text:
    Abraham L. Welfelt, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 5,083.
    1. Pleading—aider by verdict. Where a plaintiff states his cause of action defectively it will be presumed after verdict that all circumstances necessary in form or substance to complete the cause of action so defectively stated, were proved at the trial, as they must be in order to entitle the plaintiff to recover.
    2. Pleading—effect of omission of the word “reasonable.” Held, that the omission of the word “reasonable” in a declaration file.d in an action on the case for personal injuries, was not material after verdict.
    3. Pleading—what allegations not necessary in action on the case. In an action on the case for personal injuries the allegation of duty is not material; If the facts are set up the law implies the duty.

      4. Negligence—what competent upon question of notice of defective conditions. Held, that testimony as to defects in windows other than the one that fell and caused the injury in question, was competent upon the question of notice to the defendant of the defective condition of the window which fell, if there had also been proof in the record sufficient to warrant the jury in finding that there was a defect in the window which fell of which the defendant should have taken notice, but in the absence of such proof the testimony as to the defects in windows other than the one that so fell was incompetent.
    5. Personal injuries—what essential to establish act of God. A loss or injury is due to the act of God when it is occasioned exclusively by natural causes such as could not be prevented by human care, skill and foresight. If there is an intervening human agency which contributes to cause the damage it cannot be considered as caused by an act of God.
    6. Instructions—when cannot he complained of. A party cannot complain of instructions which contained an alleged error likewise contained in others given at his own instance.
    7. Instructions—upon duty of master to furnish safe place to work. An instruction is proper which tells the jury that it was the duty of the master to have used ordinary care and prudence in furnishing the servant at the time of the accident with a reasonably safe place in which to work or to have used reasonable precautions to maintain and keep, such appliances in a reasonably safe condition.
    Action in case for personal injuries. Appeal from the Circuit Court of Stephenson county; the Hon. R. S. Farband, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 10, 1909.
    J. H. Stearns and Oscar R. Zipf, for appellant; J. M. Dickinson, of counsel.
    Reuben R. Tiffany, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action on the case brought by Abraham L. Welfelt, appellee, against the Illinois Central Railroad Company, appellant, in the Circuit Court of Stephenson county, to recover damages for personal injuries alleged to have been sustained by him, while employed by appellant in its roundhouse in Freeport. The declaration consisted of four counts. The first alleged that, on July 3, 1907, appellant was possessed of and operated a roundhouse in which appellee was employed and that located in said building were certain windows; that appellant negligently permitted one of said windows to be so unsafely fastened that it and its frame fell and was blown into said roundhouse, by means whereof appellee was struck on the head and knocked down and his head, back and spine were injured. The second count alleged that the frame work of said window was attached to the brick work by means of nails driven therein to certain blocks of wood laid in said brick work for the purpose of fastening said window frames thereto; and that appellant negligently permitted the nails so driven through said frames into said blocks to become rusty and worn out and unsafe, and also permitted said blocks of wood to become split, rotted, insecure, and unsafe to hold said nails and said window frames, all of which appellant knew, or might have known by the exercise of ordinary care, by means whereof, while appellee was passing in front of one of said windows, it, by reason of being insecurely fastened, fell, was blown in and struck appellee upon the head and back and injured him. The third count alleged that appellant well knew of its duty to furnish appellee with a reasonably safe building in which to work, and that appellant knew, or might have known by the exercise of reasonable care, of its failure to provide a suitable place for appellee to work, and by its failure so to do, appellee was struck by one of the windows and frames in the building, and was injured. The fourth count alleged that appellant negligently permitted one of said windows, a double window, and its frame, to be so insecurely fastened that it fell; by reason whereof, appellee was struck on the head, knocking him to the floor and injuring his back. The first, second and fourth counts charged appellant with the duty of furnishing appellee with a reasonably safe place in which to work. Bach count alleged that appellee was injured while in the discharge of his duties, and while in the exercise of ordinary care for his own safety. There was a plea of not guilty, a trial, and a verdict for appellee for $5,000. A motion for a new trial was denied, judgment was entered on the verdict and the company prosecutes this appeal.

The roundhouse was built prior to 1890. It was constructed of brick, and contained stalls for twenty-four engines, centering from a turn-table. In the building were twenty-two double or twin windows, sixteen feet high and seven feet wide. Each single window was about three feet wide and consisted of three sashes. The upper sash, of six lights, was separated from the rest of the window by a wooden bar. The two lower sashes, of nine lights each, were so arranged that they balanced by weights running in wooden boxes at the side of the window. No weights had, however, been placed in the boxes. Each double window rested upon a cut stone sill, and was enclosed in a wooden frame, consisting of a plank sub-sill, two jambs formed by the weight boxes, with a jamb or double box between the windows, and a top piece consisting of a wooden segment fitting the frame to the arch of brick which topped the window. The sub-sill projected about four inches on each side pf the window frame-, being built into the brick work. The frame was about nine inches thick, or the pieces of wood composing it were about nine inches wide, and the brick wall was twelve inches thick. On the outside, the brick work projected over the frame about three inches. Appellee commenced work at the roundhouse in October, 1903, and, for fourteen months prior to his injury, worked nights, packing driving boxes in engine trucks and tank truck cellars, and helping to put in driving springs, truck springs and tank springs. He received his instructions relative to his work on slips of paper, placed on a bench near his locker. He went to work on the evening of July 3, 1907, at 7 o ’clock, and at about 8:30 that evening having finished a piece of work, he started to obtain directions for other work, and, while on his way from his locker to his bench, one of the windows fell, or was blown inwards, during a high wind, and some part struck him, crushing him to the plank floor, wounding his head, and, he claims, injuring his back and spine.

A number of reasons are urged why there can be no recovery under the declaration. The only one we shall consider independently, is that to the third count, which charged appellant with the duty of providing appellee with a reasonably safe and suitable building in which to perform his work, and a breach of such duty. The averment of the breach omitted the word “reasonable,” and alleged that the accident happened “by reason of the failure of appellant to provide a suitable and safe place.” Appellant argues that there was neither an averment of a duty nor an averment of a breach. As no demurrer was interposed, without passing on the question whether the count was obnoxious to demurrer, we hold it good after verdict. “Where the plaintiff states his cause of action defectively, it will be presumed after verdict, that all circumstances necessary, in form or substance, to complete the title so defectively stated, were proved at the trial, as they must have been proved in order to entitle the plaintiff to recover. (2 Tidd’s Practice, page 919.) The ordinary presumptions, which obtain after verdict, and by operation of which a defective statement of a good cause of action is said to be cured, may sometimes be excluded by the character of the instructions given. (Joliet Steel Co. v. Shields, 134 Ill. 209; Libby, McNeill & Libby v. Scherman, 146 Ill. 540.) The converse of this also must be true, namely, that such presumptions will be indulged in where the instructions favor them, and do not exclude them.” Cribben v. Callaghan, 156 Ill. 549. Here the jury were instructed on behalf of appellee that it was the duty of appellant to use ordinary care and prudence in furnishing to appellee a reasonably safe place in which to work, and the same care and prudence to keep such place in a reasonably safe condition. Moreover, the allegation of duty complained of was not a material one. It is to be remembered that it is not necessary to allege that a certain act or line of conduct is a duty, because the law implies the duty from the facts stated. Cribben v. Callaghan, supra.

The trial court permitted appellee to prove, over the objection of appellant, the defective condition of other windows than the one that fell, prior to the time of the accident. One witness testified that he saw a broken window lying on the floor about two years before the trial, which, he said, was blown in. Two others, that they together, in 1905, had seen a window leaning in at the top, probably a foot. Another testified that, about a couple of years before the trial, he saw a window that came out at the top, and the whole frame of which waved back and forth; that he and the boss carpenter fixed it, the boss carpenter driving wooden wedges between the wall and frame. Another witness testified that, about three years before the trial, he renailed some stops on these windows and found some nails rusted off. Another testified that some time before the trial he had helped the boss carpenter put one of these windows back in place. Appellant’s foreman of bridges and buildings testified that, about two years before the trial, he fixed a window in the roundhouse that had become loosened at the top, by putting a wooden bar across the inside of the building and bolts through the wall to prevent it getting farther out of place.

At the close of all the evidence, counsel for appellant moved the court to strike from the record all evidence as to defects in any window other than the one that fell and caused the injury to appellee, on the ground that it was incompetent. The court denied the motion, which ruling is now urged as error.

In City of Ft. Wayne v. Coombs, 7 N. E. Rep. 743, a suit for personal injuries caused by a defective sewer, the trial court permitted appellees to prove that there was a break in the sewer about one hundred feet distant from the point where the break occurred which caused the injury for which a recovery was sought. The Supreme Court of Indiana, in reviewing the judgment of the lower court, said: “This evidence was competent, in connection with the other testimony in the case, for the purpose of charging the city with knowledge, as well as for the purpose of showing that the materials used were defective, or that the work of construction was not well done, and also for the purpose of showing that the sewer had, by reason of time and use, got out of repair.”

