author: Mr. Justice Higbee

text:
    Mary Brunnworth, Appellee, v. Kerens-Donnewald Coal Company, Appellant.
    1. Mines and miners—when wilful violation established. Where it appears that the mine owner failed to maintain a bottom man or lights for the use of a miner and that his injury proximateiy resulted therefrom a wilful violation is established which justifies a recovery.
    2. Mines and miners—how question of proximate cause determined. Whether violation of the act constitute the proximate cause or causes of an injury is a question of fact to be determined by the jury.
    Action in ease for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Rehearing denied April 3, 1912.
    Wise, Keefe & Wheeler, for appellant; Mastin & Sherlock, of counsel.
    Geers & Geers, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit by appellee to recover damages for the death of her husband, Charles Brunnworth, which occurred while he was in the employ of appellant.

The proofs as developed on the trial, were in the main as follows: On January 8, 1910, appellant was engaged in operating a coal mine in Madison county, Illinois, in the course of which it employed both a day shift and a night shift of men, the former quitting work at 3:30 P. M. and the latter commencing work an hour later. All the coal was hoisted during the time the day shift was on. A little before four o ’clock on the afternoon of said day, Brunnworth with four others, Schmidt, Schneider, Swain and Anderson, all of whom, except Anderson, were on the night shift, descended to the bottom of the shaft. When they reached the bottom the only persons found there were Brown, the driver boss, and Finke, the mule feeder. The bottom man for the day shift had gone up and the electric light used at the bottom of the shaft was turned off. It was some seven or eight feet from "where the cage stood at the bottom to the bunting or casing of the shaft. On two sides of the cage were dogs or catches to hold the coal car when on the cage. These were some 18 or 20 inches high and worked automatically, so that when the cage stood on the bottom, they fell back and as the cage was raised they came up between and over the wheels of the car. .The two cages were- operated by the engineer at the top who was signalled by a bell rung by means of a lever at the bottom of the shaft by the bottom man, when on duty. In coming down Brunnworth discovered that he had left his cap and lamp at the top and it was suggested that he return with Anderson, who was an electrician and was bringing down a chain for some purpose. After they reached the bottom, Anderson disposed of the chain and returning to the south cage, rang the bell as a signal to the engineer. Brunnworth went some 16 feet from the cage, laid down his wrap and bucket and started back to the cage from the east side. At' that time Anderson, who was on the cage, had an ordinary pit lamp on his cap, Finke, standing some ten feet west of the cage, had a similar lamp on his cap, and there was a coal oil lantern sitting on the ground two or three feet from him. Brown, east and north of the cage a short distance away, also had a pit lamp. Schneider, about ten feet east of the cage, had a carbide lamp on his cap with a reflector which threw light in the direction the wearer was facing and at this time Schneider was facing north assisting Schmidt to light his lamp. Swain had no light. After the engineer had answered Anderson’s bell and the latter had rung the bell to start, Brunnworth hurried past Schneider and Schmidt to get on. Both of them cried out to him “Wait, Charlie, wait ’ ’ or words to that effect and -afterwards Anderson said to him “Keep off, the cage is belled away.” As he came to the cage Brunnworth apparently hesitated and about the same instant the cage started to rise, whereupon he jumped forward, got one foot on the cage and leaning over grabbed the two car tracks on the same. In this position he was carried up until the cage entered the bunting which struck him, and at the same time Anderson caught him by the arm and he was rolled under the cage. Anderson retained his hold and Brunnworth was thus carried to the top of the mine and when taken from under the cage, was found to be dead. Brunnworth was hard of hearing and it was not known whether or not he heard the warnings given him.

The declaration in this suit consisted of four counts two of which charged appellant with a wilful failure to comply with sub-section a of section 28 of the Mining Act in this, that defendant wilfully failed to station at the bottom of said shaft on said day at 3:55 o’clock P. M., less than half an hour after hoisting of coal had ceased for the day, a man charged with the duty of attending the signals, preserving order and enforcing the rules governing the carriage of men on cages, and that by reason thereof the said Brunnworth was permitted to step upon said cage after the same 'had been rung away from the bottom of the shaft and was in motion.

The other two counts of the declaration charged a wilful failure on the part of appellant to -comply with the provisions of subsection b of section 28 of said act, requiring the maintenance of a good and sufficient light at the bottom of said shaft, so that persons coming to the bottom of same could clearly discern the cage and objects in the vicinity and alleged that by reason thereof Brunnworth, upon arriving at the bottom of the shaft, was unable to discern the cage and objects in the vicinity and stepped upon the same while it was in motion.

There have been two trials of this case, in both of which the jury found in favor of appellee. Appellant insists that the company owed no duty at the time in question to maintain a bottom man or lights for the use of Brunnworth and that the evidence did not show the facts alleged and proven, to have been the proximate cause of the injury; that the court erred in regard to the instructions and in the admission and exclusion of evidence.

