whether or not the statute of the State being in harmony with, the Federal act could be considered when the injury'complained of occurred while the party injured was engaged in intrastate commerce on a railroad that was engaged, generally, in interstate commerce. It is necessary to consider the contention of appellee that appellant did not in the trial court raise the questions here urged as grounds for reversal.

We have heretofore referred to the fact that it was not necessary or proper for appellant to raise objections to the declaration on the ground alone that there was joinder of counts under the Federal act, Missouri act and common-law duty. Appellee made the proof of this train handling, at the time, interstate business. Appellee offered the Missouri statute in evidence. Appellant objected to the offer in the following language: “Objected to by defendant for the reason that those sections can have no application to this case; for the reason that this train was stopped and the engine was at the time completely cut off from the rest of the train when these cars started to rolling; there is no doubt about the facts in this case now.” Appellee insists that this objection is limited to the ground that the train was stopped and engine cut off. As we read the objection it is based first on the ground the statute has no application, and second on the ground the train was stopped and engine cut off. There was no doubt about the application of the Federal law from the evidence. The Missouri statute had no application, was incompetent, and the objection should have been sustained.

The argument of appellee that a verdict will not be set aside if supported by one good count does not apply, especially when the court gave an instruction for appellee based upon the Missouri statute and directing a verdict which under the admitted facts was error. Exceptions were duly preserved to the giving of this instruction and assigned as error in the motion for new trial. (Patry v. Chicago & W. I. R. Co., 265 Ill. 310.)

Appellee asked and the court gave instruction for appellee Number 3 (which is too long to be copied into this opinion), based upon the third amended count and in which the Missouri statute is set out at length, and the jury are told that if they believe from the evidence appellant had violated that statute and appellant’s negligence in that regard had caused the injury they may find appellant guilty under third amended count.

The appellant offered, with other instructions, a separate instruction under each count to find the defendant not guilty, which were refused. The offer of these instructions at this time, while they should have been given as to the three amended counts, there being left two good counts to support a verdict, would not be reversible error. However, the giving of appellee’s third instruction based upon a count under the admitted facts that would not support a verdict, the jury might believe appellant had not violated the Federal law but had violated the Missouri law, and if so they were told to find appellant guilty. We are of opinion that the giving of this instruction was error.

The errors in admitting in evidence the Missouri statute and the giving of appellee’s instruction No. 3, based upon the Missouri statute, were reversible errors.

The third error argued by appellant is in effect that the court committed error in not giving the peremptory instruction. There were sufficient facts .in dispute as to how this injury occurred, who had control of the line where the injury occurred, and whether the coupling was defective, uncoupled or broken, to be submitted to the jury.

The fpurth contention, errors in admitting evidence but two are argued. That the court refused to permit cross-examination of witness Merritt as to statements made by witness in writing. The record does not disclose what the statement was that appellant claimed was made, and without such showing the court’s ruling on the same was not error. The evidence offered by appellee, the exhibition of the fourth and fifth lumbar of the spinal column and the explanation of the X-ray pictures, were properly permitted and admitted.

The importance of this case and the principles involved require an accurate application of the law. .

Therefore for and on account of the errors sustained, the judgment will be reversed and cause remanded.

Reversed and remanded.

Mr. Justice McBride took no part in the consideration and decision of this case.

Opinion on Rehearing by

Mr. Justice Boggs.

The petition for rehearing was granted in the above entitled cause and said cause was reargued by counsel for both parties, and said cause was reconsidered by the court.

It was urged by appellee in his petition for rehearing, first, that the court had misunderstood the pleadings in the case and had overlooked the fact that the Federal Employers’ Liability Act was not pleaded, and that this act was not relied on. Also, that appelTee in the fourth and fifth counts of his original declaration based his cause of action upon the Federal Safety Appliance Act, and that this is a separate act from the Federal Employers’ Liability Act. We think, however, that appellee in the fourth and fifth counts of his declaration must, of necessity, rely on the Federal Employers’ Liability Act, for these two counts charge in effect that appellant was engaged in interstate commerce.

This act regulates and controls the liability of the employer to the employee-, whether the employer has violated the Federal Safety Appliance Act or whether the charge is one of general negligence. Its jurisdiction is exclusive and supersedes all State legislation.

Second. It is contended that the Missouri Safety Appliance Act was properly admitted in evidence. The evidence in this case is that appellee was engaged, at the time of his injury, in interstate commerce. Appellee testified that in the train in question were billed three cars of coal from a point where the Iron Mountain crosses the Illinois Southern in the State of Illinois, destined to Bismark in the State of Missouri, and that these three cars were in that part of the train engaged in making the' move at the time the appellee claims he was injured. There was no evidence to dispute his testimony on this question. That being true, the Federal Employers ’ Liability Act would apply, and would be exclusive. (Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 3 N. C. C. A. 779; Southern R. Co. v. Railroad Commission of Indiana, 236 U. S. 439.)

Third. Appellee also contends that the question of' the application of either of the Federal acts to the exclusion of the State act was at no time considered during the trial. We do not understand this to have been necessary. If it developed on the hearing that appellant was engaged in interstate commerce, then the Federal Employers’ Liability Act would apply and would supersede any State legislation in connection therewith. The record, however, shows that objection was made to the introduction of the Missouri statute on the trial which raised the question, were it necessary to be raised.

Fourth. It is also contended by appellee that the court misapprehended the case of Luken v. Lake Shore & M. S. R. Co., 248 Ill. 385. We do not believe that the opinion heretofore rendered by the court in connection with the case at bar is subject to this criticism. However that may be, our Supreme Court in the recent case of Staley v. Illinois Cent. R. Co., 268 Ill. 356, in reviewing its former opinions, and also the opinions rendered by the United States Supreme Court, touching the jurisdiction of Congress to legislate on the relations of employer and employee where engaged in interstate commerce, holds conclusively that once Congress has undertaken to legislate in connection with this matter, that its jurisdiction becomes exclusive. So whatever may be said with reference to the holding of the court in the Luken case, supra, there can be no question in regard to its position in the case of Staley v. Illinois Cent. R. Co., supra. This latter case sets at rest the position of our Supreme Court in regard to the exclusive jurisdiction of Congress in reference to matters connected with interstate commerce. Whenever Congress sees fit to legislate in regard thereto, its legislation is exclusive.

Appellee’s fifth contention is that the failure of appellant to equip its cars was a violation of both acts; that is, a violation of the Federal law and of the Missouri law. What we have said heretofore in regard to the exclusive jurisdiction of Congress when once it has acted covers this objection, and instruction No. 3, given on behalf of appellee, authorizing the jury to find for the plaintiff, basing appellant’s liability on the Missouri statute, was erroneous, the evidence of appellee showing conclusively that he at that time was engaged in interstate commerce.

