text:
    James McGuire, Appellee, v. North Breese Coal & Mining Company, Appellant.
    1. Master and servant—who fellow-servants. Where a boss driver in a mine when operating a motor for the regular motorman during his absence to get lunch, negligently drives against a car which plaintiff, a driver under such boss, is coupling • and injures him, it is a question for the jury whether the negligence of the boss driver is in the capacity of motorman and fellow-servant of plaintiff or of boss driver and vice principal.
    2. Master and servant—who are fellow-servants. A regular motorman in a mine and a mule driver who are habitually associated together in their work are fellow-servants.
    3. Master and servant—fellow-servant rule. The portion of the fellow-servant rule to the effect that, to be fellow-servants the duties of servants must be such as to bring them into habitual association so that they may exercise a mutual influence promotive of proper caution, means personal association calculated to exercise influence promotive to caution.
    4. Master and servant—who are fellow-servants. A boss driver in a mine, temporarily operating a motor, and a driver under him, injured by his negligent operation of the motor, who are not habitually associated in their work, are not fellow-servants.
    5. Mines and miners—provision as to lights on trains and trips of oars construed. Act 1911, section 15 (L. 1911, p. 407) relating to the lights on “every trip or train of pit cars moved by machínery” means that the rear light referred to need only be carried by a car when it is in the rear of a train or trip of cars.
    6. Master and servant—what instruction as to who are fellow-servants properly refused. Where a mule driver in a mine brings action for personal injuries received when the boss driver, who was temporarily operating a motor, drove against him, it is not error to refuse an instruction stating that the driver and boss driver would be fellow-servants if they were in the employ of defendant and were directly co-operating in the hauling o£ coal, or if the duties of a driver and motorman brought them into habitual association so they might exercise an influence upon each other promotive of caution.
    7. Instructions—when party cannot complain of modification. A party cannot complain of a modification of an instruction by striking a clause therefrom if the substance of such clause was given in another instruction.
    8. Instructions—how objectionable portions should be stricken. The trial court when striking out objectionable words in an instruction should completely obliterate them.
    9. Instructions—when modification by drawing line through clause not prejudicial. A modification of an instruction by running a line through the part stricken instead of obliterating, held, not so prejudicial as to require reversal especially when the same language was' contained in an instruction given.
    Appeal from the Circuit Court of St. Clair county; the Hon. Louis Berneeuter, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Rehearing denied and opinion modified May 29, 1913.
    O. E. Pope, for appellant.
    T. E. Mould and Schaefer & Kruger, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

This case was brought by James McGuire, appellee, against the North Breese Coal <fc Mining Company, appellant, to recover damages sustained by reason of an alleged injury to the appellee, which occurred while the appellee was in the employ of appellant, as mule driver, in a coal mine.

The case was tried upon the first and second amended counts of the declaration.

The first amended count charged, that plaintiff, while attempting to couple a car, loaded with coal, to other cars standing on the parting and while he was in the exercise of ordinary care for his own safety, that Herb Taylor, boss driver, and vice principal, negligently and carelessly, caused a motor and ears thereto attached to be violently backed against the cars he was so attempting to couple, without notice or warning and thereby caused the injury complained of. A verdict and judgment for the plaintiff resulted and defendant prosecutes this appeal.

The main contention here arises over the application of the rule in regard to fellow-servants. The question whether the boss driver and vice principal, who, at the time of the injury was acting as motorman, was a fellow-servant with appellee or whether he sustained the relation-of boss driver and vice principal, was a question of fact to be determined by the jury, and unless some reversible error is disclosed in the record of the trial, or this court can say, that under the evidence the verdict is so manifestly against the weight of the evidence that all reasonably intelligent minds would reach a different conclusion, the verdict and judgment should be sustained.

The evidence establishes the following facts concerning Taylor. He was boss driver. He employed the drivers and gave them orders as to their duties. At the time of the injury he was temporarily running the electric motor for the regular motorman who had gone to get lunch.

While operating the motor, with the cars attached, he backed down to the parting and caused the car plaintiff was attempting to couple with another, to move violently and so produce the injury to the plaintiff. Running the motor was not Ms usual work. Personally, Taylor ánd plaintiff had not habitually been associated together in the performance of their duties.

Taylor stood in precisely the same relation to the plaintiff as the master would have stood had the master been operating the motor at the time.

If the master under such a state of facts, would be regarded under the law, as a fellow-servant of the plaintiff, then Taylor should be so held but not otherwise.

What the master does himself is equivalent to a servant doing the same thing while under the orders from the master.

The reason which supports the fellow-servant doctrine is based on public policy, which presumes the usual or habitual association of colaborers, is such as would or might cause them to exercise a mutual influence upon each other promotive of proper care and caution.

If the manner of backing the car, by Taylor, without notice or warning, constitutes negligence, liability for such negligence can be avoided only on the theory that Taylor and the plaintiff were fellow-servants. If the backing of the motor and cars without notice or warning had been done by the regular motorman then under the rule the master would be relieved from liability.

When however the boss driver assumes the duties of motorman and neglects to give proper warning or reasonable notice, the failure of which would constitute negligence, his conduct becomes that of the master, and his negligence in that regard would be the negligence of the master.

It is not disputed that Taylor as boss driver held the position as vice principal and was vested with complete authority to hire and discharge the drivers at his discretion but it is insisted that his negligence, if any, was solely in the capacity of motorman and that in such capacity he was a fellow-servant with plaintiff and others co-operating in moving the loaded and unloaded cars, at the parting.

The question whether his negligence was in the capacity of motorman or boss driver was one of fact, to be determined under all the circumstances by the jury, and the jury having found this fact adversely to the defendant, such finding must be upheld on appeal, unless it affirmatively appears such finding was manifestly against the weight of the evidence. Mobile & O. R. Co. v. Massey, 152 Ill. 144; Chicago & N. W. R. Co. v. Moranda, 93 Ill. 302; Indianapolis & St. L. R. Co. v. Morgenstern, 106 Ill. 216; Lake Erie & W. R. Co. v. Middleton, 142 Ill. 550.

It is urged by appellant with what is apparently good logic, that under the definition of the term fellow-servant, as recognized by repeated holdings of the court of this state, that the evidence in this case shows that plaintiff and Taylor were at the time of the injury, “directly co-operating with each other in the particular business, in the same line of employment,” and therefore were fellow-servants. The definition however carries with .it the following qualifications, “where their duties are such as to bring them into habitual association so that they might exercise a mutual influence upon each other promotive of proper caution. ’ ’

The force of appellant’s logic in attempting to apply the first part of the definition and exclude the qualifying part to this case, must yield to the express holding of the Supreme Court, in the case of Chicago & A. R. Co. v. Swan, 176 Ill. 424, where the court held that whatever may be said of the correctness of the construction tested by grammatical rules it is unsound law.

The reason for the rule is clearly stated in the Moranda case, supra. In that case the court said: “Where servants of the same master are directly cooperating with each other in a particular business at the time of the injury, or are, by their usual duties, brought into habitual consociation, it may well be supposed that they have the power of influencing each other to the exercise of constant caution in the master’s work (by their example, advice and encouragement and by reporting delinquencies to the master) in as great, and in most cases in a greater, degree than the master. If, then, each such servant knows that neither he nor his fellow-servant, if injured by the other’s negligence can have redress against the master, .he has such incentive to constant care, and such incentive to the exercise of his influence upon his fellow to incite him to constant care, that the well-being of society in such cases does not demand that the master be made to answer.”

The second branch or qualifying portion of the definition of fellow-servant is held to mean personal association which is calculated to exercise influence pro-motive of caution. Their usual duties must bring them into some association, and the association must be sufficiently personal to furnish them opportunity and power to exercise an influence upon each other-pro-motive of their mutual safety. Bennett v. Chicago City Ry. Co., 243 Ill. 420.

Tested by the reason for the rule, the application of the rule under the evidence fails to show that the plaintiff and Taylor were fellow-servants. There was no opportunity by usual or habitual association, for the plaintiff to exercise any degree of influence on Taylor, promotive of caution.

Hence it follows, that Taylor’s relation to plaintiff at the time of the injury was that of vice principal, and that his negligence in backing the motor and cars onto the parting, without notice or warning, against the car plaintiff was about to couple with another car standing on the parting was the negligence of the master, the appellant herein.

