author: Me. Pbesiding Justice Myebs

text:
    J. Hallaboards, Appellant, v. City of Pinckneyville, Appellee.
    1. Appeals and errors—when propriety of giving peremptory instruction not subject to review. The propriety of the giving of a peremptory instruction is not subject to review where it does not appear that the bill of exceptions contained all the evidence heard by the trial court.
    2. Appeals and errors—when reversal may be pro forma. If the appellee does not file a brief the Appellate Court of the Fourth District may order a reversal pro forma.

    3. Res judicata—what does not bar second suit. A voluntary dismissal of one action does not bar the subsequent institution of a second suit for the same cause of action.
    Action in case for personal injuries. Appeal from the Circuit Court of Perry county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    I. B. Spilmah and A. H. Babe, for appellant.
    No appearance for appellee.
   Me. Pbesiding Justice Myebs

delivered the opinion of the court.

This was an action on the case brought by J. Hallaboards against the city of Pinckneyville, Illinois to recover damages for a personal injury to himself caused by a fall on a defective sidewalk, which occurred on the 14th day of June, 1907. The cause was brought to the November term, 1907, and was continued for service at that term, and at the May term, 1908, such proceedings were had that the plaintiff appealed from the decision of the court in overruling a demurrer to one of the defendant’s pleas.

Appellee has filed no brief; in this case and under Buie 27 of the Buies of Practice of this court, the judgment may be reversed pro forma. We have, however, examined the record and are clearly of opinion that the case should be reversed on the merits. The Circuit Court erred in overruling the demurrer to the first special plea in holding that the commencement and dismissal of one action without giving the notice required by Section 6, Chapter 70, Bev. Stat., was a bar to. another action for the same cause, which was begun after due and timely notice given. The voluntary dismissal by the plaintiff of the first suit was no bar to the second. This we understand from the record was the only question involved. Judgment reversed and cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Myers

license: Public Domain

text:
    The People, ex rel. Aaron Jackson, Appellee, v. John Bunyard et al., Appellants.
    1. Drainage—what does not disqualify appointment as commissioner. A person who is a landowner of the district is not thereby disqualified from appointment as a commissioner.
    2. Drainage—what does not create vacancy in position of commissioner. The failure of persons appointed as commissioners to give bond as required by statute before collecting and receiving money for the purposes of the district, does not ipso facto create vacancies.

      Quo warranto. Appeal from the Circuit Court of Fayette county; the Hon. Truman E. Ames, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded with directions.
    Opinion filed March 4, 1909.
    Albert & Matheny, for appellants.
    W. P. Welker, E. B. Spurgeon and Brown & Burnside, for appellees.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This is a proceeding by information in the nature of a quo warranto at the relation of appellee, Aaron Jackson, to oust the appellants from the office of drainage commissioners of the Fish Lake Levee and Drainage District in Fayette county. The appellants filed their plea in due form, to which a demurrer was filed by appellee and sustained by the court. Appellants excepted and elected to stand by their plea, whereupon the court rendered a judgment of ouster against each of the appellants, and that each of them be fined $1 and costs of suit. An appeal was prayed, allowed, and perfected to this court.

From the information and plea it appears that Fish Lake Levee and Drainage District was duly organized under the Act of 1879, and amendments thereto; that the relator, Aaron J aekson, appellee, owned land sub j ect to assessment in said district; that appellants, John Bun-yard, U. A. Winter and J. W. Crabtree, were appointed by the County Court drainage commissioners for said district; that the said commissioners took the oath of office as required by law and proceeded in the performance of duties prescribed by the statute; that each of the appellants, Bunyard and Winter, owned land in the district, but that appellant Crabtree, did not; that appellants faithfully and duly applied all moneys received and reported to the County Court as the law required; that up to the time of filing the petition herein, the appellants failed and neglected to file the bond required by section 32, chapter 42, Rev. Stat.; that soon thereafter, and long before this cause came on for hearing, they filed the required bond which was approved by the County Court.

Two questions are made by the pleading, and presented in the record before us. First, were the appellants “competent persons” within the meaning of the statute which authorizes the appointment of drainage commissioners,-for the district in question? And second, did the failure of appellants to file the bond required by section 32 of the statute operate ipso facto to create a vacancy, in the office to which they were appointed?

Under the first contention, it is contended by appellee that appellants being landowners in the district were thereby disqualified to “spread an assessment of benefit upon the lands in the district” which is a duty imposed by law upon the drainage commissioners, and, therefore, that they were not “competent persons,” eligible to appointment by the County Court. This contention is based upon a recent decision of the Supreme Court (Union Drainage District v. Smith, 233 Ill. 417), wherein it was held by a divided court, that it is ground for special objection to an assessment, that the commissioners own land in the district, for the reason, as stated by the court, they are personally interested in the assessment. But, in that case, it is expressly held that to avail, the objection must be made before confirmation of the assessment, else the objection will be waived. It is not said in the opinion, that a landowner is not competent for the office of commissioner, nor is there intimation or inference that his appointment is unauthorized. That commissioners who are landowners in the district may make a legally valid assessment, unless a special objection is interposed, is the conclusion of the Supreme Court in the Smith case, and nothing is to be inferred from that opinion that invalidates or annuls the appointment of the appellants in this case. In Scott v. People, 129 Ill. 134, this question was before the court, the objection under consideration being, that to permit landowning commissioners to pass upon the question of enlarging the district, would he to have the matter determined by an interested tribunal. In language that is pointed and applicable in answer to much that is said in argument by counsel upon a like contention here, the court says: “to a limited extent this Is true, but it does not therefore follow that the decision of the question, when made, would not he binding. In matters of mere local concern, which are of a public or quasi public character, this, in many cases, cannot be avoided without great inconvenience. It is everyday’s experience for property owners in small villages to sit as jurors in corporation cases for recovery of penalties under ordinances, and yet we presume there are few who would now question their right to do so, on the ground of interest. So township and county officers are constantly in the habit of making up and auditing their own accounts for services to the public, and no one, we presume, questions the validity of their acts on that ground. * * * To hold this objection good, would strike at the very foundation of the whole drainage system.” The authority and qualifications of drainage commissioners who were Interested as landowners in proceedings to annex territory was challenged in the case of The People ex rel. v. Cooper, 139 Ill. 461. It was contended in that case, that by reason of their interest as landowners, the commissioners were disqualified to act, and therefore, that the whole proceeding was unauthorized and void. The court says: “It is not the rule, so far as we are aware, that interest as land owners or taxpayers in a municipal or quasi municipal corporation disqualifies a person from holding an office in such municipality, or from performing any duty incident to such office, although his own personal or pecuniary interest may, to some extent, be affected by his action. And this must be especially true in case of drainage districts which are organized for the private interests of the landowners within such districts. * * * And the question is not materially affected by the fact that the ministerial or executive duties which he may be called upon to perform may involve more or less quasi-judicial action, or discretion akin to what may properly be called judicial. ’ ’ The case just cited was a' proceeding by quo warranto to oust the commissioners, and one of the grounds alleged was the same as in the case at bar, viz.: that the commissioners being landowners in the district were disqualified to hold office. The opinion therefore from which we quote has controlling application, and as we think is conclusive of appellee’s first contention.

Nor do we concur with appellee upon his second contention or proposition, that the commissioners forfeited all right to office by failing to give bond before they collected and received money for the purpose of the district, as provided in section 32, chapter 42, Rev. Stat. The right to the office is not conditioned upon compliance with this provision, neither by express terms nor by implication. The statute reads that “they shall not collect or receive any money for the purposes herein specified until they shall have given bond, etc.,” but it does not say that the office shall become vacant if the bond is not given, nor does it say that the commissioners may not perform other duties than collecting and receiving money. The filing of a bond was a condition precedent to the performance of one duty specified, but it was in no sense a condition precedent to their being qualified, installed in office, and legally authorized to do and perform all the other duties imposed upon them by the statute. Whether or not a refusal to comply with the law and give bond after due notice would authorize a forfeiture of right to the office, we need not consider, for until a forfeiture is declared by competent authority or occurs by operation of law, the commissioners may not be ousted by a quo warranto proceeding.

When the information was filed in this case, no forfeiture had been declared, and, at that time, the appellants were the legally appointed and duly qualified drainage commissioners, in the rightful exercise of their duties as such. Before the hearing they had filed the required bond, which was approved by the County Court, so that when judgment was rendered there was no foundation for the complaint. The purpose of the bond was to secure to the district the money collected, and the only positive breach of duty on the part of the commissioners was in collecting and receiving money before they gave the bond. But inasmuch as the money received was secured to the district by a bond, such as the statute requires, it was not material in deciding the demurrer to appellants’ plea, whether the bond was given before or after the money was received. The statute has made ample provision (sec. 41) for the removal by the County Court of drainage commissioners who fail in any of their legal duties, and for ■the wrongs complained of by this proceeding, that court affords adequate remedy, if indeed it has not exclusive jurisdiction in such matters, which we do not here decide.

The judgment of the Circuit Court will be reversed and the cause remanded with directions to overrule the demurrer to the defendant’s plea.

