text:
    W. J. Beeson, Administrator, Appellee, v. Vandalia Railroad Company, Appellant.
    1. Pleading—when charge of negligence sufficient. A general charge that the servants of defendant so carelessly and negligently ran and operated an engine as to cause the same to strike against the plaintiff’s intestate, without stating in what way said servants were negligent, is sufficient even though challenged hy special demurrer.
    2. Instructions—when upon exercise of care in looking for approaching trains, properly refused. In an action to recover where the plaintiff’s intestate was killed while working upon a railroad track, it was proper to refuse an instruction as follows, inasmuch as it did not appear from the evidence and was not admitted that the plaintiff’s intestate did not look for approaching trains or cars from time to time during the course of his work.
    “You are instructed as a matter of law that you would not be warranted in finding that the failure of John E. Beeson to took for approaching trains or cars is not negligence in the absence of evidence showing conditions or circumstances which excused him from looking; and you are further instructed, if you believe from the evidence that John E. Beeson did not look to ascertain if trains or cars were approaching, and that his failure to do so, contributed to his injury, then as a matter of law your verdict should be not guilty.”
    3. Instructions—propriety of, setting forth statutory regulo tions. Held, that it was proper to give an instruction which set out in haec verba the first portion of section 24 of the act in regard to the operation of railroads prohibiting the running of any train, etc., through the incorporated limits of a city at a greater rate of speed than is permitted by ordinance.
    4. Contributory negligence—right to presume obedience to laws. A person engaged in working upon a railroad track has a right to presume that the railroad company will not run its engines or trains at a rate of speed prohibited by ordinance at the place in question and without observing all other requirements of ordinances and statutes.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Rehearing denied May 16, 1911.
    Whitnel, Browning & Gillespie, for appellant; Fordyce, Holliday & White and S. W. Fordyce, Jr., of counsel.

      Kramer, Kramer & Campbell and W. H. Hebenstreit, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee brought this suit tinder the statute, to recover damages for the benefit of the next of kin of John E. Beeson, who was run over and killed by one of appellant’s freight engines on December 8, 1910.

The declaration contained three counts, the first of which charged generally, carelessness and negligence in the operation of the engine; the second the violation of an ordinance of the city of East St. Louis limiting the speed of passenger trains to ten miles an hour and “any freight car or cars to six miles an hour;” the third, the violation of an ordinance of the city requiring that the bell of every locomotive should be rung continuously, while running within said city.

There was a verdict in favor of appellee for $3,000, a remittitur entered by him for $1,500, a motion for a new trial overruled and judgment given against appellant for $1,500.

The following facts, shown on the trial, describe the place where appellee’s intestate was injured and the circumstances under which the injury occurred: St.

Clair avenue, a street some sixty feet wide, runs in an easterly and westerly direction in the city of East St. Louis, and along its center are the tracks of the East St. Louis Railway Company, a street railway. These tracks are crossed at grade within the city limits by four railroad tracks of appellant, running north and south. At this crossing there is maintained a tower and crossing gates operated by a tower man. A mile and a half north of the crossing are located what are known as the Rose Lake shops of appellant. About a half mile south of the crossing is the relay depot of East St. Louis, and still further south of that are appellant’s yards. Under an agreement between them, it was the right and duty of the street railway company to keep in repair the crossing of its tracks over the appellant’s railroad tracks at the point in question. On October 8, 1909, a foreman with eight or ten men, among whom was said John E. Beeson, were engaged, by the street car company, in raising and lining its tracks at this crossing, .to accomplish which it was necessary to take up some of the crossing boards along appellant’s track. Shortly before 1:30 p. m. of said day a freight train of appellant had come in from the east and been left at the yards below the relay depot. The freight engine, which had a high tender, had been detached from the train and was being backed north along the tracks to the Bose Lake shops. Before that time Beeson had been directed by his foreman to replace a plank which had been removed from alongside one of the rails of appellant’s track in St. Clair avenue, at a distance of about twenty-five feet north of the place where the street railway tracks crossed the same. He went after his shovel, which was a short distance away in a westerly direction, and then went to the place where the plank was to be laid. When last seen before his injury he was engaged in shoveling out some dirt or gravel from the place between the tracks where the plank was to go, and in so doing stood with his back to the south, towards the approaching engine. The remainder of the workmen were employed south of him at the crossing of the tracks. As the engine approached the St. Clair avenue crossing, the gates were lowered by the tower man who also gave a warning to the men on the tracks. A policeman also called out a warning to the foreman, who gave warning to the men around him at the crossing and they all got out of the way of danger. Beeson, being some distance away, neither saw the engine nor heard the warning. He could not be seen by the fireman or the engineer on account of the high tender in front of them, and while he was engaged in his work in the manner stated, was struck by the tender, run over and so injured that death soon ensued.

The first question raised by appellant is as to the sufficiency of the first count of the declaration to support a judgment. The criticism of this count is that it states in a general way that the servants of the appellant so carelessly and negligently ran and operated the engine as to cause the same to strike against the plaintiff’s intestate without stating in what particular way said servants were negligent. We are inclined to the opinion that this count of the declaration would have been sufficient, even if special demurrer had been filed to it. Chicago St. By. Co. v. Jennings, 157 Ill. 274; I. C. R. R. Co. v. Aland, 192 Ill. 87.

No demurrer, however, appears to have been filed to the declaration and there was no motion in arrest of judgment. We are of opinion that under these circumstances the count was sufficient, after verdict, to support a judgment.

Upon the question whether the speed of the engine was in excess of the limit fixed by the ordinance or whether the bell was ringing or not, there was the usual controversy which arises in cases similar to this. The greater number of witnesses swore to facts tending to sustain appellee’s theory that the speed exceeded the limit and that the bell was not ringing, while the witnesses on behalf of appellant on those subjects were rather more positive in their statements. The engineer and fireman testified that the engine was equipped with an automatic bell ringer, which was set in motion at the relay depot and was in operation at the time the injury occurred. It appeared however from the proofs and is uncontradicted that the bell was not ringing when the engine stopped a short distance beyond the place where Bee-son was struck, a fact which the engineer seeks to explain by stating that he shut off the bell when he got down off the engine. The circumstances as a whole seem to rather corroborate the testimony of appellee’s witnesses, concerning the violation of the ordinances as charged and we cannot say that the members of the jury, who saw the witnesses and heard them testify, abused the power reposed in them by finding the issues for appellee.

Appellant complains that instruction No. 17 offered on its behalf was refused by the trial court. That instruction was as follows:

“You are instructed as a matter of law that you would not be warranted in finding that the failure of John E. Beeson to look for approaching trains or cars is not negligence in the absence of evidence showing conditions or circumstances which excused bim from looking; and you are further instructed, if you believe from the evidence that John E. Beeson did not look to ascertain if trains or cars were approaching, and that his failure to do so contributed to his injury, then as a matter of law your verdict should be not guilty.”

This instruction was clearly erroneous and was properly refused. The first portion of it assumes that Beeson did not look for approaching trains or cars. Of course, he was not looking for cars at the time he was struck or it is proper to presume he would have gotten out of the way; but it does not appear from the evidence, nor is it admitted that he did not look for approaching trains or cars from time to time during the course of his work. The second portion of the instruction erroneously told the jury in effect that it was his duty to look to ascertain if trains or cars were approaching and that if his failure to do so contributed to his injury, appellee could not recover. Deceased had a right to presume that appellant would not run its engines or trains at a rate of speed prohibited by ordinance at the crossing in question or without ringing the bell as required by ordinance, and the question whether, under all the circumstances surrounding Mm, ordinary care required Mm to look for approaching trains was not a question of law but one of fact for the jury. Dukeman v. C., C., C. & St. L. R. R. Co., 237 Ill. 104; Stack v. E. St. L. & S. Ry. Co., 245 Ill. 308.

Appellant also complains of instruction No. 2 given for appellee. That instruction sets out in haec verba the first portion of section 24 of the act in regard to the operation of railroads, prohibiting the running of any tram, locomotive, engine or car through the incorporated limits of a city at a greater rate of speed than is permitted by ordinance and applies the same to the facts in this case. This instruction was clearly within the rules of law and free from objection. Dukeman v. C., C., C. & St. L. R. R. Co., supra.

An instruction almost identical in language with this was approved by this court in the case of Wells v. B. &. O. S. W. R. R. Co., 153 Ill. App. 23.