Holding as we do that the evidence supports the allegations of the first amended count of the declaration and fixes appellant’s liability, we shall not extend this opinion by discussion of the amended third count, further than to say, that in our opinion the evidence fails to support the charge of wilfulness, on the part of the appellant, in its failure to have a light on the rear car attached to this motor, for the reason such car was not in the rear of any train or trip of cars, which is the evident meaning of the law which requires that, “a conspicuous white light must be carried on the front and a conspicuous red light or signal board on the rear of every trip or train of pit cars moved by machinery.” Section 15, chap. 93, Revised Statutes of 1911.

According to the evidence the trip was not made up, at the time of the injury. It was being made up. Even if required by the law the evidence fails to show that the absence of the light was the cause of the injury.

Counsel’for the appellant complains of the refusal of instruction No. 19, and the modification of instruction No. 17.

It will be observed on examination of refused instruction No. 19 that the instruction contained the following language: “and if the jury believe from the evidence, that the plaintiff, McGuire and Herb Taylor, who was operating the electric motor at the time of plaintiff’s injury were both in the employ of the defendant, and they were directly co-operating with each other in the work of hauling coal, or that the usual duties of driver and motorman brought them into habitual association so that they plight exercise an influence upon each other promotive of proper caution, they would be fellow-servants.”

If this instruction had been given and followed by the jury it would have been conclusive against the plaintiff. There was no dispute as to Taylor and the plaintiff both being in the employ of the defendant and at the time of the injury, co-operating together in the work of hauling coal. Nor was there any question raised that the usual duties of a motorman and a driver, brought them into habitual association so they might exercise an influence upon each other.

If the instruction had limited the inquiry as to Taylor particularly and not referred to motormen generally, the instruction would have been in harmony on that point, with the instruction in the case of Pagels v. Meyer, 193 Ill. 172, on which appellant seems to rely.

In the Pagels case, supra, the question was, whether Meyer, the plaintiff, and one Vogt, were fellow-servants, and the instruction offered by defendant and refused by the trial court, which on appeal was held to be error, contained the statement, in substance: “that if Meyer and Vogt were in the employ of the defendant and were directly co-operating with each other in the particular business in hand or that their usual duties brought them into habitual association so that they might exercise influence upon each other promotive of proper caution,” that they were as a matter of law fellow-servants.

Here however it was sought by the instruction to tell the jury that if the usual duties of a driver and a motorman brought them into habitual association, then plaintiff and Taylor must be regarded as fellow-servants, whether their usual duties brought them together or not. This we do not understand to be the law and it was not error to refuse the instruction.

It is contended that the modification of instruction No. 17, offered by defendant, constitutes error. That part of the instruction as originally presented and which was modified was as follows: “If the negligence complained of consists of some act done or omitted by one having such authority which related only to his duties as co-laborer with those under his control and which might just as readily have happened with one of them, not having such authority, the common master will not be liable.” The modification was made by running a pen over the words, “and which might just as readily have happened with one of them not having such authority. ’ ’

Two objections are urged against the modification made. First; that the' stricken words stated the correct rule of law, and Second; the manner of making the modification which was done with a pen line across the words attempted to be stricken but which left the stricken part still visible.

As to the first objection, appellant has no cause for complaint since the substance of such language was used in instruction No. 20, which was given for defendant and defendant got the benefit of it whether it stated the correct rule or not.

The second objection, raises the question of proper practice in modifying instructions by the trial court. It is certainly advisable in such cases for the trial court when striking out any objectionable words to effect complete obliteration and thus avoid giving possible emphasis to the act of modification.

We do not feel however under all the circumstances in this case especially when the same language stricken out is found in instruction No. 20, which was given, that such modification was so prejudicial to defendant as to require a reversal of this case.

We are of the opinion that under the particular facts in this case, the evidence shows that Taylor and plaintiff were not fellow-servants at the time of the injury and that the jury were warranted in finding defendant guilty of negligence and the judgment of the court below will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Thompsor

license: Public Domain

text:
    Wm. Rousch, Appellee, v. Oblong Gas Company, Incorporated, Appellant.
    1. Negligence—when one entering private road is licensee. Where a person, operating a traction engine, enters a private road with the permission of the tenant of the land, but without permission of the owner or a -lessee of the gas and oil rights, he is a licensee.
    2. Contributory negligence—when licensee cannot recover damages because guilty of. A licensee, driving a traction engine over a private road, cannot recover damages caused by the ignition of gas escaping from a pipe line broken by the engine, where the engine was three feet off the road at the place of the accident, and he was attempting to drive through a gate opening at a right angle turn in the road, on a night so dark' that a lantern was necessary to point the way through the gate.

      Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newxin, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with finding of facts.
    Opinion filed March 10, 1913.
    Parker & Crowley, for appellant; L. B. Dehrirg, of counsel.
    Bradbury & Caires and George W. Jores, for appellee.
   Mr. Justice Thompsor

delivered the opinion of the court.

This was a suit brought by appellee against the appellant to recover damages alleged to have been received to his person and property, occasioned by his driving a traction engine over appellant’s gas pipe whereby the pipe was crushed, causing gas to escape and enter the fire box of said traction engine where it became ignited and exploded, by means whereof the appellee became and was severely burned upon the face, body and hands, and the said threshing machine was set on fire and completely destroyed.

The material allegations of the declaration are that William Rousch was possessed of a steam traction engine and separator used in threshing grain, with which he entered upon the premises of one Ira Bussard and Jennie Bussard, at the special instance and request of the said Ira Bussard and his tenant, William Mills, for the purpose of threshing wheat belonging to them. The Oblong Gas Company was possessed of and operating a pipe line used in the transportation of natural gas, which said pipe line lay upon the top of the ground at the side of a private driveway upon the land of the said Ira Bussard, and that while passing over and along the said private driveway, the said appellee William Rousch, without notice or knowledge of the said gas pipe line, ran his traction engine upon and over the said gas pipe, crushing the same and causing the gas to escape and catch fire, resulting in the destruction of said traction engine and separator and personal injury to the said Eousch, and for which he claims damages. The action below was prosecuted against Ira Bussard, Jennie Bussard, and the Oblong Gas Company. The jury found the defendants, Ira Bussard and Jennie Bussard not guilty, but found the defendant, The Oblong Gas Company, guilty and assessed the damages at five hundred dollars. At the close of the appellee’s testimony in chief, and again at the close of all the evidence, motions were interposed by the defendant below, appellant here, The Oblong Gas Company, asking the court to direct the jury to return a verdict in favor of the defendants, both of which motions were overruled.

The evidence shows that Bussard had leased the premises to Mills for farming purposes but retained the right to lease them for oil and gas purposes which right he exercised by leasing the same to Lester Adams, who assigned his lease to The Oblong Gas Company and' that said company had entered and drilled for and produced and was producing and transporting natural gas from the premises through a two inch pipe line which ran along and about two feet distant from a fence on the east side of a private driveway, and which fence followed the eastern boundary line, running north and south of the Bussard premises.

The evidence further shows that Eousch, the appellee, brought his engine and separator along the public road running east and west in front of the Bussard premises and into the barn yard and entered by taking down a panel of the fence bounding the highway. That appellee did not make arrangements for threshing with Bussard, but made the arrangements with Mills, the tenant, and after he had finished threshing for Mills, and without permission of Mills or Bussard threshed oats of a neighbor, Mr. Huffman, who brought the same on the premises of Mills.

That just about dark on the same evening and after eating supper furnished by Huffman, on the Mills premises, Rousch pulled his engine and separator out on the public road running east and west in front of the Mills premises, being the same road from which he had entered the premises, and which road ended at the Mills bam lot, and then turned to the right or east, opened a gate, and drove his engine into the. Mills bam lot, opened another gate on the other side of the bam lot, and drove through onto a private driveway, on the farm. He then continued east on this private driveway for about a quarter of a mile where the road turned at right angles and ran north and where there was a gate opening, but no gate. In attempting to drive through this gate opening he ran his traction engine onto the pipe line of The Oblong G-as Company, which was about three feet east from the traveled driveway, with the result that the mud lugs on the right rear wheel crushed through the pipe, allowing the gas to escape, which igniting from the engine, destroyed the engine and separator and injured appellee.