Reversed and remanded with directions.


text:
    Harry Retzloff, Appellee, v. Donk Bros. Coal & Coke Company, Appellant.
    This case is controlled by the decision in Donk Bros. Coal & Coke Co. y. Retzloff, 229 Ill. 194.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Wise, McNulty & Keefe, for appellant.
    Brown & Geers, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This action was brought by appellee against appellant in the Circuit Court of Madison county, issues were joined and a trial by jury resulted in a verdict and judgment for the plaintiff for $2,000. The defendant appealed and the judgment was affirmed by this court. On further appeal to the Supreme Court, the judgments of the Appellate Court and the Circuit Court were reversed and the cause remanded for another trial. The case was again tried upon the same issues and substantially the same evidence produced, and again the jury returned a verdict for the plaintiff, this time fixing the damages at $1,000. A motion for a new trial was overruled and for the second time the record is before us for review on the defendant’s appeal. A statement of the pleadings, the issues, and the facts will be found in our opinion on first appeal, to which reference is made. Donk Bros. Coal and Coke Company v. Retzloff, 133 Ill. App. 277.

We have carefully , examined the abstract and fully considered the argument of counsel and we find nothing in the evidence or errors pointed out to warrant a reversal of the judgment. For the most part errors now claimed in argument were considered and decided by this court, adversely to appellant’s contention on the first appeal, and, afterwards, by the Supreme Court on further appeal (229 Ill. 194). The record is now purged of the only error—a wrong instruction—for which the first judgment was reversed by the Supreme Court. We said of the first record that the evidence was conflicting upon material issues made by the pleadings, and that the questions of fact were properly submitted to the jury. We find nothing in this record to change our views in that respect. It will profit nothing to reconsider and again discuss in detail the argument of counsel and to do so would unnecessarily prolong this opinion. It is sufficient that we think the appellant has had a fair trial of its case and find no prejudicial error to justify a reversal of the judgment. It will therefore be affirmed.

Affirmed.


text:
    Henry Goode, for use of George Goode, Appellee, v. Mobile & Ohio Railroad Company, Garnishee, and D. D. Drake, Adverse Claimant, Appellants.
    Appeals and’errors—when questions of fact only presented for review. If a case has been tried before the court without a jury and no propositions of law have been submitted and no rulings upon evidence are complained of, only questions of fact remain for review.
    Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    A. B. Garrett and W. L. Coley, for appellants.
    N. C. Lyrla, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This is a garnishee proceeding, commenced before a justice of the peace, by which appellee, George Goode, seeks to recover from the Mobile and Ohio Railroad. Company, $97.68, wages earned by his brother, Henry Goode, against whom he obtained a judgment for $107.29. On the garnishee summons the railroad company answered, admitting $97.65, wages of Henry Goode in hands, but that the same is claimed by D. D. Drake, by virtue of prior assignment by Henry Goode. The justice rendered judgment in favor of George Goode, from which an appeal was taken to the City Court of East St. Louis. D. D. Drake interpleaded his claim in the City Court, where, upon hearing before the court without a jury, a judgment in garnishment was rendered against the Mobile and Ohio Railroad Company, in favor of Henry Goode, for the use of George Goode, for $97.65, and against D. D. Drake, the inter-pleading claimant. From this judgment Drake appealed.

No propositions of law having been submitted and ruled upon by the trial court, there remains only questions of fact for this court, to determine. Downing v. Kirkpatrick, 125 Ill. App. 542.

Henry Goode was in the employ of the Mobile and Ohio Eailroad Company as a conductor, and on August 1,1906, by written instrument, assigned to D. D. Drake his anticipated wages for the months of August and September, 1906, which, from the evidence, was security for a loan of $25 for which Goode also gave four notes of $9.25 each, payable in one, two, three and four months respectively. He earned $97.65, and quit work within the time covered by the assignment. Thereafter followed the judgment in favor of George Goode and garnishee proceedings as hereinbefore stated.

This contract or assignment was made in St. Louis, State of Missouri, and under the statute of that state, which is shown by the evidence, it was invalid and illegal. The appellant, Drake, is therefore without any right or claim to the fund here in controversy. The statute of Illinois relating to the assignment of wages, upon which appellant further relies, has, since this appeal was taken, been held to be unconstitutional by the Supreme Court of Illinois, so that we are not called upon to consider the effect of the assignment under that act. We deem it unnecessary to discuss other questions made in argument. Inasmuch as no legal right or claim of the appellant is affected by the judgment of the City Court it will be affirmed.

Affirmed.


author: Me. Presiding Justice Myees

text:
    O. W. Payne, Appellee, v. Corn Products Refining Company, Appellant.

      Verdicts—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review in the absence of errors of law.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Btjreoughs, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Thomas Stallings, for appellant; John A. Bloomingston, of counsel.
    D. J. Sullivan and J. M. Bandy, for appellee.
   Me. Presiding Justice Myees

delivered the opinion of the court.

This action was brought by appellee to recover damages for injuries sustained while in the employ of appellant. The declaration is in two counts by which it is alleged, in substance, that appellant, a manufacturing company, employed appellee as carpenter and mill-wright for service in and about its plant; that appellee was inexperienced with machinery and appliances used in the plant; that his foreman called him from his usual duties and negligently ordered him to assist in cleaning out á certain convéyor-box and repair the conveyer which, when in motion, was operated by á belt and pulleys connecting with the power-shaft ; that the belt was torn and frazzled with strings or Strips coated with glued sé hanging therefrom, and liable to attach to the C&ñvéyof-shaftj Causing it to revolve.; that whéri appellee was' ordered to clean the conviyor-box the Conveyor wUS hot in motion, the belt having been slipped frotó the conveyor-pulley, hut left On the power-pulley and around the conveyor-shaft which it looped; that by reason of its defective condition, and the glucose coating, the hanging strips from the running belt became attached to the conveyor-shaft and gave it a sudden turn while appellee was in the box, causing his injury. The first count is predicated upon a negligent order, and the second, upon negligence in not providing a safe place to work. It is alleged that the appellant knew or should have known the defective condition of the belt, and that appellee did not know it, and that appellee was in the exercise of due care and caution for his own safety.

The general issue was filed and the case tried by a jury which returned a verdict for the plaintiff, assessing damages at $1,262.25. The defendant moved for a new trial, which was denied and judgment on the verdict rendered. An appeal was prayed, allowed and perfected to this court.

Appellant was engaged in the manufacture of food products and had in use an appliance, called a conveyor, which, when in operation, is a horizontal revolving shaft, encircled by a worm flange, in a box or trough, and conveys pulp or materials from the. presses which empty into the encasing box. The box is eighteen inches deep and fourteen inches wide. The conveyor in question, called a press conveyor, was in sections fourteen feet long, coupled at the ends by a gudgeon. The pulp was carried through the press conveyor to a cross-conveyor, and through the cross-conveyor to the drier. The press-conveyor extended east and west and was operated by a belt and pulley on the conveyor-shaft at the east end, connecting with a pulley on the power-shaft above. On the day of appellee’s injury a section coupling of the conveyor-shaft had been broken and it became necessary to remove the broken section. To do this it was necessary, first, to clean out the box and remove the pulp or material which had gathered and clogged under the conveyor-shaft. J. A. Johnson, the foreman, directed appellee and two other workmen to remove the defective section and clean out the conveyor-box. The easterly section, to which was attached the pulley, extended under one of the presses and could not be lifted out so that, to remove the clogged material under the shaft, the men used their hands. The east end of this section was held in place by the pulley-block and could not be raised. By means of a rope, looped over the gudgeon, one of the men raised the west end while another man with his hands raked out the material underneath. Appellee worked on the opposite side of the press, and between it and the cross-conveyor, near the end of the shaft. He was on his knees in the conveyor-box, with head under the press reaching with his hands to pull out and throw back the material. While the men were at work, as stated, the belt was off the conveyor-pulley, hanging loosely around the conveyor-shaft, but was still running on the moving power-pulley above. The belt was eight inches wide, made of hemp and rubber-coated. Glucose had been used to prevent it slipping. It was worn, torn and frazzled, with strings and fragments four to six inches in length hanging from it. While appellee was in position and at work as stated, the press-conveyor shaft suddenly turned partly around, caught his hand and leg causing the injury complained of. No one saw the belt attach to the conveyor-shaft and cause it to turn as alleged in the declaration. Two witnesses for appellant—the men at work with appellee—testify that they were looking directly at the shaft when the accident occurred, and that it did not turn. Other circumstances in evidence, however, support appellee’s theory and declaration, that the torn fragments of the moving belt became attached to the conveyor-shaft and started it. There is evidence that the belt was on the power-pulley, that fragments of belt covered with glucose were found wrapped around the conveyor-shaft after the accident, and that appellee was six or seven feet from the cross-conveyor, the only other suggested possible means by which the injury could have occurred. Besides, there is no evideuce that the cross-conveyor was running at the time. Johnson, who was at the time foreman, testified, that he had frequently called his superiors’ attention to the defective condition of the belt, and complained of the application of glucose in its use. There is sharp conflict of evidence on material issues, but after a careful examination of the record and consideration of the arguments of counsel, we cannot say that the verdict is against the manifest preponderance of the evidence.