We adhere to our former opinion and order the same filed together with this additional opinion as the opinion in the case. Said cause is reversed and remanded for further proceedings, not inconsistent with the views herein expressed.

Reversed and remanded.

Mr. Justice McBride took no part in the hearing of said cause.


source: Caselaw Access Project

author: Mr. Presiding Justice McBride

license: Public Domain

text:
    Clarence Handley, Appellant, v. The People of the State of Illinois, Appellee.
    (Not to he reported in full.)
    Appeal from the County Court of Fayette county; the Hon. John H. Webb, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed July 21, 1915.
    Statement of the Case.
    Information in bastardy, initiated by the People of the State of Illinois on complaint of Ella Fay Casey, against Clarence Handley ^defendant, charging defendant with being the father of a bastard child to whom prosecutrix gave birth. From a judgment for plaintiff for five hundred and fifty dollars, defendant appeals.
    Prosecutrix was an unmarried woman, and the child was born on October 17,1913. Prosecutrix filed a complaint against defendant in said County Court on December 8, 1913, charging him with being the father of her child. The prosecutrix testified that defendant had sexual intercourse with her about the third Sunday in December, on the 12th of January and on the 20th of February. The defendant denied that he had sexual intercourse with her at any time during the months of December, January or February and offered evidence tending to show an alibi as to the date fixed in January.
    It appeared that the prosecutrix and defendant lived about one mile apart and had known each other ever since childhood, and had been keeping company for some time prior to the birth of the child.
    The testimony was conflicting. Prosecutrix testified that defendant had sexual intercourse with her at the dates above mentioned, and that later he met her at the train on her return from a trip north; and that he went to church with her on the night of January 12th, and that on such date she sustained improper relations with him, and she was corroborate]! by her mother and to some extent by another witness as to having been in company with him on the night of January 12th.
    It further appeared that after prosecutrix’s mother ascertained that she was pregnant, the two went to the home of Handley and had a talk with him about the paternity of the child; that when the mother said that they wanted to settle this trouble he did not then deny the paternity but said he wanted to talk with the daughter privately and they did so; and he then said he did not know what to do, and the daughter said his only objection was that he had heard that another man had had sexual intercourse with her and that defendant then admitted they were both to blame.
    It further appeared that defendant frequently visited the prosecutrix at her home during the two years prior to the birth of the child. The defendant denied that he ever had sexual intercourse with her except on the 2nd of April, when he met her on her return home from the north. He claimed that on the night of January 12th he was in company with a young lady at-a certain place but did not attempt to show where he was upon either of the other dates on which she alleged they sustained improper relations. As to the date of January 12th, he introduced several witnesses whose testimony tended to show that on the night of January 12th she was in the company of another man, and the testimony of other witnesses who also claimed to have been at the church on that evening and did not see defendant and prosecutrix.
    F. M. Dunn, for appellant.
    J. Gr. Burnside, 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 McBride

delivered the opinion of the court.

Abstract of the Decision.

1. Bastards, § 33 —when question of paternity for jury. In an information in bastardy, where the evidence is conflicting, the question whether defendant is the father of the child is a question for the determination of the jury.

2. Bastards, § 22 —when specific date not controlling as to time of conception. In an information in bastardy, where the child alleged to have been begotten by defendant was born on October 17, 1913, and where prosecutrix testified that defendant had intercourse with her on a date in December, 1912, and on January 12, 1913, and February 20, 1913, the date of January 12, 1913, is not absolutely controlling as to the date when the child was begotten, since a pregnancy due to intercourse had between defendant and prosecutrix in December, 1912, may have been abnormally protracted.

3. Words and phrases—duration of pregnancy. The duration of the pregnancy of a human female may be stated to be from 260 to 308 days after coition, and the usual or average period to be 276 days, but such duration may exceed its nominal limit, and the limit of such excess cannot be accurately known in the present state of physiological science.

4. Bastards, § 23 —credibility of witnesses. In an information in bastardy, where the testimony of defendant and of prosecutrix is conflicting, it is frequently difficult to determine which witness tells the truth, since the desire of the mother to secure a parent for her child and the desire of defendant to avoid the consequences of his conduct are incentives for concealing the facts.

5. Bastards, § 22 —when date of alibi not conclusive as to date when child begotten. In an information in bastardy where prosecutrix testifies that defendant had intercourse with her on several named dates, which defendant denies, and offers evidence tending to prove an alibi on one of the dates named, but fails to show where he was on the other dates, if not with prosecutrix, the date as to which defendant proves an alibi will not be deemed controlling as to the date when the child was begotten if it is possible that defendant might have begotten the child on either of the other dates named by prosecutrix as those on which defendant had intercourse with her.

6. Bastards, § 22 —when evidence sufficient to sustain finding as to paternity of child. In an information in bastardy, where prosecutrix testifies that defendant had intercourse with her at a date when defendant might have begotten the child, a verdict finding that defendant was the father of the child held sustained by the evidence.

7. Bastards, § 34 —when instruction as to immateriality of dates when intercourse took place proper. In an information in bastardy, an instruction, in substance, that if defendant was by a preponderance of the evidence found to be the father of the child, the dates when intercourse took place between defendant and prosecutrix were immaterial, even though prosecutrix was mistaken as to the particular date testified to as that on which such intercourse took place, held not erroneous under the evidence, it appearing that prosecutrix testified to three dates on which defendant had intercourse with her.

8. Bastards, § 34 —when instruction to find for defendant not erroneous. In an information in bastardy, where defendant requested an instruction that if plaintiff had not sustained the charge that defendant was the father of the child, “or if on this point the preponderance of the evidence is that he is not such father or if you find the evidence equally balanced” then the jury must find for defendant, an objection to the instruction as modified by striking out the quoted words, held not well taken, it appearing that the instruction as given told the jury that they could find defendant to be such father only where such finding was supported by a preponderance of the evidence.

9. Bastards, § 34 —when instruction properly modified by striking out reference to date when intercourse took place. In an information in bastardy, an objection to the modification by the trial court of a requested instruction by striking out the words “on the 12th day of January or at any other time,” held not well taken, such words being misleading, where the instruction as given told the jury that if defendant did not have sexual intercourse with prosecutrix during the period wherein she became pregnant defendant could not be found to be such father of the child, it being immaterial at what date the child was begotten if defendant be found to be the father, and it being therefore improper to call attention to the date when any intercourse took place unless a date when It was impossible that defendant could have begotten the child.