In Propsom v. Leatham, 80 Wis. 608, an action to recover damages for personal injuries sustained by plaintiff while in the employ of defendants, alleged to have been cause by defendants’ negligence in permitting their dock upon which plaintiff was at work to become and remain out of repair and in an unsafe condition, one Wead testified to the effect that prior to the accident there were a good many holes in the dock where shingles were commonly piled, and that the planks were pretty well worn, and that there were at least fifteen or twenty holes, some of them large enough to take a man’s foot in, some smaller and some larger; and that the holes were weather beaten and showed signs of being old holes. The jury returned a special verdict to the effect that plaintiff was injured by stepping through a hole or defective place in defendant’s dock. It was urged on appeal that the court erred in admitting evidence of other defects in the dock than the one which caused the accident. The court said: “The testimony of the witness Wead was admissible, as this court has held it was proper to show that a bridge was out of repair by evidence that the planks were old and decayed at other points than the one where the accident occurred, because, if the authorities had done their duty in repairing other defective places, of which from their character and number they might be presumed to have had notice, they would probably have discovered the particular defect in question. * * * It was certainly notice to the defendants, if the dock was defective in many places by reason of holes they should cause the structure to be thoroughly examined frequently and all defects repaired, and they would fail in the performance of their duty if they did not do this after such a warning as to its condition.”

In Randall v. N. W. Tel. Co., 54 Wis. 140, the action was for injuries alleged to have been caused by the negligence of the telegraph company in allowing its poles and wires to fall down and obstruct the highway on which plaintiff was traveling. The court said: “The fact that the poles and wires were down at other places and times, within a few miles of the place, and within a few months of the time when the plaintiff was injured, would seem to us competent proof upon the question of the negligence of the company in maintaining the line in a safe condition.”

In Spearbracker v. Larrabee, 64 Wis. 573, proof of other defects in the bridge in question was admitted as pertinent to the question of notice to the town authorities of the particular defect which caused the injury complained of. In speaking of the competency of this testimony, the court there said: “We think the testimony was proper with that view, because if the authorities had done their duty in repairing other places of defect of which they might be presumed, from their number and character, to have had notice, they would have probably discovered the defect in question.”

On the authority of the above case we conclude that the testimony as to defects in windows other than the one that fell and caused the injury to appellee was in itself competent upon the question of notice to appellant of the defective condition of the window which fell, if there had also been proof in the record sufficient to warrant the jury in finding that there was a defect in the window which fell of which appellant should have taken notice. But we are of opinion that the judgment must be reversed for lack of any sufficient evidence that the window which fell was defective. There is much positive proof in the record that the window frame was set into this brick wall in the usual and customary manner of setting window frames in brick buildings. There is no testimony to the contrary, and that fact stands as proved. There is no proof that there was any defect in the method in which this particular frame was set in this brick wall, or that it had ever been loose since the building was erected, nor any proof that any condition existed at this window frame from which appellant by inspection could have ascertained that the window frame was defectively set into the brick wall or that there was any danger that it would blow in during a high wind. These twenty-two windows had been in this building some twenty years. Some years before this accident somewhere from two to four of these windows had at different times become loose and showed defects and they had been promptly repaired and strengthened. We do not think the jury could be permitted to infer from that fact alone that the other eighteen or twenty windows which had never been loose and had never shown any indication of being defectively inserted in the brick wall were in fact defective and required inspection or had any defects that an inspection would disclose. The record is practically silent as to any condition in the window which fell and injured appellee which required inspection or repair. We are of the opinion .that the evidence regarding the two or four other windows, while competent, was not sufficient to make a case for appellee.

Appellant argues that the accident in question was the result of vis major or the act of God, for which appellant cannot be held responsible.

It appears from the evidence that, between 6 and 9 o’clock on the evening of July 3,1907, a severe wind storm prevailed across Stephenson county from northwest to southeast. The evidence, however, did not disclose its exact velocity. It was shown that at Buena Vista, twelve miles from Freeport, a bam thirty-five by .fifty-four feet, built that spring, moved on its foundation about eight inches on the west side; and that another barn, forty by seventy feet, was moved about one and one-half inches at its west end, and that trees were blown down. All the damage shown to have been done in the city of Freeport, aside from that at the roundhouse, was that electric wires were broken and branches blown from trees. One witness testified that he saw scraps of paper and small pieces of wood and tin cans blowing up the street. A witness in the employ of the Electric Company at Freeport testified that a strong wind would break the electric wires, and frequently did so; and that generally during a storm, two or three were broken.

The roundhouse had been built for more than twenty years, and during that period the material of the window frames and supporting brick work had been exposed to the ravages of time and the elements; and there is no proof that during this time, the window that fell was ever inspected or repaired; and if the proof had shown that the window which fell was defective and that appellant had notice of such defect and should have inspected and repaired it, then the jnere fact that a high wind was blowing at and before the time the window fell would not make the falling of the window an act of God, so as to exempt appellant from liability. “A loss or injury is due to the act of God when it is occasioned exclusively by natural causes such as could not be prevented by human care, skill and foresight.” “If there is any intervening human agency which contributes to cause the damage it cannot be considered as caused by an act of God.” Sandy v. Lake St. El. R. R. Co., 235 Ill. 202; Wald v. P. C. C. & St. L. R. R. Co., 162 Ill. 545; City of Chicago v. Smith, 95 Ill. App. 335.

The court gave two instructions for appellee. Appellant argues that, because of the absence of proof of its negligence, they erroneously induced the verdict. One told the jury how to determine where lay the preponderance of evidence, which under the evidence, the court was justified in giving. Moreover, while the wording of appellant’s thirteenth instruction was slightly different, its meaning was the same; and the rule is well settled that one party cannot induce the court to instruct the jury upon the law in a certain manner, even though erroneously, and then have the case reversed by reason of the same error found in instructions of his adversary. “A party cannot complain of an instruction given on behalf of his adversary like one given at his request.” Springer v. City of Chicago, 135 Ill. 552; Woods v. Dailey, 211 Ill. 495; Purtel v. Bell, 225 Ill. 523. The other instruction told the jury that it was the duty of appellant to have used ordinary care and prudence in furnishing appellee, at the time of the accident, with a reasonably safe place in which to work; and to have used all reasonable precautions to maintain and keep such place in a reasonably safe condition. In Cribben v. Callaghan, supra, it was said: “The duty of the employer is to furnish a suitable place, where the employee may perform his work without exposure, to dangers that do not come within the obvious scope of the employment in the business as actively carried on.” There was no error in the instruction.

Appellant asked, and the court refused, an instruction that told the jury that they should disregard all testimony introduced in the case regarding alleged defects in window frames other than the one that ft is charged caused the injury to appellee, and unless they believed that appellee had proved by a preponderance of the evidence that such frame prior to the accident was not reasonably safe, which appellant knew, or could have known by the exercise of reasonable care or inspection, they should find appellant not guilty. The first finding required thereby embraced the same question contained in the motion to strike from the record testimony relative to the condition of the other windows, discussed in another paragraph of this opinion, and there was no error in its refusal.

For the want of any sufficient evidence to prove the averments of the declaration concerning the window which blew in and injured appellee at the time in question, the judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Willis

license: Public Domain

text:
    Julius Suehr, Appellee, v. Sanitary District of Chicago, Appellant.
    Gen. No. 5,078.
    1. Damages—what evidence competent in action for injury to real property. In an action for injury to real property caused by the increased flow of water due to the act of the defendant, evidence tending to show the resulting damage up to the time of the trial is competent.
    2. Damages—what evidence competent in action for injury to real property. In an action for injury to real property caused by the increased flow of water due to the act of the defendant, proof is best made by showing the manner in which the market value was in fact depreciated by actual results rather than by offering the opinions of witnesses based upon their conclusions as to what the effect would be.
    3. Damages—when instruction in action for injury to real property not erroneous. In an action for injury to real property caused by the increased flow of water due to the act of the defendant, an instruction which does not make an express reference to the date or time at which the depreciation shall be estimated, held not ground for reversal.
    4. Instructions—when failure to refer to the evidence will not reverse. Held, that an instruction upon the question of damages which was deficient in not instructing the jury to base their award upon what they might find from the evidence, was not ground for reversal.
    Action on the case. Appeal from the Circuit Court of La Salle county; the Hon. Edgar Eldkedge, Judge, presiding.
    Heard in this "court at the October term, 1908.
    Affirmed.
    Opinion filed June 10, 1909.
    Walter Reeves, B. F. Lincoln and Walter E. Beebe, for appellant; John C. Williams, of counsel.
    Butters, Armstrong & Ferguson, and O’Donnell & Donovan, for appellee; A. E. Butters and J. L. O’Donnell, of counsel.
   Mr. Justice Willis

delivered the opinion of the court.

This was an action of trespass on the case brought by Julius Suehr, appellee, against the Sanitary District of Chicago, appellant, to recover damages for injuries to his real estate, caused by the construction and use of the drainage channel of appellant and the flow of water from Lake Michigan through said channel into the Des Plaines river and thence into the Illinois river. Appellee’s real estate here in question consisted of an island of about eleven and one-half acres of tillable land, situated in the Illinois river near the city of Ottawa in LaSalle county and reached to the center thread of the current on each side thereof. The claim of appellee was that the waters from the drainage channel of appellant so increased the waters of the Illinois river that they overflowed this real estate and destroyed the ford leading thereto and caused a damage thereto and to the crops planted and growing thereon, and by these means greatly depreciated its value. There was a plea of the general issue to the amended declaration, and, upon a jury trial, a verdict was returned in favor of appellee in the sum of $4,000. A motion by appellant for a new trial was overruled and judgment was entered upon the verdict. Defendant below prosecutes this appeal from said judgment. Attorney’s fees were ordered taxed, and that taxation is not questioned upon this appeal.