Complaint is made of one of appellee’s given instructions in failing to hold the appellee to the exercise of reasonable care in discovering the peril to which he was exposed. Though the instruction may be subject to criticism, we do not think it was calculated to influence the jury to appellant’s prejudice, and therefore that it was not reversible error to give it. The judgment will be affirmed.

Affirmed.


author: Mb. Peesiding Justice Myebs

text:
    Charles H. Steel et al., Appellees, v. The Peoples Oil & Gas Company, Appellant.

      Contracts—right to damages for breach in absence of exercise of option otherwise to satisfy breach. If a lessee of oil lands is obligated to pay in damages, or, at his option, in a release of a portion of the demised premises for failure to drill as required by his lease, his failure to exercise his option to release such land entitles the lessor to recover his damages in money, as provided by the lease; and a provision for two dollars per day for failure to drill, held, in this case, liquidated damages and not a penalty.

      Assumpsit. Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    McCarty & Arnold and Golden, Scholfield & Scholfield, for appellant.

      Eagleton & Wesneb, Pabkeb & Newlin and Callahan, Jones & Lowe, for appellees.
   Mb. Peesiding Justice Myebs

delivered the opinion of the court.

This action was brought in the Circuit Court by appellees to recover from appellant indebtedness claimed to be due under written contract or lease. The declaration is in assumpsit on written contract set out and common counts added. The general issue was filed and the case tried by jury, which returned a verdict for plaintiffs, assessing damages, $1,128. A motion for new trial was overruled and judgment rendered on the verdict, from which the defendant appealed.

By written instrument of date February 15, 1907, appellees leased to appellant forty acres of land for the purpose of operating thereon for oil and gas, with certain rights, covenants and obligations pertaining to such operation duly specified. Appellant, lessee, went into possession of the premises described, drilled and completed one well within sixty days of the time-limit provided by the lease. The well proved to be worthless, and thereafter nothing was done by appellant in drilling or boring other wells contemplated by the lease, nor was there any formal abandonment or surrender to right of operation on the premises until February 18, 1908, when appellant canceled the lease in manner and form as provided by the lease. Thereupon, this suit was brought to recover two dollars per day rental or damages because of appellant’s failure to drill and complete other wells as required by the following clause of the lease:

“It is provided that this lease shall become null and void if a well is not completed on the premises within sixty days from the date hereof, unavoidable delay excepted, and second party agrees to complete a well every sixty days thereafter until four wells are completed on said premises, unavoidable delays excepted, and second party agrees to pay two dollars per day for each and every well not completed as herein specified or forfeit ten acres of the undrilled portion of said premises and second party also agrees to protect all lines by off-setting wells within three hundred feet of the line of said premises.”

It is not contended' by appellant that more than one well was completed, nor is there any evidence of surrender or cancellation of the lease by appellant as it was privileged to do' by the last clause which reads: “upon the payment of $1.00 at any time by the lessee, its successors and assigns to the lessors, their heirs or assigns, the said lessee, its successors or assigns shall have the right to surrender this lease for cancellation after which all payments and liabilities thereafter to accrue under and by virtue of its terms shall cease and determine and this lease become absolutely null and void.” It is true, as contended by appellant, that it had the right either to pay two dollars per day, or surrender ten acres of the undrilled portion of the premises for each well not completed, but it nowhere appears that it exercised or declared its option in release of its obligation. It was therefore within the contract right of appellees to demand "money payment which being refused gave them a right of action. It is in evidence that appellees, on more than one occasion, informed appellant that they were claiming the two dollars a day payment, so if there was lack of diligence in asserting rights under the lease it was on the part of appellant in failing to surrender and release portions of the land under the ten acre provision. If conceded that appellant had the right in October to decide whether to pay two dollars a day or surrender ten acres of land, still, in order to avail itself of that right, it should at least have declared its option and tendered a release of the land. Whether appellees were, in October or thereafter, notified of appellant’s purpose or desire to forfeit and release land in lieu of payment in money, is a disputed question under conflicting evidence, and the jury have found adversely to appellant. We are not impressed by appellant’s contention that the obligation to pay two dollars a day is to be treated merely as a penalty and not as agreed and liquidated damages, and that proof of actual damages must be made. We do not think this a reasonable construction of the contract, nor is it in accord with the manifest intention to be derived from a fair consideration of the entire contract and the purpose for which it was made. By the terms of the lease appellants secured and retained the exclusive right to the oil and gas supposed to be available by boring wells upon appellees’ land, and for that it agreed to pay as rental one-sixth of the oil produced and one hundred dollars annually for each gas-producing well. And as a further consideration for the lease, appellant agreed to drill and complete at least four wells or, failing to do so within the time agreed upon, to pay two dollars a day for each well not completed, or cancel its lease pro tanto or altogether. Appellant could surrender the premises and cancel the lease and relieve itself from obligation at any time, but appellees had no such option, and it is fair to infer that both parties had in contemplation the payment of some rental for time beyond that required and allowed for development. The agreed compensation for delay is not to be regarded as a penalty. Whether it be called liquidated damages or rental, is not material for, within a reasonable construction of the contract, it may be either. There was no substantial error in the giving of instructions. The judgment will be affirmed.

Affirmed.


text:
    W. Scott Marshall, Appellant, v. Henry T. Davis, Appellee.
    1. Verdict—when set aside. A verdict manifestly against the weight of the evidence will be set aside on review.
    2. Triad—when remarles of counsel ground for reversal. If the remarks of counsel in argument are improper and result in prejudice to the other party, a new trial should be awarded.

      Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    June 0. Smith, for appellant.
    A. D. Rodenberg, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

The appellee leased certain premises in the city of Centralia from the appellant for one year from the first of January, 1906, to the first of January, 1907. The lease was in writing and provided that the appellee was to pay as rent the sum of $360, payable in monthly instalments of $30 each. The appellee remained in possession of the premises until the 27th day of February, 1907, when he vacated the same. No lease for another year commencing at the expiration of the lease mentioned was signed or entered into by the appellee. This suit is brought to recover the sum of $300 as rent for the remaining ten months of the year—from the first day of March, 1907, to and including the 31st day of December, 1907, which sum is claimed to be due by reason of a hold-over term of tenancy. The declaration was in assumpsit, to which appellee filed the general issue and a special plea setting up that before the expiration of the written lease, the plaintiff entered into a verbal agreement with the defendant to make a new lease for the premises for another year from the expiration of the old lease, to repair and improve the premises within a reasonable time, in consideration of which, defendant agreed to pay an increased rental of ten dollars per month following the completion of the repairs, which were specified,. and relying upon said agreement, defendant remained in possession until February 27, 1907, when, because of plaintiff’s failure to make the repairs agreed to, he moved out and surrendered possession. The case was tried by a jury which returned a verdict in favor of the defendant. A motion for new trial was denied, the court rendered judgment on the verdict, and the plaintiff appealed. A number of errors appear in the assignment, but in argument appellant relies upon two propositions, namely, first, the verdict is contrary to the law and the evidence; and second, that counsel for appellee used improper and prejudicial remarks in argument before the jury. There being-no disputed question of fact, it remains to determine whether the verdict is contrary to the manifest weight and preponderance of the evidence. The appellee testified to a conversation with appellant in the early part of November, 1906, the substance of which was, that appellant agreed to make certain specified repairs on the premises within a reasonable time, and. that appellee would take a new lease at an increased rental of ten dollars a month as soon as the repairs were completed. In this he is corroborated, in part, by two other witnesses who overheard a conversation between appellant and appellee, in which matters of repairs and increased rent were discussed, but neither of the witnesses testified to an agreement for a new lease or the time and terms of such an instrument. In rebuttal, the appellant flatly contradicts the appellee and denies that any such agreement was made or talked of. He testifies that there was some'talk of certain improvements wanted by appellee, and that appellee was to see a contractor, procure an estimate of cost and send it to him, but that no agreement was made as to improvements or for a new lease, and that neither party mentioned, or had in contemplation, 'other than the then existing lease. Three or four letters written by appellee to appellant, after the alleged conversation and agreement, were admitted in evidence and appear as exhibits in the record. It would unnecessarily encumber this opinion to set them out in full, but we are strongly impressed with the probative value of these letters in rebuttal of the appellee’s testimony.

After the alleged conversation and agreement, a number of letters passed between the parties, relating in such manner to rent, repairs, appellee’s possession and vacation of the premises, as would naturally and necessarily move the appellee to assert his claim under such an agreement, if made, or by other significant act or allusion raise the question with appellant. Nowhere in this correspondence is any mention made by appellee or appellant of any agreement between them for a new lease. From the tenor of their letters, it may fairly be inferred that neither party understood that an agreement to lease the premises to appellee after December 31, 1906, had been made. The verdict is contrary to the clear preponderance of the evidence, and may be accounted for in whole or in part because of prejudice in the minds of the jury, excited and inflamed by the highly improper and prejudicial remarks of counsel in argument, which are shown by the record and to which exception was duly made and preserved. Upon this branch of the case we do not deem it necessary to make further comment, except to repeat what was said in Centralia v. Ayres, 133 Ill. App. 290: “It is the motive that deserves rebuke and where it is seen that the intended effect of improper remarks is to excite the passions or prejudice of the jury, neither the attorney nor his client may complain if the verdict is set aside for that reason alone.”