The amount of the judgment in this case is not excessive, and as no reversible error appears in the record, such judgment should be and is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Higbee

license: Public Domain

text:
    Mulberry Hill Coal Company, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Railroad»—section 84 of act providing for supplying of freight cars, etc., construed. The jurisdiction of the interstate commerce commission is applicable peculiarly to unjust discrimination and excessive demands in the matter of freight rates. Its jurisdiction does not extend to a case where there has been a failure upon the part of a carrier to furnish cars for the shipment of freight. In such case section 84 of the Railroad Act applies and the jurisdiction of the courts of this state exists to enforce a demand for damages arising by reason of the carrier’s failure to supply freight cars as required by • law, even though the freight cars in question were desired for use in connection with interstate commerce.
    2. Railroads—section 84 of act providing for supplying of freight cars, etc., construed. A mine which has become a part of and appurtenant to a regular station, of a railroad company by reason of being connected therewith by means of a switch track and course of dealing, is a station or stopping place within the meaning of section 84 of the Railroad Act.
    3. Railroads—section 84 of act providing for supplying of freight cars, etc., construed. If the merchandise to be shipped is substantially ready for shipment at the time the order for cars is placed the statute is complied with and a failure to furnish the cars in question, as provided by the statute, confers a right of action upon the shipper.
    4. Railroads—section 84 of act providing for supplying of freight cars, etc., construed. This section of the Railroad Act must be reasonably construed. It does not require that railroad companies should at all times and under all conditions have sufficient cars to take care of all demands, and it is error in an action to recover damages for the failure to furnish cars, to refuse to admit evidence which tends to show unusual demands at certain times, an equitable distribution of cars at such times, and to refuse to admit evidence which tends to show that the failure to supply was justified under all the facts and conditions existing at the time.
    Action on the case. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Rehearing denied May 19, 1911.
    Kramer, Kramer & Campbell, for appellant; John G. Drennan, of counsel.
    Miller, Wirkelmarr & Ogle, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was an action on the case brought by appellee, the Mulberry Hill Coal Company, against appellant, Illinois Central Kailroad Company, in the Circuit Court of St. Clair county, to recover damages by reason of the claimed failure of appellant to furnish coal cars at the coal mine of appellee, located on the railway line of appellant, about a mile and a half northwest of the station of Freeburg in said county, as demanded by appellee. It is based upon section 84 of the Railroad Act (Revised Statutes, Hurd, 1908), requiring railroads in the state to furnish, start and run cars for the transportation of such passengers and property as shall within a reasonable time previous thereto be ready or be offered for transportation at the several stations on their lines, etc.

The declaration stated that appellee was the owner and engaged in the operation of a coal mine fully equipped with all the appliances necessary to the mining of coal and was possessed of a large amount of coal around and connected with said mine; that appellant was the owner of a railroad running from Free-burg to Bast St. Louis, on which was located the miñe in question; that at said mine there was a switch connected with appellant’s railroad, on which it was the custom of appellant to place empty coal cars for appellee to load the same from its mine, and when said cars were so loaded they were transported by appellant to Bast St. Louis and other points as directed by appellee’s salesmen; that said mine was operated continuously from September 30, 1906, the time it was opened, to the time of the commencement of the suit, except upon such days as it remained idle on account of appellant’s failure to furnish cars; that said mine had a capacity to produce coal, as fixed by appellant, from the time it began operations, until September 4, 1907, of 200 tons per day and from said latter date to the first day of November, 1907, of 425 tons per day; and from said last named date to December 23, 1907, of 525 tons per day; that when the mine was idle appellee incurred certain expenses, gauged somewhat by the capacity of the mine; that it was the legal duty of appellant, at places where freight was taken by it, to convey such freight when offered to it by persons ready and willing to pay compensation therefor.

The foregoing allegations of the declaration are all general and are followed by paragraph 1, which states that on January 10, 1907, appellee notified appellant it was ready, able and proposed to load 200 tons of coal on the 11th day of January, 1907, and needed appellant’s coal cars in which to load the same; that it could have loaded said amount of coal if the cars had been furnished but that appellant failed to furnish the same and by reason thereof appellee’s mine was idle and incurred an expense of $6.73, and lost the use of the mine on that day, the same being worth $15, in all the sum of $21.73. Paragraph No. 1 is succeeded by ninety-eight paragraphs of a similar nature but referring to different dates during the year 1907, the claim being that the mine remained idle for a total of ninety-nine days during said year.

The damages claimed in the declaration were $716.92 for expenses incurred while the mine was idle and $1,485 for the rental value of the mine during the same time, in all $2,201.92, for which amount the suit was brought.

A demurrer to the declaration was overruled and a trial had with a jury, resulting in a verdict in favor of appellee for $716.92, for which amount judgment was given.

The evidence on the part of appellee shows that at the place where the mine was located on appellant’s railroad, there was no station nor was there a junction of appellant’s road with any other railroad, nor was it a place established by appellant for receiving and discharging way passengers and freight; that no business was transacted with the railroad at that place except by appellee; that there were no switch tracks at the coal mine connected with appellant’s railroad on which appellant placed empty coal cars to be loaded with coal from the mine; that it was customary, during the time in question, for appellee, at about 3 o’clock in the afternoon, to give appellant’s agent at Freeburg notice of the coal cars it would need on the following day; that at the time these notices were given none of the coal that appellee intended to ship in the cars demanded was hoisted from the mine ready to be loaded in cars and that some of it was not yet shot down.

The evidence on the part of appellant showed that it was a railroad company engaged in interstate commerce and that its lines of railway extended into a number of other states besides Illinois; that there are coal mines located on its lines in three states, the greater part of them being located in the state of Illinois; that during the time involved in this suit appellee shipped ninety-five per cent of the coal mined at its mine into other states than this, and that, if the cars demanded by it had been furnished, ninety-five per cent of the coal shipped in them would have gone to points in other states and off of the lines of appellant; that the coal mines located along appellant’s lines were divided in divisions and its equipment for hauling coal was first divided among the divisions and afterwards distributed among the operators.

Appellant first contends that a motion made by it at the close of all the evidence to dismiss said cause for want of jurisdiction in the court, which was denied, should have been sustained.

Appellant’s motion to dismiss the cause for want of jurisdiction was based upon the theory that, as a very large proportion of the cars ordered by appellee were intended to be used in transporting-coal to points outside of this state, commerce between the states was involved and that under the act of Congress regulating such commerce the courts have no jurisdiction until the Interstate Commerce Commission has acted upon the matter. Section 15 of the Federal Act to regulate commerce, of 1906, relied on by appellee, provides, among other things, that whenever the commission, upon hearing of a complaint, “shall be of the opinion that any of the rates of charges whatsoever demanded, charged or collected by any common carrier or carriers subject to the provisions of this Act for the transportation of persons or property as defined in the first section of this Act, or that any regulations or practices whatsoever of such carrier or carriers affecting such rates are unjust or unreasonable or unjustly discriminatory or unduly preferential or prejudicial or otherwise in violation of the provisions of this Act, to determine and prescribe what will be the just and reasonable rate or rates, charge or charges to be thereafter observed in such case as the maximum to be charged; and what regulation or practice in respect to such transportation is just, fair and reasonable to be thereafter followed.”

A number of authorities have been submitted by appellant upon this question, but upon careful examination they do not appear to us to sustain the theory advanced by it.

B. & O. R. R. Co. v. U. S. ex rel. etc., 215 U. S. 481, was a case which involved the legality of regulations adopted by the railroad company for the distribution of cars to coal mines along the line of its road in case of car shortage, the coal company, a shipper, averring that discrimination had been made in the distribution of coal cars by the railroad company. It was there held by the court that the distribution to shippers of coal cars, including those owned by the shippers and those used by the carrier for its own fuel, involved preference and discrimination and was therefore a matter for consideration by the Interstate Commerce Commission and that the courts could not interfere with such regulations until after action thereon by the commission.

The same court, in the case of Interstate Commerce Com. v. I. C. R. R. Co., 215 id. 452, declared that under said section No. 15 the Interstate Commerce Commission has power to deal with preferential and discriminatory regulation of carriers, as well as with rates, and that it is not beyond the power of said commission to require a railroad, in distributing its coal cars, to take into account its own fuel cars in order not to create a preference in favor of the mine to which such cars are assigned over other mines.

In the case of St. L. S. W. Ry. Co. v. Arkansas, 217 id. 136, the question involved was the alleged exaction by the railroad of an unjust and unreasonable rate constituting discrimination and undue preference, amounting to charging more for a shorter than for a longer haul, and it was there said that this question was one to be passed upon by the Interstate Commerce Commission.

The United States Circuit Court for the Eastern District of Pennsylvania, in the case of Morrisdale Coal Co. v. Penn. R. R. Co., 176 Fed. Rep. 748, where the coal company complained of the method of distribution of coal cars among the mines of a certain region, adopted by the railroad company, and averred that undue preference was thereby given to other mines and shippers, held that, as such discrimination was applicable to a class of shippers and not to the plaintiff alone, the Interstate Commerce Commission had exclusive original jurisdiction to afford relief.