The appellee did not ask permission to use this private driveway. It appears from the evidence that the gas pipe was placed under the ground where it passed through the gateway or opening in the fence and was also buried for a distance of about fourteen to eighteen feet on the north and south sides of the said post, and beyond these points in each direction the gas pipe was lying uncovered on the ground at a distance of about two feet from the fence. It further appears that the nearest line of the beaten track of the private driveway, at the point where the accident occurred was three feet from the gas pipe line and five feet from the fence line. In order for the wheels of the traction engine to come in contact with the gas pipe, they would have to extend over and outside of the drivewav as theretofore used, a distance of about three feet.

It also appears that it was so dark at the time of the accident that a boy with a lantern was required to point the way through the gateway.

The evidence shows that appellee was not on the premises at the invitation of either appellant or the Bussards. He was on the farm at the instance of the tenant, Mills, for the specific purpose of threshing grain. In carrying out this purpose he encountered no danger and suffered no injury. It was when he elected to forsake the public road and enter upon a private driveway, without permission or invitation of either appellant or the owners of the farm and without knowing the conditions of the road as to safety and with only the bare permission of the tenant Mills, that his relation to the premises became that of a volunteer or licensee, and his rights and duties were fixed by the legal rules governing the conduct of that class of entrants. “An invitation exists where some benefit accrues or is supposed to accrue to the one who extends the invitation.” Northwestern El. R. Co. v. O’Malley, 107 Ill. App. 599. “A person lawfully upon premises by permission of the law, but without the invitation of the owner, is a mere naked licensee, to whom the owner owes no duty other than to refrain from wilful or affirmative' acts injurious to him. ’ ’ Eckels v. Maher, 137 Ill. App. 45; Huff v. Wells Fargo & Co., 141 Ill. App. 434; Gibson v. Leonard, 143 Ill. 182.

These legal rules require that a licensee, volunteer, or trespasser is held to assume the risk of an injury thus incurred, outside of such as are inflicted wilfully.

The rule applicable to cases like this was expressed in the case of Sweeney v. Old Colony & N. R. Co., 10 Allen (Mass.) 368, as follows: “A licensee who enters on premises by permission only, without any enticement, allurement or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk and enjoys the license subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep the premises in a suitable condition for those who come there solely for their own convenience or pleasure.”

While the foregoing rule has received some qualifications it is clearly apparent that this case does not fall within any of the exceptions to the general rule.

When the evidence as to the time, place and manner under which appellee was driving his traction engine when the injury was received is carefully considered, the conclusion necessarily follows, that the plaintiff’s injuries resulted from a want of care on his part and his contributory negligence in that regard is a complete bar to a recovery, under the rule of law that the plaintiff in such cases must allege and prove that he was in the exercise of due care for his own safety at the time of the injury complained of.

The judgment of the lower court is therefore re-' versed.

Reversed.

Finding of facts to be incorporated-in the judgment:

We find that the plaintiff was not in the exercise of due care for his own safety and that of his property at the time of the injury.


author: Mr. Justice Thompson

text:
    Estella Klein, Appellee, v. National Protective Legion, Appellant.
    1. Fraternal benefit societies—fraud in application. In an action on a life insurance policy by the beneficiary, involving questions of fact, as to whether the insured, at the time of making the application had tuberculosis and fraudulently denied it, and whether she died from such disease within a year thereafter, verdict and judgment for plaintiff, held, not manifestly against the weight of the evidence.
    2. Fraternal benefit societies—fraud in application. A benefit certificate was conditioned on the insured having complied in every particular with the laws of the order and not having obtained membership by fraud or misrepresentations as to age, family history, physical condition or occupation, the application being made a part of the certificate. Held, that where an applicant answers “no” to a question by the medical examiner, as to her being afflicted with any disease, although knowing that she had tuberculosis, such untruthful representation is sufficient to defeat recovery by the beneficiary.
    3. Insurance—“warranty” and “representations” of applicant. Although an insurance certificate and an application, which is made part thereof, contain no language constituting a “warranty” by the applicant, as to the condition of his health, fraudulent statements made in such application, in order to obtain the certificate, are classed as “representations,” which also bar recovery.
    4. Fraternal benefit societies—evidence of cause of death. Under a by-law of an insurance society, ten per cent, of the benefit was payable in full satisfaction in the event of any member dying within one year after examination, from tuberculosis. The physician attending a member in her last illness reported, certified and testified to his opinion, that she died from “galloping consumption.” Another physician testified that he had treated her previously and that he thought she had tuberculosis at that time, that she knew of her condition. Her sputum was shown to have contained tuberculosis bacilli. A nurse who had occupied the same room as deceased and attended her night and day during her last illness stated she did not cough and that her health was broken down from childbirth. There was other' evidence of prior good health. Held, sufficient to support a finding that the member did not die of consumption.
    5. Evidence—weight of opinion. The fact that a report to an insurance company and a certificate filed with the bureau of vital statistics, which are introduced in evidence, were signed by a physician, attending insured, and were to the effect that in his opinion insured died of galloping consumption, does not increase the weight of his testimony, in which he repeats such opinion, where he testifies to no facts as to the symptoms, appearance or condition on which he bases such opinion, the value of an opinion resting on the reasonableness of conclusions drawn from facts.
    Appeal from the City Court of East St. Louis; the Hon. W. M. Vandevbnteb, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Rehearing denied May 29, 1913.
    Dan Mg Glynn, for appellant.
    William A. Kane and James G. McHale, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

Appellee, Estella Klein, brought this suit against The National Protective Legion, an insurance company, to recover $2,000 which she claims is due her as beneficiary in a policy of life insurance taken out on the application made by her sister, Minnie Virginia Edgell, on the 13th day of November, 1909.

There are two questions of fact presented by the record in this case. These questions were presented at the trial of the case below and were found in favor of the appellee by the jury, and a verdict for $2,000 (being the amount named in the policy) was rendered and a judgment entered by the court upon the verdict. These questions are first; did Minnie Virginia Edgell, have tuberculosis or consumption at the time of her making the application for membership in appellant society and did she know the same and make fraudulent and untruthful answers in her application for insurance; second, did Minnie Virginia Edgell die from tuberculosis or consumption within one year after taking out insurance with said company! The benefit certificate issued to the insured was designated as class A, form E, term certificate. One of its provisions contains the following: “The National Protective Legion does hereby promise and agree to pay within ninety (90) days after the receipt of satisfactory proofs of death of said insured member at the home office of the order at Waverly, New York, and upon surrender of this policy the sum of $2,000 to Estella May Klein, bearing the relationship of sister, provided always that the insured shall have complied in every particular with the laws of the order and has not obtained membership by fraud or misrepresentation as to age, family history, physical condition or occupation when admitted to membership by application, the latter hereby being made a part of this certificate. ’ ’ It is contended by appellant that the insured knowingly and fraudulently misrepresented her physical condition at the time she signed the application.

At the time of making application for membership numerous questions were propounded to the insured by the medical examiner, one of which was, “Are you now subject to or afflicted by any disease, malformation or weakness or have you had any severe disease except the usual diseases of childhood, other than those stated in the former answers or have you any material defect of eyesight or hearing? If so state the date and particulars of the same fully.” To which question the said Minnie Virginia Edgell made answer “No.” The foregoing answer was a representation by the insured as to her physical condition. If at the time her answer was given she knew that she was afflicted with tuberculosis or consumption and gave an untruthful answer to the question for the purpose of obtaining a certificate of insurance, then under the well known rules of law such contract would be sufficient to defeat recovery by the beneficiary named in the certificate.

There are two kinds of defenses which may be urged to defeat a recovery on policies of insurance; one is because of false and fraudulent representations which are made by the applicant to induce the company to issue the certificate; the other is where the applicant warrants the condition of health in the application and the application is made a part of the policy. This case must be considered under the first of these two classes. There is no language employed in the application or in the certificate issued which could be held to constitute a warranty. •

The other question presented by this record, namely, whether the insured died from tuberculosis or consumption within one year after the medical examination, arises under a provision in a by-law which was published in a book of the society at the home office of the company in Waverly, New York, and is as follows: “Section 120. In event of the death of any member holding class A certificates within one year after medical examination who may die from tuberculosis, cancer, diabetis, or Bright’s disease, there shall be due and payable in full satisfaction of benefit premiums ten (10) per cent, of the certificate.”