10. Appeal and error, § 1561 —when refusal of proper instructions not reversible error. In an information in bastardy, instructions examined and held not reversible error, although objections thereto were well taken, it appearing that the jury had been fully instructed that all the facts and circumstances in evidence should be taken into consideration in arriving at a verdict.


text:
    George C. Bandy, Appellee, v. Litchfield & Madison Railroad Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed July 21, 1915.
    Statement of the Case.
    Action Tby George C. Bandy, plaintiff, against the Litchfield & Madison Railroad Company, in the Circuit Court of Madison county, to recover for personal injuries sustained by plaintiff by reason of the negligent operation of a motor car on which he was riding. From a judgment for plaintiff for $1,000, defendant appeals.
    The case of Schmidt v. Litchfield & M. R. Co., 179 Ill. App. 533, was a suit by witness Alois Schmidt, who was one of plaintiff’s bridge gang, to recover for injuries received in the same accident, and a verdict for plaintiff in that action was reversed by this court as manifestly against the weight of the evidence. This case has previously been before this court on appeal from a judgment for plaintiff, which was reversed for the same reason as in the Schmidt case, supra, see 183 Ill. App. 492.
    The declaration consisting of three counts which were substantially the same, charged that on May 23, 1910, the plaintiff, at the special request of defendant, and while in its employ, was taken upon a motor car operated by the defendant to be hauled upon defendant’s railroad from his place of work at a bridge near Madison to Edwardsville, and the defendant, by its servant Clarence Bickle, negligently operated said motor car; that while it was passing along said railroad near a bridge or trestle, the motor car ran against a dog upon the track of said railroad and was derailed, whereby the plaintiff was thrown upon said railroad track and injured.
    It appeared that on May 23, 1910, the plaintiff was at work for the defendant upon a bridge near Madison, acting as foreman of the bridge gang, and arranged with Clarence Bickle, who operated a motor car for the defendant, and resided at Edwardsville, to come with the motor car at the close of the day’s work and haul the plaintiff and his bridge gang to Edwardsville; that Bickle at the appointed time came to the bridge and took plaintiff and his associates upon the motor car and started for Edwardsville, running at a rate of speed variously estimated at from eighteen to twenty-five miles per hour; between Edwardsville and Madison and about five miles north of Madison its railroad crosses a bridge or trestle over Cahokia Creek, and as the motor car came to the trestle it struck a dog, and the car was derailed and plaintiff was injured.
    It also appeared that the dog that was killed by this motor car belonged to a man by the name of Bowen, and was first seen at the side of the track and some distance from this trestle. All of the witnesses seemed to agree that the dog was killed upon the trestle, and at about five or six feet from the end of the trestle.
    Alois Schmidt, who was also injured, testified that he noticed the dog jump upon the track about one hundred feet away from the trestle, and that he drew Bickle’s attention to that fact, and told him: “Better stop the car because we are in danger.” Bickle said: “Watch me knock that dog, etc.,” and that the car was then running about thirty-five miles an hour; that he felt Bickle raise the speed of the car. William Schmidt testified that he saw the dog running along the track and said: “Look out there Mr. Bickle you are going to hit that dog” and he turned around and said: “ ‘Watch me hit this dog, etc.,’ and just then the dog ran along the track, I guess about seventy feet, two rail lengths;, the dog ran along the side of the track and I cautioned him again and turned back to Mr. Bandy, and just then I turned to look around and I seen the dog run on the ties of the bridge, etc. ’ ’; and on cross-examination this same witness said: “We were two hundred yards or more from the trestle when he (the dog) left the men. He went a pretty good speed towards the track up the hill. He came in a gallop, all the way along the track. He was about seventy feet or more from the trestle when he came to the track; then our car was about thirty feet from him. The dog was not more than ten feet away from the track when I called Mr. Bielde’s attention to it. When he got up to the tracks, he just galloped right along side of the track up to the trestle, when he made one hop on the trestle and started in a kind of trot and fell between the ties and throwed his head over the rails. When the dog jumped on the trestle our car was about eight feet from him.”
    Another witness, Barney Bussel, called by plaintiff, testified that just before the accident the dog was on the side of the track, the car being on the south side of Bowen and the boys. Witness did not see the dog again until he got to the trestle. Plaintiff had no recollection of seeing the dog. Alois Schmidt was the only witness who saw the dog on the track in front of the car before reaching the trestle. Schmidt made a statement to Dr. Ferguson, who testified: “On the evening of the accident Mr. Alois Schmidt said to me at that time and place that some men there on the side of the track were holding the dog, and that the dog got away from them and jumped under the car, and nobody could ¿void striking it,—or a statement to that effect. He also said at that time that the dog sprang out from where these men were and jumped under the car and nobody could avoid striking it. He also said at the same time and place that this was purely an accident and that Mr. Bickle was not to blame in any way.” The doctor further states that on the next morning after the accident Alois Schmidt told him substantially the same thing.
    Abstract of the Decision.
    1. Master and servant, § 697

      —when evidence insufficient to sustain verdict. In an‘action to recover for personal injuries sustained by plaintiff while riding on a railroad motor car as a result of the car being, derailed by striking a dog, where the evidence tended to show that the dog jumped suddenly on the track in front of the car and was struck before there was time to check the speed of the car, a verdict for plaintiff held manifestly against the weight of the evidence.

      Witness Taylor, for defendant, testified that he first saw the dog five or six feet from the trestle, and heard no statement by Schmidt to Bickle about striking the dog. Bowen, the owner of the dog testified that a second or two before the accident the dog was with him at a distance from the track fixed at about sixty feet by the witnesses, and the next he knew the car was running over the dog. Bowen was substantially corroborated by two witnesses. Bickle testified as follows :
    “When within five or six feet of the trestle I saw the dog running along the right-hand side of the track; -he was bounding up on top of the trestle just in front of the side of the car. I had not seen the dog before that. When I first saw him I think he was running as fast as he could run in a northerly direction; about the first bound he made on the bridge his forefeet went up and his rear parts fell over the rail and the car struck him.” Witness also said that he built this car out of an old automobile, and that its maximum speed was twenty-two to twenty-three miles per hour, and denied that the Schmidts said to him to look out that he was going to hit the dog, or anything to that effect.
    Warnock, Williamson & Burroughs, for appellant.
    C. H. Burton, 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 McBride

delivered the opinion of the court.