It will be readily observed that all these cases involved questions either affecting freight rates alleged to have been unreasonably or unjustly discriminatory, or regulations which were said to give undue preference or to be discriminatory. This suit, however, is not brought by appellee for the purpose of recovering damages on account of any unjust discrimination or preference on the part of appellant in distributing its coal cars, but to recover for losses sustained by it in being compelled to keep its mine idle on account of the failure of appellant, as alleged, to furnish coal cars to it in compliance with the section of the Railroad Act of this state above referred to. The Interstate Commerce Commission itself has given-a very clear statement of its interpretation of that portion of the Federal Act under consideration here, in the case of Richmond Elevator Co. v. Pere Marquette R. R. Co., 10 Interstate Commerce Rep. 629, where it is said: “The Act to regulate commerce contains no provision which expressly or by proper implication gives this commission jurisdiction in cases merely showing delay or negligence in the receipt, forwarding or delivery of property offered for transportation, and this necessarily includes failure on the part of the carrier to furnish cars for the movement of freight within a reasonable time. The regulating statute does, however, prohibit any unjust discrimination or wrongful prejudice in the provision of cars or other transportation facilities, as well as in the fixing and application of transportation charges. * * * Every shipper is entitled to fair opportunity and treatment in the use of these public utilities and any discrimination which in substantial degree deprives shippers of such use must be considered unjust unless forced by justifying conditions.”

Under this construction of the act, placed upon it by the commissioners, which appears to us to be eminently sound, it seems to follow naturally that the claim of appellant that the state court had no jurisdiction, for the reason that it was a matter to be first submitted to the Interstate Commerce Commission, must fail.

'The next statement of appellant is that no duty of appellant to furnish coal cars to appellee at its mine arises under section 84 of the Railroad Act. That section provides: “Every railroad corporation in the state shall furnish, start and run cars, for the transportation of such passengers and property, as shall within a reasonable time previous thereto, be ready or be offered for transportation at the several stations on its railroad, and at the junctions of other railroads and at such stopping places, as may be established for receiving and discharging way passengers and freights, and shall take, receive, transport and discharge such passengers and property at, from and to such stations, junctions and places on and from all trains advertised to stop at the same for passengers and freight respectively.”

The claim of appellant is that the statute can have no application because the coal mine of appellee is not located at a station on appellant’s railroad nor at a junction of the same with another railroad, nor at a stopping place established by appellant for receiving and discharging way passengers and freight, and is not a place at which trains are advertised to stop. This claim of appellant is strictly correct but a reasonable interpretation must be given the law. The mine is located only about a mile and a half from the station of Freeburg and all business of shipping was done by appellee with the agent of appellant at that place and the billing was made out by or under the direction of such agent. Appellant itself had recognized the mine as a stopping place by putting in the switch connecting its track with the mine and had received freight there to be forwarded for a considerable length of time. The course of business between appellee and appellant was really the same as though the mine had been actually located at the station in Freeburg. We are of opinion that under the circumstances the mine must properly be considered as a part of or appurtenant to the station of Free-burg and that it is therefore a station or stopping-place within the meaning of the statute. In this connection it is also pertinent to call attention to section 5 of article 13 of the constitution of this state, which provides that “all railroad companies shall permit connections to be made with their tracks so that any such consignee (of grain), and any public warehouse, coal bank or coal yard may be reached by the cars on said railroad.” This provision of the constitution was under consideration in C. & A. R. R. Co. v Suffern, 129 Ill. 274, and it was there said in reference thereto: “It was the evident design of the constitutional provision above quoted to compel the railroads to furnish the coal mines in the state with all necessary facilities for the shipment and transportation of coal.”

The next contention of appellant is that even if said section of our Eailroad Act in relation to furnishing cars does apply to appellee’s mine, the undisputed evidence shows that at the time appellee made its demand for cars it did not have its coal ready for shipment. In this connection appellant’s further claim is that the evidence shows that at the time the demands for cars were made some of the coal intended to be shipped was loaded in pit cars and at the shaft bottom but the greater portion of it was yet in the rooms and some of it was still in the ground and had to be shot down, loaded in the cars, transported to the shaft bottom and hoisted, before it was ready for shipment. This court has held that the language “as shall, within a reasonable time previous thereto, be ready or be offered for transportation,” as used in the act under consideration, cannot be extended so as to include coal in the earth to be dug and raised from the mine after cars are furnished. I. & St. L. R. R. Co. v. People, 19 Ill. App. 141. It appears, however, in this case that by far the greater portion of the coal, for the shipment of which appellee ordered cars of appellant, was already shot down or mined from the ground and we are inclined to think it a fair inference from the evidence that at the time the cars were ordered to be delivered, that is on the day following the order, the amount that would have remained to be mined for such shipment, if any, was inconsequential. This objection of appellant, therefore, does not appear to us to be well taken.

Appellant further complains because appellee in its demands for the cars in question, did not show that it desired them for shipping coal to points beyond its lines, which it claims appears to be the fact, as shown by the evidence in the case. There is nothing in the section of our railroad law under consideration which required appellee to state that it desired the cars for shipment to points beyond or off appellant’s lines in case cars ordered were so destined. Nor does it appear to us that such a statement should necessarily be made in such notice. The billing of the cars was a matter to be considered later, and if special contract were necessary before appellant could be required to carry the coal beyond its own lines, that was a matter which could be arranged for at the time of the billing.

A question for serious consideration concerns the refusal of the court to admit certain evidence offered by appellant. In the course of the trial appellant offered to prove that during the time in question it made an equitable and fair division of its equipment available for hauling coal among the various divisions on its lines according to the capacity of the mines in such division and afterwards distributed the same among the operators of mines located in each division fairly and equitably, according to the capacity of said mines, but the court sustained an objection of appellee to this evidence and refused to admit it.

Appellant also offered to prove that there are times in the operation of its road when it does not have a sufficient amount of coal cars to supply the demand of all the operators along its lines, and that there are other times when it has a surplus of cars in excess of the demands of such operators; that during the year 1907 it did not have a sufficient supply of such cars to satisfy all the demands of said operators, but that during the entire year of 1908 and nearly all of the year 1909 it had a large surplus of coal cars above the demands of such operators, averaging 5,913 cars per day which were idle; that during the year 1907 appellee received its fair and just proportion of the cars, and during all the year 1908 and the greater portion of the year 1909 it had more cars than it needed.

To all this evidence appellee also objected, the objection was sustained and the offered evidence refused by the court.

As bearing upon the same question, the court instructed the jury on behalf of appellee that it was the duty of appellant to provide sufficient facilities for the transportation of goods such as coal; that it must furnish cars sufficient to transport goods offered in the usual and ordinary course of business, on reasonable previous notice being given to the company of the demand for cars, and reasonable time given the company after such notice received by it; and that a failure of the company to furnish such cars made it liable to the shipper if he was damaged thereby. The statute under which this suit is brought must receive a reasonable construction and what is reasonable must in the very nature of things, depend to some extent, at least, upon the circumstances attending the neglect or refusal to furnish cars on demand. The words of the statute are: ‘ ‘ Every railroad corporation in the state shall furnish, start and run cars, for the transportation of such passengers and property as shall within a reasonable time previous thereto be ready or be offered for transportation at the several stations on its railroad,” etc.

It is evident that a railroad company could not at all times and under all circumstances comply literally with the terms of this law. It might well be that accident over which the company had no control would prevent the company, although it had plenty of coal cars at its command, to furnish the same to a coalmine within a period which under ordinary circumstances would be a reasonable time after notice; or a sudden and extraordinary call for cars might be made, or business might increase along its lines at a more rapid rate than it could obtain cars to supply the demand, and delay and inconvenience be caused thereby. Before a railroad company could properly be held liable for damages, under this law, occasioned by a failure to furnish cars, it should be given the opportunity of showing, if it so desires and could produce such evidence, proof that reasons existed without its fault by which a compliance with such rule was rendered impossible or wholly unreasonable. These questions are questions of fact or possibly mixed questions of law and fact. The evidence above referred to as sought to be introduced by appellant had some bearing upon the question as to whether appellant could in the ordinary course of business have reasonably furnished all the coal cars for which demand was made upon it by appellee within a reasonable time after such demand, and the court erred in refusing to admit the same. For the errors in refusing to admit the evidence above referred to, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Pearl Darter, Appellee, v. Board of Education of School District No. 50, Perry County, Appellant.
    1. Schools—burden to establish incompetency of teacher. A certificate of qualification issued to a teacher by the county superintendent of schools is prima facie evidence of the fact of competency, and if such teacher is discharged for alleged incompetency the burden is upon the board of education to establish the truth of the charge.
    2. Schools—what grounds for discharge of teacher may be shown. Causes for dismissal contained in an order removing a school teacher are binding upon the directors and they are estopped from showing other or different causes.