Julius Suehr, the appellee, was a gardener, who learned his trade in Germany. He came to this country in 1868 and, with the exception of two or three years, has worked at his trade ever since. He has devoted himself especially to the raising of asparagus, having had experience in the planting and raising of that vegetable in Germany under instructions from his father, and having raised asparagus on one farm near Ottawa for about twenty-five years. In 1897 he bought the island described in the declaration. This island contained about eleven and one-half acres of tillable land and nearly fifteen acres in all, which was surrounded by a fringe of trees on a portion thereof and had low shores extending down to the water. It was separated from the main land by a narrow channel of water, which at times of low water was about knee deep and was easily fordable. The soil varied from eight to fourteen feet in depth, and was a warm sandy loam and has sub-drainage, and prior to 1900 shells and dead fish were deposited thereon by the winter and spring floods. It needed no fertilizer, and produced corn to the amount of about seventy-five bushels per acre during the ten years next preceding its purchase by appellee. Suehr planted eleven and one-half acres of this island with asparagus (which some witnesses called “grass”) and cultivated the same during the succeeding years up to the year 1900, when, he testified, he had a perfect stand of that crop. On the 17th day of January, 1900, the drainage channel of the Sanitary District of Chicago was opened and the water therefrom was emptied into the Des Plaines river and flowed from thence into the Illinois river. The proof shows that from that time on the island in question was seriously affected by the increased flow of water in the Illinois river: that a part of the island was washed away, including the timber along the edges; that the average stage of water in summer has been very high upon the edges of the island; that the spring floods recede slowly and late, and that by reason of submerging and washing away of the soil the tillable land on the island was reduced to about seven and one-half acres up to 1907. The capacity of the rock channel of the Sanitary District is 600,000 cubic feet per minute, and when the population of Chicago reaches 2,000,000, the statute requires that the channel shall carry that volume of water. Because of the narrowness of the Chicago river the Secretary of War issued an order limiting the flow to 300,000 cubic feet and afterwards to 250,000 cubic feet per minute throughout the twenty-four hours of the day. The Sanitary District is now engaged in widening the Chicago river in order to remove the cause for the orders made by the Secretary of War, and when that work is completed it is expected by the Sanitary District that it will be permitted to flow all the water which its earth channel will convey, which is 480,000 cubic feet per minute. The proof strongly tends to show that when that has been done, the higher stages of the water and the increased force of the current will destroy or at least render practically valueless the island in question.

It is conceded that the damage which the construction and use of the drainage channel and the flow of the water through the same into the Des Plaines river and thence into the Illinois river occasioned to the real estate of appellee was the depreciation thereby caused to its fair cash value. Appellant contends that such depreciation in the fair cash market value of appellee’s real estate was completely determined and fixed on January 17,1900, the date when the water was first allowed to flow through such drainage channel into the Des Plaines river; that in law no damage was caused by appellant to appellee’s real estate after January 17,1900; that evidence of the physical damages done to appellee’s land after January 17, 1900, by the waters of the Illinois river, including the waters from the drainage channel, during all the seven years intervening between the time of the first turning in of the water from the drainage channel and the time of the trial of this case, was incompetent and was improperly admitted; and that being incompetent, there was no competent evidence introduced by appellee to show any damage to such real estate, and therefore the jury should have been instructed at the close of appellee’s evidence to find appellant not guilty. On principle it would seem as if such evidence is competent. It puts the proof on a much more satisfactory basis to show the exact condition that has resulted from the flow of the water, and how the market value has in fact been affected by the flow of the water turned into the river from the drainage channel, than to confine the evidence to the opinions of witnesses as to the effect likely to result from the turning in of the water, basing such opinions entirely upon the state of facts existing on January 17, 1900, when none of the water turned in on that date at Chicago had yet reached this island in the river near Ottawa. The rule that there can be but one recovery for the deterioration in the value of real estate caused by a structure of a permanent character, and that all damages for past and future injury to the property must be recovered in one action, is laid down in C. &. E. I. R. R. Co. v. Loeb, 118 Ill. 203, and C. & E. I. R. R. Co. v. McAuley, 121 Ill. 160.

K. & S. R. R Co. v. Horan, 131 Ill. 288, was a suit to recover for permanent injury to real estate by the erection of a structure, and it was held that the depreciation in the market value of the land arising from that permanent structure was the proper measure of damages to the owner. It would seem from an examination of that opinion and of the opinion of the Appellate Court in the same case, that evidence must have been admitted showing the harmful effect that the structure afterwards had upon the land. A judgment for plaintiff was affirmed.

Springer v. City of Chicago, 135 Ill. 552, was a suit to recover damages caused to real estate of Springer by the construction of a certain viaduct and approach thereto. The depreciation, if any, in the fair cash market value of the property immediately before and immediately after the construction of the improvement was held to be the true measure of damages; yet it was held there that evidence of the condition of the property at the time of the trial was competent, and that the parties had the right to show the value of the property at the time of the trial, as such evidence would have a bearing on the value of the property before and after the alleged damage, and therefore that the court properly allowed the jury to visit the premises and in that maimer see for themselves the condition of the property at the time of the trial.

Penn. Mutual Life Ins. Co. v. Heiss, 141 Ill. 35, involved the question of damages to certain property by the construction of a railroad in a street. It was held that the right of action accrued at the completion of the road to recover not only present but prospective damages. It was held that the action could be brought at any time within five years after the accruing of that right; and the court said: “The railroad company or appellants cannot complain that the plaintiff has waited until his damages have become susceptible of absolute proof before bringing his action, instead of resorting to proof of prospective damages. The authorities are that whenever the suit is brought, if within the statute of limitations, proof may be made of the permanent damages to the property, and the recovery being once and for all may include all damages flowing from the location and ordinarily skillful operation of the road.”

City of Centralia v. Wright, 156 Ill. 561, was a suit by Wright to recover damages to certain lands caused by the construction of a dam across a stream. It was held that the structure was to be treated as permanent and lawful, and that plaintiff was entitled to recover in one action all past, present and future damages. Of course in the eye of the law the value of the real estate was depreciated, and the amount of that depreciation was fixed, when the dam was completed, yet the opinion shows that the plaintiff was allowed to prove that as a subsequent result of the construction of the dam the water was three feet and eight inches deep at the ford where plaintiff had been accustomed to cross the water to reach Ms premises, and that it spread out sixty feet wide, and that when the creek was raised by rains Ms lands were overflowed.

Galt v. C. & N. W. Ry. Co., 157 Ill. 125, was a case where a railroad had occupied a street in front of certain land many years, and then laid an additional track after appellant bought said land. It was held that the laying of such additional track was an element tending to enhance the damages and which the grantor of appellant had a right to anticipate, and for which he could have recovered if he had brought an action. It was held that damages of that character were prospectively recoverable by his grantor, and that the damages likely to flow from the occupation of the street by the railroad company must be presumed to have been anticipated, and for them a recovery could have been had by appellant’s grantor. Therefore it was fair to presume that he bought the premises at a reduced price on that account.

Hyde Park Light Co. v. Porter, 167 Ill. 276, was an action on the case brought by Porter to recover damages for the depreciation in value of his lot and residence by the electric light plant of appellant adjoining it. It was contended that no proof had been introduced of any injury to the premises up to the day the suit was begun. The opinion shows that there was much evidence that by the operation of the plant soot, smoke, steam, ashes and cinders had been cast upon plaintiff’s property, and that jarring and vibration resulted from the operation of the plant and materially damaged the plaintiff’s property. It is a fair inference from the language of the opinion that much of this proof related to a time after the suit was begun. The court said: “If plaintiff was entitled to recover at all, as he was confined to a single action, he ought to recover whatever damages he has sustained by reason of the plant, both present and future damages. If he was confined to the damages sustained between the time when appellant commenced operating the plant and the date the action was commenced, he would be denied all substantial relief. Such is not the object of the law. If he has a remedy, that remedy should afford adequate relief for the damages sustained.”

Sanitary District of Chicago v. Conroy, 109 Ill. App. 367, was a suit like this, to recover damages to real estate alleged to have been caused by the waters of the Sanitary District channel. It was held that the true measure of damages was the diminution in the market value of the property caused by the act of the Sanitary District in turning in the water. The opinion, however, shows that the subsequent effects of the turning of the water into the channel was allowed to be proven, as well as the value of the premises before and after the water was turned in, and proof that the river had been higher since October 2, 1902, than it was at that time was held competent testimony. In view of these authorities we are of opinion that it was competent for appellee to show the results of the action of the water upon his land after January 17, 1900, and that this absolute proof of the manner in which the market value of the property was in fact depreciated by actual results was preferable to the mere opinion of the witnesses based upon their conclusions as to what the effect would be. Suppose, for example, that, if the suit had been brought and tried immediately after the water was turned in, and before it had reached this island, it would have been the opinion of the witnesses for appellee that it would not raise the waters about this island more than one foot, and would do no substantial injury thereto, would not such speculative proof be much less satisfactory than the testimony of witnesses who a year or two later ascertained by actual measurement how many feet the water did rise about the island after the waters were turned in? We conclude that no substantial error in that respect appears in this record.