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    William J. Reichert et al., Appellees, v. Missouri & Illinois Coal Company, Appellant.

      Evidence—when complaint cannot be made of absence of. The absence of material evidence cannot be made the subject of complaint upon appeal where such absence was due to the objections sustained at the instance of complaining party.

      Assumpsit. Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    L. P. Grigler, J. B. McMurdo and U. C. Lyrla, for appellant.
    Dill & Pfingsten, Schaefer, Parmer & Kruger and L. D. Turner, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

We adopt appellant’s statement of the case. “This is a motion filed in the Circuit Court of St. Clair county, June 15, 1908, to quash an execution and retax the costs in the above entitled case, the execution purporting to have been issued out of the office of the clerk of the Circuit Court on June 11,1908. The main ground relied upon for the quashing of the execution is that said execution is unwarranted, illegal and contrary to law for the reason that it shows upon its face that it had been altered by a change in the date of the same. The grounds relied upon for retaxing the costs in the case are that said execution includes items of costs in the case that are illegal and should not be assessed against the defendant, and that after the trial of the case in the Circuit Court, a new party was added to the judgment.”

Upon hearing the court denied the motion and by appeal appellant seeks to reverse that order. The ground relied upon for a reversal, the only objection which is now made to the execution, viz.: that it shows upon its face an alteration in date, was not included in the grounds set forth in the written motion filed in the trial court, nor does the objection, specifically stated, appear in the assignment of errors. It appears, however, that in the hearing before the Circuit Court, the appellee offered evidence in explanation of the apparent change of date in the execution. The appellant objected to this evidence and the court sustained the objection for the reason, as stated, that the proposed evidence was not relevant under the issues made by the motion, the change in date not being included in the grounds set out in the motion-. The apparent change in the date of the execution was subject to explanation by evidence, which appellee offered and which was excluded on objection of appellant. By this objection to evidence and acceptance of the court’s ruling, and the reasons therefor, the appellant has waived any right to have the question of alteration in the execution considered on appeal. The court did not commit reversible error in refusing to retax the costs.

The judgment will be affirmed.

Affirmed.


author: Mb. Presiding Justice Myebs

text:
    People, ex rel. William. E. Keen, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Railboads—obligation to construct farm crossings. Unless the land upon the two sides of the track is used for agricultural purposes, .the railroad company is not required to build a crossing; if, however, such land is so used the duty of such company is performed when it provides a crossing at such place as will best serve the purpose, the interest of all parties being duly considered.
    2. Mandamus—what essential to maintenance. In order to entitle the petitioner to the issuance of the writ, a clear right must he established.

      Mandamus. Appeal from the Circuit Court of Wabash county; the Hon. Enoch E. Newhcn, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed.
    Opinion filed March 4, 1909.

      Congee & Congee and P. J. Kolb, for appellant.
    E. B. G-been and Theo. G-. Bisley, for appellee.
   Mb. Presiding Justice Myebs

delivered the opinion of the court.

This is an appeal from the judgment and order of the Circuit Court in a proceeding by mandamus, brought by appellee, as relator, to compel appellant to construct a farm-crossing over its track and right of way opposite the end of Second street, in the village of Keensburg, in Wabash county. The case was tried by the court upon issues made by petition and answer, and the trial resulted in a finding in favor of appellee. Whereupon the court entered a judgment and order requiring appellant to construct the crossing-prayed for. The defendant appealed.

At the time of filing his petition in this case, appellee was the owner of a certain described tract of land west of and abutting appellant’s railroad right of way. On the opposite side of the railroad right of way lies the incorporated village of Keensburg. First and Second streets in Keensburg are in line at right angles with the railroad and terminate with the corporate limits on the west, which, as already stated, is the railroad right of way. The streets are numbered in successive order from the north and the distance between First and Second Street is about four hundred feet. Appellee’s farm-buildings are located west of the railroad right of way and south of Second street line, if extended. Prior to the year 1906, appellant’s depot at Keensburg was situated on its right of way in front of appellee’s dwelling house, and a crossing over the railroad was maintained south of the depot, and about 120 feet south of Second street terminus. In 1906, appellant rebuilt and re-constructed its railroad, adjoining appellee’s premises, by excavating the right of way and lowering the tracks from seven to ten feet, leaving a cut nine or ten feet deep at Second street. The depot was moved north one block to a point opposite the end of First street, where appellant made and provided, in good condition, a crossing for public use and accessible to appellee in going to and from the village. A wooden stairway for the use of foot passengers was put in on each side of the cut at the old crossing. On the south side of appellee’s land was a public highway leading to a crossing over appellant’s right of way at a point about 1,000 feet from appellee’s dwelling-house. The foregoing is a sufficient statement of facts and conditions to determine the merits of contentions upon errors assigned.

This proceeding is based upon the Bailway Act, chapter 114, Bevised Statutes, wherein among other duties imposed upon railroad companies, it is provided by section 62 (Hurd), that “farm crossings shall be constructed * * * when and where the same may become necessary for the use of the proprietors of the lands adjoining such railroad” etc. The first, and a vital question to be determined is, whether or not the crossing sought to be enforced by this proceeding is a “farm crossing” within the meaning of the statute. If it is not, the statute invoked has no application, and the action cannot be maintained, for upon no other theory advanced can it be claimed that the appellee has shown a clear legal right for the writ which the Circuit Court awarded. A “farm crossing”, as the term indicates, and as the statutes specifies, is “for the use of the proprietors of land adjoining” the railroad, and clearly it relates to lands devoted to agriculture. The purpose of such a crossing, and of the law in requiring it, is to afford a convenient private passage way between farms situated on opposite sides of the railroad, and while we are not prepared to hold, as contended by appellant, that a farm crossing may be required only by one who owns the land on both sides of the railroad (it not being necessary in this case to so hold), yet to authorize a writ of Mandamus it should be made to appear that the farming use of the lands renders necessary their connection by a crossing. In a recent case (Williams v. C. & N. W. Ry. Co., 132 Ill. App. 274), wherein the facts were similar and the questions raised, in some respects, were the same as in this case, the court defines a farm-crossing, and construes the statutes. In that case the plaintiff proceeded under sections 60-66 of the statute, to secure a farm-crossing to connect with an alley of the city of Rockford, and thereby effect a needed outlet to make his land accessible. In that case as in this there had formerly, for a long time, been a crossing at the point in controversy which the railroad company had removed. After due notice required by law, the plaintiff brought suit to recover double the value as provided in section 66. In discussing this case the Appellate Court says: “We have no doubt that the farm-crossings required by this statute were intended for the purpose of agricultural lands. * * * If the legislature had intended by the original act to provide for crossings for business purposes in cities and villages, it would not have adopted the term ‘farm crossings’ which by its natural meaning restricts the provision to farms, but would have used some such term as ‘private crossings’, and if the legislature in 1879 intended that thereafter private crossings for business purposes should be provided in parts of cities and villages as are not laid out and platted into lots and blocks, surely, while amending the section, it would have dropped the word ‘farm’ and would have substituted some language fitted to express the intended change.” On appeal the judgment of. the Appellate Court was affirmed by the Supreme Court. (228 Ill. 593.) Applying the definition of farm-crossing, and construing the statute as was done in the Williams case, to the facts in this case, we are of opinion that appellee is without remedy under the statute invoked by his petition. Obviously, the purpose of appellee was to secure a street or road-crossing to afford him more convenient access to the village and Ms business, other than farming. And it may be that the situation of Ms farm is such as the law would authorize or provide a private road, but the statute upon which he relies does not require that appellant shall build such crossing. Even if the statute could be construed as contended by appellee, we are fully persuaded that under the circumstances and conditions appearing in evidence, the petition should have been dismissed for the showing did not warrant the judgment and order. If, under the statute, the appellant was required to build a crossing between appellee’s farm and the village of Keensburg, the location of the same was not to be determined arbitrarily and conclusively by appellee. Not only the necessity for such crossing but the location is, in a large measure, left to the discretion of appellant. In no case can a railroad company be held to build a farm-crossing at a designated point, unless it clearly appears after considering the convenience of the company, the safety and convenience of the public, as well as that of the farmer, that it is necessary and practicable. The duty of the company under the statute is fully performed when it provides a farm crossing, if needed, at such place as will best serve the purpose, the interest of all parties being duly considered. Chalcraft v. L. E. & St. L. R. R. Co., 113 Ill. 86. It is not to be determined alone by the arbitrary or captious judgment of the corporation, on the one hand, nor that of the farmer or landowner on the other. In a proceeding to compel the company to provide a different crossing from that already constructed, it must be shown that a crossing is necessary within the meaning of the statute, that the one provided is not reasonably sufficient for the purpose, and that the crossing wanted is practicable, the interests of all parties being considered.