Subsections a and b of section 28 above referred to, are as follows:

(a) “At every shaft operated by steam power, the operator must station at the top and at the bottom of such shaft a competent man charged with the duty of attending to signals, preserving order and enforcing the rules governing the carriage of men on cages. Said top man and bottom man shall be at their respective posts of duty at least a half hour before the hoisting of coal begins in the morning, and remain for half an hour after hoisting ceases for the day.

(b) “Whenever the hoisting or lowering of men occurs before daylight or after dark, or when the landing at which men take or leave the cage is at all obscured by steam or otherwise, there must always be maintained at such landing a light sufficient to show the landing and surrounding objects distinctly. Likewise, as long as there are men underground in any mine the operator shall maintain a good and sufficient light at the bottom of the shaft thereof so that persons coming to the bottom may clearly discern the cage and objects in the vicinity.”

There is no question but that appellant actually failed to comply with the provisions of the law contained in both of the above sub-sections.

It is, however, contended by appellant, that the duty to maintain a bottom man at the time in question was one which it owed to the day shift alone; that Brunnworth belonged to the night shift which started at 4:30 P. M. and that the duty to provide a man at the bottom for that shift, did not commence until 4:00 P. M. In accordance with this theory of the law, appellant offered the following instruction, which was refused by the court:

“You are further instructed that the portion of the statute which provides a bottom man shall remain at his post of duty for half an hour after hoisting ceases for the day is for the purpose of letting the men out of the mine who are lowered at the commencement of work and has no application to the men who might come down on a later shift of work.

“So if you find from the evidence in this case that the mine commenced work at seven o’clock in the morning on the dai^ in question and that the bottom man was there during the day and that Brunnworth came down the mine on a new shift between 3:30 and 4:00 o’clock in the afternoon, then such bottom man owed no duty to Brunnworth and the company would not be liable in this case for failure to have the day bottom man remain at his post in order to attend to the signals for Brunnworth. ’ ’

We are of the opinion that this instruction was properly refused and that it was the duty of the operator to retain the bottom man at his post for a full half an hour at least after the hoisting ceased.

It is next contended by appellant that neither the absence of the bottom man nor the failure to maintain lights, was the proximate cause of the injury to Brunnworth. Whether' one or both of these violations of the statute constituted the proximate cause or causes of the injury, was a question of fact for the. jury. Armour v. Golkowska, 202 Ill. 144; Kellyville Coal Co. v. Strine, 217 Ill. 516. We have reached the conclusion, from a consideration of the proofs, that a jury might well find therefrom, that the injury to Brunnworth resulted directly from the failure of the company to keep the bottom man at his post for the length of time required by the statute or from its failure to maintain the statutory lights. .

The first instruction given for appellee stated that in determining damages the jury should assess them at such sum as they believed from the evidence, guided by the instructions of the court, would be just and fair compensation to appellee based upon the pecuniary loss she had sustained, if 'any, resulting from the death of her husband. The second told the jury that they might take any fact and circumstance shown by the evidence, into consideration as bearing upon appellee’s pecuniary loss in determining her damages. These instructions as a whole appear to us to conform to the usual rules of law applicable to such cases and the objection of appellant that they were inapplicable because the declaration charged that appellee was deprived of her means of support, does not seem to us to be well founded.

Appellant complains that evidence was admitted on the part of appellee, tending to show that the cage, after being put in motion by the engineer, could be stopped at a signal from the bottom man, within a few feet and before reaching the bunting of the shaft. We do not think this evidence improper as it tended to show that had a bottom man been maintained as required by law, he might have stopped the cage after it was started in time to prevent the injury to Brunnworth. Appellant also complains that its cross examination of the witness Schmidt, who was a “buddy” of Brunnworth, was unduly restricted for the reason that the court refused to permit appellant to ask questions of Schmidt on cross examination, concerning Brunnworth’s hearing. These questions if asked and answered could only have a bearing on the question of whether or not Brunnworth was at the time and just before he was injured, guilty of contributory negligence, which was not material in this case.