      Appeal from the Circuit Court of Perry county; the Hon. Louis Bernbeuter, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Rehearing denied May 12, 1911.
    W. A. Schwartz and W. O. Edwards, for appellant.
    R. E. Sprigg and B. W. Pope, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellee was employed to teach an eight months’ term in the sixth grade of the public school of district No. 50 in Perry county, which included the city of Pinclmeyville. Appellant was to pay her $40 a month for the term, beginning September 14, 1908. By a notice dated November 14, 1908, signed by the president and secretary of the board of education, appellee was notified that at a regular meeting of the board held on that date her services as a teacher were ordered discontinued at once “for incompetency and insubordination. ’ ’

Appellee, having been paid for the two months she taught, brought suit for her wages for the six months she did not teach and was awarded a verdict for $240 at the May term, 1909, of the Circuit Court of Perry county. A new trial was granted and on the second trial a jury again found in her fav.or and fixed her damages at $240, for which amount judgment was entered.

The proofs show appellee had taught in the school the previous year and had been re-employed and assigned to room three; that she asked for a higher grade and later was assigned to room six; that she held a second grade certificate of qualification issued by the county superintendent of schools; that there were sixty-two pupils in the sixth room, from eleven to sixteen years of age; that the room was so crowded, the classes could not all get to the blackboard and students were compelled to recite from their seats in the room instead of from the class and that appellee had asked the superintendent, Mr. Wilson, to remedy this condition by having some fourteen of the pupils assigned to other rooms, but it was not done. It was shown by the testimony of two members of the board of education, the truant officer and certain students, that the order in the room during certain school hours was not good; that there was great confusion caused by playing, whispering, scuffling of the feet and by pupils leaving the room without permission.

It was shown that the superintendent had control of all the schools and it was his duty to assist in the control and management of all the pupils. With this in view many disorderly pupils were sent by appellee to him for correction. Some of these received corporal punishment, while many were not punished, some of the latter being told to go back with the statement that she, meaning appellee, would not be there much longer; that he would get her out as quick as possible, or similar words.

There was no proof of an act of insubordination on the part of appellee and why that charge should have been assigned as one of the reasons for her discharge, does not appear.

The only other reason given for her discharge, either in the order entered by the board of education or the letter removing her, signed by the president and secretary of the board, was incompetency. The certificate of qualifications issued to appellee by the county superintendent of schools was prima facie evidence of the fact of her competency, and when the board undertook to discharge her for incompetency, it assumed the burden of proving the truth of the charge. School Directors v. Reddick, 77 Ill. 628; Neville v. School Directors, 36 Ill. 71.

The proof introduced by appellant to sustain this charge was directed to showing that order was not maintained in the school room. That disorder did in fact exist in the room was plainly shown by the proofs. Whether the existence of such disorder was sufficient to prove incompetency on the part of appellee, was a question of fact for the jury to determine in the light of all the facts and circumstances in evidence. In determining this question they had a right to take into consideration the large number of pupils, the crowded condition of the school room, the inability of some of the pupils, by reason thereof, to get to the blackboard or sit in class to recite, the evidence tending to show a conspiracy among certain of the pupils to cause noise and disorder, and the evidence bearing upon the question of the claimed failure of the superintendent to support appellee in her efforts to maintain order, together with all the other proofs. We do not feel justified in holding that, under all the facts and circumstances in proof in this case, the jury was not warranted in finding that the preponderance of the evidence failed to establish the incompetency of appellee.

Appellant insists, however, that it should not be confined wholly to the reasons named in the order and letter of discharge, but that the board had a right to remove or dismiss appellee whenever, from any cause, the interest of the school might require it.

In Neville v. School Directors, supra, it was held that the causes for dismissal contained in the order removing a school teacher are binding upon the directors and that they are estopped from showing other or different causes.

Appellant seeks to meet and avoid this rule of law by contending that as it was laid down prior to the amendment of the school law of 1899, it has been made nugatory by that law, which contained a provision that boards of education should have the power “to dismiss and remove any teacher, whenever in their opinion, he or she is not qualified to teach or whenever, from any cause, the interest of the school may, in their opinion, require such removal or dismissal.” It is true the powers given boards of education in regard to the removal of teachers are somewhat broader than the powers of school directors had at the time the decision was rendered in said last named case, but that fact does not appear to us to in the least affect the inherent justice and soundness of a rule of law requiring that boards of education or school directors should, when dismissing a school teacher, assign the true reasons for such dismissal, and that when such reasons are recorded in the order of dismissal or removal, they should be estopped from afterwards, when sued by the teacher for his or her wages, setting up other reasons.

What is here said in regard to the assignment of reasons for the dismissal will also dispose of appellant’s objections to the holding of the trial court upon the instruction wherein the above rule was followed.

We find no error of any substance in this record and the judgment of the court below is accordingly affirmed.

Affirmed.


text:
    Peter Comarofski, Appellee, v. Saline County Coal Company, Appellant.
    1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    2. Instructions—propriety of upon question of damages. Meld, that an instruction upon the question of damages was proper which told the jury that they might take into account “all damages present or future which from the evidence can be treated as the necessary and direct result of the injury complained of.”
    3. Appeals and errors—when remarles of trial court not subject to review. A remark of the trial court not excepted to is not subject to review and will not be made ground for reversal.

      4. Appeals and ebbobs—when remarles of trial court not ground for reversal. Unless the connection in which the remark of the trial court is made is shown hy the record so that its effect can be ascertained, it will not constitute ground for reversal.
    Action in case for personal injuries. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Rehearing denied May 19, 1911.
    M. S. Whitley, for appellant; Mastin & Sherlock, of counsel.
    Choisser, Choisser & Kane, J. Ed. Thomas and S. M. Clark, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This suit was brought by appellee to recover damages for injuries received by him while working in appellant’s coal mine.

The declaration contained three counts. The first charged wilful failure to regularly and thoroughly spray, sprinkle and clean the entry, galleries and road ways where appellee was employed and that the firing of shots in a certain entry ignited dust and caused an explosion which injured appellee; and the second, that the same duty existed on the part of appellant and that the firing of one shot ignited the dust and caused fire to communicate to the fuse of a second shot, which was thereby set off and caused the explosion which did the injury; the third, that a dangerous condition existed in the mine by reason of dust permeating the entries; that the defendant knew of such dangerous condition and wilfully permitted appellee to enter the mine without being under the direction of the mine manager, and that by reason thereof he was injured.

The jury found a general verdict in favor of appellee and in answer to two special interrogatories found, first, that the entry where appellee was working at the time he was injured was not a wet or damp entry, and second, that the entry was so dry the air in said entry became charged with dust at the time of the injury.

On December 15, 1908, as the proofs show, and for some months prior thereto, appellee worked in appellant’s coal mine, where for more than a month he and his “buddy”, Liskivics, had been engaged in turning the fifth and sixth entries off of the second south entry. These entries at this time, were from 40 to 60 feet long and no entries had been turned off of them. The coal was mined by means of a chain, machine, then blasted out, shoveled into cars and hauled away by mules. On the afternoon of the day in question, Liskivics, had drilled two holes in the face of the sixth entry, charged them with powder and arranged the squibs which protruded from the holes some five or six inches. At firing time Liskivics lighted one of them and he and appellee then waited in the fifth entry for it to explode. Ten minutes after the explosion, appellee started back to fire the remaining shot, and when he had reached a point about two steps inside of the sixth entry, the second shot went off and a flame of fire came down the entry, reaching him, setting his clothes on fire and severely burning him. The entry had a hard slate bottom, along which ran several car tracks and it had not been sprinkled or sprayed since it was opened. It was shown that dust was made by the cutting of the chain machine, drilling the holes and the tramping of the mules as they pulled the cars, some ten loads of coal being hauled out each day; that where there was an accumulation of dust, as in the entry named, it could be so charged by the explosion of one shot as to take fire and explode from another shot following.

There was no question concerning the fact of the injury to appellee or the extent of the same, but there was a sharp controversy as to what caused the explosion or fire by which he was injured. Appellee contended that it was caused by the large amount of dust in the entry which was ignited in the manner above stated, while appellant sought to show that there was no dust in the entry and therefore the explosion originated from some other cause. Witnesses on the part of appellee testified that the dust in the entry was from one to three inches deep, while those on the part of appellant stated it was a damp entry, that the coal was “bleeding” at the face of the entry and that there was no dust. One witness for appellant took a middle ground stating that while there was an accumulation of dust in the entry, it was in a safe condition. Appellant did not seek to controvert the proof that the entry had never been sprinkled nor to show that the injury could have been brought about in some manner other than that alleged by appellee. It was therefore for the members of the jury, who saw the witnesses and heard them testify, to determine where the exact truth lay and their finding upon the questions of fact under proper instructions as to the law, should not be disturbed.