It is here sought to compel a crossing at a point different from that selected by appellant. It is not contended that more than one crossing is required, and though alleged in the petition that the railroad company had for many years prior to the making of the improvement maintained a crossing at Second street, the undisputed evidence is that the old crossing was near the middle of the block south of Second street. So that the proposition is to be considered as above indicated. That being the question, we are of opinion that, aside from any legal obligation of appellant to construct and maintain a farm crossing for the convenience of appellee, the crossing at First street was and is sufficient to meet the requirements of the law. In conformity with the views above expressed it will not be necessary to consider further the argument and contention of counsel. Under the conditions and circumstances appearing of record, we do not think appellant was required by statute to provide a farm crossing for the convenience of appellee, and therefore the judgment of the Circuit Court must be reversed without remanding.

Reversed.


text:
    The People of the State of Illinois, Defendant in Error, v. W. B. Smith et al., Plaintiffs in Error.
    1. Conspiracy—when indictment sufficient. An allegation that the defendant and one Samuels “did conspire and agree together” is' sufficiently technical and certain to charge the crime of conspiracy.
    2. Conspiracy—what evidence competent. Evidence tending to show the relation of the parties, the purpose of the combination, the preliminary steps taken to effect that purpose, even before the object to he effected is certainly ascertained, is within the scope of Investigation to establish a conspiracy.
    3. Conspiracy—what evidence competent. Once there have been shown facts evidencing the existence of a conspiracy, all the acts and conversations of any one co-conspirator are admissible against all.
    4. Criminal law—when election as to indictments properly not

      required. It is not error to refuse to compel the state’s attorney to elect under which of two pending indictments he will proceed where a sufficiently specific bill of particulars has been supplied to the defense.
    5. Continuance—when properly denied in criminal case. A continuance asked by the defendant because of the absence of a material witness is not improperly denied where the expected evidence of such witness is admitted.
    6. Tbiae—when arguments of counsel improper. It is improper for the state’s attorney urging a conviction to disclose the property situation of the parties, but held, in this case, that the impropriety was not ground for reversal.
    Criminal prosecution for obtaining money by false pretenses. Error to the Circuit Court of Jackson county; the Hon. William N. Butleb, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    W. F. Ellis, Wm. P. Wilsoh and Fred Gt. Bierer, for plaintiffs in error; R. J. Stephens, of counsel.
    W. A. Schwartz, John M. Herbert, Isaac K. Levy, W. H. Stead and Otis F. Gtlehh, for defendant in error.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

In this case the plaintiffs in error were indicted, convicted and sentenced under an indictment charging conspiracy to obtain money by false pretenses from the Elkville State Bank, a corporation organized under the laws of the State of Hlinois.

In May, 1906, W. B. Smith and R. P. Samuels, strangers in the community, went to Elkville, Illinois, a village of about one thousand inhabitants, to organize and establish a bank. By solicitation and representation they secured subscriptions from persons living in Elkville to make up the required amount of capital stock, $25,000. In due course the bank was organized with Samuels as cashier and opened for business on September 18, 1906. In self-introduction, and as inducement for subscribers for the capital stock, it was represented by 'Smith and Samuels that Smith was financially connected with divers large business enterprises throughout the county, that Samuels, a young-man, had recently inherited a large sum of money and wanted to embark in the banking business, and that together they would take $10,000 of the required stock, leaving to local parties the remainder of $15,000. It was further promised and arranged with the proposed subscribers, that the directors and officers of the bank, except the cashier, should be of the local subscribers, and that Samuels was to be appointed cashier. In the list of those agreeing to subscribe, W. B. Smith appears for $7,500 and Samuels for $2,500, aggregating $10,000, as proposed, but in the list of subscribers to the capital stock taken by the commissioners under license to incorporate the bank, the name of W. B. Smith disappears altogether, and that of Samuels remains for $5,500. It nowhere appears that Samuels, at that time, had means present or prospective, with which to pay the amount of his subscription. To effect this, however, James 'S. Nall, one of the plaintiffs in error, sent Samuels a cheek for $1,500, on the Missouri Valley Bank of Grand Tower, Illinois, of which Nall was then president, with directions to refund by check on the Elkville Bank as soon as it was opened for business. With this check and $4,000 borrowed of a party in St. Louis, upon his forty-five shares of stock, as security, Samuels was able to make showing of payment on stock. Other subscribers having paid in the amount subscribed, final certificate of incorporation was obtained and, as already stated, the bank on September 18, 1906, opened for business. Immediately thereafter worthless checks and drafts, aggregating" large sums, were sent to Samuels by Smith and Nall to be credited in each instance as a cash deposit, usually to Smith’s account, and against which checks were drawn and paid before the worthless drafts could be returned in due course of business. By this manner of business and manipulation of eXchange, the bank was defrauded of $5,691.33 which, according to ledger account, was charged to Smith $5,191.33, and to Nall $500. The evidence is some-, what voluminous, oral and documentary, relating to letters, drafts, checks, connections and tranactions touching the matters in controversy, but greater detail of statement will not be necessary to a discussion of the questions to be determined. The legality and regularity of proceedings in the trial court was challenged upon many points by timely objection and exception which, by numerous errors duly assigned, are brought before this court for review. We will not discuss in order and detail all the errors assigned. To do so would prolong this opinion beyond what is necessary to make clear our conclusions and the reasons therefor. We have carefully read all the evidence and are impressed by the gravity and importance of the case and have fully weighed and considered the argument of counsel in their several contentions.

The indictment herein charges the plaintiffs in error with agreeing and conspiring with one E. P. Samuels, who is now deceased, to obtain from the Elk-ville State Bank, $5,200 by false pretenses. At the August term, 1908, of this court, the writ of error was dismissed as to W. B. 'Smith, and the cause is now pending on further proceeding, by James S. Nall, alone.

The trial court did not err in denying the motion to quash. The allegation that the defendants with one Samuels “did conspire and agree together” is sufficiently technical and certain to charge the crime of conspiracy. Nor was it error not to compel the prosecution to elect under which of two pending indictments against defendants he would proceed. A sufficiently specific bill of particulars was furnished by the state’s attorney, and the defendants’ motion in that regard was properly overruled, as was, also, the motion by the defendants for a continuance. The admission by the state of the evidence expected from absent witnesses mentioned in the affidavit was all that could be required, and especially, as one of the principal witnesses on account of whose absence the motion was founded, appeared and testified. There was no showing under second motion to quash to invalidate the indictment. The evidence proposed, even if admitted, was not sufficient to impeach the indictment or the action of the grand jury. Gitchell v. The People, 146 Ill. 175.

Complaint is made that some of the evidence antedates the certificate of the bank organization and therefore was not properly admitted, being in proof of a conspiracy to defraud a bank not then in existence. Specific objection was not made to this evidence in the trial and it was not therefore preserved for consideration on appeal. However, it may be observed, in this connection, that evidence tending to show the relation of the parties, the purpose of the combination, the preliminary steps taken to effect that purpose, even before the object to be effected is certainly ascertained, is quite within the scope of investigation to establish a conspiracy, the very gist of this action, and within the rule announced and discussed in the case of Spies v. The People, 122 Ill. 1. Once there have been shown facts evidencing the existence of a conspiracy, all the acts and conversations of any one co-conspirator are admissible against all, and within that rule, all the letters of Samuels were properly admitted in evidence. That Samuels was advised and warned of the worthlessness of certain bills passing through the bank (Exhibits 44, 45 and 46) was important and material as tending to prove the action and intent of one of the alleged conspirators, and, under the rule just stated, was admissible against all. Other rulings in the admission and exclusion of evidence are challenged by the plaintiffs in error, but the objections were properly overruled in the main for reasons already stated. We do not find substantial or prejudicial error in the court’s ruling upon evidence.

It was not proper for the state’s attorney in his argument to the jury to assert and press his belief in the defendants’ guilt, though to do so was no more than to express, what may be inferred from an earnest argument to convince the jury, that guilt was the only reasonable conclusion from the evidence. That he should advocate conviction carries with it the necessary inference of his belief for he would fail in duty by prosecuting one whom he believed to be innocent of the charge. He should not have been permitted to discuss the insolvency of the defendants as an element in fixing punishment by the jury, for the law makes no property distinction when imposing penalty for conspiracy. We do not think, however, that this judgment should be reversed because of the remarks made in argument.

Complaint is made of a number of instructions, some of which are subject to criticism, being repetition of a correct principle of law, or the statement of an abstract proposition not applicable. In a large number of instructions asked and given on both sides, such errors are likely to occur, but in this case we think the errors and repetitions were harmless. The instructions as a whole, when considered together, are substantially accurate in the statement of legal principles by which the jury should be governed and we cannot say that either in form or substance they were calculated to mislead the jury to the prejudice of the defendants.

The evidence tends strongly to prove the guilt of the defendants as charged in the indictment and after a careful consideration of the entire record we are constrained to hold that the verdict is just and that the judgment should be affirmed.

Affirmed.


author: Mr. Justice Creighton

text:
    Taylor Dodd, Appellant, v. Fruit Growers Refrigerating & Power Company, Appellee.
    1. Verdict—when special findings not consistent. Special findings which are not responsive to any proper issue in the cause will not affect the general verdict as being inconsistent therewith.
    2. Appeals akd ebbobs—what question not considered upon review. Rulings complained of hut not pointed out hy abstract or brief will not be considered.
    Action in case. Appeal from the Circuit Court of Union county; the Hon. William N. Btjtleb, Judge, presiding.
    Heard in- this court at the February- term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    Rehearing denied February 25, 1909.
    W. D. Lyerle and Taylor Dodd, for appellant.
    A. Nby Sessions, James Lingle and P. E. Hileman, for -appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit in case, in the Circuit Court of Union county, hy appellant against appellee, to recover damages to abutting property, alleged to have been caused by appellant in the construction of its car and electric light lines, upon a public street, in front of appellant’s residence property, in the city of Anna. Trial by jury. Verdict and judgment in favor of appellee.