The judgment of the court below will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    George Y. Henry et al., Commissioners, etc., Appellees, v. J. E. Hoffman, Town Collector, Appellant.
    Roads and bridges—sections 13, 14 and 16 of act construed. When commissioners of highways make a levy on the property of a town under sections 13 and 14 of the Road and Bridge Act they must be considered as having in view the needs of their town as it existed at that time, and the levy must be assumed to have been made for the purpose of providing for those needs and the taxes collected must be devoted to the purposes for which the levy is made, and the town collector is not authorized to pay over to a village subsequently organized within such town any portion of the tax collected by him.
    Action in debt. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Warnock, Williamson & Burroughs, for appellant.
    Early & Williamson, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit in debt commenced May 4, 1910, by appellees, as commissioners .of highways of the town of Wood Biver in Madison county, against appellant, as collector of said town, to recover certain taxes paid by him to the village of East Wood Biver. A jury was waived and the cause tried by the court on a stipulation of facts, stating in substance, that during the year 1909, appellees as commissioners of the town of Wood River in Madison county, Illinois, made a levy on the property of said town under authority of sections 13 and 14 of the Road and Bridge Act (Chap. 121, Rev. Stat. 1909), said town being under what is known as the cash system; that appellant as collector of said township received and collected as a result of such levy $2065.52, before the bringing of the suit; that on or about May 1, 1910, appellant paid over to the treasurer of the village of East Wood River one-half of said amount, claiming the right to do so by virtue of section 16 of said Road and Bridge Act; that the tax so paid to the treasurer of East Wood River was the tax levied and collected for road and bridge purposes on the property lying within the corporate limits of said village as it was incorporated; that said collector is ready and willing to pay the balance of said amount to the treasurer of appellees; that the funds so paid to the treasurer of said village were received to be appropriated to the improvement of roads, streets and bridges in accordance with said section 16 of the Road and Bridge Act; that a petition for the organization of said village was filed with the county clerk of Madison county on November 19, 1909, and an order granting the prayer of the same entered by the county judge of said county on the same day; that by said order an election on the question of organization was fixed for, and afterwards held on, December 11,1909; that on December 13,1909, said judge entered an order declaring the village of East Wood River duly organized and directed an election to be held for village officers, which was held in pursuance thereof, on January 15, 1910; that on January 17, 1910, an order was entered by said judge declaring the election of the first village officers; that the president and board of trustees of said village held their first meeting and duly organized, qualified and entered upon their duties January 21, 1910; that the village charter was issued to said village by the Secretary of State under date of January 27, 1910. Said ■stipulation concluded as follows:

“And it is stipulated that the question submitted and upon which judgment is to be entered, is whether or not the said village of East Wood River is entitled to collect and receive one-half of the taxes so collected, and it is stipulated that such question is to be considered as if all pleas were filed which may be necessary to raise such question and this stipulation is in lieu of all pleas, the contention of the plaintiff being that the village of East Wood River had not been organized and was not in existence at the time of making the levy of the taxes herein mentioned, nor at the time the said taxes became due and payable. ’ ’

The court fpund the issues in favor of appellees and gave judgment in their favor against appellant for the sum of $1032.76 and costs, and from that judgment this appeal is taken.

Appellant presented propositions of law to the court below and preserved exceptions to such rulings of the court thereon as were adverse to him, thereby properly presenting to us the question submitted by said stipulation.

The contention of appellees is that the' village of East Wood River had not been organized and was not in existence at the time of making the levy of the taxes mentioned, nor at the time the same became due and payable and that therefore the village is not entitled to any portion of the same.

On the other hand it is claimed by appellant that at the time the tax was collected, the village had elected its officers, received its charter and was fully incorporated as a village. Section 13 of the Road and Bridge Act provides:

“The commissioners shall also meet semi-annually on the same day and at the same place of meeting of the Board of town auditors. At the meeting immediately preceding the annual meeting of the county board, the commissioners shall determine what per cent of tax shall be levied on the property of the town for road and bridge purposes and for the payment of any outstanding orders drawn by them on their treasurer, which levy' shall not exceed 60 cents on each one hundred dollars.”

Section 14 provides for a greater levy, not exceeding forty cents on the one hundred dollars under certain contingencies. The meeting at which the tax is levied must by the statute take place on the first Tuesday of September. Section 16 provides, that at said meeting the commissioners shall make a certificate of the rate per cent finally agreed upon by virtue of said sections 13 and 14 and also the amount to liquidate road and ditch damages and shall cause such certificate to be delivered to the town clerk, that the town clerk shall certify the two items of levy to the county clerk and that said taxes “when collected shall be paid to the treasurer of the commissioners by the collector as fast as the same is collected. ’ ’ Said section also contains the following:

“Provided that one half of the tax required to be levied in 'sections 13 and 14 and collected for road and bridge purposes on the property lying within an incorporated village, town or city in which the streets and alleys are under the care of the corporation, shall be paid over to the treasurer of such village, town or city to be appropriated to the improvement of roads, streets and bridges either within or without said village, town or city and within the township, under the direction of the corporate authorities of said village, town or city. ’ ’

Appellant in support of his position relies on Baird v. The People, 83 Ill. 387, which holds that notwithstanding the requirement of the law that the tax when collected was to be paid over to the treasurer of the commissioners, yet nevertheless it was the duty of the collector to pay to the treasurer of the city, town or village the portion of the tax levied on the property lying within the corporate limits. In that case however the city in question was in existence prior to the levy of the tax in -controversy and therefore what is there said does not appear to us to be helpful in the solution of the question presented to us here.

When appellees made their levy for road and bridge purposes on the first Tuesday in September, 1909, they must be considered as having had in view the needs of their town as it existed at that time and the levy must be presumed to have been made for the purpose of providing for those needs and the taxes collected must be devoted to the purposes for which the levy was. made.

In Brauns v. Town of Peoria, 82 Ill. 11, it was held to be the policy of the law that the accruing revenues of the year should be appropriated by the commissioners of highways to the wants of that year.