Appellant contends that the court below erred in giving the second instruction offered by appellee. This instruction as given is as follows:

“If you believe from the evidence that defendant, on January 17, 1900, turned into the Des Plaines river a quantity of water which thence flowed into the Dlinois river, and that such water caused the land of the plaintiff described in Ms declaration to be decreased in its fair cash market value, then you will find defendant g’uilty and award to plaintiff such damages, if any, as will compensate him for such depreciation, if any, in the fair cash market value of his land.”

It is the contention of the appellant that, by this instruction, no time was fixed at which to measure the depreciation, if any, in the fair cash market value of the land caused by the injury complained of, and, also, that this instruction permits the jury to award the plaintiff such damage as, in their judgment, will compensate him, instead of requiring the jury to award the plaintiff what they may find from the evidence the depreciation in the fair cash market value of the land to have been at the time the injury was committed because of the act of the defendant complained of. The instruction above quoted may be somewhat deficient in not making any express reference to the date or time at which the depreciation shall be estimated, but the instruction does not give any improper date and does not conflict with the fifth instruction given on behalf of appellant, which does contain the date, the absence of which is complained of in this instruction. Said instruction is also somewhat deficient in not instructing the jury to base their award upon what they may find “from the evidence” but several of the instructions given for appellant and the fourth instruction given for appellee told the jury that it was their duty to decide the case upon the evidence and that they had no right to go outside the evidence in arriving at a conclusion upon any question of fact. We think that the defects in this instruction are completely cured by other instructions and that when the instructions are considered as a series it will be seen that there was no error in the giving of the second instruction for appellee.

Appellant contends that the verdict is so excessive that it ought not to be permitted to stand, and in considering this question it becomes necessary to refer somewhat particularly to the evidence on both sides as to the value of the island, both before and after the increase in the flow of water, with especial reference to the particular use to which the land had been put by its owner. The island was purchased by appellee in. 1897 for $850. Between that time and the 17th of January, 1900, appellee had planted almost the entire acreage of the island to asparagus. The proof introduced by appellee tended to show that it cost $30 per acre to purchase the roots for the highest priced asparagus, such as this was; that it cost about $75 per acre the first year and $60 per acre the second year to tend the crop, with but little returns during those years; that it required from five to ten years to completely mature the planting so as to produce a full crop, and that once a full stand is obtained in soil of suitable depth and drainage, replanting is not required for many years, sometimes not for twenty-five or thirty-five years. There was also proof that a warm sandy loam is the best soil for asparagus; that the plant will grow to the depth of as much as fifteen feet in the ground, if there is that depth of soil; that the depth of the soil of from eight to fourteen feet added a very great value to this land for this use, and that but little soil so deep could be found about Ottawa. The annual spring overflow acted as a sufficient fertilizer, so that the usual expense and labor of an annual renewal and enrichment of the soil with manure was unnecessary. All of the witnesses agreed that the planting of such a crop had considerably increased the value of the land. But in their estimates of such increase of value these witnesses were very far apart. The witnesses for appellee placed the value of the island on January 11, 1900, at from $800 to $1500 per acre, while the witnesses for appellant fixed its value at from $180 to $250 per acre. Ten witnesses testified for appellee. Nine of these were gardeners of long experience, one having been engaged in that work for thirty-five years, another for at least thirty years, and nearly all of the others from ten to twenty-five years. Of the eight witnesses for appellant on the subject of values, three were gardeners, three were farmers, and the others merely claimed to have knowledge of land values in the vicinity by reason of being engaged in the real estate business or because of long acquaintance with the land in question. The length of experience had by the witnesses for appellant in regard to the planting, raising and value of asparagus was very much less than that had by the witnesses for appellee, and a careful analysis of the testimony on both sides on this question leads the court to the conclusion that the values given by appellee’s witnesses are better founded and more nearly correct. In view of the fact that the soil of this island was of very great depth, and was peculiarly adapted to the raising of asparagus, that its facilities for irrigation were excellent, that according to law and the ruling of the Secretary of War a large increase in the flow of water may be looked for in the not very distant future, that the increase in the water of the river caused by the opening of the drainage channel of appellant has already destroyed the ford by which this island was formerly reached and made it less accessible, that the island has already been much diminished in size by the action of the water, and that a further diminution and perhaps entire destruction may reasonably be expected, that appellee had spent three years in fitting the land for asparagus and getting in a perfect stand of that vegetable before 1900, that the crop of asparagus planted by appellee was of a permanent character and that no gardener testifying could place a limit on the time during which said crop would continue to produce a marketable article of asparagus without replanting or resetting, that considerable skill and experience are required in the planting and cultivation of such a crop as asparagus, and have been expended upon this land by appellee after he bought it, that the estimates as to value and depreciation given by appellee’s witnesses are made by men of long experience in that kind of work, and that the land is close to an important market in the large city of Chicago, we do not feel that we can say that the verdict of $347.82% per acre (as this is) for the tillable land was excessive or was without sufficient evidence to sustain it.

We find no reversible error in the record, and the judgment will therefore be affirmed.

Affirmed.


text:
    Maria E. Harley, Appellant, v. Aurora, Elgin & Chicago Railway Company, Appellant.
    Gen. No. 5,056.

      Damages—when absence of evidence as to medical expenses etc. ground for reversal. Held, that in the absence of evidence as to medical expenditures, etc., or as to liability therefor, it was error, which constituted ground for reversal, to authorize the jury to make allowances in their verdict for medical attendance, etc.
    Action in case for personal injuries. Appeal from the City Court of Aurora; the Hon. Edwabd M. Mangan, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 10, 1909.
    Rehearing denied, opinion modified, July 15, 1909.
    Hopkins, Peffers & Hopkins, for appellant.
    Elmer & Cohen and Sears & Smith, for appellee.
   Mr. Justice Willis

delivered the opinion of the court.

The Aurora, Elgin and Chicago Railway Company, appellant, operates an interurban electric railway between Chicago and Aurora. On July 5, 1903, Mrs. Maria Harley, appellee, was a passenger on said railway from Wheaton to Aurora and while alighting from the train at New York street in Aurora, it started and she was thrown to the ground, or she fell or stepped off while it was in motion, and was injured. She brought this suit in the City Court of Aurora against the railway company to recover damages for such injuries. The declaration contained two counts. Each count of the amended declaration set up that the relation of carrier and passenger for hire existed between appellee and appellant, and alleged that appellee was exercising due care for her own safety when injured, charged appellant’s negligence, stated the character of appellee’s injuries, and averred that she had been put to great expense for physicians, and for physicians’ and surgeons’ charges, and for medicines, care and nursing in an effort to be cured of her said injuries. The plea of the general issue was interposed. There was a trial and a judgment for the defendant, which, on appeal, was reversed for errors of law in defendant’s instructions, and the cause remanded. Harley v. Aurora, Elgin and Chicago Railway Company, 128 Ill. App. 643. Later there was another trial and a verdict for appellee of $3,500. A motion for a new trial was denied. Judgment was entered on the verdict and the company prosecutes this appeal.

As the judgment in this record must be reversed for errors of law appearing in appellee’s instructions, no opinion on the merits of the cause will be expressed, and no further reference made to the facts appearing in the evidence than is necessary for a proper consideration of the assignment of errors based on the instructions.

The third instruction given for appellee defined the duty of a common carrier of passengers, in the following language:

“It is the duty of common carrier of passengers to do all that human care, foresight and vigilance can reasonably do under the circumstances in view of the character of the mode of conveyance adopted consistently with the practical operation of the road reasonably to guard against accidents and consequent injuries to passengers while being conveyed, and if they neglect so to do they are to be held strictly responsible for all consequences which flow from such neglect; that while the carrier is not an insurer for the absolute safety of the passenger, it does, however, in legal contemplation, undertake to exercise the highest degree of care to secure the safety of the passenger, and is responsible for the slightest neglect resulting in injury to the passenger if the passenger is, at the time of the injury, exercising ordinary care for her own safety, and this applies alike to the safe management and control of its cars, the employment of skillful and prudent operatives and the faithful performance by them of their respective duties; and if you believe, from the evidence, that the defendant, by its servants, failed to exercise such care to prevent injury to plaintiff while she was a passenger on one of its cars and in the act of alighting therefrom, and that by reason thereof plaintiff was injured in the manner and by the causes charged in the declaration or some count thereof, while plaintiff herself was in the exercise of ordinary care for her own safety, before and at the time of such accident, then you should find the defendant guilty.”

There was no allegation in the declaration that appellant failed to employ skilled or prudent operatives and that portion of the instruction should have been eliminated. But for that error alone, we should not be inclined to reverse the judgment.

The proof showed that appellee had spent some time in the hospital and had had much medical attendance, nursing and medicines in her own home. It was not proved, however, what sums she paid or contracted to pay therefor, nor what such services and medicines were reasonably worth; nor was there any proof that her husband had paid them and thereby relieved her from liability therefor.