Appellant contends that the verdict is against the weight of the evidence and refers to the evidence of Dr. Herrich, who attended the insured during her last illness. Dr. Herrich, in the certificate of the cause of her death, gave it as his opinion, she died of what he termed “galloping consumption.” On the trial his testimony however was not so positive that such was the cause of her death. This witness is the doctor, who reported to the appellant company, that the cause of death was consumption and who also signed the certificate of the cause of death, which was filed with the Bureau of Vital Statistics. The fact that the report and certificate offered in- evidence were made and signed by Dr. Herrich, does not increase the weight of his testimony in the case. It is simply a repetition of his opinion, and the value of an opinion rests on the reasonableness of conclusions drawn from facts. Dr. Herrich testified to no facts as to the symptoms, appearance or condition on which he based his opinion.

The testimony of Dr. Robinson, more nearly supports appellant’s contentions as to the existence of tuberculosis than that of any other witness. He testified that he saw the deceased professionally, some time in October, 1909, and that he thought she had tuberculosis at that time. That he obtained some of her sputum. It was brought to him in a bottle, by her or her sister, and he sent the bottle to Dr. Gradwohl, for examination. The witness stated that he did not remember of telling deceased that she had tuberculosis, but that she knew of her condition. The witness did not state, however, how he knew that she had knowledge of her condition.

Dr. Gradwohl testified he examined a bottle of sputum sent Mm by Dr. Robinson, that the sputum he examined contained tuberculosis baccilli, but that he did not know whose sputum he examined.

A paper purporting to be a signed statement made by the plaintiff, Mrs. Klein, was offered in evidence by the defendant. Henry S. Griffin, a detective, who was acting for defendant, procured the signature of Mrs. Klein to the statement which he prepared, and she signed it at her home. The paper so introduced in evidence stated the cause of the death of the deceased to be consumption.

Appellee admits she signed a statement thinking it was for the purpose of obtaining payment of the insurance but she denies that the statement when signed by her contained the words, “She died of consumption.” All of the statement was in the hand writing of the detective and the words in dispute were at the end of the statement.

On the part of the appellee the evidence showed that deceased was in excellent health prior to the birth of her child in August, 1909.

Dr. Benson who had known her from childhood testified she was a strong, healthy woman, that she was “A little chubby heavy set, sawed off German girl,” the picture of health and the most unlikely person to take consumption. That he treated her for pneumonia in March or April, 1908, from which she recovered, “the pneumonia terminated suddenly favorably and there were no indications of consumption at that time.” That he did not see her afterwards.

Dr. Vannahme, the medical examiner for appellant who examined the deceased when she applied for insurance, reported to appellant that the risk was “first class” there were no indications of disease of the respiratory organs.

Appellee, sister of deceased, testified that the deceased was strong and healthy until after her child was born and that she had trouble with her husband, who had deserted her. That she did not sign a paper furnished by.the company’s detective in which she stated the cause of her sister ’s death to be consumption. That the word consumption was not written on the paper at the time she signed it. That she did not think that her sister had consumption. She never told anyone that her sister had consumption.

The trained nurse who waited on deceased during her last illness testified as to the cause of death, “I think it was more worry and heart broken,” and “her health was broken down from child birth.” “The doctor told me he prescribed the medicine for her weakness.” “She did not cough while I attended her, I was there day and night and slept with her, occupied the same room.”

The foregoing statement of facts constitutes substantially all the evidence submitted on the trial and the jury found for the plaintiff, on both questions; that is, that the deceased did not fraudulently misrepresent her physical condition and that she did not die of consumption.

The judge who tried the case approved this verdict by rendering judgment on it and he was in a better position to pass on the truth of the testimony of the several witnesses when there was a decided conflict of evidence, than a court of review.

This court should affirm that judgment unless it appears from the whole record that the evidence is not sufficient to support the verdict and injustice would result therefrom. Fleming v. Chicago City Ry. Co., 163 Ill. App. 185; Hilliard v. Chicago City Ry. Co., 163 Ill. App. 282; Garrett v. Connor, 164 Ill. App. 43.

From a consideration of this record we cannot say the verdict and judgment in this case was manifestly against the weight of the evidence, and the judgment will therefore be affirmed.

Affirmed.


text:
    American Exchange Bank, Defendant in Error, v. Mary Grieves Mitchell, Plaintiff in Error.
    1. Corporations—actions after termination. In assumpsit on notes plaintiff filed a replication to a plea of nul tiel corporation, stating that plaintiff was an existing corporation of the state of Missouri at the time of execution of the notes and had later been incorporated as a national hank under the name of the American Exchange National Bank. It appeared that the American Exchange Bank, in whose name the suit was brought, went out of existence prior to the institution of the suit and that the rights of property in the notes and to sue was in the American Exchange National Bank. Held, that plaintiff’s lack of capacity to sue must work reversal.
    2. Parties—must be natural or artificial persons recognized by law. In all civil actions, the prime requisite as to parties is that they must each he, either a natural or artificial person in law,—an entity, which the law of the forum can recognize as capable of possessing and asserting a -right of action.
    3. Corporations—actions abate on dissolution. All actions of a corporation abate upon its dissolution, in the absence of statutes to the contrary.
    4. Pleading—amendment must be actually made. Leave to amend does not constitute amendment.
    5. Judgment—in excess of claim. Entry of judgment for a larger amount than claimed in the ad damnum is error.
    6. Evidence—as to foreign law. Rules of evidence relating to authenticated copies of statutes and reports of foreign states should be closely observed.
    Error to the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    Wise, Keefe & Wheeler, for plaintiff in error.
    Hunger & Lindsay and J. O. Miller, for defendant in error.
   Mr. Justice Thompson

delivered the opinion of the court.

This action is in assumpsit. The declaration contains one count which, is substantiaEy as foEows: Plaintiff alleges that the American Exchange Bank is a corporation of the State of Missouri, and complains of Mary Grieves Mitchell, defendant, of a plea of assumpsit; that the defendant together with the A. H. Fuchs Mercantile Company, a Missouri corporation, executed and delivered their joint and several obligations, one dated the 31st day of August, one the 14th of September and one the 14th of November, 1903, at the City of St. Louis and the State of Missouri, being three promissory notes, bearing above dates, respectively, by one of which said notes the said parties three months after the 31st day of August, 1903, promised to pay to the order of the plaintiff $2,000, for value received, with interest at-per annum untE paid; and by the second of said notes, dated the 14th of September, 1903, the said parties three months after date promised to pay to the order of the plaintiff $2,000, for value received, with interest at the rate of - per cent, per annum until paid, and by the third of said notes, bearing date the 14th of November, 1903, sixty days after date, promised to pay to the order of the plaintiff $500, for value received, with interest at the rate of - per cent, per annum until paid; by means whereof the defendant, Mary Grieves Mitchell, became liable to pay the plaintiff the amount of said notes according to their tenor and effect.

Plaintiff avers that by the statute of Missouri it is provided that all contracts which by the common law are joint only shall be construed to be joint and several; and that creditors shall be aEowed to receive interest at the rate of 6 per cent, per annum when no other rate is agreed upon for all moneys after they become due and payable on written contracts; and that a married woman shall be deemed a feme sole so far as to enable her to carry on and transact business on her own account to contract and be contracted with, to sue and be sued, to have in force against her property such judgment as may he rendered against her; 'that the above provisions of the statute of the state of Missouri were in full force and effect in said state prior to the date of the several notes; that the statute of Missouri at and prior to the date of the said several notes provided that every person who shall have a cause of action against several persons including parties to promissory notes, may bring suit thereon jointly against all or as many of the persons liable as he thinks proper, and that an action upon any writing for the payment of money may be brought within ten years from the date of the writing; that the defendant has failed to pay said notes to the damage of the plaintiff of $4,077.20, hence brings suit.

Copies of the notes sued on were filed with the declaration.

To the declaration the defendant, Mary Grieves Mitchell, filed the plea of non assumpsit and also a plea of nul tiel corporation.