2. Appeal and error, § 1802 —when judgment reversed second time because against weight of evidence, not remanded. In an action to recover for personal injuries, where a previous judgment for plaintiff has been reversed by the Appellate Court as manifestly against the weight of the evidence, and where in another action growing out of the same accident a judgment for plaintiff has been reversed for the same reason, a judgment for plaintiff in a second trial, when reversed for a similar reason, will not be remanded.


text:
    Heirsch & Micotto, Appellees, v. Lorimer & Gallagher Company and O. T. Dunlap Company, Appellants.
    (Not to he reported in full.)
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed July 21, 1915.
    Statement of the Case.
    Action of assumpsit by Heirsch & Micotto, plaintiffs, against the Lorimer & Gallagher Company and the 0. T. Dunlap Company, defendants, in the City Court of East St. Louis, to recover on a contract. From a judgment for plaintiffs for $1,558.61, defendants appeal.
    The declaration was in one count, declaring specially on the following contract: “It is stipulated and agreed by and between the parties hereto that a mutual settlement of their accounts has been this day arrived at, and that there is due the plaintiffs on an account stated from the defendants by way of compromise and settlement, the sum of two thousand two hundred and forty-four dollars and sixty-one cents ($2,244.61), subject to the final acceptance of the work done by the plaintiffs under their contract with the O. T. Dunlap Company in building the sewer on St. Clair Avenue, East St. Louis, Ill., and in consideration of the mutual settlement made as hereinbefore stated the defendants agree to pay to the plaintiffs within the next few days the sum of six hundred and eighty-six dollars ($686.00) cash and to pay the balance of fifteen hundred and fifty-eight dollars and sixty-one cents ($1,558.61) immediately upon acceptance of such work done by the plaintiffs by the City of East St. Louis, and to exercise due diligence in an effort to have the final confirmation and approval of the work on the outlet sewer, including the portion done by the plaintiffs, confirmed and accepted by the City of East St. Louis, Ill.”
    Defendants pleaded the general issue, and it was agreed that evidence admissible under any proper special plea might be introduced under the general issue. The case was tried by the court without a jury. The main question at issue was the construction of the contract.
    The court gave the following instructions for defendant :
    2. “That it is competent to show on the trial of this case that the city authorities refused to accept the work done by the plaintiffs until after the defendants had expended a certain sum of money in doing the work required of the plaintiffs under their contract with the defendants and required by the contract and the ordinance therein referred to, under' which the defendants were doing the work for the City of East St. Louis, and that whatever sum was necessarily expended by the defendants in doing any work originally required of the plaintiffs under their contract with the defendants before the City of East St. Louis could accept the same, may be set off as credit in favor of the defendants against the amount of the plaintiffs’ demand.”

      Abstract of the Decision.
    1. Contracts, § 177

      —what is primary object in construction of. In. construing a contract, the primary object is to discover and give effect to the intention of the parties, so that performance may be enforced according to the sense in which parties mutually under» stood the contract when made.

      3. “The Court holds as a matter of law that if after the making of the agreement sued on in this ease, the defendants were compelled to incur expense or expend money in finishing, completing, repairing and cleaning up, or in the doing of any other work originally required of the plaintiffs under their contract with the defendants before the City of East St. Louis would accept the work in its entirety done by the plaintiffs, then the defendants would be entitled to set off against the plaintiffs’ demand in this case whatever sum the evidence shows was necessarily expended by the defendants in completing, finishing, repairing or cleaning up such work in order to have the same accepted by the City of East St. Louis.”
    4. “The Court holds as a matter of law that it is competent for the defendants in this case to offer oral testimony to show that the work done by the plaintiffs under their contract with the O. T. Dunlap Company was never accepted by the City of East St. Louis in the condition in which it was on the 25th day of January, 1912, the date of the agreement herein sued on, and the defendants may recoup in this action whatever sum it necessarily expended in the completion, repair or finishing of the work which the plaintiffs undertook to do under their contract with the 0. T. Dunlap Company, if the proof further shows that the defendants requested them to complete, repair or finish said work after the making of the agreement on the 25th day of January, 1912, and the plaintiffs failed to do so.”
    Dan McGlynn, for appellants.
    D. E. Keefe, for appellees.

      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.

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

   Mr. Presiding Justice McBride

delivered the opinion of the court.

2. Contracts, § 177 —what effect given to clear intent of parties in construction of. In construing „a contract, greater regard should be had to the clear intent of the parties than to any particular words used to express such intention.

3. Contracts, § 183 —when evidence of circumstances leading fo execution of contract admissible to aid in construction of. "Where a contract does not state on its face sufficient facts to enable the court to determine its true intent, and the terms of such contract are uncertain, evidence is competent of the circumstances leading to the execution of such contract, not as changing or modifying it, but to enable the court to place itself as nearly as possible in the position of the parties when such contract was made so as to understand the language used in the sense intended by the parties, and thereby arrive at its true intent, and to enforce the contract accordingly.

4. Contracts, § 183 —when contract sufficiently uncertain to authorize admission of evidence of circumstances surrounding making of contract. In an action of assumpsit on a written contract by which defendants promised to pay a sum of money to plaintiffs, “subject to the final acceptance of the work done by the plaintiffs under their contract with O. T. Dunlap Company in building the sewer on St. Clair Avenue, etc.,” contract held sufficiently uncertain in its terms to render competent evidence of the facts and circumstances surrounding the making of the contract, in aid of its construction.

5. Contracts, § 294 —when securing approval of work by city condition precedent to action by subcontractor against contractor. "Where contractors agreed to pay subcontractors for work done on a city sewer contract, “subject to final acceptance of the work,” and the contractors’ agreement with the city required that the work be done to the satisfaction of the Board of Local Improvements, and the contractors, upon failure of the subcontractors to secure approval of the work from the board, made the proper corrections and secured approval of the work, held that approval by the city of the work done by the subcontractor was a condition precedent to a recovery in an action of assumpsit on the agreement.

6. Contracts, § 171 —when whole instrument considered in construing. In construing contracts the whole instrument must be considered, and such construction given as to give force and meaning to every part of it, if possible.

7. Set-off and recoupment, § 18when contractor may recoup expense of correcting defects in action by contractor. In an action to recover on a contract whereby defendants agreed to pay plaintiffs a sum of money on the acceptance by a city of certain work done by plaintiffs in pursuance of a subcontract with defendants, who had a contract with such city for the work, and Where it appeared that such city refused to accept the work as done by plaintiffs and only accepted it when defects in plaintiffs’ work had been corrected by defendants, the refusal of the trial court to permit defendants to set-off or recoup against plaintiffs’ claim the expense of correcting such defects, held erroneous, such payments being in such case money laid out and expended for plaintiffs’ benefit.

8. Contracts, § 393 —when instruction as to admissibility of evidence to show nonacceptance of work and right of set-off proper. In an action by subcontractors against contractors on a compromise agreement for the payment of a sum in settlement for work performed on a city sewer contract conditioned upon acceptance of the work performed by the city, an instruction that it was competent to show that the city refused to accept the work done by plaintiffs until defendants had expended a certain sum in doing the work as required by the agreement, and that defendants might set off such sums necessarily expended, held proper.