Appellee’s fourth instruction read:

“The cpurt instructs the jury that if they find for the plaintiff they will be required to determine the amount of her damages, if any is shown by the evidence. In determining the amount of damages plaintiff may be entitled to recover in this case, if any, the jury have the right and they should take into consideration all the facts and circumstances proved by the evidence before them, the nature and extent of plaintiff’s physical injuries, if any, so far as the same are shown by the evidence to be the direct result of the injury complained of; her suffering in mind and body, if any, resulting from such physical injuries, if any; and such future suffering and loss of health, if any, as the jury believe from the evidence before-them in this case she has suffered or will suffer by reason of any such injuries; and may find for her such sum as, in the judgment of the jury, under the evidence and instructions of the court in this case, will be a fair compensation for the injury she has sustained or will sustain, if any, so far as such damage and injuries, if any, are claimed and alleged in the declaration and proved by the evidence, and it is not necessary in arriving at such amount, if any, for any witness to have expressed an opinion as to the amount of such damages.”

The fifth instruction given for appellee told the jury, among other things, that if defendant was found guilty, the plaintiff would “be entitled to recover all damages alleged in the declaration and proved by the evidence” which plaintiff had sustained by reason of such injuries.

The sixth instruction given for appellee contained this statement: “to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury may themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their own knowledge, observation and experience in the business affairs of life.”

These instructions permitted the jury to give what, in their judgment, was a fair compensation for appellee’s expenses for physician’s care, nursing and drugs in endeavoring to be cured of her injuries. For all that we can know, the jury may have allowed her a substantial amount for the services of physicians, nursing and medicines, such as they may have thought such services and medicines would likely be worth, and that, without any proof of the amount, or of its reasonableness. These instructions would have been good, had there been no allegations or proof of any damages except physical injuries, suffering in mind and body, future suffering, loss of health or permanent injury which are not capable of pecuniary measurement. Physicians’ and nurses’ services and the value of medicines and all necessary expenditures made in being cured are elements of damages capable of pecuniary measurement, and the law requires that the amounts of such expenditures shall be proved. North Chicago St. R. R. Co. v. Fitzgibbons, 180 Ill. 466; McGinnis v. Berven, 16 Ill. App. 354; Village of Chatsworth v. Rowe, 53 Ill. App. 387.

For the errors indicated in instructions four and six, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam.

text:
    Michael Delaney, Plaintiff in Error, v. East St. Louis & Suburban Railway Company, Defendant in Error, Appellee.
    Appeals and ebbobs—effect of striking bill of exceptions. Where a bill of exceptions is stricken from the transcript and no errors are assigned with respect to the remainder of the record, nothing is left for review and an affirmance will be ordered.
    Action in case for personal injuries. Error to the Circuit Court of St. Clair county; the Hon. R. D. W. Holdeb, Judge, presiding.
    Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed June 15, 1909.
    Keefe & Sullivan and E. W. Eggmann, for plaintiff in error,
    Schaefer, Farmer & Krueger, for defendant in error.
   Per Curiam.

At the February term, 1908, of this court, to which the above entitled cause was brought by writ of error, the defendant in error moved to strike from the record the bill of exceptions therein contained. The motion was allowed and the bill of exceptions was stricken from the record. There remains to be considered only a transcript of the .pleadings and orders of the trial court, respecting which no exceptions were taken or errors assigned. The judgment of the Circuit Court will therefore be affirmed.

Affirmed.


author: Mr Presiding Justice Myers

text:
    W. H. White et al., Appellants, v. James G. Main, Appellee. W. H. White et al., Appellants, v. Main Brothers Box & Lumber Company, Appellee.

      Practice—section S6 of Practice Act of 1901 construed. Section 36 of the amended Practice Act of 1907 does not so change the common law remedy as now to require a plaintiff wnen suing in trespass for injury to real property, to establish paramount title to the land, as in ejectment; such amendment, in effect, enlarges rather than restricts such common law remedy of trespass.
    Trespass. Appeal from the Circuit Court of Massac county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed June 15, 1909.
    Courtney & Helm, for appellants.
    C. L. V. Mulkey, for appellees.
   Mr Presiding Justice Myers

delivered the opinion of the court.

This is an appeal from two several judgments in trespass for timber cutting, rendered by the Circuit Court against the appellants, one in favor of appellee, James Gr. Main, for $225 damages, and the other in favor of appellee, Main Bros. Box and Lumber Co., for $425 damages. By agreement of parties a jury was waived and the two cases were tried together by the court. The declarations, consisting of a number of counts, charges the defendants with breaking and entering plaintiff’s close, and with cutting, destroying and conveying away trees growing thereon. In one or more counts, defendants are charged with wilfulness and wantonness in the acts complained of. To each of the declarations the defendant filed the general issue. After a careful reading of the evidence, as we find it in the abstract, and due consideration of the argument of counsel, we are of opinion that the judgments of the Circuit Court should be affirmed.

The evidence tends to prove, and as we think justifies, the finding that the appellees were the owners in possession of the land described in the declaration, and that the appellants, their agents and employes, committed the trespasses alleged, and that the sums allowed as damages are quite within the proof of actual injuries sustained.

Appellant’s first point in argument is that the trial court erred in refusing their third, fourth and eleventh tendered propositions of law, the contention being, that by section 36 of the amended Practice Act of 1907, the common law remedy was so changed or limited as now to require a plaintiff owner, suing in trespass for injury to real estate, to establish paramount title to the land as in ejectment. Propositions 3, 4 and 11 are based upon this version of the. amended statute, without which, as we understand appellants’ contention, the propriety of the court’s action in refusing them is not challenged. The section of the statute invoked reads as follows:

“The distinctions between the actions of trespass and ‘trespass on the case’ are hereby abolished; and in all cases where trespass or trespass on the case has been heretofore the appropriate form of action, either of said forms may be used, as the party bringing the action may elect. And it shall be lawful for any owner of real estate, though not in possession-of the same, where the same is in possession of some person or persons claiming under him, as tenant or otherwise, to bring an action in trespass or case for any injury to his rights in such land, as owner, reversioner, remainderman or otherwise the same as if in possession of said land against the person or persons claiming under him or against a stranger committing trespass or injury, to the rights of such person in said land; Provided, however, that nothing herein shall deprive the person in possession of any right of action he may have for injury to his possession, nor shall this action he extended to any case where a dispute in the title is the foundation of the action between the parties.”

We find nothing in the language of the statute to warrant the construction given by appellants’ counsel, nor are we impressed by the argument that the attributed meaning is within the legislative purpose and intent. It would seem rather that the remedy by action in trespass to real estate has been enlarged or extended by the statute. The reversioner or remainderman, though not in possession, may now have his action in trespass against any other person, whether in possession of the premises or not, for an injury to his right or interest in the land, whereas, before the statute was enacted, he could not maintain such action unless in possession. Clearly the statute was only intended to afford a more effective remedy for the reversioner or remainderman, and under the facts in this case the statute has no application. It was not error to refuse the 3rd, 4th and 11th propositions.

Complaint is made that the court refused to hold that no exemplary damages could be allowed, and that defendants were not bound by the acts of one Newlon and his men in cutting trees on the premises in question. It was a question of fact whether Newlon was acting with or in behalf of the appellants as their agent or otherwise, by their instigation, and there was a sharp conflict of evidence bearing upon that question. The finding of the court, apparent from the judgment awarded, like the. verdict of a jury, may not be disturbed, unless it is manifestly against the weight of the evidence. This, as already indicated, we are not inclined to hold after a careful consideration of all the evidence of record. So also, we have reached a like conclusion respecting the allowance of exemplary damages. There is some evidence to justify punitive damages, but even though the court erred in its holding on that proposition, it should not effect a reversal of the judgment, for the actual damages proved are quite within the sum allowed and the error, if any, would be harmless.

Finding no substantial or prejudicial error in the record the two judgments of the Circuit Court will be affirmed.

Affirmed.


author: Mr. Presiding Justice Myers

text:
    E. W. Smith, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.

      Evidence—when proof of custom incompetent. Proof of a custom is improper if it does not tend to prove any material fact in controversy.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Lawrence county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the February term, 1909.
    Reversed and remanded.
    Opinion filed June 15, 1909.
    Conger & Conger and Gee & Barnes, for appellant; L. J. Hackney, of counsel.
    W. F. Foster, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This is an action brought before justice of the peace by the appellee against the appellant to recover the value of 20,220 pounds of coal, alleged to have been taken bv appellant from a car while in transit over its railroad under consignment to appellee at Lawrenceville, Illinois. The justice of peace rendered judgment in favor of plaintiff from which the defendant appealed to the Circuit Court, where a trial by jury was had, resulting in a verdict and judgment for the plaintiff, from which the defendant appealed to this court.

Exceptions were preserved and errors duly assigned by which this court may consider the complaint of appellant, that the trial court erred in the admission of evidence and in rendering a judgment on the verdict.