Appellant complains that certain instructions given on the part of appellee were erroneous, particular stress being given to errors said to be contained in instruction No. 10. This instruction informed the jury as to their duties in regard to the determination of the amount of damages in case they found in favor of the plaintiff and that he had sustained damages. That portion of the instruction which appellant claims to be specially objectionable, is the final clause in which, after the statement' of various elements the jury would be entitled to consider, they are further told that it was proper for them to take into account‘ all damages present or future, which from the evidence, can be treated as the necessary and direct result of the injury complained of.” Words almost identical with these, were used in an instruction given in Wrisley v. Burke, 106 Ill. App. 30 (affirmed 203 Ill. 250), where it is said that the instruction ‘ ‘ only allows the jury to award damages in this connection for bodily pain and suffering in the future, as is stated in the instruction ‘which from the evidence can be treated as the necessary and direct result of the injury complained of.’ Such is the law as established by repeated decisions of this and the Supreme Court.” Neither this instruction nor the others given for appellee, were properly subject to criticism.

Appellant further complains that two of the instructions offered by it were refused. One of them required appellee to prove that his injuries occurred in the manner and from the causes set forth in the declaration and that the other stated the burden of proof was upon appellee to prove the specific violations of the statute charged in the declaration.

Twenty-six instructions were given on part of appellant and in them the propositions contained in the two refused instructions named, appear to us to have been correctly stated. Appellant asserts that its cause was injured by an improper remark made by the court in the course of the trial. This remark does not appear in that portion of the record devoted to a recitation of the trial of the cause, but is called to the attention of this court' by an affidavit filed in support of the motion by defendant, for a new trial. The words complained of consisted of a remark made by the court in passing on an objection made by appellant that “there seems to be a controversy about where this injury occurred.” It is sufficient to say that it no where appears that any objection was made or exception taken to this remark at the time it was uttered, and therefore it cannot be considered by us and it should be further said that in the absence of anything tending to show the connection in which the words were used, there is nothing to show us how they could be objectionable.

The judgment of the court below should be and is hereby affirmed.

Affirmed.


author: Mr. Presiding Justice Smith

text:
    Mary E. Whelan, Appellee, v. Michael J. Whelan, Appellant.
    Gen. No. 15,443.

      Contempt—when attachment for, improperly issued. In the absence of notice of a rule to show cause, an attachment for contempt is improperly issued.
    Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed.
    Opinion filed April 18, 1911.
    Charles A. Churan, for appellant.
    No appearance for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This is an appeal by Michael J. Whelan from an order that an attachment issue for contempt of court in failing to pay to Mary E. Whelan, appellee, $227.50 as alimony accrued under a decree of the Circuit Court, and from the denial of a motion to set aside the order for attachment.

The record shows that the only notice served upon appellant was a notice of a motion for a rule to show cause, and the evidence of this service is defective. No notice of the rule or order to show cause was served on appellant personally. “With few exceptions the rule generally obtains that nothing but personal service on the accused of the order to show cause why an attachment shall not issue against him will meet the requirements of the law.” 4 Ency. PI. & Pr. 782; Rapalje on Contempt, sec. 87; Bonner v. People, 40 Ill. App. 628.

For want of proper notice of the order to show cause the judgment or order of the Circuit Court is reversed.

Reversed.


text:
    Julia Langguth, Appellee, v. Village of Glencoe, Appellant.
    Gen. No. 15,460.
    1. Pleading—when error in date as alleged in declaration not fatal. In an action for personal injuries resulting by falling upon a sidewalk, if the declaration alleges the accident as June 14, 1906, and the service of notice on December 10, 1907, when the former date should have been 1907, the error is not fatal.
    2. Statute op Limitations-—when new cause of action not set up. Held, that the correction of the date mentioned in the preceding paragraph of syllabus did not constitute the setting up of a new cause of action.
    3. Notices—propriety of commencing suit before serving notice upon municipality. If the notice required by statute in cases of personal injuries is served in apt time, the prior bringing of suit is immaterial.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed April 18, 1911.

      Morton T. Culver, for appellant.
    Myer S. Emrich, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellee, Julia Langguth, obtained a judgment in the Superior Court of Cook county against the appellant, Village of Glencoe, for alleged injuries sustained by the plaintiff by reason of falling on an alleged public sidewalk on Green Bay Road in the Village of Glencoe.

The action was commenced August 13, 1907. The original declaration avers that the defendant on the 14th day of June, 1906, was possessed of a certain public sidewalk in the highway known as Green Bay Road, and that it in disregard of its duty in that behalf, wrongfully, carelessly and negligently suffered said sidewalk to remain in bad and unsafe repair and condition, and allowed one of the planks of the sidewalk to be and remain in a loose, rotten and unsafe condition, and that while the plaintiff was walking on the sidewalk in the exercise of all due care and caution for her own safety, she stepped upon the loose and rotten plank, not knowing its condition and it gave way, and in consequence she was thrown upon the sidewalk and suffered permanent injuries.

The declaration also avers that on December 10, 1907, the statement of her claim against the village for damages by reason of the above premises was duly filed with the attorney for the village, and on the 13th day of December, 1907, with the clerk of said village.

Upon the trial of the case it developed that the accident occurred on the 14th day of June, 1907, instead of 1906, and accordingly an amendment by leave of court was made changing the date to correspond with the evidence.

It is contended that the original declaration on its face did not show a cause of action, and that therefore the court erred in denying the defendant’s motion to dismiss the case after the jury had been impaneled. This contention is based upon the fact that the cause ■ was commenced August 13, 1907, and the date of the accident was alleged to have been June 14, 1906, and the notice which was served upon the village attorney and clerk was alleged to have been served on December 10th and 13th, 1907, nearly eighteen months after the date of the alleged accident, while the law required that the notice should be served within six months, and the suit instituted within one year.

We do not think that the error in the date of the accident, as averred in the declaration, was fatal to plaintiff’s cause of action, and we think that the declaration stated a good cause of action against the defendant.

It is contended that the amended declaration states a new cause of action, in that it alleges the injury to have occurred on the 14th day of June, 1907, instead of the 14th day of June, 1906. There is no merit in this contention.

It is further urged that the action was commenced before the notice required by law was filed with the village clerk and served upon the attorney for the defendant. We do not think the statute requires that the notice should be served before the suit was commenced. If the notice is served within the time prescribed by the statute, it is sufficient, whether served before or after the suit was commenced.

We do not think the verdict for $1,500 damages for the injuries sustained by the plaintiff is excessive. The evidence shows that the plaintiff was seriously injured.

We find no reversible error in the record and the judgment of the Superior Court is affirmed.

Affirmed.


text:
    William H. Noyes, Appellee, v. Alma Clarke et al., Appellants.
    Gen. No. 15,465.
    Appeals and eeboes—who cannot appeal from, order granting writ of assistance. One not a party to the record, though bound by the decree therein, is not entitled to maintain an appeal from an order granting a writ of assistance.
    Foreclosure. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Appeal dismissed.
    Opinion filed April 18, 1911.
    Albert Wesley Gottschalk, for appellant, Walter M. Roewer.
    Ellis & Lewis, for appellees.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

It appears from the answer of appellant Walter M. Boewer to the petition for writ of assistance in this case, that appellant came into possession of a part of the premises in question long subsequent to the entry of the decree of foreclosure, and that he acquired possession through Albert Wesley Gottschalk who was bound by the decree. In our opinion appellant has no ground for maintaining this appeal. Kessinger v. Whittaker, 82 Ill. 22.

It further appears that appellant was not and is not a party to the record, and he is not for that reason entitled to prosecute an appeal from the order granting the writ of assistance. Harwood v. Cox, 26 Ill. App. 374. In order to become a party to the record he should have appeared and moved the court to vacate the order granting the writ, and then, if the motion was denied, appeal from the order denying his motion, or if the writ is executed, move to be restored to the possession, and if the motion be denied, take his appeal.

Not being a party to the proceeding below, he is not entitled to appeal. This appeal must therefore be dismissed.

Appeal dismissed.


author: Mb. Presiding Justice Smith

text:
    George Philipopoulos, Appellee, v. Spiros Papantonis et al., Appellants.
    Gen. No. 15,471.

      Decebes—when not set aside on review. If no error of law appears and the proofs sustain the averments of the bill and the decree is just and equitable, the same will not be set aside.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed April 18, 1911.
    J. C. Carlson and Hebel & Haft, for appellants.
    Thompson & Clark, for appellee.
   Mb. Presiding Justice Smith

delivered the opinion of the court.

Appellee, George Philipopoulos, obtained a decree in the Superior Court of Cook county upon a bill filed by him against Spiros Papantonis and William Catseones to set aside the sale of a certain cigar and pool room located at 22 North Clark street, in the city of Chicago.

The bill avers that the defendant, appellants here, induced the complainant to purchase the cigar and poolroom in question upon fraudulent representations made by the defendants, appellants here, as to the daily cash receipts received by them from the business which they had theretofore conducted in the poolroom.

The record shows that the averments of the bill were denied by appellants’ answer, and that the testimony as to the representations made to the complainant by the appellants on the occasion of the purchase, or prior to the purchase, was conflicting. The cause was tried before the court and the chancellor had an opportunity to see the witnesses and to observe their conduct and manner of testifying, and great weight, we think, must be given to his judgment for that reason.