The declaration charges that appellee so negligently constructed its car line and track upon the public street, along and in front of appellant’s premises, as to destroy his “ingress and egress to and upon the street;” and that in erecting its electric light poles and stringing its wires, appellee negligently and unnecessarily injured certain shade and ornamental trees which appellant’s predecessor in title and appellant had planted and grown upon the public street, upon which his premises abutted.

Many questions are suggested and urged in this ease that are,in no manner involved in the record. In each count of the declaration appellant bases his action on the ground of negligence in construction, and bases the measure of his damages upon depreciation of market value of his premises. In addition to their general verdict finding the defendant not guilty, the jury returned therewith a special finding to the effect that appellant’s premises had'not depreciated in market value. This appears from a special interrogatory submitted to the jury and their answers thereto as follows: “Was' plaintiff’s property at the time of completion of the improvement in question, in the fair cash market value thereof, worth as much or more than it was immediately before said work was begun?” Answer, “Tes.”

While there was conflict and contrariety of evidence both as to the questions of negligent construction and unnecessary injury, and depreciation of market value, still, the state of the evidence was such as to fully warrant the jury in its findings. Appellant clearly failed to prove either branch of his case by a preponderance of the evidence. The case was tried upon the theory of the law presented by appellant’s declaration, and appellant failed for lack of a preponderance of the evidence bearing upon the two controlling questions.

In addition to the special interrogatory and answer above quoted, two others appear to have been returned by the jury, and appellant claims that they are inconsistent with the general verdict, and that the court erred in not rendering judgment-in his favor on these special findings. These interrogatories are not responsive to any proper issue in the case and are, therefore, not inconsistent with either the general verdict or the special finding above quoted; and further, this question was not raised in the trial court, by motion for judgment on the special findings, nor in appellant’s motion for new trial, nor in any other manner.

Counsel state that the court erred in refusing to admit “the evidence offered under the sixth error assigned.” The sixth error assigned is: “The court erred in refusing the evidence offered by the plaintiff to show and for what purpose the petitions and waivers of damages were obtained.” This alleged offered evidence is nowhere pointed out to tis either in the brief or argument. The question is, therefore, not so presented as to call for discussion; we may however say, that from what does appear we see no error in the court’s ruling.

Certain objections are made to a number of instructions given on behalf of appellee. We do not find any such error in the rulings of the court with respect to the instructions as would warrant a reversal of the judgment. This is one of that class of cases in which slight errors will not reverse, a case where upon the whole evidence substantial justice has been done by the verdict of the jury and the judgment of the trial court.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Randolph Mutual Insurance Company, Plaintiff in Error, v. Julius Lorenz, Defendant in Error.

      Insurance—when recovery will not 6e sustained. In order to recover upon policies of fire insurance it must appear that the plaintiff had an insurable interest in the premises ifi question.
    Action commenced before justice of the peace. Error to the Circuit Court of Randolph county; the Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed.
    Opinion filed March 4, 1909.
    H. Clay Horner, for plaintiff in error.

      Ralph E. Sprigg, for defendant in error.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit commenced before a justice of the peace of Randolph county, by defendant in error against plaintiff in error, to recover on a fire insurance policy. From the judgment rendered by the justice the case was appealed to the Circuit Court, where it was tried de novo, resulting in a finding and judgment in favor of defendant in error for the sum of $100.

The evidence in this case conclusively proves that defendant in error did not, at the time the policy was issued, nor at any time thereafter, “have any right, enjoyment, profit, interest, lien, expectance or other benefit growing' out of, or depending upon, ’ ’ the building, property or premises claimed to have been insured—he had no insurable interest in it.

The judgment of the Circuit Court is reversed, and the court finds as an ultimate fact to be incorporated in the judgment, that defendant in error had no insurable interest in the building, property or premises insured. Reversed.


author: Mb. Justice Cbeightor

text:
    A. W. Tate, Administrator, Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Pleading—effect of general issue. The plea of the general issue admits the character in which the plaintiff sues.
    2. Master and servant—whew instruction as to the duty of railroad to employe erroneous. An instruction as follows is erroneous where the unsafe condition is. open and apparent or where warning has been given or caution enjoined:
    “The jury are instructed that an employe of a railroad company, assisting in running its trains, is not bound to know or inquire whether the road has been safely and properly constructed.

      “There is an implied undertaking on the part of the company with its employes, that all that can reasonably be done to render the road reasonably safe has been done.”
    3. Masteb and servant—When instruction authorizing recovery erroneous. An instruction which authorizes a verdict in favor of a servant is erroneous which omits the element of the exercise of due care by the servant and ignores the defense of assumed risk relied upon by the master.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    Gorges & Gorges, for appellant.
    P. Gr. Bradbury and Eagletor & Wesreb, for appellee.
   Mb. Justice Cbeightor

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Crawford county, by appellee against appellant, to recover for the death of appellee’s intestate, alleged to have been caused by the negligence of appellant while appellee’s intestate was in its service as a locomotive engineer in charge of an engine pulling a gravel train. Trial by jury. Verdict and judgment in favor of appellee for $6,000.

' “The amended declaration upon which the ease was tried, charges in first count that the track at this place of the injury was defective, and that the engine was running backwards, and pulling twenty-one empty gravel cars, was, because of said defective track, derailed and overturned, killing J. B. Tate, engineer.

“Second count charges defective track, permitting engine to be run and operated backwards with no sufficient brakes or appliances and connections to enable the deceased to control the engine and operate it safely.

“The third count charges that it was the duty of the defendant to use reasonable care in causing cars composing said train to be supplied with machinery appliances and brakes, so that the speed could be properly controlled, and because defendant failed to comply with said duty, the engine was derailed, and deceased was killed. ’ ’ To this declaration plea of not guilty was filed on the part of the defendant.

The evidence tended to prove that prior to the day of the injury complained of appellant had been for more than a year reconstructing its tracks from Robinson in a southeastwardly direction past the place of the injury by building a new track; that on the day of the injury, appellant was still using the old track for all its trains, but because of the fact that it was soon to abandon the old, and run its trains upon the new track, the old track was not kept in a good state o'f repair; that although the track was not in good repair it was reasonably safe to run upon at a reduced rate of speed,—a rate not exceeding twelve miles per hour, but was unsafe at a rate in excess of that; that because of this condition of the track a “slow order” had been issued by appellant, requiring all trains to reduce their speed to twelve miles per hour while passing over that part of the track; that appellee’s intestate was acting as engineer pulling a long gravel train comprising more than twenty-five cars, and that a Mr. Poorman was the conductor in charge of the train; that oh the morning of the injury and before the intestate started out with his train the conductor received a “slow order” from the train despatcher and delivered it to the intestate who read it, handed it to the fireman to read, who read it and handed it back and the intestate put it in his pocket; that this “slow order” explicitly directed the reduction of speed to twelve miles per hour over the particular piece of track where the injury occurred; that intestate’s attention was again called to the slow order, an hour or so before the injury, by appellant’s supervisor of track, who asked him if he had a slow order over the piece of track in question and he answered, “I have;” that the supervisor of track then “asked him if he did not think he was going to. kill some one from the way he was running trains over that piece of track,” to which intestate replied, “There is no more danger in. running fast over a bad track than there is in running slow,” and pulled out for the gravel pit, ahead of another train, and at the place of the wreck and injury, when the wreck occurred, was running at a rate of from 20 to 30 miles per hour. The evidence also tends to prove some features that modify the case as above stated. These we may note further on.

Counsel for appellant contend that the trial court erred in refusing to direct a verdict in favor of appellant. Among other things they contend that the evidence fails to prove that the road and track upon which the injury occurred were appellant’s road and track. We think this was sufficiently proved,—it certainly is clearly inferable from the whole evidence and there is neither word nor inference to the contrary. It is also contended that appellee failed to prove that he was the legally appointed administrator of the deceased. Under the state of the pleading he was not required to prove that,—it was not an issue requiring proof. Appellant’s plea of not guilty, standing as the only plea in the case, admits the character in which appellee sued. The plea of general issue alone does not put in issue the character in which plaintiff sues. McNulta v. Lockridge, 137 Ill. 270. Counsel further contend that appellee failed to make a prima facie case, and that the proof of their defense of assumed risk was so full and conclusive as to make it wholly a question of law for the court. In these views of the case we do not agree with counsel. The statement of the case, as we have set it out above, shows only what the evidence tends to prove with respect to the features of the. case embraced in the statement. The question of proximate cause, for instance, as related to the defense of assumed risk, was an open question of fact and was so treated by counsel in their instructions 4, 5, 6 and 8, in which they themselves submitted that question to the jury. We think the trial court did not err in refusing to direct a verdict for appellant.