Section 135 of the Revenue Act provides that the county clerks shall deliver the tax books to the collectors “on or before the 20th day after the first day of December annually, or as soon thereafter as the collectors are duly qualified” and it may be, although it is not so 'stated in the stipulation above referred to, that the tax books did not come to the hands of appellant until after the petition for the organization of the village of East Wood River had been filed and that a portion of the taxes was collected after the village was organized. Certain it is that the village had been organized more than two months prior to the time appellant paid the tax in controversy over to the village treasurer.

These facts however do not appear to us to warrant the conclusion therefrom, that the village was entitled to receive, to be expended by its own officers, any portion of the taxes levied by the road commissioners for road and bridge purposes, prior to the organization of the village and based on the needs of the town at that time, including that portion of the territory thereof which was afterwards organized into a village.

We are of opinion appellees were entitled to the whole amount of the taxes collected under their levy and that appellant was not legally authorized to pay any portion thereof to the treasurer of said village.

The judgment of the court below is therefore affirmed.

Affirmed.


text:
    James L. Middleton et al., Appellants, v. Herschel D. Holstlaw et al., Appellees.

      Accounting—when should he awarded. Held, that the contract in question in this case created a trust upon the part of the defendants and that the interest of the cestui que was assignable, and that such interest having been assigned for a sufficient consideration an accounting should be awarded.
    Bill in chancery. Appeal from the Circuit Court of Marion county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Noleman & Smith and W. F. Bundy, for appellants.
    Holt & Wilson and D. D. Haynie, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an appeal by James L. Middleton and Jessie Middleton, from a decree dismissing for want of equity a bill in chancery, filed by them against appellees, for an accounting. The bill set out the contract in full as follows;

“Salem, Ill., Jan. 30th, 1907.

“Herschel D. Holstlaw, Walter C. Irwin, and James L. Middleton have this day purchased in full partnership the farm known as the Kent place in Sandoval, Ill., together with some personal property on said farm for $8000.00 for convenience the deed is made to H. D. Holstlaw and Walter C. Irwin.

All of the proceeds of whatever character are to be applied to the liquidation of the original cost .until such amount is paid in full. After the payment of a certain mortgage for $2000.00 held by the Henry Kurth estate at Centralia, then one-third of the amount of proceeds from farm or other sales are to be credited on a certain note secured by mortgage given by Jessie L. and J. L. Middleton to H. D. Holstlaw and W. C. Irwin for $2,-000.00 to secure to said H. D. Holstlaw & W. C. Irwin the amount of J. L. Middleton’s part of the original purchase price of the above Kent Farm. Whenever the full amount of purchase price shall have been realized from any source in connection with sales etc., then the mortgage given by said Jessie L. and J. L. Middle- • ton shall be released and James L. Middleton shall be given proper evidence of having an undivided one third (1-3) interest in any remaining holdings of said farm, etc. Description of Land N. ½ S. E. and S. E. of S. E., Sec. 18, T. 2 N., K. 1 E., Marion Co., Ill.

It is understood the 1-3 of the proceeds are to be credited to J. L. Middleton after Kurth note is paid from proceeds of farm.

J. L. Middleton

H. D. Holstlaw (Seal)

W. C. Irwin (Seal).”

It then averred that on the date of said contract it was assigned by said James L. Middleton to Jessie L. Middleton; that under the contract said Kent farm and certain personal property thereon, was purchased for the sum of $8000 and the title taken in the name of appellees, Holstlaw and Irwin; that on the day of the date of the contract, appellants executed a note for $2000 secured by mortgage on certain real estate in the city of Salem, Illinois, belonging to appellant, Jessie L. Middleton, and certain other real estate in the village of Sandoval, Illinois, belonging to appellant, James L. Middleton; that subsequently appellees conveyed said premises for the sum of $6000, reserving from said conveyance the coal, oil and gas rights; that they have received from the chattel property on said premises, for rent of the farm, for hay sold therefrom, for coal royalties and for bonus on the oil and gas lease, a total of $11,544; that after the payment of the Kurth mortgage and the note and mortgage of appellees for $2000, there was a large amount due appellants under the agreement; that appellees have refused to account to appellant, Jessie L. Middleton, for any sums received by them from the sale of the property and still hold appellants’ note and mortgage for $2000 and have otherwise failed to comply with the terms of said instrument in writing.

The bill asks for an accounting from appellees for all moneys received and paid out by them under said instrument in writing; that said note and mortgage of appellants be surrendered and released of record; that they give proper evidence that appellant, Jessie L. Middleton, has an undivided one-third in the remaining holdings of said premises, or the proceeds thereof, and that they be decreed to pay over to her any and all sums- of money found due her upon an accounting and that appellants may have general and equitable relief.

Appellees answered admitting they signed the articles of agreement mentioned in the bill but denying that they were ever signed by the appellant, James L. Middleton. They admit the purchase of the Kent farm and that the deed of conveyance was made to them as set forth in the bill, but deny generally the remaining material allegations of the bill. The answer also averred that appellees had repeatedly offered to surrender the note and mortgage of appellants if the latter would return the unsigned article of agreement, but that appellants have wholly failed to return the same.