9. Contracts, § 393 —when instruction as to right of set-off proper. In an action by subcontractors against contractors on a compromise agreement for the payment of a certain sum in settlement of work performed on a city sewer contract conditioned upon acceptance of the work performed by the city, an instruction that if the contractor was compelled to incur expense in completing the work originally required of the plaintiffs before the work would be accepted by the city then the defendants were entitled to set off such expenses as had been necessarily incurred, held proper.

10. Contracts, § 393 —when instruction as to admissibility of parol evidence to show nonacceptance of work, and as to right of set-off proper. In an action by subcontractors against contractors on an agreement to pay a certain sum in settlement for work performed on a city sewer contract and conditioned upon the acceptance of the work performed by the city officials, an instruction that it was competent for defendants to offer oral testimony to show that the work done by plaintiffs had never been accepted by the city in the condition it was in on the date that the agreement sued on was made, and that defendants might recoup necessary expense in completion of the work upon proof that plaintiffs, upon request to complete the work after date of the agreement, failed to do so.


text:
    Eli Conant, Plaintiff in Error, v. Lloyd Watts, Defendant in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Justices of the peace, § 162

      —when appeal cannot be prosecuted. No appeal can be prosecuted from the verdict of a jury before a justice of the peace until the justice has rendered judgment on such verdict as required by Hurd’s Rev. St., ch. 79, sec. 39 (J. & A. ¶ 6900).
    2. Justices of the peace, § 162

      —when no jurisdiction on appeal because no judgment entered. A court to which an appeal is prosecuted from the verdict of a jury before a justice of the peace acquires no jurisdiction of the cause appealed where it does not appear that the justice rendered a judgment on such verdict as required by Hurd’s Rev. St., ch. 79, sec. 39 (J. & A. ¶ 6900).

      Error to the County Court of Marion county the Hon. C. E. Jennings, Judge, presiding.
    Heard in this court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed September 1, 1915.
    Statement of the Case.
    Action by Lloyd Watts, plaintiff, against Eli Conant, defendant, in the County Court of Marion county, to recover eight dollars claimed by plaintiff to be due him from defendant. A trial before a justice of the peace resulted in a verdict by the jury for defendant. The justice’s docket did not show that he entered judgment on this verdict. On appeal to the County Court after denying a motion to dismiss the appeal, the court rendered judgment for plaintiff. To reverse a judgment for plaintiff for eight dollars, defendant prosecutes this writ of error.
    Earl C. Huggins, for plaintiff in error.
    No appearance 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 McBride

delivered the opinion of the court.

3. Justices of the peace, § 170 —when right to appeal exists. The authority for appeals from justices of the peace is purely statutory, and such appeals can be taken only in the manner provided by the statute.

4. Justices of the peace, § 171 —when statute confers no right of appeal from mere verdict. Hurd’s Rev. St., ch. 79, sec. 115 (J. & A. ¶ 6976), provides only for appeals from the judgments of justices of the peace, and not for appeals from the verdicts of juries in actions tried before such justices.

5. Justices of the peace, § 106 —what are requisites of judgment. Under Hurd’s Rev. St., ch. 79, sec. 39 (J. & A. ¶ 6900), providing for the rendering of judgments by justices of the peace, no formal words are required in entering such a judgment, but a judgment of some kind must be entered.

6. Justices of the peace, § 212 —when appeal should he dismissed. On appeal from a justice of the peace where it did not appear that the justice entered a judgment on the verdict of a jury in the action where an appeal was sought to be prosecuted, the denial of a motion to dismiss the appeal held erroneous.

7. Justices of the peace, § 162 —when court on appeal no jurisdiction to enter judgment. In an action tried in the County Court on appeal from a justice of the peace where it did not appear that the justice entered a judgment in the action in which the appeal was allowed, a judgment for plaintiff held erroneous, the court having in such case no jurisdiction to enter such judgment.


text:
    Sallie G. Owens, Appellant, v. Commonwealth Trust Company and William G. Hume, Appellees.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed September 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by Sallie G-. Owens, complainant, against the Commonwealth Trust Company and William C. Hume, defendants, in the Circuit Court of Marion county, to redeem lands from a foreclosure sale. The cause was before this court on a prior appeal in Owens v. Commonwealth Trust Co., 183 Ill. App. 605, wherein is to be found a full statement of the case. The lands sought to be redeemed were sold by a master in chancery on July 1, 1911, under foreclosure of a mortgage. June 29, 1912, defendant Commonwealth Trust Company refused complainant’s tender of the amount due, and a decree dismissing the bill was reversed on the ground that the tender made preserved the right to redeem.
    Upon the remanding of the cause one W. H. Owens was permitted to appear and answer herein, claiming that the. Commonwealth Trust Company held this certificate as security and that it was owned by him subject to the interests of the company, and by which answer it was sought to fix the interests of himself and the company in this fund when redemption should be made. Complainant by motion sought to set aside the order permitting Hume to become a party defendant, and to answer, which was denied, and the cause was heard upon the bill, answers and the evidence, and a decree rendered granting complainants four months in which to redeem, upon payment to the master, or persons interested, of the amount for which the property was sold at the foreclosure sale, together with legal interest from June 29,1912, the time tender was made, and with the amount paid out for taxes, with legal interest. The decree was rendered on February 25,1914, and it is from this decree that she prosecutes this appeal. From the decree, complainant appeals.
    Abstract of the Decision.
    1. Mortgages, § 725

      —when right to redeem begins. In a bill to redeem land from a sale under foreclosure of a mortgage, where the" decree grants the right to redeem on certain conditions within four months of a specified date, it is immaterial whether the decree was actually entered on such date, as shown by the record, or at a later date as claimed by complainant, since the right to redeem is fixed as from such specified date.
    2. Mortgages, § 725

      —when time for redemption allowed by decree not shortened. In a bill to redeem land from a sale under foreclosure of a mortgage, where a former decree dismissing the bill was reversed on appeal on the ground that complainant had preserved her rights to redeem by making a valid tender of the amount due within the time for' redemption, which tender was refused by defendant, such tender being made June 29, 1912, a decree entered, after hearing on remand, granting complainant leave to redeem on certain conditions within four months from February 25, 1914, held that the fact that the right to redeem was fixed from such date and not from the date of entering the decree, two months later, did not operate to shorten the time for redemption allowed by the decree, the extension of time for redemption being liberal.
    3. Tender, § 14

      —when presumed maker of tender able to pay amount at time of hearing. Since a> tender must be kept good to reap the benefits thereof, a decree granting relief on the basis of rights preserved by such tender involves the presumption that the maker of the tender was able to pay the amount of such tender at the time of the hearing, as a result of which the decree was entered.

      Sallie G. Owens, pro se.

    Charles Campbell and Kagy & Vandervort, for appellees.