It is first contended that the verdict is unsupported by the evidence. Upon examination of the record we find that this contention must prevail. The evidence is meager, as to important details in the transaction, upon which, appellee bases his right to recover, and fails wholly to establish any liability on the part of the appellant. There is evidence that appellee ordered a car of coal from brokers in Vincennes, Indiana, to be shipped from some mine in Illinois to appellee at Lawrenceville, Illinois, that appellee paid for 80,000 pounds of coal, and that a car of coal which contained only 59,780 pounds was delivered by appellant to appellee. It does not appear from what point the car of coal was shipped, nor by whom. There is no evidence whatever that more coal was shipped, or delivered to the appellant, than was delivered to and received by appellee. There is not even proof that the car of coal ordered and paid for by appellee was the same which he afterwards received. Appellee introduced evidence, which was admitted over appellant’s objection, to prove that it was the custom of appellant’s servants to coal the engines from shippers’ cars in transit over the road. The court erred in admitting this evidence. The testimony was irrelevant and improper and did not tend to prove any material fact in controversy. For the errors indicated, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    G. T. Taylor & Sons, Appellant, v. Charles M. Correll, Appellee.
    Appeals and ebbobs—effect of filing insufficient abstract. The failure to file an abstract on' review conforming to the rules of court, authorizes a pro forma affirmance.
    Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed June 15, 1909.
    Jones & MacHatton and P. G. Bradbury, for appellant.
    Eagleton & Wesner, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

There is no abstract of record on file in this case, such as required by Buie 23 of this court. The document so entitled purports to be a printed transcript of the entire record. We find no statement of the case or brief and argument by appellant as required by Buie 25. The presentation in this manner leaves it to the court to examine the record and, from inspection, to determine what, if any, error was committed by the lower court. The only contention of appellant is, that a certain writing set out contains “a clear and succinct expression of the intention of the parties”, without any attempt to indicate or point out in what manner the construction of this writing is brought into controversy, or that there is in the record any controversy about it. For failure of appellant to file abstract, brief and argument the judgment should be affirmed under Buie 27. We have, however, examined the transcript of record and read the amended declaration to which the court sustained a demurrer and rendered judgment against appellant for costs, from which the appeal was taken. The Statute of Frauds as a defense, in an- action at law, is properly raised 'by plea and not by demurrer, but inasmuch as appellant makes no contention on that ground it is not now to be considered by this court on review of the record. After due consideration of the amended declaration and the grounds set out in the demurrer filed, we are of opinion that demurrer was rightly sustained, and that the judgment of the Circuit Court should be affirmed.

Affirmed.


author: Mr. Justice Creighton

text:
    Marshall E. Daniel et al., Appellants, v. R. G. Allen, Appellee.

      Damages—when new trial awarded for inadequacy. Where actual damages are clearly proved by the evidence with such definiteness as to furnish a reasonably certain measure, the court should grant a new trial if the amount awarded by the jury is manifestly inadeauate.
    Assumpsit. Appeal from the Circuit Court of Hamilton county; the Hon. Enoch E. Newpin, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    Thomas & Anderson, for appellants.
    Isaac H. Webb and J. H. Lane, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action of assumpsit in the Circuit Court of Hamilton county, by appellants against appellee, to recover damages for breach of a contract entered into between appellants and appellee concerning the sale and conveyance of certain real estate. Trial by jury. Verdict and judgment in favor of appellants for $100. Appellants being dissatisfied with the amount of the verdict and judgment, bring the case to this court by appeal.

The agreement sued on is as follows:

“This agreement made and entered into this 9th day of May, A. D. 1907, between E. G-. Allen, party of the first part and Daniel & Bowen, of McLeansboro, Illinois, parties of the second part, witnesseth: That for and in consideration of one dollar in hand paid by said parties of the second part to said party of the first part, the receipt of which is hereby acknowledged, the said party of the first part do hereby covenant and agree to convey in fee simple, clear of all encumbrance (except a mortgage of $1,800 in favor of J. H. Wilson, McLeansboro, 111.) to said second parties or their assigns or to any person or persons said second parties may elect by a good and sufficient warranty deed, including the release of homestead and dower, the following described real estate, situated in the county of Hamilton and State of Illinois, to-wit: E. pt. NE. Qr. See. 4, Town 5 Range 6 East of 3rd P. M., containing 114 72-100 acres, provided the said second parties may elect or shall pay or cause to be paid to said first party a consideration of $3,650, less the mortgage aforesaid, within twelve months of this date, otherwise this contract shall become null and void. It is further agreed by and between the parties hereto that the first party agree to furnish said second parties at his own expense an Abstract of Title from the United States down to the date, within 30 days from date of this sale.
E. Gr. Allen, [Seal.]”

The evidence produced upon the trial of the case in the Circuit Court clearly proves appellants’ right to recover, and it conclusively proves the amount of their recoverable damages to be very greatly in excess of the amount of the verdict and judgment.

Counsel for 'appellee state that “the amount of damages appellants are entitled to, is a question solely for the jury to say.” Their contention, in effect, is that a court has no power to set aside a verdict and grant a new trial on the ground of inadequacy of the amount of damages assessed by a jury in their verdict.

The law in this state is: Where actual damages are clearly proved by the evidence, with such definiteness as to furnish a reasonably certain measure, the court should grant a new trial if the amount awarded by the jury is manifestly inadequate.

The judgment of the Circuit Court is reversed and the case remanded. .

Reversed and remanded.


text:
    Pink Emery, Appellee, v. Illinois Central Railroad Company, Appellant.
    Master and servant—when former not held, to liability of carrier. Where a person in the employ o£ a railroad company travels upon the cars of the company back and forth from his home to the place where his services are rendered, or from one place to another in the performance of his duties, and is transported free of charge as part of the contract of service, and where the train is engaged in the construction or maintenance of way and the like and the employe’s duties at the time of the injuries connect him with the train in the performance of that work, then he is, while so traveling, an employe and not a passenger of the company, and is per se a fellow-servant with the train men, and, on that ground, the company will not be liable for an injury to him resulting from the negligence of the train men in operating the train.
    Action in case for personal injuries. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the February term, 1909.
    Reversed with finding of fact.
    Opinion filed June 15, 1909.
    Clemens & Slater, for appellant.
    Neely, Gallimore, Cook & Potter, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Williamson county, by appellee against appellant, to recover for a personal injury sustained by appellee while in the service of appellant. Trial by jury. Verdict and judgment in favor of appellee for $250.

The case as stated by counsel for appellee is in substance as follows: Appellee had been employed by appellant for about ten years as a section hand, and it was his duty to help keep the track in repair and when occasion required it, to help load ties onto the construction train and unload them therefrom. On the 25th of January, 1908, appellee was engaged in loading ties which were being collected from various points along the road, between Carbondale and Brook-port, to be conveyed to the tie preserving plant at Carbondale. When this work was to be done, all the crews of section men in the community were called into service. Each crew had with it its own foreman. On this morning, the plaintiff boarded the defendant’s tie train at Carterville. The train proceeded south and east until the first working place, “Hog Cliff”, was reached; then backed up the line, loading ties at various points until Creal Springs was reached. There was a train crew in charge of the train. The train crew operated the train and the other men handled the ties. When all the ties at a given point were loaded, the section men boarded the construction train and were by it conveyed to their next loading place. When the last lot were loaded at Creal Springs on the day of the injury, all the section men boarded the train to- be carried to their respective homes, which it was the appellant’s duty to do under its contract with the men, free of any charge, and this was the usual practice. After the men had boarded the train, it was backed up the line toward Carbondale, until Marion was reached. The section men occupied the caboose attached to the end of the train opposite the engine. At Marion the train backed in on the “Y” to turn the train so that it could proceed on the remainder of the trip with the engine ahead. On the “Y” the caboose came into contact with a box car so violently that the workmen in the caboose were thrown about, and appellee was thrown against a stove and injured. The conductor, engineer and flagman on the train saw the box car some minutes before the collision, while they were backing in on the opposite side of the “Y”, and ran the train at from six to ten miles an hour.

Counsel for appellee does not contend that the relation of carrier and passenger existed between the parties, and such contention could not be sustained if made. Counsel’s position is that the relation was that of master and servant and that appellee was injured by negligence on the part of the master, and that the servants through whose negligence the injury occurred were not fellow-servants with appellee “as matter of law”, but that it was a question of fact for the jury to determine whether or not they were fellow-servants. And he says, the only substantial question is, whether “the injury inflicted upon appellee was by his fellow-servants.”

Where the undisputed facts make employes fellow-servants under the law, it is the duty of the court to so declare; in such case there is no issue for a jury to try. We think the law applicable to this case may be stated as follows: Where a person in the employ of a railroad company travels upon the cars of the company back and forth from his home to the place where his services are rendered, or from one place to another in the performance of his duties, and is transported free of charge as part of the contract of service, and where the train is engaged in the construction or maintenance of way and the like and the employe’s duties at the time of the injury connect bim with the train in the performance of that work, then he is, while so traveling, an employe and not a passenger of the company, and is per se a fellow-servant with the train men, and, on that ground, the company will not be liable for an injury to him resulting from the negligence of the train men in operating the train. Labatt on Master and Servant, Vol. 2, 1411l (k); American & English Ency. of Law, 2nd Ed., Vol. 12, 1003; Cyc., Vol. 26, 1351; Elliott on Railroads, 2nd Ed., Vol. 3, Sec. 1303 a and 1332; C. & A. R. R. Co. v. McDonald, 21 Ill. App. 409; Miller v. O. & M. Ry. Co., 24 Ill. App. 326; Chicago & Alton R. R. Co. v. Keefe, 47 Ill. 108; St. Louis & S. E. Ry. Co. v. Britz, 72 Ill. 256; Abend v. T. H. & I. R. R. Co., 111 Ill. 202; I. C. R. R. Co. v. Leiner, 202 Ill. 624 (638-639); Russell v. Hudson River R. R., 17 N. Y. 134.