From the proofs in the case the facts appear to be about as follows: Prior to January 3, 1907, James L. Middleton, who was superintendent of the Sandoval Coal Mine in Marion county, Illinois, had an option on a farm of 120 acres in said county, known as the Kent farm, which, together with certain horses, cattle, hogs and other personal property located thereon, he had the right to purchase for the sum of $8000. These premises were in the vicinity of the oil fields being developed near Sandoval and a portion of them had a vein of underlying coal, which had not been disposed of. The place was subject to a mortgage of $2000 held by the estate of Henry Kurth, the option was about to expire and Middleton, not having funds to close the deal, presented the matter to appellees, who after investigation, furnished the $6000 necessary to consummate the purchase and took the title to the premises in their names. To secure a one-third interest in the venture, appellant, James L. Middleton, together with his daughter, appellant, Jessie L. Middleton, gave a mortgage to appellees for $2000 secured by real estate owned by them and at the same time an agreement was made between James L. Middleton and appellees, in the terms mentioned in the above contract. This agreement was reduced to writing and signed by appellees, but the copy introduced in evidence by appellants bore only the signatures under seal of appellees, and the latter claim that the agreement never was, as-a matter of fact, signed by James L. Middleton. Middleton, however, testified that at the same time he received this contract, he signed and delivered a duplicate thereof to appellees. The denial by -appellees on the trial of the receipt by them of a duplicate of the contract, was' not very positive, but whether Middleton signed the agreement or not, does not appear to us to be material. One copy was certainly signed by appellees and delivered to Middleton and he and his daughter made and delivered their mortgage therein provided for to appellees, who accepted the same. Both parties thereafter recognized and acted upon the agreement as though it was an existing obligation, executed by all of them, and under these circumstances appellees cannot rightfully deny their obligations under it. As an additional consideration for his interest in the property purchased, Middleton paid appellees $125, which he received as commissions for selling the farm. On the day of the date of the agreement, he assigned the same by endorsement on the back thereof in writing, to his daughter, Jessie L. Middleton. After the purchase of the property, appellees took possession of the same, selling the personal property and collecting the rents from the real estate.

Testimony on the part of appellees tended to show that when the note and mortgage of appellants came due, they went to James L. Middleton and asked payment of the same; that he told them he was unable to make payment and that they could take the property if they wanted to; that appellees replied they did not want his property; that thereupon an understanding was arrived at by which appellant, James L. Middleton, undertook to surrender up the contract and receive back appellants’ note and mortgage. None of the papers were in fact exchanged and Middleton positively denies ever having had any conversation with appellees in regard to surrendering the contract and making the exchange.

In November, 1908, after appellees had sold personal property and received as rents something over $1000, they sold the farm for $6000, reserving the coal, oil and gas under the same. A few months later they entered into a contract with a mining, company by which they disposed of the coal under eighty acres of the land, for a royalty of two cents a ton on all coal mined. Under this contract appellants claim that appellees had received $814 prior to the time the bill was filed. They also leased the oil and gas underlying the premises, for which they received a cash bonus of $1400, and were to receive one-sixth of all the oil found on the premises, $150 for each gas well discovered and also a rental of $60 for each period of three months that the completion of an oil well was delayed under the lease. Under the latter provision it was claimed that 'appellees had received $360.

Appellees admit the sale of the top premises for $6000, the 'sale of the coal for the royalty above stated and the receipt of the bonus of $1400 for the oil and gas lease, but there is a difference between their figures and those stated to be correct by appellants, as to the other items of receipt. Appellees claim that appellants were not entitled to have any accounting from them or any interest in the coal royalties or the gas and oil lease, because the contract relied upon was never completed by the signature of James L. Middleton and because if it ever was a valid contract, it was afterwards abandoned by said Middleton.

We are of opinion that under the evidence in this case, and for the reasons above stated, the contract relied upon by appellant was binding upon appellees.

We are further of opinion that the contract or agreement created a trust on the part of appellees towards James L. Middleton and that his interest therein was one which could be assigned; that having assigned the same to his daughter, Jessie L. Middleton, for a sufficient consideration, he could not afterwards surrender the contract, even if the proof clearly showed that he agreed to do so, as it does not appear, nor is it claimed that Jessie L. Middleton, the real owner of the contract, knew of said claimed agreement of surrender or was in any way a party thereto. It follows that Jessie L. Middleton was entitled to the relief prayed for by her in the bill, and the decree of the court below is accordingly reversed and the cause remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


text:
    Rebecca Stanhaus, Appellee, v. Paradise Coal & Coke Company, Appellant.
    1. Appeals and errors—when ruling upon motion to direct verdict saved for review. A motion for a new trial need not be interposed in order to save for review the ruling of the court in denying a motion for a peremptory instruction. If an exception is preserved to the denial of such a motion the propriety of the court’s action is saved for review.
    2. Mines and miners—when evidence tends to establish wilful violation. If the evidence tends to establish that the mine examiner did not sound the place of most imminent danger and wholly failed to comply with the requirements of the statute that such places should be marked as dangerous, it is proper for the court to deny a motion for peremptory instruction to find for the defendant.
    3. Mines and miners—who may avail of provisions of act. Miners engaged in enlarging the space to be used for a parting by making it both wider and higher are entitled to the protection of the act where it appears that they were paid for their work according to the amount of coal mined just as other miners.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of DuQuoin; the Hon. B. W. Pope, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Denison & Spiller and M. U. Hayden, for appellant.
    M. C. Cook and E. H. Carr, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee, who brought suit to recover damages resulting to her through the death of her husband, Walter Stanhaus, Sr., alleged to have been caused by the wilful failure of appellant to comply with the provisions of section 18, chapter 93 of the Revised Statutes in reference to Mines and Miners.