To the plea of nul tiel corporation the plaintiff filed its replication, stating in substance that “the American Exchange Bank was an existing corporation of the State of Missouri, at the time the notes sued on were executed; that on January 1, 1905, the American Exchange Bank became incorporated as a national bank, under the name of the American Exchange National Bank, and thereupon the notes in question became, by operation of law, the property of the American Exchange National Bank. That in May, 1905, the American Exchange National Bank, became consolidated with the Mechanics National Bank of St. Louis, under the name of the Mechanics American National Bank; that the said notes were not taken over by the consolidated concern but remained and were and are the property of the American Exchange National Bank, of St. Louis, which last named bank is in' the process of liquidation.”

To this replication defendant filed rejoinder denying all the material allegations averred in the replication. Issue was joined thereon also on the plea of non assumpsit.

The cause was tried by the court without a jury.

The court found the issues for the plaintiff and entered judgment on the findings for $5,560.59, and defendant excepted and prosecutes this writ of error to reverse the judgment.

On the trial below the plaintiff asked and obtained leave of the court to amend its declaration and make the American Exchange National Bank party plaintiff, but for some reason, not disclosed by record the amendment was never in fact made and the case comps here in the name of the American Exchange Sank, as defendant in error.

The evidence shows that the American Exchange Bank went out of existence May 1,1903.

The evidence further shows that the right of property in the notes sued on is and was at commencement of this suit in the American Exchange National Bank, and to it if any one belonged the right to sue and recover.

There are at least two errors appearing in this record, each of which is conclusive against the defendant in errot, and must work a reversal of this case. The first arises from the want of a plaintiff with capacity to maintain the suit.

In all civil actions the prime requisites as to parties is that the plaintiff and the defendant must each be either a natural or artificial- person.

“A civil action can be maintained only in the name of a person in law, an entity, which the law of the forum can recognize as capable of possessing and asserting a right of action.” Ency. Pleading and Practice, vol. 15, p. 478.

After a corporation is dissolved it is incapable of maintaining an action. All action by a corporation which is pending when such corporation is dissolved abates upon such dissolution in the absence of a statute to the contrary. Ency. Pleading and Practice, vol. 5, p. 96.

That the American Exchange Bank had no capacity to sue was recognized by the counsel for the plaintiff when they took leave to amend the declaration and also by tacit admission in their argument when they refer to the fact of obtaining leave to make the amendment. The leave to amend does not however constitute an amendment.

The second fatal error is found in the fact that the court rendered judgment for $5,560.59, while the ad damnum clause of the declaration placed the damages at only $4,077.59. Minkhart v. Hankler, 19 Ill. 47; Hobson v. Emporium R. E. & Mfg. Co., 42 Ill. 306; Kelley v. Third Nat. Bank of Chicago, 64 Ill. 541.

The conclusion we have reached as to the errors above mentioned renders it unnecessary to examine in detail the several other errors assigned on this record and we will close this discussion with the suggestion that the rules of evidence relating to authenticated copies of the statute and reports of foreign states should be more closely observed on a retrial of this cause.

On account of the two errors above referred to, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.


text:
    Dan Seibert, Appellee, v. The Vandalia Railroad Company, Appellant.
    1. Pleading—effect of verdict. A verdict will aid a defective statement of a cause of action but will not aid the statement of a defective cause of action.
    2. Negligence—averments necessary to sustain action. The averments necessary to show a cause of action where injury from negligence is charged are the existence of a duty on the part of defendant to protect plaintiff from the injury complained of, a failure of the defendant to perform that duty, and an injury to the plaintiff resulting from such failure.
    3. Negligence—defendant’s duty to exercise reasonable care. A declaration which avers that defendant had an unloading track and had placed cars loaded with brick thereon for the purpose of being unloaded and that plaintiff with a co-worker was engaged unloading brick from a car into a wagon and had been so engaged all the day before the injury complained of and also on the day of the injury up to two o’clock in the afternoon, contains sufficient allegations of plaintiff’s right to be at the place at the time of the injury, if proven, to show a duty resting on defendant to exercise reasonable care not to injure him.
    4. Appeals and ebbobs—variance. A question of variance between the declaration and the evidence as to the manner in which the injury occurred must be raised at the trial in order to be considered by the court of review.
    Appeal from the Circuit Court of Payette county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Brown & Burnside, for appellant.
    John A. Bingham, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The main contention of appellant is that the declaration in this case does not state a cause of action; the point urged being that the declaration contains no allegation to show appellee’s right and that appellant owed him a corresponding duty, or that appellant had by any wrongful act violated a right of appellee or any duty it owed to him.

There were two counts in the declaration in this case. No question of the sufficiency of the declaration was raised by demurrer or by any other appropriate motion at any time before trial or before judgment was entered in this case. The substantial allegations of each count of the declaration are: that the plaintiff and one Souders were engaged in unloading brick from the defendant’s freight car which was standing on one of the side tracks or unloading tracks of the defendant’s railroad in the city of Vandalia; that said freight car was placed upon said unloading track by defendant for the purpose of being unloaded, and that the plaintiff and the said Souders were unloading brick from said car on May 26, 1911, and continued to unload brick from said car all of said day and on the following day, May 27,1911, resumed their said unloading of the remainder of said brick from said car and continued so to do up to abotit the hour of two o ’clock in the afternoon of said day, and while so unloading said brick from said car so placed by the defendant’s servants, into a wagon drawn up to the side of said car by horses and while plaintiff was standing with one foot inside of said car door and the other resting on the wagon so drawn up to the side of said car and while so standing and exercising all due care for his own safety, catching the brick as said Souders would throw them from the inside of said freight car to plaintiff and the plaintiff catching them as they were so thrown to plaintiff by Souders and placing them in the wagon on which the plaintiff’s foot was so resting and while in the exercise of reasonable care for his own safety, that the defendant there negligently and wrongfully by their servants carelessly and without warning or notice to the plaintiff or the said Souders, drove said locomotive engine and cars thereto attached into and upon said unloading track from which the plaintiff and said Souders were unloading brick and that by and through said negligent and improper conduct of the defendant’s servants in that behalf the said locomotive engine and cars thereto attached ran and struck with great force and violence upon and against said car in which the plaintiff was then and there unloading said brick and thereby the plaintiff was then and there thrown from where he was standing, out of said car door to the ground and was thereby then and there greatly bruised, hurt and wounded, etc.

The declaration in this case although not artistically drawn, contains averments, which state a cause of action. Even though the averments in the.declaration are defectively stated, still under the well known rule that a verdict will aid a defective statement of a cause of action but will not aid the statement of a defective cause of action, it would have to be upheld in this case after verdict. Chicago & A. R. Co. v. Clausen, 173 Ill. 100; Gerke v. Fancher, 158 Ill. 375; Lake Shore & M. S. R. Co. v. Enright, 227 Ill. 403.

The averments of the declaration that the appellant had an unloading track where freight was unloaded and had placed the particular car which was being unloaded by the appellee on said unloading track for the special purpose of being unloaded of the brick which it contained and that the appellee had been engaged at that particular work all the day previous to the day of the injury and the greater part of the day on which he was injured are sufficient allegations from which could be inferred a permission to the plaintiff to enter upon appellant’s right of way with team and wagon and engage in the work in the manner and at the time and place as shown by the evidence he was so engaged when the injury is alleged to have been received.

The averments necessary to show a cause of action, where injury from negligence is charged are “ (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure of the defendant to perform that duty; (3) an injury to the plaintiff resulting from such failure. When these three elements concur they unitedly constitute actionable negligence, and the absence of any one of these elements, either in the declaration or proof, renders the declaration insufficient to sustain a judgment for negligence.” McAndrews v. Chicago, L. S. & E. R. Co., 222 Ill. 232.

The averments of the declaration that the appellant had an unloading track and had placed cars loaded with brick thereon, for the purpose of being unloaded and appellee with a coworker was engaged unloading brick from the car into a wagon and had been so engaged all the day before the injury complained of, and also on the day of the injury up to two o’clock in the afternoon, are sufficient allegations of appellee’s right to be at the place where he was at the time of the alleged injury. And if proven are sufficient to show a duty resting on appellant to exercise reason-' able care and caution not to injure him. Under the evidence it is reasonably inferred that an implied invitation was given appellee to enter on the right of way to unload the car.

The reasoning in the opinion in the case of McAndrews v. Chicago, L. S. & E. R. Co., supra, wherein the court held the declaration did not state a cause of action is relied on to work a reversal in this case.