The evidence on the part of the complainant tended to show that he was induced to purchase the establishment at a grossly exorbitant price, much more than it was worth, and that the daily receipts of the business were nowhere near what they were represented to be by the defendants when they sold it to the complainant, and that the complainant was grossly swindled.

The evidence on the part of the defendants tends strongly to deny the various representations of facts shown by the testimony on the part of the complainant, and it is urged that the decree of the court rescinding the contract of sale and allowing appellants credit for the cigars disposed of by appellee, and fixing the amount thereof at $45, which amount the decree deducts from the $500 in cash paid by complainant, and cancels the notes and chattel mortgage given by the complainant to the defendants, and orders the notes and mortgage surrendered, is unsupported by the evidence, and unjust and inequitable.

Upon an examination of the record and the evidence, the arguments and authorities submitted on behalf of the appellants, we are of the opinion that the proof sustains the averments of the bill and that the decree is just and equitable.

The decree is affirmed.

Affirmed.


author: Mr. Justice Baldwin

text:
    The Baldwin Company, Plaintiff in Error, v. Samuel Paley, Defendant in Error.
    Gen. No. 15,351.
    1. Agency—what not promise other than that contained in a printed form of contract. If an agent fixes the selling price of merchandise at a less sum than that specified in a contract and gives a receipt for the amount of the reduction, the transaction is valid and binding on the principal and is not affected by printed notice contained on such contract which would suggest a lack of authority upon the part of the agent to change the form of the contract.
    2. Municipal Coubt—how objections to instructions must be made. Objections to instructions given in the Municipal Court must be specific and made immediately after the giving thereof and before the jury retires; failure so to make objections precludes the urging thereof on review.
    Error to the Municipal Court of Chicago; the Hon. Isadore H. Himes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed April 18, 1911.
    Statement by the Court. This action was originally brought in the Municipal Court of Chicago as one of the fourth class. Judgment was entered in favor of defendant and plaintiff sued out a writ of error.
    Plaintiff in error (plaintiff below) is a manufacturer of pianos, with a retail establishment in Chicago, from whom defendant in error purchased a piano.
    Plaintiff claims to have sold a piano to defendant for $550. It concedes that $425 in cash has been paid by the. defendant, and it sues upon the original contract or promissory note for the balance of $125 and accrued interest. Defendant produced upon the trial a receipt for $125, signed by the salesman of plaintiff, from whom he purchased the piano, and claimed that, though the contract or note was made out for $550, yet it was definitely agreed that he was to pay but $425, the remaining $125 being represented by the receipt for that amount which the salesman gave to him at the time he signed the contract or note.
    A trial was had in the court below before a jury who returned a verdict in favor of the defendant, and plaintiff in error seeks a reversal in this court solely upon the ground that the 7th, 8th, 9th and 10th instructions given to the jury were erroneous. The instructions complained of were as follows:
    “7. The jury are instructed that the words ‘General office, The Baldwin Company, Cincinnati, Ohio, D. H. Baldwin & Company, are not responsible for any written or verbal contract or promise other than that written or printed on the face of this contract’, appearing on the face of the contract introduced in evidence about the words and figures, 6 October 10, 1906’, that being the date of said contract, are no part of said contract and constitute but a mere notice and they are not binding on the defendant unless it is shown from the evidence that the defendant had actual notice thereof before said contract was signed by him.
    “8. The court instructs the jury that when an employer denies that his agent had authority to make the particular contract, it is the employer’s duty promptly to disavow his agent’s act as soon as he receives knowledge thereof, and if the employer does not do this, or if he does, and thereafter accepts the benefits of the unauthorized act, the employer will be held to have accepted and ratified the agent’s act and will be bound by it, and if in this case, you believe from all the evidence that J. Handelsman made an unauthorized contract with the defendant on behalf of the plaintiff and that the signing of the contract and the giving of the receipt constitute but one transaction, and that the plaintiff received knowledge thereof and thereafter accepted the benefits of said contract, then the plaintiff will be deemed to have accepted and ratified the said unauthorized contract and will be bound thereby.
    “9. The jury are instructed that if you believe from all the evidence that J. Handelsman, on behalf of the plaintiff, did make an unauthorized contract with the defendant, then the plaintiff could not ratify said contract in part and reject it in part and plaintiff could not accept that part which was favorable to it and reject that part which was favorable to the defendant, but plaintiff must reject the entire contract or accept the entire contract, and if in this case you further believe from the evidence that the signing of the contract and the giving of the receipt was one transaction and that plaintiff received notice of said unauthorized agreement with the defendant and thereafter accepted the benefits of said contract and received the future payments thereon, the plaintiff cannot recover.
    ‘ ‘ 10. The court instructs the jury that when a person without authority undertakes to make a contract for another, the latter is not bound by the acts of the former, but the unauthorized contract may be made valid by the subsequent acceptance and ratification of the party for whom it is alleged to have been made.”
    S. E. Thomason, for plaintiff in error.
    E. C. Mapledoram, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

The accuracy of these instructions, of course, depends largely upon their applicability to the evidence before the court.

It appears that prior to. the date of the contract defendant had visited the establishment of plaintiff, where he was waited upon by one Handelsman, one of its salesmen, who held himself out to be manager of the sales department. The piano in question was finally selected, and Handelsman offered to sell it for $550. From this point on the testimony is in conflict. Plaintiff claims that the piano was sold for that amount, and that the transaction was evidenced by a note or contract, which reads as follows:

Beneral Office The Baldwin Company,
Cincinnati, Ohio.
D. H. Baldwin & Co. are not responsible for any written or verbal contract or promise other than written or printed on the face of this contract.
$550.00. Oct. 10, 1906.
For value received, I, the undersigned * * *
promise to pay to the order of D. H. Baldwin & Go. Five Hundred and Fifty Dollars, at their office in Chicago, Ill., as follows: One Hundred Dollars cash, & Twenty-five Dollars per month until paid in full, first payment of Twenty-five Dollars due Dec. 1/06, with interest on each payment at the rate of six per cent per annum from the date hereof, until fully paid if not paid on maturity. * * *
Samuel Paley (Seal).
READ THE ABOVE BEEOBE SIGNING.
Witnessed by
A. Handelsman.”

Defendant contended that he had refused to purchase the piano at the $550 mentioned, and that subsequent to his visit to the establishment of plaintiff he had an interview with Handelsman, to whom he said that he would take the instrument at $400, whereupon Handelsman said he would let him know the following day; that a day or two later Handelsman called him up by telephone and told him that if he wished the piano “it will be $425,” whereupon Paley told bim to ship it out, and the piano was thereupon sent out; this was on the 8th of October, up to which time there had been no papers signed; a day or two later Handelsman brought in blanks and wrote out the contract or note, and directed Paley to sign it, stating to him, according to Paley’s testimony, “You know we cannot have this piano go out of our store for less than $550, and we must show it on our books, but I will give you a receipt right here for $125, credit.”

Accordingly, the contract or note was signed, $100 was paid in cash, for which a receipt was given, in addition to the receipt for $125, and Handelsman told Paley (referring to the $125, for which the receipt purported to be given), “You do not have to pay the five months at $25, but you can use it if you want to; you can pay $25 for five months and let it go until the last, just as you want to pay, until the $425 is paid up.”

A copy of the contract or note was also delivered to Paley, who says he thinks he saw the line “D. H. Baldwin & Company” when the contract was made out.

The two receipts were offered in evidence and read as follows:

“October 10, ’06.
Bee. of Sam Paley One hundred dollars first payment on Baldwin Piano No. Emp. Moh. No. 10978.
D. H. Baldwin & Company,
Per J. Handelsman.” “Chicago, October 15th, ’06.
Bee. of Sam Paley One hundred and twenty five dollars to apply on Baldwin Company No. Emp. Moh. No. 10978.
D. H. Baldwin & Company,
Per J. Handelsman.”

In December, 1906, Paley received a letter from plaintiff, dated the 8th, asking payment of $125 and interest due on his piano contract, and stating that in selling the instrument it was the understanding that the payments should be made promptly, and asking for a remittance. Upon receipt of this letter Paley consulted his lawyer, who, on his behalf, on the 10th of December wrote plaintiff a letter in which he stated that “Mr. Paley informs me that his contract price for your piano was $550 on which he was to be allowed a credit of $125, and he holds a receipt to that effect, and on the date of the purchase of the piano he paid $100 cash on the piano, which leaves $325 due. Mr. Paley is perfectly willing and anxious to comply with the terms of his contract, but he informs me that you question the amount due on the contract, and I have advised him, that until the matter is settled, to take no further action, If you are not satisfied with the statement of the case I have just made, why you can have your piano, and by returning the $100 to Mr. Paley, or if you are satisfied with the $325 which he now admits to be due, he will go on and make the further payments as the contract calls for. Please let me hear from you.”