      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 McBride

delivered the opinion of the court.

4. Mortgages, § 709 —when decree does not require payment of excessive amount to redeem property. In a bill to redeem land from a sale under foreclosure of a mortgage, where a previous decree dismissing the bill had been reversed on the ground that a valid tender had been made preserving the right of redemption, a decree, after hearing on remand, granting complainant the right to redeem within a named time on payment of the amount for which the property was sold, without interest from the date of tender to the date of hearing, together with the taxes paid by defendant on the property sought to be redeemed between the time of sale and the date of the hearing, held not to require complainant' to pay an excessive amount as a condition of the redemption allowed.

5. Mortgages, § 710 —when party buying at foreclosure sale entitled to' reimbursement for taxes paid upon redemption. It is just and equitable that one buying property at a foreclosure sale should in case of a redemption under an order of court be reimbursed for the amounts paid out for taxes in order to protect the title of the property bought.

6. Mortgages, § 715 —when claimant of redemption fund properly allowed to appear and answer bill to redeem. In a bill to redeem land from a sale under foreclosure of a mortgage, no error is committed of which complainant can complain where one not a party to the bill is permitted to appear and answer in order to determine the rights, as between himself and defendant, to the amounts to be paid as a condition of the redemption sought, it appearing that no complaint was made as to the distribution of the redemption fund between the' claimants, and that the amount to be paid by complainant as a condition of redemption was not affected by the action of the court in permitting such appearance and answer.


text:
    Henry Vogler, Appellee, v. Chicago & Carterville Coal Company, Appellant.
    1. Waters and water courses, § 29

      —when evidence sufficient to prove claim of ownership of land. In an action to recover for injury to land, due to overflow a devise to plaintiff of the fee of the land in question is sufficient prima facie to prove that testator claimed to own the land, it being not necessary to prove such a claim by words.
    2. Waters and water, courses, § 27

      —when person in possession sufficient title to maintain action for damages for overflow. In an action to recover for injury to land, due to overflow, the possession of plaintiff under a devise of the fee of such land by the will of plaintiff’s father is sufficient proof of ownership thereof to maintain the action against one showing no title.
    3. Ejectment, § 8

      —when prior possession under claim of title in fee sufficient to maintain action. Although strictness in the proof of title is required in . actions of ejectment, proof of prior possession by plaintiff claiming title in fee is prima facie evidence of title and seizin, and will enable plaintiff to maintain such an action unless defendant shows a better title.
    4. Deeds, § 194

      —when parol evidence admissible to show that deed is release of mortgage. In an action to recover for an injury to land, due to overflow, where, in order to deny title in plaintiff, defendant offered evidence of a conveyance to plaintiff of only part of such land, held proper for plaintiff to show that the conveyance in question was really a release of a mortgage, plaintiff having borrowed money from the grantor named in such conveyance and given a deed to the land therein conveyed in lieu of a mortgage.
    5. Waters and water courses, § 29

      —when evidence sufficient to prove title to land. In an action to recover for injury to land, due to overflow, where plaintiff was in possession under.a devise of the fee of such land under the will of his father who claimed title, and where there was no evidence of a better title in any other person, evidence held sufficient prima facie to prove title in plaintiff.
    6. Waters and water courses, § 30

      —when question for jury whether overflow due to obstruction of sloughs. In an action to recover for injury to land alleged to be due to the act of defendant in obstructing certain sloughs with debris so as to prevent water from draining off plaintiff’s land by means of such sloughs and to cause it to be backed up on such land, where the evidence was conflicting as to whether the obstruction was caused by the construction of a railroad in the vicinity but where there was evidence in some degree tending to show that the overflow was the result of defendant’s act, held that the question whether the overflow was the result of defendant’s act was for the jury.
    7. Waters and water courses, § 29

      —when evidence sufficient to sustain finding that overflow caused by obstruction of slough. In an action to recover for injury to land alleged to be due to the act of defendant in obstructing certain sloughs with debris so as to prevent water from draining off plaintiff’s land by means of such sloughs and to cause it to be backed up on such land, where the evidence was conflicting as to whether such obstruction was caused by the construction of a railroad in the vicinity, but where there was evidence tending to show that the obstruction was caused by defendant’s deposits of debris, causing an overflow of water on plaintiff’s land, a verdict finding that such overflow was the result of the act of defendant held not manifestly against the weight of the evidence.
    8. Appeal and error, § 1413

      —when verdict will not be disturbed. In an action to recover for injury to land alleged to be the result of defendant’s act in obstructing, drainage so that water was caused to be backed up on plaintiff’s land, a verdict for plaintiff will not be disturbed where in a former trial of the action on substantially similar evidence the jury returned a similar verdict.
    9. Waters and water courses, § 27

      —when tenant may sue for injury to crops. In case of damage to land by overflow, a tenant In possession thereof may recover for crops raised thereon by such tenant alone.
    10. Waters and water courses, § 32

      —what is measure of damages for injury to land in favor of landlord. In an action by a landlord to recover for injury to land in the possession of a tenant, due to overflow, among the proper elements of damages in such action are the value of any crops raised by him, depreciation in the rental value of the land or of its value as a home, in so far as caused by defendant’s wrongful act.
    11. Waters and water courses, § 31

      —when instruction on measure of damages for injury to land due to overflow proper. In an action to recover for injury to the value of land due to overflow, part of which was in the possession of a tenant, and on which both landlord and tenant had planted crops, and where an instruction was given that in assessing damages the jury should consider the rental value of the land and the discomfort and deprivation of the health, use and comfort of plaintiff’s home, caused by defendant’s wrongful act, held that there was no reason for supposing that the jury assessed as an element of plaintiff's damages the value of any crops planted by the tenant.