The allegations of the declaration in the McAndrews case, supra, were meager and failed to show any facts from which it would appear that the railroad owed the plaintiff any duty. From the allegations in this case the following facts appear. The defendant had main tracks and a spur or unloading track. Defendant placed a car loaded with brick on the unloading track. It was placed there to be unloaded. It was placed there at least two days before the injury. Plaintiff had been at work unloading the car for nearly two days when he was injured.

Defendant without notice or warning pushed cars onto the unloading track while plaintiff, with wagon and team was there at work unloading the cars. The defendant is chargeable with knowledge of the purpose for which the loaded car was on the spur track, and that unloading at that place, meant the work of men and the use of teams. The defendant therefore owed plaintiff a duty to exercise reasonable care not to injure him.

Appellant also urgés reversal, on the grounds that there is a variance between the declaration and the evidence as to the manner in which the injury occurred.

This question was not raised on the trial, either by objection or motion to exclude the evidence, nor on motion to direct a verdict for defendant at close of plaintiff’s evidence, or in the arrest of judgment. It comes too late for consideration here even though appellant’s contention of variance should be conceded, which is not the case.

“The objection of variance, when presented as one of law for review, must be raised in some way upon the trial and pointed out, so as to enable the trial court to pass upon it.” Chicago & A. R. Co. v. Clausen, 173 Ill. 100; Libby, McNeill & Libby v. Scherman, 146 Ill. 540.

We are therefore of the opinion that no sufficient error appears on this record to justify a reversal of the case and the cause will be affirmed.

Affirmed.


author: Me. Justice Thompson

text:
    Nancy Fincher, Appellee, v. The Baltimore & Ohio Southwestern Railroad Company, Appellant.
    "1. Damages—where overflow caused by embankment is not permanent. Where an embankment, which is not permanent in its character and not built under authority, of law in a proper and skilful manner, causes overflows, the party injured may recover for all damages to crops or rental value which have been sustained by reason ■ of the embankment on the theory of its being a transient but continuing nuisance, and is not required to recover once for all damages present and prospective.
    2. Damages—where embankment is treated as permanent source of injury. Where plaintiff treats a defective embankment causing overflows as a permanent source of injury and recovers, the full amount of damages, both present and prospective, he will be es-topped from bringing a second action.
    3. Nuisance—separate actions for creation and continuance. An action may be maintained for the creation of a nuisance and a subsequent action for its continuance.
    4. Limitations—actions for damage to land from overflow. Where defendants construct an embankment so defectively that it causes plaintiff’s land to he overflowed, each overflow causing damages creates a new cause of action and the statute of limitations runs from the date of the injury and not from the time the embankment was improperly constructed.
    5. Limitations—where damage covers a period of five years. Where plaintiff’s land is overflowed because defendant’s embankment is improperly constructed, the statute of limitations is no defense to an action for damages occasioned during the preceding five years.
    6. Damages—when judgment not excessive. A judgment for $700 for damage to forty acres of land by overflows during a period of five years is not excessive where the evidence shows that only one crop was raised during that time.
    7. Appeals and ebrors—variance. A question of variance not raised in the trial court is waived.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1913.
    Kramer, Kramer & Campbell, for appellant; Edward Barton, of counsel.
    Louis Klingel and Louis P. Zerweok, for appellee.
   Me. Justice Thompson

delivered the opinion of the court.

This suit is in case brought by appellee against appellant, to recover damages alleged to have resulted to her lands, by appellant improperly and unskilfully constructing and maintaining an embankment which she alleges causes water to come unnaturally upon her land and remain there to her injury and damage.

The declaration alleges ownership of the forty acres of land, claimed to have been damaged, in plaintiff, and that she has been owner of same since 1897. That for five years preceding the commencement of this suit said land had been in possession of her tenants under a lease by the terms of which she was to have as rental one-third of all the crops raised thereon.

That on March 24, 1905, the defendant was and still is possessed of a railroad right of way running in an easterly and westerly direction, through the north half of section 25 and 26 in township 2 north range seven west in St. Clair county, Illinois, and that on and subsequent to said date the defendant wrongfully and unlawfully erected and has since maintained a levee embankment of great dimensions, to-wit: of the width of fifty feet, of the height of ten feet and the length of three hundred yards, and that the same was not provided with sufficient openings for the free passage of water.

To the declaration, defendants filed two pleas. The general issue and the statute of limitations.

It appears from the evidence, that the appellee’s lands involved in this suit are located in Spring Creek Valley, about two miles north of appellant’s right of way. That adjoining appellee’s real estate is a natural water course, running in a northerly and southerly direction, commonly called Silver Creek, bounded on each side by a high land or bluffs. In the vicinity of the appellee’s lands, this valley is about a mile wide or a little over, and it narrows down from that point towards the south until it reaches the point where it is crossed by appellant’s right of way; where it is 1,800 feet wide. Through this portion of the valley, the creek hugs close to the east bluff, leaving nearly all of the low land on the west side.

The evidence further shows that all the lands in this valley, north of the appellant’s right of way and west of the creek have always been subject to overflow during periods of high water. Their highest point is at the creek’s bank and their lowest point at or near the west bluff where there is a natural depression or slough, several feet lower than the west bank of the creek. This slough has its origin some distance north of appellee’s lands, and in a state of nature, flowed south along the west bank of the bluff and emptied into Silver Creek some distance below appellant’s right of way.

It also appears from the evidence that the construction of this new embankment has worked a change of conditions in the valley. In times of flood the embankment holds back the water which comes down the slough on the west and causes it to back up and overflow the lands and remain there until the water from the valley finds its way out through the one opening, in the embankment at Silver Creek. As a consequence the water since the construction of the embankment, remains upon appellee’s lands even after the floods have disappeared.

No crop has been raised on appellee’s land since the construction of appellant’s embankment except in the year 1906, a very dry year when no flood occurred. Their rental value in the meantime has been reduced to practically nothing.

It further appears from the evidence that in 1901 appellant constructed and has maintained the embankment which appellee claims to have been the cause of the damage to her land; that this embankment is about 25 feet high and extends from bluff to bluff with the exception of an opening for Silver Creek, which is 403 feet wide. This embankment forms a solid wall 900 feet long, west of the creek and 500 feet long east of it and completely prevents the waters near the west bluff from flowing southward as they formerly did. They are now required to pass eastward to the opening in the embankment at Silver Creek.

The evidence fairly sustains the contention of the appellee that the construction of the embankment has worked a serious change in the conditions of the land in the valley above. It also appears that the embankment at the slough holds back the water along the west side of the valley and causes the water to back up and over the lands of appellee. The evidence further shows and in their argument counsel for appellant practically admit that the embankment causes the water to rise from a foot and one-half to two feet higher above the embankment and to remain on appellee’s land longer than it did before the embankment was constructed, but they seek to avoid the effect thus produced by saying that the fact that the water or a portion of it remains on the farm of appellee for a few days longer than it otherwise would have remained, cannot be said to cause any appreciable additional damage.

Appellant contends, first, that the statute of limitations had run against the action; second, that the judgment was in excess of the actual damages; third, that the evidence in the record is not sufficient to sustain the cause of action.

As to the first point, in cases where the statute of limitations would defeat a recovery, it must appear that the embankment or obstruction was of a permanent nature, authorized by law for lawful purposes and was properly and skilfully constructed. The cases of the Illinois Cent. R. Co. v. Ferrell, 108 Ill. App. 659; Illinois Cent. R. Co. v. Lockard, 112 Ill. App. 423; and Illinois Cent. R. Co. v. Dennison, 116 Ill. App. 1, cited by appellant to sustain its plea of the statute of limitations cannot be regarded as in point under the particular facts appearing in evidence in this case. In those cases as in- all other cases where the statute of limitations has been held to bar a right of recovery where damages are claimed because of.an injury occasioned by the building of an embankment, the structure has been of a permanent character. In the Illinois Cent, cases, supra, the structure was built for the purpose of impounding water, in fact a dam, and this too under a charter specially authorizing the construction of a dam. In those cases the question of faulty construction could not be considered. In cases however like the one under consideration where the embankment is. for the purpose of a road-bed and the embankment so improperly constructed that it obstructs the natural flow of the water and causes it to collect and remain in greater quantities on the land above than it had theretofore, courts have uniformly held that such obstruction may be regarded as a nuisance which may be abated.