It is alleged in the declaration that on July 12, 1909, appellant was possessed of a coal mine in Perry county, Illinois, and was mining and removing coal from the main west entry; that on said date there was a lot of loose and cracked coal, slate, rock and other material overhanging the roof of the same, at or near the face, constituting an unsafe and dangerous condition.

The first count charged that appellant wilfully failed to place a conspicuous mark at said place as a notice to all men to keep out; that by means thereof Walter Stanhaus, Sr., entered said entry without being under the direction of the mine manager and while engaged at or near the face thereof, a lot of said loose and cracked coal, slate, rock and other material fell upon him and so injured him that he died. The second count charged that appellant wilfully allowed said Stanhaus to enter said entry for work before said dangerous condition was made safe. There was also a third count charging a wilful failure on the part of appellant to supply props when demanded, but as to this count, the court, at the close of the evidence, instructed the jury to find the defendant not guilty.

There was a judgment in favor of appellee for $1,-477.

Appellant presented no motion for a new trial in the court below and does not ask here that the court consider any questions, which if showing error, could result only in remanding the case for another trial. The only complaint of appellant here is as to the refusal of the trial court to direct a verdict for appellant as to the first and second counts of the declaration upon its motion made at the close of appellee’s evidence and again at the close of all the evidence. Exceptions were saved to the ruling of the court upon motions to direct a verdict and the question whether the court erred in denying them is therefore preserved without the interposition of a motion for a new trial. I. C. R. R. Co. v. O’Keefe, 154 Ill. 508; Corning & Co. v. P. & P. U. Ry. Co., 144 Ill. App. 407.

The deceased and his two sons, Amos Stanhaus and Walter Stanhaus, Jr., were, as it appeared from the proofs, experienced coal miners, employed in mining coal for appellant and worked together as “buddies.” Early in the summer of 1909 they were engaged in constructing a part of the main west entry of the mine. This work consisted in the enlargement of the entry for a distance of about 200 feet to a width of about 18 feet, so that double tracks could be laid therein, one to receive loaded cars from the drivers to be hauled from thence to the bottom of the shaft by an electric motor, and the other to receive the empty cars returned by the motor to be again taken and refilled. The entry was in use by the track already there, so it was necessary to do the new work on the parting* at such time as the mine was not being operated at that point. As a consequence deceased and his sons worked in other portions of the mine at mining coal when the track was being used at the proposed parting and when it was not, they worked at the construction of the parting. At that point there was a depression or dip in the floor of the entry, and the roof above was correspondingly low. To put the parting in proper condition for the storage of cars, it was necessary to raise the floor so as to make it substantially level by filling in the bottom of the entry, and this work in turn made it necessary to remove material from the roof so as to increase its height in proportion to the amount of the fill below. The vein of coal in this entry was some 9 or 10 feet thick and in mining it out only 7 to 7% feet of the coal were removed, leaving a thin vein of top coal between two or three feet thick for a roof. As the track was raised in the entry this top coal was mined out by deceased and his sons. They were chosen for the work because they were known to be experienced workmen and were paid by the ton, for mining the roof down, the same compensation as for mining coal in the rooms. The mine manager went with them and explained the work to be done, marking with chalk on 'the top the place where they were to begin and where they were to stop mining the coal from the roof. He told them to use their own judgment in doing the work and during the two or three months that had elapsed since they commenced, they worked such days as the mine was idle, sometimes only a day or two in the week. The mine manager was back in the parting several times, while the work was going on but gave them no further instructions. On Friday preceding the injury, which occurred on Monday, the mine being idle they worked on the roof and lacked only about one-half day’s work in finishing it. On that day they had shot down the top coal on the left hand side of the entry and these shots left a triarigular piece of top coal hanging loose over the gob on that side of the parting. On Saturday deceased and his sons worked at mining in another part of the mine, but on Monday following the mine being again idle they went to the parting to proceed with their work. They fired two shots which knocked down all the top coal that was to be taken out on the right side of the entry and left the triangular piece, on the left side of the track, which had been hanging loose since Friday. They examined the piece and concluded they would have to shoot it down. Thereupon Walter Stanhaus, Jr., began drilling a hole in the top coal for the purpose of firing a shot, while Amos Stanhaus and his father brought in a car and commenced throwing into it the coal which had just been shot down. While this work was going on, the loose coal hanging over the gob" fell and pulled with it a chunk of solid coal some four feet square over the roadway, where Walter Stanhaus, Sr., was at work loading the car, which struck and killed him.