We are of opinion that the wholly undisputed facts of the case at bar clearly make appellee a fellow-servant, under the law, with the members of the construction train-crew whose negligence caused the injury complained of.

The trial court erred in refusing to direct a verdict in favor of appellant.

The judgment of the Circuit Court of Williamson county is reversed, and we find as an ultimate fact to be incorporated in the judgment, that appellee was a fellow-servant with the servants whose negligence caused the injury complained of.

Reversed ivith finding of fact.


text:
    Fred Fleischbein, Appellee, v. E. E. Strother et al., Appellants.
    1. Instructions—when assumption of facts will not reverse. Held, that if an instruction states a correct proposition of law, it will not reverse even though it assumes facts, if the jury could not have been misled thereby.
    2. Instructions—when erroneous upon measure of damages will not reverse. An instruction upon the measure of damages will not reverse even though erroneous if it appears that the damages awarded were well sustained by the evidence.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed June 15, 1909.
    Webb & Webb, for appellants.
    R. W. Ropiequet and Louis Klinger, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of St. Clair county, by appellee against appellants, to recover for a personal injury. Trial by jury. Verdict and judgment in favor of appellee for $250.

On and prior to the plaintiff’s injury, the defendants were operating a skating rink in the city of Belle-ville, Illinois. At about the center of the room which was used for rink purposes they had erected and were maintaining a band stand or platform, for the accommodation of musicians. This platform was about fourteen feet long and seven feet wide and was about seven feet above the floor of the rink. It was reached by a ladder extending upward to it from the floor at the southwest corner.

Originally there was a railing or banister all around the edges of this platform except at the place of entrance. This railing was about three feet above the platform floor and was composed of two by four timbers with the broad side up. The space between the floor and the railing was filled in with a strip of red bunting fastened above and below, and tightly stretched.

In January, 1906, the plaintiff was employed along with four other men to furnish music at defendant’s rink for the evening sessions, and he played there every night until April of the same year. While rendering music the men were required to be upon the platform. They were seated upon chairs, which were stationed around the edges of the platform, facing inward, and the men relied upon the railing to keep them from falling off.

After the close of the skating season in April, 1906, the plaintiff did not again play at defendant’s rink until October, 1907. In the mean time a piece of railing about four feet long, had been removed by the defendants from the south side of the musicians’ platform next to the post at the southeast corner. The bunting, however, which had filled the space between this railing and the platform floor still remained, stretched as before. It was of a reddish color of thin material, and neither wholly transparent, nor wholly opaque.

Appellee returned there to play in the fall of 1907 and played two evenings during the month of October. On the tenth of November he returned to play again when he was injured.

On the night of the injury, appellee sat on the south side of the platform, at the place where the railing had been removed. He sat about two feet from the platform’s edge with his back to the unprotected bunting and his face to the north. About four feet west of him, also near the south railing, sat another musician, who was facing westwardly, from whom appellee had borrowed a book and was endeavoring to return it. He held the book in his right hand and leaned to the left. At the same time, in order to steady himself, he attempted to put his hand upon the railing. There being no railing there, his hand pressed upon the bunting which gave way, and he was thrown about seven feet to the floor of the rink. His right collar bone was broken and he was otherwise seriously injured.

The declaration charges that appellee was employed by and with the knowledge and consent of appellants.

Before the piece of railing was removed, appellee had played there more than a hundred nights, and he had played there one night for about three hours, after the piece of railing was removed, before the occasion of his injury; but he had not observed the fact that the piece of railing had been removed or that any change had been made in the railing.

Counsel for appellants contend that appellee was guilty of contributory negligence in failing to observe the condition of the railing; and also, that the danger was open and apparent and that appellee must for' that reason, be held to have assumed the risk.

We do not understand that it is contended that appellee actually did observe the condition of the railing or that he had any notice or knowledge of its condition. What counsel contend as we understand them is, that appellee had played on that platform more than a hundred nights before the piece of railing was removed and was thoroughly familiar with the structure of the platform and with the surroundings; that he had played there on two occasions after the piece had been removed, before the occasion of his injury; that the hall and platform were well lighted, and that if he had exercised ordinary care and caution for his own safety he would have discovered the dangerous condition and might have avoided the injury, and therefore they contend that the court erred in refusing to direct a verdict in favor of appellants.

We think under the evidence in this case these were questions of fact for the jury and not questions of law for the court. It must be conceded that the place was dangerous and that appellants were guilty of negligence in leaving it in that condition. Appellee had played there more than a hundred nights when it was safe and he knew during all that time that it was safe, and upon returning there to play after this section had been cut out of the railing, he saw everything apparently as it had been before, the bunting stretched all around the platform covering sill the space from the top of the railing to the floor of the platform, just the same where the piece had been sawed out of the railing as where it had not, and nothing to attract attention to the fact that any change had been made.

Counsel challenge the first and second instructions given on behalf of appellee. As to the first, they say it assumes that appellants employed appellee. This appears to be true, but, notwithstanding, it states a correct proposition of law applicable to the facts of this case. Appellee was employed to assist in carrying on appellants’ business with the knowledge and consent of appellants, and was required to perform his duties in a place furnished and maintained by appellants and wholly under their control. The defect complained of could not have misled the jury. There are other objections pointed out to this instruction, but they are fully cured by instructions given on behalf of appellants.

The second instruction relates to the measure of damages, and is defective in the respects charged against it by counsel, but it is evident to the court that the jury was not misled by it, for the injury proven was quite a serious one and the amount of damage assessed was only $250. This, counsel do not claim to be excessive.

We find no reversible error in this record. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Lehigh Portland Cement Company, Appellee, v. J. G. McLean et al., Appellants.
    1. Statutory law—rules of construction. In construing an act of the legislature the courts will take into consideration the purpose of the legislature in enacting it and the limitations, if any, upon the power of the legislature with respect to the subject-matter, as well as the language employed in its structure.
    2. Statutory law—how acts regulating foreign corporations construed. Statutes regulating foreign corporations doing business in Illinois must be so construed and enforced as not to interfere with interstate commerce.
    3. Judicial notice—of what talcen. The court will take judicial notice that prior to the act of 1897 hundreds of corporations were organized under the laws of foreign states with the i^sntion of carrying on their business in this state, and that many '¡others transferred their business locations, in whole or in part, into this state, or located branches of their business here, thus depriving the state of its fees for incorporating and of its power to exercise over such corporation the surveillance which our laws require to be exercised over domestic corporations.
    4. Interstate commerce—defined. The sale and delivery of goods or manufactured commodities by a citizen or corporation of one state, in the usual course of business by the usual instrumentalities and means, is interstate commerce.
    5. Corporations—what not transacting business in this state. Where a foreign corporation has no business establishment or established place of business of any kind in this state and carries on no local business of any kind in this state and where it does no more than to sell and deliver its merchandise through the usual instrumentalities of drummer and common carrier, it is not “transacting business or exercising its corporate powers or franchise” in this state within the meaning of the statute regulating foreign corporations doing business in this state.
    Assumpsit. Appeal from the County Court of Richland county; the Hon. John A. MacNeil, Judge, presiding.
    Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed June 15, 1909.
    H. G. Morris, for appellants.
    John Lynch and T. A. Fritchey, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action of assumpsit, in the County Court of Richland county, by appellee against appellants, to recover for goods, chattels and effects sold and delivered. The declaration consists of the common counts, in the usual and customary form.

To this declaration appellants filed one special plea, in substance as follows: That appellee is a corporation for pecuniary profit, organized under the laws of the State of Pennsylvania, and having a place of business at Cleveland, Ohio; that at the time the cause of action accrued, and suit was brought thereon, appellee was engaged in the manufacture of cement in the 'State of Pennsylvania and selling the same in Illinois and elsewhere to merchants, through numerous agents and salesmen; that the merchandise for the price of which this suit is brought was sold to appellants at Olney, in the county of Richland and state of Illinois, by appellee in the ordinary course of business, by an agent or salesman of appellee, and it was agreed that the same was to be delivered by appellee to appellants at Olney, within a reasonable time, to be paid for at Olney, within ninety days; that in pursuance of such sale appellee delivered the merchandise so sold to a common carrier at the city of Cleveland in the state of Ohio, to be transported to the city of Olney in the state of Illinois and there delivered to appellants, and that the same was so delivered; that appellants were then engaged in the business of selling lumber, cement and other building materials in the city of Olney in the state of Illinois; and it is averred, in substance and effect, that at the time of said transactions and of the bringing of this suit, appellee was a foreign corporation and was not licensed to do business in the state of Illinois as provided in and by its statutes and was not authorized under the laws of this state to transact business in this state, nor to bring or maintain any suit or action in any court of this state.