It is contended by appellee, and the contention seems to be sustained by proofs, that an opening in the embankment at the west side where the slough formerly passed would have released the water and prevented the injury complained of. In cases of overflow caused by embankments which are not permanent in their character and not built under authority of law in a proper and skilful manner, the party injured may bring suit and recover for all damages to crops or rental value which the proofs show have been sustained by reason of the construction of the embankment on the theory of its being a transient but continuing nuisance, and he is not required to bring his action upon the theory of its being permanent, and recover once for all the damages, present and prospective, that may be so occasioned to the land. In the case at bar the embankment was not built in a proper and skilful manner to avoid the infliction of injury to appellee’s land.

In the case of Chicago, B. & Q. R. Co. v. Schaffer, 124 Ill. 112, the court said: “Undoubtedly, if thednjured party treats the defective structure as a permanent source of injury and recovers the full amount of damages, both present and prospective, which his property sustains or may sustain by reason of such defective structure, he will be estopped from bringing a second action for damages. But where the railroad company has, as in this case, built an imperfect and faulty bridge over a stream of water crossing its right of way, a party suffering damage therefrom has a right to regard the nuisance as of a transient character, . and, instead of bringing one action for the whole injury to the value of his property resulting from the original construction of the nuisance, he may sue for the amount of such injury as he suffers from its continuance. * * * An action may be maintained for the creation of a nuisance, and a subsequent action may be maintained for its continuance. The continuance of that which was originally a nuisance is regarded as a new nuisance, and, although a recovery may be barred upon the original cause, an action on the case may be brought at any time before an entry is barred, to recover such damages as have accrued, by reason of its continuance, within the statutory.period.” And they cite the case of McConnel v. Kibbe, 29 Ill. 483.

In the case of Ohio & M. R. Co. v. Wachter, 123 Ill. 440, the court said: “This court has never held, nor is it prepared to hold, that a railroad company is not liable for damages resulting from its negligence, either in the construction, maintaining or operating its road. * * * Public health and convenience, as well as the positive law of the state, alike demand that railways leading over natural streams and drains, should, by means of efficient and substantial culverts, or otherwise, be so constructed as to admit the escape of accumulating waters through them, in times of high water as well as low.”

The law of this State seems to be very well established that a party injured from the construction of an embankment, such as is shown by the evidence in this case, may have a cause of action for the recurring injury which he suffers from the continuation of the nuisance. In Ohio & M. R. Co. v. Elliott, 34 Ill. App. 589, the .rule is there laid down that the statute of limitations runs from the date of the injury and not from the time the embankment was improperly constructed. In Chicago & A. R. Co. v. Willi, 53 Ill. App. 606, the court said: “As to the first point it is sufficient to say that both a common law and statutory duty rested upon appellant to so construct and maintain its road bed that the water should flow unobstructed through such road bed, as it freely had done before such construction, so that the land should not be overflowed. This is a continuing duty, and each overflow causing damage to crops, creates a new cause of action.” Ohio & M. R. Co. v. Wachter, 123 Ill. 443; Ohio & M. R. Co. v. Thillman, 143 Ill. 133; St. Louis, A. & T. H. R. Co. v. Brown, 34 Ill. App. 552.

We cannot therefore agree with appellant that the statute of limitations is a bar to a recovery in this case.

Appellant insists that the verdict and judgment exceeds the actual damages. The verdict in this case was for $700. The period covered by the injury was five years. The evidence showed the rental value of the forty acres to be from $3 to $5 per acre. Such had been the average income for a number of years prior to the construction of the embankment. We cannot say under the evidence in this case that the damage was excessive. Nor can we agree with the appellant in its third contention, that the evidence was not sufficient to sustain the cause of action. There was ample evidence on the part of appellee to sustain the verdict and judgment in this case, and unless this court on review of the evidence could say that the appellee’s evidence was overcome by that of the appellant, it would be the duty of this court to affirm the judgment. Appellant relied largely upon the testimony of expert witnesses to show that the water would not hack up on and over appellee’s land as testified to by the witnesses for appellee. Theories of expert witnesses, although apparently reasonable, must yield to physical facts. The evidence clearly preponderates in favor of the contention of appellee that more water came upon the appellee’s land after the embankment was built than it did before and that it took longer for the water to recede and that only during one year since the construction of the embankment has a crop been raised and that year was an unusually dry year.

It is finally contended by appellant that there is such a variance between the declaration and the proof in this case that the judgment cannot be sustained. The declaration avers that the defendant, “has wrongfully and unlawfully maintained a certain levee and embankment along its right of way on either side of Silver Creek and over the low land and bottom adjoining the same, which embankment is of great dimensions * * * and which was and is without sufficient openings therein to permit the free passage of water and that by reason of the building and maintenance of the solid embankment as above described, the flow of said waters coming naturally upon the plaintiff’s said premises from the overflow of said Silver Creek and which ought to and would naturally run off of the plaintiff’s said premises and over and along the place occupied by defendant’s said embankment has been and is obstructed by said embankment and said water has been and is caused to run and flow in larger quantities upon the plaintiff’s said land, and to remain upon said land for a longer period of time than it naturally would,” etc. The objection of appellant is directed toward that part of the declaration which avers that the water had been diverted from its natural course, etc.

We are not ready to say under this evidence that there is such a variance. In fact the proofs would seem to sustain that allegation because of the closing-up of the channel of the slough and compelling the water which would naturally have gone through the slough to be diverted-and carried several hundred feet eastward to the opening in the embankment for Silver Creek. But, be this as it may, the record fails to show that the appellant made any objections to the testimony on the ground of variance, nor was there any motion to instruct the jury upon that point, nor does it appear that this question was raised on motion for new trial in the court below, and under the repeated rulings of this court such failure to raise the question on the trial court operates as a wáiver in the court of review. Lehigh Valley Transp. Co. v. Post Sugar Co., 228 Ill. 121; Linnberg v. City of Rock Island, 136 Ill. App. 501.

•From a close inspection of the whole record in this case we find no such errors as would warrant a reversal hereof and the case is therefore affirmed.

Affirmed.


author: Per Curiam.

text:
    W. R. Wright, Plaintiff in Error, v. Alva D. Wilson, W. J. Richardson and S. S. Scovil, Defendants in Error.
    1. Landdobd and tenant—purchaser of crops liable to landlord after levy. A bona fide purchaser of hay from a tenant is liable for its value to the landlord when the latter has' levied thereon under a distress warrant and stacked and left the same on the demised premises.
    2. Landlobd and tenant—purchaser of crops liable to landlord after levy. A landlord causing a levy to be made under a distress warrant on fourteen tons of hay, the same being a bulky- article and its removal from the premises not being required, stands as a lienor in possession, and a purchase by others is subject to his rights.
    3. Landlobd and tenant—landlord’s lien is not legal title or right of possession. The statutory lien of a landlord, before levy of a distress warrant, is not a right of possession or title, but a secret right, resting in the breasts of the landlord and the tat» ant. unknown by the indicia of possession, or to any record of which the public is required to take notice.
    4. Landlord and tenant—replevin does not lie on landlord’s lien. The legal title to crops grown on demised premises is in the tenant, and the landlord, though clothed with a lien, has no such title as will enable him to maintain trover for its conversion without first levying or divesting the tenant’s title by some mode known to the law.
    5. Landlord and tenant—purchaser of crops without notice of Hen not liable. A purchaser of crops grown on demised premises, who has no actual knowledge or constructive notice, such as by the levy of a distress warrant, of the landlord’s lien, is not liable to the latter.
    6. Trover—by lienholder in possession lies against all participating. A lien holder, in actual or constructive possession, may maintain an action in trover against every person who, personally or by agent, commits or participates in the act of conversion by instigating, aiding, or assisting another, or who benefits by its proceeds in whole or in part.
    7. Trover—lies by one in possession. Possession, under a claim of title or right, is sufficient to sustain an action for conversion against one who does not show a better right or title.
    8. Liens—notice of. A finding of fact by the trial court, that defendants had no knowledge, and had not been put upon actual notice, that certain hay had been raised on premises leased from the plaintiff and was subject to his lien, held, not error.
    Error to the Circuit Court of Fayette county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 10, 1913.
    F. M. G¡umN and E. B. Spurgeoh, for plaintiff in error.
    Whitaker & Richabdsoít and Robert I. Pugh, for defendants in error, S. S. Seovil and W. J. Richardson.
   Per Curiam.