Appellant had a licensed examiner, who went down into the mine early in the morning of the day the injury occurred and examined, among other places, the parting in question .and sounded the coal with an iron rod he carried in the roof over the place where Stanhaus was killed, but did not examine the coal over the gob and did not make any danger mark nor mark the day and date of his visit on the walls of the parting.

Appellant insists, first, that the evidence did not tend to prove the wilful violation of the statute by the defendant ; second, that the provisions of the mining statute relied on, are not applicable to the conditions under which the deceased was working; and third, that the alleged violations of the statute, if proven, were not the proximate cause of the death.

The only question for us to determine as the case is presented to us is, whether the court erred in refusing to peremptorily instruct the jury to find appellant not guilty.

Section 18 of the Mining Law provides that when working places are discovered in which any dangerous conditions exist, the examiner shall place a conspicuous mark thereat as a notice to all men to keep out and at once report his finding to the mine manager. That a dangerous condition existed in the parting at the place in question, was shown by the evidence. It also appeared that the examiner did not sound the place of most imminent danger and that he wholly failed to comply with the requirements of the statute that such places should be marked as dangerous. Under these proofs we think it was a proper question for the jury to determine whether the neglect of appellant in this regard was wilful or not. It is claimed by appellant that the provisions of the statute were not applicable to the conditions under which deceased was working because the character of the work produced continuous changes; that it was part of his duty to destroy or tear down the roof and also to remove a dangerous condition or make a dangerous place safe. We do not accede to appellant’s views in this regard. While deceased and his sons were engaged in enlarging the space to be used for a parting by making it both wider and higher, yet they were, after all, simply engaged as miners, in mining and loading coal. They were paid for their work according to the amount of coal mined by them, just as other miners. It is true they made changes in the conditions surrounding them, as they proceeded with their work, but they would also do so had they been engaged in opening out an ordinary room in the mine. They do not appear to have been engaged in making a dangerous place safe or removing a dangerous condition, as the evidence does not show there was any dangerous condition existing in the entry' at the place in question at the time they were set to work there. Nor does the evidence show that the work in which they were engaged was of a more dangerous character than the work of mining coal in other portions of the mine. These matters were, at least, all clearly questions to be determined by the jury.

The complaints of appellant come more nearly applying to the proofs under the second count of the declaration, which alleges that deceased was wilfully allowed by appellant to enter said entry for work, without being under the direction of the mine manager, before thé dangerous condition therein was made safe. The statute, however, specifically requires that no one shall be allowed to enter the mine to work therein, except under the direction of the mine manager, until all conditions shall have been made safe. There was proof to the effect that a dangerous condition existed in this entry and no attempt was made to make it safe before deceased went to his work therein.

We are of opinion, that the proofs adduced under the second count of the declaration, were proper for the consideration of the jury, under instructions by the court as to the law.

The question as to whether the failure of appellant to comply with the terms of the statute was or was not the proximate cause of the death of Stanhaus, appears to us under the proofs in this case, plainly one for the jury.

We are therefore of opinion, that the court below did not err in refusing to give appellant ’’s peremptory instructions of not guilty under the first and second counts.

The judgment will be affirmed.

Affirmed.


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    Amanda Plant, Plaintiff in Error, v. T. P. Morey, Defendant in Error.

      Instructions—when error to give peremptory. It is error peremptorily to instruct for the defendant where the proofs fairly tend to show a cause of action.
    Error to the Circuit Court of Bond county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    John A. Bingham and F. M. Guinn, for plaintiff in error.

      D. R. Kinder, for defendant in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

In the declaration filed in this suit the plaintiff, Amanda Plant, charged the defendant, T. P. Morey, with having made an indecent assault upon her.

The first trial resulted in a verdict of not guilty, which was set aside by the court and a new trial awarded. Upon the second trial, the court, at the close of plaintiff’s evidence, instructed the jury, on motion of the defendant, to find him not guilty, and gave judgment against plaintiff for costs.

The only question presented to us is, did the trial court err in taking the case from the jury. The evidence in the case in addition to the testimony of the plaintiff, consisted of the testimony of two other witnesses and the deposition of a third. The facts as they appeared from such proofs were substantially as follows: At about 8 o ’clock in the evening of October 17, 1908, plaintiff, a married woman and the mother of five children, went to the court house in Greenville, where she lived, in company with Mrs. Eeid, a niece, who was interested in a special assessment case then on trial. The court room, which was on the second floor was reached by two stairways, leading to a common landing at the top. As plaintiff and her niece reached the landing they were met by defendant with whom she had but slight acquaintance, who'said, “Good evening ladies,” and shook hands with plaintiff. When he took her hand he Tickled the palm. She tried to pull her hand away from him but he did not at once let loose of it. She continued her efforts however and he soon released her hand. He afterwards stood between her and the court room door, near which they were standing, and addressed to her improper proposals, which she rejected. She then passed into the court room and asked her niece to go home with her. The same night she wrote to her husband informing him what had taken place. She became nervous over the matter, was compelled to give up her work of sewing for others and took treatment from her family physician.