      12. Waters and water courses, § 29

      —when evidence admissible to show productiveness of soil in action for injury to land due to overflow. In an action to recover for injury to land by reason of an overflow of water thereon caused by defendant’s wrongful act, evidence is competent of the opinion of witnesses as to what the land in question would have produced under a reasonable state of cultivation, its capacity, etc., not as the measure of plaintiff’s damages, but as tending to show the productiveness of the soil under reasonable conditions.
    13. Waters and water courses, § 32

      —what damages recoverable by occupant of land for injury due to overflow. In an action by the occupant of land to recover for injury thereto as a result of an overflow of water thereon caused by the wrongful act of defendant, plaintiff is entitled to recover for personal annoyance and for being deprived of the comforts and use of his home, as far as caused by the nuisance complained of.
    14. Damages, § 191

      —when amount to be awarded question for jury. Where the jury are properly instructed as to the assessment of damages, the amount to be assessed is a question for the jury to be determined by the exercise of their best judgment under all the evidence.
    15. Appeal and error, § 1547

      —when giving of instruction assuming ownership of land in plaintiff not reversible error. In an action to recover for injury to land, due to overflow, it is not reversible error to give an instruction assuming that plaintiff is the owner of the land injured where there is no evidence in the record contradicting plaintiff’s title.
    16. Waters and water courses, § 31

      —when question of tenancy need not be considered in instructions. In an action to recover for injury to land, a part of which is in the possession of a tenant, but where there is no evidence that such tenant is in possession of all the land in question, there is no occasion for discussing the question of tenancy in instructions.
    17. Waters and water courses, § 31

      —when instruction limiting recovery of damages for injury due to overflow to rental value of land covered by water properly refused. In an action to recover for injury to land by reason of an overflow of water thereon due to defendant’s wrongful act, an instruction limiting the recovery in the action to the rental value of the lands actually covered by the overflow, held properly refused where the count on which the instruction was based also alleged that by reason of the overflow large quantities of water remained on the land, rendering such land and premises incommodious, unhealthy and unfit for agricultural purposes.

      18. Evidence, § 366

      —when question improper as calling for conclusion. In an action to recover for injury to land as a result of an overflow of water thereon alleged to be due to defendant’s wrongful act, a witness was asked, what in his judgment was the “reason for this water backing up on Henry Vogler’s land.” The witness answered: “This refuse that comes from the water has filled up this slash; the water can’t get away and backs it up over the farm is all.” Held no error in permitting the witness to answer, although the question was objectionable as giving witness an opportunity to give a conclusion or an opinion, since the answer stated a fact, and though objectionable as to its latter part, it was not open to the objection made.
    19. Waters and water courses, § 32

      —when damages for injury to land due to overflow not excessive. In an action to recover for injuries to land as a result of an overflow of water thereon due to defendant’s wrongful act, where it appeared that the water discharged was of a deleterious character, and rendered plaintiff’s home noisome, uncomfortable and inconvenient, and where there was evidence of a depreciation in the rental value of such land due to defendant’s act, a verdict for plaintiff for $650 held not so excessive as to warrant a reversal.
    Appeal from the Circuit Court of Williamson county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed September 1, 1915.
    W. A. Schwartz, Hosea V. Ferrell and Denison & Spiller, for appellant.
    Neely, Gallimore, Cook & Potter, 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.

      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 McBride

delivered the opinion of the court.

The appellee recovered a judgment against appellant for $650, which it is sought to reverse by this appeal. This case has been tried twice in the Circuit Court and was in this court at the March Term, 1913, and is reported in the case of Vogler v. Chicago & C. Coal Co., 180 Ill. App. 51. At the former trial a verdict and judgment was obtained for $1,500, which was reversed by this court because in that case damages were claimed and, as we thought, a verdict rendered for a permanent injury to the land, when the appellee was entitled only to recover the rental value and such other damages as injured the premises as to habitation, etc. The evidence as. to the nuisance created is substantially the same as on the former trial, except as to the measure of damages, and reference is made to said case for the statement of facts, which will not be so fully repeated here.

The first count of the, declaration charges that the appellee was the owner and lawfully possessed of the Southwest Quarter of the Northwest Quarter, Section 18, Township 8, Range 2 East of the Third Principal Meridian, and the Southeast Quarter of the Northeast Quarter of Section 13, Township 8, Range 1 East, which he occupied and enjoyed as a residence and for agricultural purposes, and charges that the defendant wrongfully and unlawfully filled up a branch and natural drain flowing along the southwest corner of the above described premises with slack and waste substance from its mine, and diverted and changed the natural flow of the water that fell on and flowed off of the above described premises into said branch so that said water could not flow off of said lands in the natural way, and that the water that fell on said lands was caused to be and remained standing thereon and thereby rendered the premises incommodious, unhealthy and unfit for occupation and agricultural purposes.

The second count avers that defendant wrongfully and unlawfully pumped water out of its mine and deposited it in large quantities so as to cause plaintiff’s premises to overflow and rendered the land unhealthy and unfit for agricultural purposes and occupation as a residence.

The first additional count is, in substance, the same as the first count, except that it contains the further averment that by reason of the wrongful acts aforesaid divers noisome, noxious, and offensive vapors, fumes, smells and stenches arose from said standing water on the premises aforesaid, and the air through and about the home of plaintiff was thereby greatly filled and impregnated with such noxious and offensive vapors, fumes, smells and stenches and rendered such home unwholesome, uncomfortable and unhealthy, etc.

The second additional count is substantially the same as the second count, except that the wrongful act charged is that they negligently pumped water and refuse out of the said mine and deposited the same upon the premises of plaintiff so the same overflowed, etc.

The third additional count charges that the defendant negligently and injuriously allowed the mine water from its mine and the refuse and filth from its washer to flow to the pond and over the premises of plaintiff and thereby certain filth, slime, mud, refuse, slack and other debris were washed and carried to, upon and over the premises of plaintiff, from which stenches and odors arose, and that said debris and filth was deposited in the wells of plaintiff and the water rendered unwholesome, and the premises and home of the plaintiff rendered unhealthy and unfit for occupation as a home, and for agricultural purposes.

To this declaration the defendant filed a plea of not guilty, and plea of the Five-Year s’ Statute of Limitations,' and a plea denying that the plaintiff was the owner of the property described in the declaration; on which issues were joined.

The first objection raised and argued by appellant for the reversal of this case is that: “Appellee was not the owner of the land.” It was shown by appellee that his father devised this land to him in fee, but appellant insists that there was no evidence showing that John Vogler ever claimed to own the land or was in possession. The fact that John Vogler devised this land to his son is proof at least sufficient to make a prima facie case that he claimed to own it, as by his will he purported to convey the fee. It was not necessary to prove this claim by words. This act, in our judgment, coupled with the further fact that appellee was then in possession and has ever since continued in possession of it, is sufficient proof of ownership against one who showed no title whatever. DeWitt v. Bradbury, 94 Ill. 446.

Even in cases of ejectment where strictness is required in the proof of title, our Supreme Court has said: ‘ And it is- perfectly well settled, both upon common law authority and by decisions of this court, that in an action of ejectment proof of prior possession by the plaintiff, claiming to be the owner in fee, is prima facie evidence of ownership and seizin, and is sufficient to authorize a recovery unless the defendant shall show a better title.’ And in Keith v. Keith, supra [104 Ill. 402] it is said: ‘Prior possession alone is evidence of a fee, and although the lowest, until rebutted by a higher it must prevail.’ ” Coombs v. Hertig, 162 Ill. 172.