Judgment was rendered in the Circuit Court for the defendants and against the plaintiffs for costs and from this judgment plaintiff prosecutes this writ of error.

The plaintiff by his declaration alleges that he is the owner of the premises therein described and that he leased the same to one Alva D. Wilson on March 1, 1911, until March 1, 1912; that on to wit: the 19th day of July, 1911, plaintiff caused a distress warrant to be issued against the said Wilson which distress warrant was on the 20th day of July served upon said Wilson and levied upon fourteen tons of hay grown upon the said premises, and that he did then and there take such hay into his possession and control.- That on July 22nd said distress warrant with a correct inventory of said hay was filed in the office of the circuit clerk of Fayette county and summons issued thereon against the said Wilson; and charges that the defendants did then unlawfully convert said hay to their own use, to the damage of the plaintiff of four hundred dollars. To this declaration the defendants filed their plea of general issue.

The evidence discloses that the plaintiff is the owner of the E. y2 of the N. E. and the N. E. % of the S. E. 14 sec. 20, the N. E. % of the S. E. 14 sec. 29, and the N. W. % sec. 28, T. N. B. 3 E., of the third principal meridian, Fayette county, Illinois. That there was approximately between forty and forty-five acres of the land in meadow and that he leased the said lands to Alva D. Wilson for the year 1911. That on July 19, 1911, the plaintiff issued a distress warrant against the said Wilson, placed it in the hands of one Gray who served the same upon Wilson and levied upon the hay in question. That at the time the writ was levied the tenant said he would have nothing more to do with it and Gray says that after he had read the distress warrant to Wilson and gave him a copy of it that, “He just stood around and said I will have no more to do with it, if that is the way you are going to tre'at me, and he stopped and throwed everything off of the wagon. I says, don’t get mad and he drove off and I took the fork and stacked it up and turned it over to Mr. Wright and told Mr. Wright to take charge of it. I turned it over to Mr. Wright. I recognized this inventory as the inventory I made.” It further appears at the time they went to levy the distress warrant that Wilson had some of the hay on Tils wagon. Plaintiff testifies that he, with a Mr. Steele whom he procured to assist him, stacked the hay, made two stacks of five or six loads in a stack, and that he estimated the amount of it to be about fifteen tons. The evidence further discloses that on the 22nd day of July, 1911, the plaintiff caused the distress warrant to be returned to the office of the circuit clerk of Fayette county, and a summons to be issued thereon and that this summons was duly served on July 27, 1911. Mr. Richardson, on his examination in chief, was asked this question, “I will get you to state if you know—I will first ask you if you purchased this hay from Mr. Wilson? A.—I did. I didn’t know at the time where he lived; I knew he was in Fayette County, I didn’t know whose farm he was on.” Mr. Scovil in his cross-examination was asked, “Q.—-You employed the people to press that hay, didn’t you; you employed the people and sent them out to press the hay on that place? A.—A few loads, with instructions from Mr. Richardson. Q.—You knew where the hay came from did you not? A.—Well, yes, I knew that the hay was coming from down in that country and Wilson was hauling it.” Scovil further says that he purchased the hay of Mr. Richardson and settled with bim for it. Each of the defendants deny that they had knowledge of the fact that the hay was raised upon the lands leased by the plaintiff to Wilson.

It is insisted by counsel for plaintiff in error that the court erred in not finding from this evidence that the defendants had actual knowledge or were in possession of such facts as to put them upon notice that this hay was raised upon the premises leased by Wilson from the plaintiff. This was a question of fact and the court heard the evidence and we are not able to say from this record that the court was in error -upon this point.

It is further insisted by plaintiff in error that the judgment of the court is contrary to the law governing this case, and this we regard as the only question to be determined. It is said by counsel for the defendants in error that there is no liability upon the part of the defendants because they are bona fide purchasers of the hay without notice of the landlord’s lien thereon for unpaid rent; and in support of this proposition cite the case of Finney v. Harding, 136 Ill. 573. With the doctrine contended for by counsel and that announced in this decision we are in perfect accord and do not believe that under the law a landlord who simply has a lien upon the crops can recover for the conversion of the grain from a bona fide purchaser of the defendant without notice of such lien. But is that the question in this case? The plaintiff in this case had caused a distress warrant to be issued and levied upon the hay and had taken and stacked the hay and had caused the distress warrant to be returned into the office of the clerk of the Circuit Court and a summons issued thereon. The hay was a bulky article and was not of that character that would require the landlord to remove it from off of the premises and it seems to us that the plaintiff stood as a lienor in possession of the property and that any one purchasing the property would buy it subject to such lienor’s rights. The statute gives the landlord a lien upon the crops growing upon the demised premises for the rent thereof but does not invest him with the title thereto, either general or special. The legal title is in the tenant until divested in some mode known to the law. This lien is in some respects analogous to the lien given by law under executions. 6 An execution is a lien upon the personal property of the debtor not exempt, from the time it comes to the officer’s hands, and gives the officer the right to seize and sell the same for the satisfaction of the judgment upon which it has issued. But without a levy, or reducing the property of the debtor to possession, the officer, though clothed with a lien, has no such title to the property as will enable him to maintain trover for its conversion by another.” Frink v. Pratt & Co., 130 Ill. 331; Mulheisen v. Lane, 82 Ill. 117.

In the case of Finney v. Harding, 136 Ill. 573, referred to by counsel for defendants in error, page 580, the court says: “No better statement, perhaps, can be found in our Eeports than that made in the separate opinion of Justices McAllister and Craig, in Watt v. Scofield, [76 Ill. 261]. It is there said: 'It is true the plaintiff had a lien given by the statute, but it is a mere lien. The landlord had not, by virtue of the lien, alone, and without levy of a distress warrant, a right of possession.” And in the same case, on page 583, the court says, “A lienor, at common law, in possession, could maintain trespass against a wrongdoer, or trover against one who should convert the goods, by virtue of his special property therein. It is unnecessary to pursue the want of analogy further, for the possession of the lienor would be notice to the world of his rights, whatever they might be. Here it is manifest, there being no actual possession by the landlord, and no record of which the public are required to or can take notice, the lien, although not a secret lien within the meaning of that term as used in judicial writings, and which is created by contract or act of the parties, is nevertheless secret in the sense that it is unknown by any public record or by the indicia of possession, and rests in the breasts of the landlord and tenant.” And in the case of Travers v. Cook, 42 Ill. App. 582, it is said that, “The landlord has a mere lien on the ‘crops grown and growing,’ which does not entitle him to possession until he has issued his warrant and executed it, as the law authorizes him to do. The title and right of possession is in the tenant, subject to be taken away by appropriate proceedings to enforce the lien of the landlord. # * * So in the case at bar it must be said that if all that is necessary to establish the existence of a landlord’s Hen in favor of the plaintiff in error is conceded, yet he had but a mere lien, and that, without a levy of a distress warrant, did not give him either the ownership of, or an immediate right to, the possession of the property. Having neither he cannot succeed in an action of replevin.” Possession under a claim of title or right is sufficient to sustain an action for conversion against one who does not show a better right or title. Oyc. vol. 38, p. 2050. “A lessor entitled to the immediate possession may maintain trover for the wrongful conversion of leased chattels, fixtures, or crops.” Oyc. vol. 38, p. 2053. “A lien-holder with possession may maintain an action for the conversion of property.” “Every person is liable in trover who personally or by agent commits an act of conversion, or who participates by instigating, aiding, or assisting another, or who benefits by its proceeds in whole or in part.” Oyc. vol. 38, p. 2054.

We think it sufficiently appears from this evidence that the plaintiff in error issued a distress warrant, levied upon and took possession of the hay in question, stacked it and that the tenant Wilson without the consent or knowledge of the plaintiff in error sold it to the defendant in error Eichardson and he to Scovil, after the levy of the distress warrant, and under the authorities above cited we are of the opinion that the defendants in error are liable to the plaintiff in error for the value of the hay appropriated, and the fact that they being bona fide purchasers after the levying of the writ of the plaintiff does not protect them from liability herein, and the judgment of the Circuit Court is reversed and the cause remanded.

jReversed and remanded.