On January 15,1907, plaintiff wrote Paley notifying him that Handelsman was no longer in their employ, and consequently had no authority to transact business nor receive money for them, advising him that his total credit at that date was $150, and asking him to advise if there was any discrepancy according, to their receipts. To this letter Paley replied on the 17th of January : “I have already informed you, and I inform you again that I claim a credit upon my contract with you for $125 allowed me by your manager, Mr. Handelsman, and $150 cash that I have paid you myself. That is $100 paid to Mr. Handelsman, and two payments of $25 each at your store. When the payments under the contract become due I shall make them. There is now due on the contract $275, which will be paid according to the contract, and that is all I will ever pay.”

After sending this letter, Paley made all the rest of the payments that were due to complete the amount of $425, and upon the last check of $25, dated December 2,1907, placed the words, “Paid,in full up to date.” This check the plaintiff accepted and used.

Subsequent to this payment the suit was brought for the remaining $125, plaintiff contending (1) that the receipt was in fact given by Handelsman to Paley in consideration of Paley’s promise to sell five pianos for him, which he failed to do; and (2) that Handelsman had no authority to bind the company by the receipt for $125.

At the trial one Dickinson testified for plaintiff that he was manager of its Chicago business, and that he received the letter from Paley of December 10th and knew there was a dispute about the contract, but they were not willing to take back the piano, nor give back the $100, because they had his contract for $550, and if a man signs a contract, they expected him to pay it.

A trial was had in December, 1908, and the following entry appeared upon the books of the plaintiff, which were offered by defendant:

“Mr. J. Handelsman,
Chicago.
In account with Thé Baldwin Company,
Dr”.
(Among many other items are the following:) “1907
Aug. 1. Reduction made on Price of Pno.
To S. Paley without authority $125.00
May Í4, 08.
To balance, 224.68.”
It thus appears that not only did the plaintiff continue to accept payments from Paley after being substantially informed by him that, unless they were satisfied with his understanding of the amount due, he would not make any further payments, but that the plaintiff itself thereafter charged the amount in controversy to its agent, Handelsman, thus indicating its assent to the contention of Paley.
It appears to be the contention also of plaintiff in error that the printed words:
‘6 General Office,
The Baldwin Company,
Cincinnati, Ohio.

D. H. Baldwin & Co. are not responsible for any written or verbal contract or promise other than written or printed on the face of this contract, ’ ’ and the words: “Read the above before signing,” became in legal contemplation a part of the contract or note sued on, and that, therefore, the transaction between defendant and Handelsman, its agent, by which the latter receipted to Paley for $125, was not binding upon it.

We cannot assent to this contention. The note was complete in itself, and the words quoted were no part of the contract sued upon.

Plaintiff complains of certain instructions. Buie 8 of the Municipal Court, of which we are required to take notice under section 20 of the Municipal Court Act, is as follows:

“Objections to the giving or refusing of oral instructions to the jury must be specific, and must be made immediately upon the conclusion of the charge, and before the jury retire.”

The manifest purpose of this rule was to give the court the benefit of specific objections to the instructions complained of, in order that the court might, if he so desired, modify the instructions in the particulars complained of before the jury should retire. In this case the objections to the instructions were too general to be availed of in this court. Grollman v. Lake Geneva Piano Stool Co., 147 Ill. App. 332.

Even if they were properly before us, we should be compelled to hold that they stated with substantial accuracy the law applicable to the case.

Finding no reversible error in the record before us, we must affirm the judgment of the court below.

Affirmed.


text:
    City of Chicago, Defendant in Error, v. Dunham Towing & Wrecking Company, Plaintiff in Error.
    Gen. No. 15,358.
    1. Ordinances—validity of, 'prohibiting smoke nuisance. Held, that the power to enact smoke ordinances is expressly conferred by the legislature and that the so-called smoke ordinances of the city of Chicago are valid.
    2. Trial—what remarles of court will not reverse. Held, that the following remark of the court was not ground for reversal:

      “Mr. Reporter, let the record show that the defendant, at the close of the plaintiffs evidence, asks the court to instruct the jury to find the defendant not guilty, which the court refuses to do.”
    3. Evidence—when proof of ownership not essential. Where the question of ownership is one of inducement, proof thereof is not necessary unless ownership is expressly denied.

      4. Evidence—what competent in action for prosecution for smoke nuisance. Held, that it was competent to permit a deputy inspector to testify that he saw dense smoke issuing from the stack of the tug of the defendant.
    5. Evidence—burden of proof to establish negative. In a prosecution for the violation of a smoke ordinance proof of a negative allegation of a fact peculiarly within the knowledge of the defendant need not be made by the municipality.
    Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed April 18, 1911.
    Statement by the Court. This is an action of the fourth class brought in the Municipal Court by the city of Chicago to recover a penalty for an alleged violation of section 17 of its so-called Smoke Ordinance. The defendant company (plaintiff in error) is engaged in the towing of vessels in the Chicago river and harbor, and it is charged that on July 29, 1908, the smoke stack of the tug “J. C. Evans,” owned by the defendant company, and which was then tied to a dock near the Wells street bridge in Chicago, emitted large volumes of dense smoke for a period of eight minutes.
    A trial was had before a jury, which resulted in a verdict for the plaintiff, the jury assessing the maximum penalty of $100. The court overruled the motion of defendant for a new trial, and entered judgment on the verdict, whereupon the defendant sued out a writ of error.
    Plaintiff in error contends in this court in its brief (1) that the ordinance sued upon is void; (2) that the remarks of the court were prejudicial error; and (3) that the court erred in admitting evidence, and in the instructions.

      Michael E. Sullivan, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.

Section 17 of the ordinance sued upon, which it is claimed was violated in this case, provides that “The emission of dense smoke within the city from the smoke-stack of any locomotive, steam boat, steam tug, * * * excepting for a period of six minutes in any one hour, during which the fire box is being cleaned out or a new fire being built therein, is hereby declared to be a nuisance and may be summarily abated * * * Any person * * * deemed guilty of a violation of this ordinance, and upon conviction thereof shall be fined not less than ten dollars nor more than one hundred dollars for each offense.”

The legislature of Illinois expressly conferred upon the city of Chicago the power to pass an ordinance of the character of this so-called smoke ordinance,—section 62 of the Cities and Villages Act, Paragraphs 63, 66, 67, 75 and 78,—and accordingly it must be sustained unless it is clearly unreasonable. Stanton v. City of Chicago, 154 Ill. 23; Berry v. City of Chicago, 192 Ill. 154. The presumptions of law are in favor of the reasonableness of the ordinance. Bundling v. City of Chicago, 176 Ill. 340.

The phraseology of section 17 of the ordinance in question, which, it is claimed, the defendant violated, is substantially like that of a similar ordinance which was before the Federal Court in Blucose Refining Co. v. City of Chicago, 138 Fed. Rep. 209, where its validity was directly attacked. For reasons given by the court in that case, and because we ourselves do not think the ordinance open to the objections urged against it, we feel compelled to hold the ordinance valid. See also Marshall Field & Co. v. City of Chicago, 44 Ill, App. 410; Harmon v. City of Chicago, 110 Ill. 400.

The second contention of plaintiff in error, that the court below made remarks during the trial which constituted reversible error, is based upon the charge in the brief that the court, after refusing the request to instruct peremptorily for the defendant, made in the presence of the jury the following remark:

“Mr. Eeporter, let the record show that the defendant, at the close of the plaintiff’s evidence, asks the court to instruct the jury to find the defendant not guilty, which the court refuses to do.”

We do not find anything in the record which would justify us in holding that this statement by the court, even if heard by the jury (and it is not shown that it was), would afford grounds for reversing the judgment in this case.

Plaintiff in error also complains, that it was error to allow the deputy smoke inspector to testify that the offending tug was owned by the defendant, because it appeared that his knowledge of the facts as to its ownership were acquired from a letter received from defendant after the date of the alleged offense, and from statements made by the captain of the tug. This testimony was not of a very satisfactory character, but the defendant offered no testimony, and, in this case, as the real controversy was not over the ownership of the tug, but the issuance of dense smoke, the ownership being a matter of inducement, it was not necessary to prove it unless it was specially denied. Chicago Union Traction Co. v. Jerka, 227 Ill. 95.

It is also complained that the deputy inspector was allowed to state that he saw dense smoke issuing from the stack of the tug. In Harmon v. City of Chicago, 110 Ill. 400, on page 407 the court said: “Nor will any subtle distinctions be indulged as to what is meant by ‘dense smoke’ as those terms are used in the ordinance. The terms used will be understood as commonly employed, and this court will understand by ‘dense smoke’ precisely what everybody else does that has ever seen a volume of dark, dense smoke as it comes from the smoke-stack or chimney where common soft or bituminous coal is used for fuel in any considerable quantities.” This language we adopt as applicable to this case. Moreover, there was offered in evidence a photograph showing the dense smoke. We think the objection not well taken.