The court, at the instance of appellee, gave to the jury the following instruction:

“No. 4. The jury are instructed, that an employe of a railroad company, assisting in running its trains, is not bound to know or inquire whether the road has been safely and properly constructed.

“There is an implied undertaking on the part of the company with its employes, that all that can reasonably be done to render the road reasonably safe has been done.”

The law as stated.in that instruction has no application to the facts of this case, and is “in the teeth” of the facts, or at least of what the evidence tends to prove. Where the unsafe condition is open and apparent, or where warning has been given, or caution enjoined, there is not “an implied undertaking on the part of the company” as stated in the' instruction, and in a case where the evidence tends to prove such condition, warning or caution, it is error to give this abstract proposition in its unqualified form as an instruction to the jury. The trial court also erred in giving appellee’s sixth instruction. It calls for a finding in favor of appellee and the assessment of damages thereon, upon a state of case wholly omitting the requisite of due care and caution on the part of his intestate, and wholly ignoring the defense of assumed risk. The court also erred in modifying appellant’s fourth, fifth, sixth and eighth instructions. It does not appear to us that there is any proper evidence upon which to base the clause which the court added to each of these instructions.

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

Reversed and remanded.


author: Me. Justice Cbeighton

text:
    Oliver C. White, Appellee, v. St. Louis Transfer Company, Appellant.

      Vebdict—when set aside. A verdict manifestly against the weight of the evidence will he set aside on review.
    Action in case for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Motees, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    Wise, McNulty & Keefe, for appellant.
    F. C. Smith, for appellee.
   Me. Justice Cbeighton

delivered the opinion of the court.

This was an action in case, in the City Court of East St. Louis, by appellee against appellant, to recover f oían injury to his person while engaged in the service of appellant as a driver of one of its transfer wagons. Trial by jury. Verdict and judgment in favor of appellee for $650.

The declaration charges that appellant furnished to appellee, for him to use, a wagon with a defective, worn and unsafe doubletree; that appellant knew of this condition or by the exercise of ordinary diligence would have known; that appellee did not know and could not have known by the exercise of ordinary diligence; and that by reason of the alleged condition of the doubletree, while in the exercise of due care and caution appellee was injured.

The testimony of the witnesses pro and con is contradictory and conflicting. The doubletree was procured and offered in evidence, was duly certified to this court for inspection, and we have inspected it, in the light of all the evidence. And while we cannot say that there is no evidence in this record tending to prove all the material requisites of appellee’s case, still, in our opinion, the state of the evidence is snch as to make it. our duty to reverse the judgment and remand the cause under the rule laid down by this court in St. Louis National Stock Yards v. Godfrey, 101 Ill. App. 40 (48).

Complaint is made of the giving and refusing to give certain instructions, but we think, when all the instructions are read and considered together, they present the law applicable to the issues and evidence with substantial accuracy.

The judgment of the City Court of East St. Louis is reversed and the cause remanded.

Reversed and remanded.


text:
    C. M. Hensley, Appellee, v. E. B. Mitchell et al., Appellants.
    Negotiable Instruments—what evidence incompetent respecting manner of payment. In an action upon a promissory note any verbal agreements between the parties made prior to the giving of the note are inadmissible in evidence to contradict or vary the terms of the note.

      Assumpsit. Appeal from the Circuit Court of Fayette county; the Hon. Truman E. Ames, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Arthur Bob, for appellants.
    John A. Bingham and F. M. Guinn, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action of assumpsit, in the Circuit Court of Fayette county, by appellee against appellants, to recover on a promissory note duly executed and delivered by appellants to appellee. Trial by jury. Verdict and judgment in favor of appellee for $101.40, the amount of principal and interest due by the terms of the note.

Upon the trial of this case in the Circuit Court, appellants offered to prove that, at the time the note was executed and delivered, it was agreed by and between the parties thereto that the note was to be paid out of the proceeds of certain broom corn sold, and that the broom corn had not been sold or the proceeds thereof collected. The court refused to permit this evidence to go to the jury, and instructed the jury “that any conversation or verbal agreement had between the parties before the signing of the note could not be considered by the jury as a defense.”

There is no error in this ruling, nor in the instruction. The law is, that “in an action upon a note, any ' verbal agreements between the parties made prior to the giving of the note as to payment, is inadmissible-in evidence to contradict or vary the terms of the note.” Mosher et al. v. Rogers, 117 Ill. 446.

No other defense was interposed?

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Creightok

text:
    Charles Kuhlman, Appellant, v. Emil Kiefer, Appellee.

      Slander—What proof of words charged required. The law requires that enough of the exact words charged be proved to establish the particular slander charged. It is not sufficient to prove other words of like meaning—equivalent words or expressions will not suffice.
    Action in case for slander. Appeal from the Circuit Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at -the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.

      Maurice Y. Joyce and James A. Farmer, for appellant.
    Wise, McNulty & Keefe, for appellee.
   Mr. Justice Creightok

delivered the opinion of the court.

This was an action in case, for slander, in the City Court of East St. Louis, by appellant against appellee. Trial by jury. At the close of appellant’s evidence the court directed the jury to return a verdict finding the defendant not guilty. The jury returned a verdict as directed by the court, a motion for new trial was denied and judgment rendered on the verdict.

The declaration consisted of one count, setting up that appellant was a regularly ordained and acting clergyman and was pastor in charge of St. Elizabeth’s Boman Catholic Church, and that he had charge of the revenues of said church; and it is charged in the declaration that appellee spoke and published of and concerning appellant, in the hearing of divers persons, the false, scandalous, malicious and defamatory words following,—that is to say, “he (meaning the plaintiff) is using the church (meaning said St. Elizabeth’s Church) money in building his (meaning plaintiff’s) houses.” The words charged, standing alone, are: He is using the church money in building his houses.

Two witnesses were produced on behalf of appellant, Mr. Grace and Mr. Yoss. Mr. Grace testified that appellee said “Father Kuhlman was building houses with the church’s money;” and Mr. Yoss testified that appellee said “Father Kuhlman is building houses with the church money.”

Counsel for appellant contend the law to be, that “in an action for slander, it is sufficient to prove the substance of the words charged.” This we do not understand to be a correct statement of the law as it is held in this state. It is not sufficient to prove the substance of the words charged in the declaration. The law requires that enough of the exact words charged be proved to establish the particular slander charged. It is not sufficient to prove other words of like meaning—equivalent words or expressions will not suffice. Searcy v. Sudhoff, 84 Ill. App. 148. So strict is this rule in its application that words proved to have been spoken in the second person cannot be accepted as meeting the requirements of a declaration charging them to have been spoken in the third person. Becker v. Schiller, 49 Ill. App. 606. The mere “difference in the tense of the word proved and that alleged, will defeat a recovery—as the use of ‘has’ for ‘had.’ ” Wilborn v. Odell, 29 Ill. 456; Sanford v. Gaddis, 15 Ill. 228.

Of the ten words charged in the declaration in this case, viz.: “He is using the church money in building his housesthe witness Voss only uses five, viz.: is - building - houses - church - money; and the witness Grace only uses three, viz.: building-houses-money. The words proved fall far short of establishing the particular slander charged.

The trial court did not err in directing a verdict in favor of appellee.

The judgment of the City Court of East St. Louis is affirmed. Affirmed.


text:
    George Draper et al., Appellants, v. D. S. Petrea, Administrator, Appellee.

      Instructions—when upon preponderance of evidence erroneous. An instruction upon the subject of the preponderance of evidence which calls for the plaintiff to make out his case by a “clear” preponderance of the evidence is improper, but held, in this case, that the effect of the use of the word “clear” was to some extent minimized by the instruction as a whole and that its giying was not ground for reversal.
    Contested claim in court of probate. Appeal from the Circuit Court of Washington county; the Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    J. A. Watts, for appellant.
    Frank F. Noleman, Vernor & Vernor and W. F. Bundy, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This suit is based on a claim filed in the Probate Court upon an alleged written contract between appellant’s and appellee’s intestate. The claim filed is as follows:

Estate of P. J. Holley, deceased,

To George and Nora Draper, Dr.

To amount due for care and nursing of the . deceased as per contract........ ... . $6,000

The alleged contract is as follows:

“This Agreement, made and entered into the 18th day of September, 1905, between G. W. Draper and his wife, Nora E. Draper, of the above named township, parties of the first part, and P. J. M. Holley of the same place, party of the second part,

Witnesseth: That for the consideration hereinafter to be stated the said parties of the first part covenant and agree to take care of the said party of the second part during the remainder of his natural life, to furnish him with board, lodging and personal attendance such as his invalid condition may require.

The said G. W. Draper further covenants and agrees to act as agent for the said P. J. M. Holley, to rent his land, to collect the rent therefor, to pay his taxes, to protect as far as possible his timber land from trespass and injury, and to maintain and defend suits at law for that purpose when necessary, to buy and sell and,transact for the said P. J. M. Holley all other business which on account of his physical condition he is unable to transact himself.

In Consideration of the services hereinbefore set forth to be performed by the said parties of the first part the said P. J. M. Holley covenants arid agrees to pay to the said parties of the first part, jointly, the sum of six thousand dollars ($6,000), the same to be paid-out of his estate after his death; and the said P. J. M. Holley further covenants and agrees to make and execute a last will and testament in which he will make express provision for the payment of said debt to the said parties of the first part.