There was no evidence offered by appellant denying the title of appellee except that it appeared from the testimony of appellee that a conveyance had been made to him of a portion of this land by Philip Weinberg in the year 1911, but this was shown to have been in fact a release of a mortgage. Appellee stated that he borrowed $200 of Weinberg and gave him a deed in place of a mortgage to secure the loan, and this is not disputed. We think it was proper to show the nature of the conveyance and purpose of the deed reconveying the property. In the absence of any evidence tending to show title in any one else other than appellee, we are inclined to think that the evidence offered was at least sufficient to create a prima facie title.

The second objection raised by counsel is that: ‘ ‘ The land in question is naturally low land and it does not overflow now more than it formerly did and any overflows were caused by the construction of the railroads.” While it is true that there was evidence introduced tending to show the construction of the railroad as claimed may have had some influence upon the flow of the water from this slash, but we think there was also evidence tending to show that the deposits of slack and other debris from the mine of appellant filled up, or tended to fill up, the drainage of these sloughs and tended in some degree to show it filled up the slash so as to cause appellee’s land to overflow. To say the least of it, the evidence upon this question was conflicting, and as to whether appellant’s acts in creating the deposits claimed did cause the injury to appellee’s lands and premises was, as we think, purely a question of fact for the jury, and we cannot say that its finding in this respect was manifestly against the weight of the evidence. It also appears from this record that under substantially the same evidence two juries have determined that appellant’s negligent acts caused the injury complained of to appellee’s land, and we are not willing to disturb its finding in that respect.

The next objection raised is that the land in question was in possession of a tenant and the right of action for damages to crops was in the tenant and not in Henry Yogler. We do not understand from this evidence that the land in question was in the possession of a tenant, but the evidence shows that appellee himself resided upon this land all the time, and while he kept a man by the name of Parsons, and his wife, in the house he still retained possession and, as he says, rented this land, or a portion of it, from time to time to Parsons, but we do not understand that Parsons was in the exclusive possession of this land at any time. While it is true, as a legal proposition, that for damage done to any crops raised by the tenant the tenant alone would have the right to recover for injuries to such crops, but to such of the crops as the landlord himself may have raised or any damage that may have arisen to him in the depreciation of the rental value of his lands, or in its depreciation as a home, would all be proper elements to be considered by the jury in arriving at the damages sustained by appellee; and in determining this the jury were told by the instructions that in ascertaining the damages they should take into consideration the rental value of the land and the injury to the home of plaintiff and the discomfort and deprivation of the health, use and comfort of his home, if any is shown by the evidence.

Henry Vogler did, from time to time, put out crops of his own upon this land and at other times prepared it for crops and was deprived of the planting by reason of the wrongful acts of appellant. We do not believe that under the evidence, and the instructions given by the court as to the damages for which appellee would be entitled to recover, that we would be warranted in saying the jury assessed and gave to appellee any damage for the crops raised by Parsons;

The next complaint is, that the correct measure of damages was the rental value of the land alleged, to have been overflowed, or where,crops had been destroyed the value thereof, and under this heading complaint is made that some of the witnesses testified as to what the land had produced under a reasonable state of cultivation, its capacity, etc. This evidence, however, was not given or taken as the amount of damages to which appellee was entitled to recover, but was permitted to be introduced as tending to show the productiveness of the soil and what the land had produced' under reasonable conditions. As we understand the rule, it was a matter for the jury to determine under all of the circumstances and under proper instructions as to the measure of damages, and what the damages were. In addition to the rental value of the land, appellee was entitled to recover for any personal annoyance and deprivations of the use and comforts of his home, in so far as they were occasioned by the nuisance of which he complains. We think it is well said in the case of N. K. Fairbank Co. v. Bahre, 112 Ill. App. 292: “The amount in money necessary and proper to compensate appellee is not to be stated by witnesses, nor by the judge who tried the case, nor can it be ascertained by any rule of arithmetic. It must be left to the sound judgment of the jury, under proper instructions, to fix the amount, in view of all the facts and circumstances of the case.” We believe that upon the question of the measure of damages the jury were properly instructed, and that the amount of damages was a matter to be determined by them in the exercise of their best judgment under all of the evidence.

Objection is made to the first, seventh and ninth of appellee’s instructions, because they assume that the plaintiff is the owner of the land in question. We do not regard this point as well taken, and even if the assumption existed as claimed it would not be any ground for a reversal for there is no evidence in this record contradicting the ownership of this land by appellee, and the giving of such an instruction under the evidence would not be reversible error. Citizens’ Ins. Co. v. Stoddard, 197 Ill. 330.

The objection to instruction No. 11 has been answered by comment upon the former instructions, except as to the question of tenancy, and we can see no reason why the question of tenancy should be included in this instruction, and none has been pointed out.

It is complained that the court erred in refusing appellant’s first refused instruction because it says the instruction is based upon the first count of the declaration and that by this count no damages are claimed to crops or from smells, etc., but only from the overflow of the land. Counsel are mistaken as to the contents of this count of the declaration for it states that by reason of the premises large quantities of water were caused to stand ,and remain upon the said land, whereby said land and premises had been rendered incommodious, unhealthy and unfit for agricultural purposes. The court did right in refusing it because it limited the recovery to the rental value of the land actually, covered by the standing water.

Complaint is also made of the court in refusing appellant’s third refused instruction. This instruction was properly refused. It was misleading and not based upon the evidence in the case as there is no evidence tending to show that the tenant Parsons was in the exclusive possession of this land and ignores the testimony as to the crops raised by appellee.

Objection made to refused instructions four, five and six have already been answered. As to No. 7, we regard this instruction as being improper and argumentative. While instruction No. 8 might have been properly given, yet we do not think it reversible error to refuse it.

It is insisted that the court committed error in permitting the witness Johnson to be asked the following questions: “Q. What in your judgment, as you know the premises, as you have described, is the reason for this water backing up on Henry Vogler’s land?” The question as asked might be criticised as giving the witness an opportunity to give a conclusion or an opinion. The answer to this question is: A. This refuse that comes from the ‘water has filled up this slash; the water can’t get away and backs it up over the farm is all.” It appears to us that this answer states a fact that the slash is filled up with refuse that comes from the water and that the water then cannot get away. The latter part of the answer might be subject to criticism but we think it not subject to the criticisms made by counsel.

The other objections made to the testimony, as to what the land had produced, have been considered in the former part of this opinion.

It may be that the verdict is larger than would have been given by the trial judge, or than an arithmetical calculation would establish, but when all the facts are taken into consideration, in connection with the noisome, uncomfortable and inconvenient effects that the deleterious waters are claimed to have had upon appellee’s home and surroundings, together with the depreciation in the actual rental value of the land from year to year, we are not able to say that the verdict is so excessive as to require a reversal of this case, and the judgment is affirmed.

Judgment affirmed.