And lastly, it is claimed that the city would have been required to prove that the defendant was not cleaning the fire box or building a fire therein at the time in question. This was a negative allegation of a fact peculiarly within the knowledge of the defendant and need not be affirmatively proven by the city. 1 Greenleaf on Evidence, sec. 79. However, the testimony showed that the dense smoke continued for eight minutes, and but six minutes were allowed for cleaning the fire box or building the fire.

For reasons given the judgment will be affirmed.

Affirmed.


text:
    The Wiborg and Hanna Company, Appellee, v. David K. Jeffris et al., Appellants.
    Gen. No. 15,379.
    Vendor and vendee—when acceptance not established. Held, under the evidence in this case, that it was not established that the lumber retained had been unconditionally accepted by the vendee and that a recovery could not be sustained for the purchase price, it not appearing that such lumber was up to the contract grade.
    Appeal from the Superior Court of Cook county; the Hon. George W. Patton, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded. '
    Opinion filed March 21, 1911.
    Opinion modified and refiled and rehearing denied April 18, 1911.

      Statement by the Court. May 10, 1905, appellants (defendants below) sent to appellee at Cincinnati, Ohio, a letter, ordering certain lumber to be delivered to them, F. O. B. cars at Kensington, Illinois, the letter specifying the quantity, quality and price respectively of each of the different grades ordered. Upon this order appellee shipped lumber in carload lots from time to time, until the entire amount called for (aggregating eleven cars) was sent, and sent to appellants from time to time, as the cars of lumber were sent, its bills of lading for the lumber in each car. As the carloads of lumber were received, appellants turned them over to the Pullman Company, by which they were unloaded, and the lumber inspected and measured,—appellants remitting for the amount which it is claimed was in the respective carloads as they were thus received from time to time.
    Appellants’ letter called for a given quantity of lumber of each of the following designations: 1st and 2nd four quarter poplar, select four quarter poplar, 1st and 2nd six quarter poplar, and six quarter clear bright saps, and at prices mentioned for each.
    Appellee claims to have shipped the quantity of each called for, while appellants contend that, though they received all of the lumber shipped, it was not of the grades ordered, but, as the cars were unloaded and the lumber inspected, it was found that, while some of it was of the grades ordered, quite a portion was below grade. So that, while they had not ordered any “common,” yet of the lumber received, considerable was of that grade.
    It appears that appellants remitted from time to • time with detailed statement for the carloads as received, and claim to have paid in full at the contract price for all lumber they received, which was of the grades ordered, and for the remainder,—the common, —at what it was practically conceded was its fair market price.

      It further appears that the lumber called “common,” for which appellants paid at the market price of that grade of lumber, and for which appellee claims it was entitled to the contract price, was undisposed of when the suit was brought, and that appellants had theretofore offered to have it reloaded upon cars upon payment of $1.00 per thousand for. reloading and held for appellee,—which offer was declined by appellee. So, claiming to have shipped the quality and quantity specified, appellee sued for the full contract price, and insisted not only that the lumber sent was up to the requirements, but, even if it were not, that, after accepting and using or selling it to the Pullman Company, appellants were bound to pay for it at contract price.
    Appellants contend (1) that, as the lumber was sold by description, there was a warranty that it should be as described, and that they were justified in' accepting and using and paying for, at the contract price, so much of it as was of the grade called for, and that they did not thereby lose the right to insist that some of the lumber received was not up to the grade ordered, and that their liability therefor was the market price of such inferior lumber; (2) that their settlements, as mailed to appellee from time to time and retained by it, constituted a full accord and satisfaction; (3) that the trial court erred in allowing witness for appellee to testify as to conversations claimed to have been had between Jeffris (one of the appellants) and Irwin, an employe of appellee, prior to the making of the written contract; (4) that the trial court erred in refusing to allow them to cross examine a witness, Jeffris, called by appellee.
    Adams & Froehlich, for appellants.
    Fred H. Atwood, Frank B. Pease and Charles O. Loucks, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

The questions presented for our consideration upon this record are not numerous. Appellants ordered by letter given quantities of specified grades of lumber at stated prices for the different grades. The real controversy grows out of the fact that, while appellee claims to have shipped the grades and quantities ordered, and as correctly shown with prices by its several invoices accompanying the separate carload lots in which it was shipped, appellants contend that the quantities of each of the grades purchased in the respective cars were not as shown upon the several invoices, and that a portion of the lumber received was of lower grade than any ordered by them, and constituted only what was termed “common.” To this appellee replies that appellants could not retain the carload lots of lumber,—use such as they conceded was up to the grade. ordered,—and refuse to accept the remainder, but that they must either accept or reject the lumber according to invoice, treating each carload as a unit.

We recognize the law to be that, where one has ordered a particular kind of merchandise delivered in carload lots, if, upon its delivery, and with opportunity for inspection, he accepts and uses it, he is bound by such' acceptance.

In this case, delivery was to be made at Kensington. Two or three grades of lumber were included in the order, and in the invoice from the seller accompanying each car. Inspection and measurement by the buyer were essential to determine the grades and quantities. This was had as the cars were received, and the purchasers duly prepared statements showing the grades and quantities of lumber in each car, according to their inspection and measurement, and with such statement or “settlement,” as it was called, remitted to appellee their check therefor. These checks thus accompanying the statements or “settlements” were aecepted and used by the appellee with knowledge that they were in payment of a portion of the lumber according to inspection and measurement by the appellants.

The first carload was shipped May 19, 1905, and this was followed by the others on May 20th, June 15th, 21st, 22nd, 24th, and 30th, July 7th, 12th, 13th and 14th. Apparently in conformity with the terms of the contract as to payment, appellants remitted for the several carload lots on June 22nd, July 10th and 26th, August 4th and 11th, and September 26th and 28th. Accompanying these remittances from appellants for the several cars were statements showing that the cars contained a less quantity of the respective grades than the invoices called for, and that some of it was of such inferior quality as to be classed as “common.” Appellee, upon receiving the first remittance with such statement, asked payment for the “common,” and was informed that it would -be paid for when disposed of.

On July 5th, appellants wrote to appellee, distinctly notifying it that they would not accept the stock as graded by it. On July 31st, appellee wrote again calling attention to the small difference still due on the two cars. On August 8th appellee again wrote, objecting to the deduction of switching charges on the various cars, and on the day following appellants wrote back offering to re-load the lumber and hold it subject to appellee’s order.

On the 28th of September appellants sent to appellee check for $54.19, which was specifically stated to cover the switching charges theretofore erroneously deducted and in payment for the “common” lumber in two cars, particularly designated. Again, on October 28th appellants wrote appellee that the lumber in controversy was still on hand, and offered to have it reloaded at $1 per thousand, and calling attention' to the fact that their statements or settlements had been accepted without objection.

Under this state of facts, appellee was not entitled to recover the contract price for the grades and quantities of lumber it claimed to have shipped. It clearly appears that appellee continued shipments after being distinctly informed that appellants would not accept the stock according to its grading, and appellee accepted the checks sent by appellants in payment for the carload lots according to their grading and measurements. And not only so, but the check of September 28th, which not only included the switching charges previously complained of, but which, also, in terms, paid for the “common” lumber, according to their contention, was accepted by appellee, and this acceptance of the check clearly constituted a settlement of the entire controversy so far as these two ears were concerned.

We are not able, from the record before us, to ascertain the details with respect to the other shipments and payments therefor. This information will be afforded by another trial. The court below clearly erred in instructing the jury to return a verdict for the appellee. Even had appellee been entitled to a verdict, the basis assumed by the court was wrong,—for he took as a basis of calculation the invoice prices claimed by appellee, and deducted only the aggregate of the checks to appellee and the freight paid by appellants, thus entirely ignoring the discounts to which appellants were entitled, 6and, also, the further fact that, for at least a portion of the carload lots, appellee was certainly bound by its acceptance of the checks sent in payment therefor.

Upon the case made, it is not important that the court allowed Irwin to testify to alleged transactions prior to the making of the written contract, but, if such testimony were admitted, it, with the rebutting testimony of Jeffris, should have gone to the jury. In the light of,the correspondence between the parties, we do not regard either as very important.

Appellants’ contention that the court erred in refusing to allow their cross-examination of Jeffris, cannot be sustained.

Jeffris, as a witness for appellee, testified that the lumber in question had been sold and turned over by them to the Pullman Company. This testimony was for the purpose of showing that appellants had accepted the lumber in question and were exercising dominion over it, and it was not error to refuse to allow appellants, upon cross-examination, to show upon what basis they settled with the Pullman Company, for that was entirely immaterial.

Because of the errors indicated, the judgment will be reversed and the cause remanded for a new trial.

' Reversed and remanded.