The said P. J. M. Holley further covenants and agrees to act as agent for the said P. 3. Holley, to rent five (5) years from the date of this agreement he will at that time make and execute a deed in escrow to the said Nora E.. Draper, her heirs and assigns, of his home place, consisting of one hundred and sixty (160) acres of land, and more particularly described as follows : The East half of the Southeast quarter of Section 26, and the West half of the Southwest quarter of Section 25, Township One North, Bange Two West of the 3rd P. M., in the first named township and county.

The said P. J. M. Holley further covenants and agrees that if he is living at the expiration of five (5) years from the date of this agreement he will at that time make and execute a deed in escrow to the said Gr. W. Draper, his heirs and assigns, of forty acres of land, described as follows: The Northwest quarter of the Northeast quarter of Section 25, T. 1 N., B. 2 W. of 3rd P. M., in the above named township and county.

The said P. J. M. Holley covenants and agrees to make provision for the delivery of the said deeds, at his death, to the said parties of the first part, upon their having performed their part of the terms of this agreement, and the said parties of the first part agree to. accept the said deeds to the said land as satisfaction in full of the indebtedness of the said P. J. M. Holley under this agreement.

It is further provided and agreed that the sum herein provided to be paid to the said Nora E. Draper is not intended and shall not be construed to extinguish any indebtedness of the said P. J. M. Holley to the said Nora E. Draper for services rendered prior to the date of this agreement.

It is further provided and agreed that no gift of personal property or money, nor any payment of any kind for services or labor, made by the said P. -J. M. Holley during his lifetime to the said GK W. Draper and Nora E. Draper, or either of them, shall be considered to apply upon the payment of the sum of six thousand dollars provided for in this agreement, unless said payment shall be receipted for upon this agreement as being paid for that purpose.

It is further provided and agreed that the said P. J. M. Holley shall choose his own physician and shall pay his own bills for medicines and medical attendance; and if on account of his sickness he shall require attendance by night as well as by day, and on account of such conditions it becomes necessary or for the best interest of the said P. J. M. Holley to employ additional help in caring for him, in any such case the said P. J. M. Holley agrees to pay for such additional attendance.

The said P. J. M. Holley further covenants and agrees to furnish the said parties of the first part with the use during his lifetime, and until his estate is settled after his death, of Ms house and premises, including barn and other outbuildings, garden, truck patches, orchard, pasture, and not less than ten (10) acres of cultivatable land.

In testimony whereof witness our hands the day and year first above written.

GK W. Draper,

Nora E. Draper,

P. J. M. Holley.”

To this claim appellee filed the general issue, and also a plea of non est factum duly sworn to; and the case was transferred by agreement from the Probate Court to the CircMt Court for trial.

Appellants were the son-m-law and the daughter of appellee’s intestate. Intestate was an old man, a widower, and had been an invalid for a number of years. He owned about 340 acres of land, worth something like seven or eight thousand dollars, and a small amount of personal property. He had a number of children besides this daughter Nora, and sometimes one and sometimes another of them had lived with him and taken care of him for a compensation of $100 per year. In August, 1905, appellant George Draper, who up to a few weeks before that date was practically a stranger to intestate, married the daughter Nora, one of appellants, and on the 18th day of September, 1905, the alleged contract purports to have been executed. It is claimed by appellants that on the same date intestate made the following entry in his account book, viz.: “1905—September 18, George and Nora commenced—the five years up 1910, September 18.” Appellee contends that this memorandum is not the handwriting of his intestate and denies its genuineness. Intestate died in January, 1907.

During the progress of the trialxappellants produced the testimony of a number of witnesses who had some knowledge of intestate’s handwriting and who gave it as their opinion that the signature to the contract is the genuine signature of the intestate and that they believed that the memorandum above quoted from his day-book to be in his handwriting; and thereupon the court admitted both the contract and the memorandum in evidence. To rebut this appellee introduced a number of duly qualified witnesses who gave it as their opinion that the signature to the contract is not the genuine signature of the intestate and that the memorandum is not in his handwriting. The testimony of the handwriting witnesses of the respective parties is corroborated to some extent by proof of conversations and conduct of both the intestate and appellants. The testimony with respect to this feature of the case is too voluminous to permit of a detailed discussion of it here. It impresses us as it must have impressed the jury, that the probative force and weight of it greatly preponderates in favor of appellee.

In addition to the evidence produced with respect to the genuineness of the signature of the intestate to the alleged contract, there was evidence-' with respect to the care taken of him by appellants during the remainder of his lifetime, as to the state of his mental capacity at the time the alleged contract bears date, as to undue influence on the part of appellants, and as to fraud.

At the conclusion of the trial the court, upon request of appellants, submitted to the jury five special interrogatories, which, with the answers made to them by the jury and returned with their general verdict finding the issues in favor of appellee, are as follows:

“Q. Mo. 1. Did P. J. M. Holley sign his name to the contract read in evidence?

Answer. Mo.

Q. Mo. 2. Did plaintiffs take care of P. J. M. Holley during the remainder of his life and furnish him board, lodging and personal attention?

Answer. Yes.

Q. Mo. 3. Was P. J. M. Holley at the date of the contract and subsequently, possessed of sufficient mental capacity to transact his ordinary business?

Answer. Yes.

Q. Mo. 4. Was Holley induced by undue influence to sign the contract sued on?

Answer. Mo.

Q. Mo. 5. Was there any fraud or deception practiced on Holley by which he was induced to sign his name to the contract read in evidence?

Answer. Mo.”

It may be properly noted that appellants based their claim wholly upon the alleged contract—they made no claim under the rule of quantum meruit, nor did they produce or offer to produce the necessary evidence to support such claim. If they have failed to prove the due execution of the contract by the greater weight of the evidence bearing upon that particular issue, then, without regard to any and all other questions, their case has failed; and the answers to the special interrogatories eliminate from this appeal all features as to the execution of the contract except the one as to the genuineness of the signature of appellee’s intestate.

We do not find any substantial error in the rulings of the trial court with respect to the admission or rejection of evidence.

No complaint is made as to the action of the court in refusing or modifying instructions asked on behalf of appellants, but a number of those given on behalf of appellee are excepted to. We have examined the challenged instructions in the light of counsel’s brief and argument, in connection- with the evidence and the whole series of instructions, and are of opinion that there is no material error in any of them bearing upon the controlling question in this appeal, except in the third, which is as follows:

“If, after a fair and candid consideration of all the evidence in this case, you find that it preponderates in favor of the defendant, you should return a verdict for the defendant, and if after such consideration of the evidence you find it so evenly balanced that you cannot say upon which side the clear preponderance or greater weight lies, then your verdict should be for the defendant.”

We think the use of the word “clear” in this instruction is improper. It is true the following words “or greater weight” tends to make the word “clear” meaningless, and it is also true that in three of the instructions given on behalf of appellants the true rule is correctly and clearly stated. Still, in as much as this instruction authorizes the jury to base their verdict upon it, it cannot be held to be wholly cured. However it has often been held in this state that error will not always warrant a reversal, and to our minds this is a proper ease for the application of this rule. As was said in Lenning v. Lenning, 176 Ill. 180, a case cited by counsel for appellants, in which the trial court had given an instruction containing the same error complained of here, <£We have carefully examined the whole evidence, and are of opinion that it justifies the whole verdict of the jury. ’ ’

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Oliver C. Allan, Plaintiff in Error, v. Donk Bros. Coal & Coke Company, Defendant in Error.
    Master and servant—application of rule res ipsa loquitur. Held, that while this rule did not apply in this case, it might apply in some cases arising between master and servant.
    Action in case for personal injuries. Error to the Circuit Court of Madison county; the Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    C. H. Burton, for plaintiff in error; Joseph Block, of counsel.
    Wise, McNulty & Keefe, for defendant in error.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Madison county, by plaintiff in error against defendant in error to recover for a personal injury. Trial by jury. At the close of plaintiff’s evidence the court directed the jury to find the defendant not guilty; the jury "returned a verdict as directed; and after overruling plaintiff’s motion for new trial, the court rendered judgment on the verdict.'

The substance of the theory upon which plaintiff in error’s case is based, is that he was in the service of defendant in error and was directed by one of its superintendents to do certain machinist work at specified times each day, from day to day, until the job should be completed, and that upon the occasion of his injury, he had gone as usual to the performance of this work and while there engaged the defendant in error negligently caused a shaker screen to be moved without giving him any notice or warning, whereby he was injured.

The controlling question presented is, does this record disclose evidence tending to prove all that is required to warrant a recovery? We agree with the trial judge in his conclusion that it does not. We fail to find any evidence of negligence on the part of defendant in error.

Counsel for plaintiff in error contends that the rule res ipsa loquitur applies. We think not. While we are not willing to go to the full length contended for by counsel for defendant in error and hold that the rule res ipsa loquitur “has no application in any case, as between master and servant,” we do agree with them that it has no application in this ease.

We are of opinion that the trial judge did not err in directing a verdict in favor of defendant in error.

The judgment of the Circuit Court is affirmed.

Affirmed.