Appellee interposed a general demurrer to the above noted plea.

The sole question to be determined in this case is, whether the facts set up in the plea constitute “transacting business” or “exercising corporate powers” by appellee in this state, within the meaning of our Foreign Corporation Act of May 18, 1905. “Stripped of all unnecessary verbiage and superfluities, the plea as filed shows that the goods which appellee claims appellants are indebted to it for, were sold and delivered by appellee to appellants” in the usual and ordinary manner that manufacturers, importers, wholesale dealers and jobbers in one state sell their merchandise and products to retail merchants and dealers of other states through the instrumentality of traveling salesmen or “drummers,” as such agents are usually called, and that appellee was a corporation and had not complied with any of the requirements of the Foreign Corporations Act. This brings us back again to the question, is this mode of carrying on “commerce among the several states” in violation of that Act?

The Act of May 18, 1905, is a revision act and expressly repeals the Act of 1897 and the Act of 1899. In construing this Act we must take into consideration the purpose of the legislature in enacting it and the limitations, if any, upon the power of the legislature with respect to the subject-matter, as well as the language employed in its structure.

It is a matter of which the court may take judicial notice, that prior to the Act of 1897 hundreds of corporations were organized under the laws of foreign states with the intention of carrying on their business in this state, and that many others transferred their business locations, in whole or in part, into this state, or located branches of their business here, thus depriving the state of its fees for incorporating and of its power to exercise over such corporations the surveillance which our laws require to be exercised over domestic corporations. We think it was these conditions and other conditions incident thereto that moved the legislature to enact a series of statutes upon the subject of “Foreign Corporations,” which has culminated in the revised Act of 1905.

So far as we are advised the Act of 1905 has not been construed by the Supreme Court. Our previous Acts covered many features of the present act, and a large number of states have statutes in their main features substantially like ours. The courts are generally agreed upon the holding that these statutes must be so construed and enforced as not to interfere with interstate commerce, and as we understand the law, the sale and delivery of goods or manfactured commodities of the character in question, by a citizen or corporation of another state, in the usual course of business by the usual instrumentalities and means, is interstate commerce. Black-Clawson Company v. Carlyle Paper Company, 133 Ill. App. 61; Havens & Geddes Co. v. Diamond, 93 Ill. App. 557; Spry Lumber Co. v. Chappell, 184 Ill. 539; Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727 (739); Robbins v. Taxing Dist., 120 U. S. 489 (492); Brennan v. Titusville, 153 U. S. 289; Caldwell v. North Carolina, 187 U. S. 622.

The scope and language of the Act appears to us to be in harmony with the foregoing with respect to both the purpose of the Act and the limitations suggested. The Act provides that “when any corporation organized under the laws of any foreign state or country, for the transaction of business for profit, desires admission into the state of Illinois, for the purpose of transacting business or exercising its corporate powers of franchise,” it shall state in its application “what business it proposes to pursue under its charter, the amount of its capital stock, whether it is transacting or it is intended that it shall transact business in any other state or country, the proportion of its business intended to be carried on in the state of Illinois,” “what property and assets and an estimate of the value thereof, will be employed in the business of said corporation in the state of Illinois,” and “where its principal office in Illinois will be located.” That no corporation shall “be authorized to transact any. business in this state for the transaction of which a corporation cannot be organized under the laws of this state.” “That every foreign corporation admitted to do business” in this state, “shall constantly keep on file in the office of the Secretary of State, an affidavit, showing the location of its principal business office in the state of Illinois.” “When admitted to do business in the state of Illinois under this Act,” it “shall be required to make such reports from time to time as are required to be made by similar corporations organized under the laws of this state and all regulations now in force or hereafter imposed upon domestic corporations, shall be alike observed and complied with” by it; and it “shall be required to pay into the office of the Secretary of State, upon the proportion of its stock represented by its property and business in Illinois, fees equal to those required of similar corporations formed within and under the laws of this state.”

When the language and scope of this Act are considered in connection with the purposes of the Act, and the limitations imposed upon the legislative power with respect to the subject-matter, by the third clause of section 8, article 1, of the Federal Constitution and the legislation of Congress thereunder, it appears clear to us that the Act in question does not apply where the foreign corporation has no business establishment, or established place of business of any kind in this state and carries on no local business of any kind in the state, and where it does no more than to sell and deliver its merchandise through the usual instrumentalities of drummer and common carrier. We are of opinion that the facts pleaded by appellant do not show that appellee was “transacting business or exercising its corporate powers or franchise,” within the meaning of the statute. In coming to this conclusion we construe the plea as a whole and construe it most strongly against the pleader, as the rule requires us to do where a pleading is challenged by demurrer.

We have not overlooked the cases cited by counsel for appellant. The most of these cases the writer of this opinion discussed in this connection, in the case of Black-Clawson Co. v. Carlyle Paper Co., 133 Ill. App. 61. The distinction there made applies to the whole class. None of them hold that the mere selling and delivering of merchandise in this state, through the instrumentalities of “drummer” and common carrier, in the ordinary course of business, by a foreign corporation engaged in such business, is within the meaning of the statute.

Counsel relies specially and principally upon a quite recent decision of the Supreme Court, the case of United Lead Co. v. The J. W. Reedy Elevator Manufacturing Co., 222 Ill. 199. We think counsel quite misapprehended the scope of this case and its bearing-up on the controlling question in the case at bar. The controlling question in the case cited was, whether the right of such foreign corporation to bring its action is barred by the statute or is merely abated, leaving to it the right to maintain the action if it shall hereafter comply with the statute, and is the only question decided in that case. The controlling question in the case at bar is whether it appears from the plea, when most strongly construed against the pleader, that appellee was transacting business in the state of Illinois within the meaning of the statute upon which appellant’s plea is based. This question was in no manner raised, involved or decided in the case of the United Lead Co. v. The J. W. Reedy Elevator Co., supra. The writer of this opinion has examined the original record and the briefs of counsel in that case and finds that the record discloses a state of facts not appearing in the opinion of the court for the reason that the issues raised did not require their disclosure.

In that case counsel say in their brief: “It will be seen from the affidavit of Graham Eeedy that the court is not embarrassed by the question of foreign corporations engaged in the business of interstate commerce ; the plaintiff in this case, a foreign corporation, was doing business in the state of Illinois, under a different name than its corporate name. It was doing-business under the name of E. W. Blatchford & Co. * * *. We have here a desperate attempt on the part of the plaintiff to evade the laws of this state and conceal its identity.”

The affidavit of Graham Eeedy, referred to, was made and filed in support of defendant’s motion to dismiss the suit on the ground that the plaintiff was a foreign corporation transacting business in the state of Illinois without having complied with the statute, and it states that the plaintiff in that case was a corporation organized under the laws of the state of New Jersey and that for a number of years it had maintained an established place of business in the city of Chicago, which it conducted in the name of E. W. Blatchford & Co., that E. W. Blatchford & Co. were agents for the plaintiff and “that the goods in question were purchased, sold and delivered all within the state of Illinois, and not by traveling salesmen or drummers, ’ ’ and that all the transactions were had with the plaintiff’s agents, E. W. Blatchford & Co., and all the goods were consigned to said agents and were delivered to the defendant by and through the said agents and agency.

We are of opinion that when appellant’s plea is properly construed, both with respect to what it does and what it does not contain, it discloses no more than that the goods in question in the case at bar were sold to the appellant by appellee in the ordinary course of interstate commerce through the instrumentalities of traveling salesmen or “drummers” and common carriers, and this we hold is not “transacting business” in this state, within the meaning of the statute upon which appellant’s plea is based.

We think the court did not err in sustaining appellee’s demurrer to appellant’s plea, and we find no reversible error in the record before us. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Hill Lumber Company, Appellant, v. James G. McLean et al., Appellees.
    This case is controlled by the decision in Lehigh Portland Cement Co. v. McLean et al., ante, p. 360.
    Assumpsit. Appeal from the Circuit Court of Richland county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the February term, 1909.
    Reversed and remanded.
    Opinion filed June 15, 1909.
    J. C. Ritter, for appellant.
    H. G. Morris, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action of assumpsit, in the Circuit Court of Bichland county, by appellant against appellees.

The declaration consisted of one special count, and the common counts. To this declaration appellees filed a demurrer; the court sustained the demurrer; appellant excepted and elected to stand by its declaration; and the court thereupon rendered judgment in favor of appellees against appellant in bar of its action and for costs. Appellant duly excepted, and has perfected its appeal to this court.

We do not deem it necessary to discuss, here, the questions sought to be raised on the demurrer with respect to the special count, further than to say that we are of opinion that they do not properly arise on demurrer. The same questions are presented by appellees herein, by a plea, in the case of The Lehigh Portland Cement Company v. James G. McLean and Ella McLean, Partners, etc., ante, p. 360. They will be discussed at some length in that case.

The common counts are wholly complete, both in substance and in form, and fully state a good cause of action in favor of appellant. against appellees. The Circuit Court erred in sustaining appellee’s demurrer to appellant’s declaration and in rendering judgment against appellant in bar of its action and for costs.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.