In C. & N. W. Ry. Co. v. Dunlevy, 129 Ill. 132, in referring to a peremptory instruction of the kind in question, the court said, “In considering the propriety of said instruction, we have nothing to do with any question as to the preponderance of the evidence, or the credibility of the witnesses, or the force to be given to the evidence having a tendency merely to impeach their veracity. The only question is, whether any evidence was given, if true, would have tended to support a verdict for the plaintiff.”

In Geiger v. Geiger, 247 Ill. 629, our Supreme Court, following the same theory of the law, uses the following language: “The rule established applicable to a motion for a direct verdict, in law cases, has been announced so often that it is only necessary to briefly refer to it at this time. The question presented by such a motion is whether there is any evidence fairly tending to prove the cause of action or fact affirmed. It is not the province of the trial judge, on such motion to weigh the evidence and determine where the preponderance is. Neither the trial court in the first instance, nor the court of review, has anything to do with the question of the preponderance of the evidence or the credibility of the witnesses, when considering this question.”

We are of opinion the proofs presented a case fairly tending to show a cause of action and that the same should have been submitted to a jury for their determination under proper instructions as to the law.

Reversed and remanded.


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    Nick Romeo, Administrator, Appellee, v. Western Coal and Mining Company, Appellant.
    This case is controlled by the decision in Romeo v. Western Coal & Mining Co., 157 Ill. App. 67.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    William H. Warder and Whitnel, Browning & Gillespie, for appellant.
    Benjamin W. Pope and William W. Clemens, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment of $1,000 in favor of appellee, in a suit broug’ht by the latter to recover damages for the benefit of the next of kin of Bruno Gareifa, who is alleged to have lost his life while in the employ and by reason of the negligence of appellant.

The immediate cause of his death was a fall of rock or slate from the roof of the mine at a place where he was engaged with other men removing rock, slate and other debris, which had previously fallen in an entry.

This case has been in this court once before where a judgment in favor of appellee was reversed and the cause remanded on account of errors in instructions. Romeo v. Western Coal & Mining Co., 157 Ill. App. 67. The opinion in that case contains a statement of the allegations of the three counts of the declaration, and also of the essential facts as they appeared upon that trial. Upon the last trial in the court below there was no amendment of the declaration but the errors in instructions upon which the former reversal was based, were fully obviated.

Upon this appeal only two reasons are urged by appellant why the judgment should be reversed. One is, that there was no obligation on the part of the master to exercise reasonable care in furnishing Gareffa a reasonably safe place in which to work, because he was at the time he was injured, engaged in the work of making a dangerous place safe. The other is because there was no evidence in the case tending to prove a negligent order on the part of appellant to Gareffa, to do the work in which he was engaged at the time he was injured.

In regard to the first point we said, when the case was here before: “The deceased was one of -the rock gang and had nothing to do with timbering and putting up supports and while there seemed to be a division of labor between the men who cleaned up and those who timbered and put up the supports, the main purpose of both kinds of labor, as the evidence tends at least to show, was to make the place where the fall had occurred safe. * * * As the evidence tended to show that deceased was so engaged in assisting to make the place safe at the time he was killed, appellant had the right to have the court instruct the jury as to the question of its liability in such case. ’ ’

What is above said will apply with equal force to the facts shown on the last trial but on that trial the jury were correctly instructed upon the question of the liability of appellant in such case, and as the question was one of fact for the jury under proper instructions, we do not feel warranted in disturbing their verdict in that regard.

In regard to the second question raised by appellant we were of opinion on the former trial that there was no evidence of a negligent order that there was in .fact no order of any kind given to the deceased; and that therefore the modification of an instruction by the court which submitted the question whether there was a negligent order to the jury, was erroneous. Upon the last trial we find evidence pertaining to this subject as follows : A witness who was present at the time, Samuel Short, stated that the pit boss was a man named John Burk; that he heard Burk tell the men to go to work and clean up the fall; that while the roof in question was being sounded the men were “a little bit leery” and did not take hold to do the work; that he did not know whether Gareffa was one of them or not but “it was those Italians, the rock men, and Mr. Burk told them to go to work. ‘It is all right, I will watch it’ or something like that, and he put the men to work.” Gareffa was one of the rock gang and the proof plainly shows was one of those included in the order to go to work. We are therefore of opinion that on this trial there was proof tending to sustain the charge of appellee that at the time of his injury Gareffa was acting under a negligent order of appellant.

No errors appear to us to have been committed upon the trial of the cause and the judgment of the court below is therefore affirmed.

Judgment affirmed.


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    Southern Illinois Contracting Company et al., Appellees, v. William P. Launtz, Appellant.
    Mechanic’s liens—when decree against fee erroneous. A decree against the fee of a lot cannot be rendered .where the structure erected was pursuant to a leasehold interest which has expired and where under such leasehold interest the structure erected was to be temporary, was to be removed, added no value to the real estate and was in fact a detriment thereto.
    Bill in chancery. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed March 21, 1912.
    James M. Dill, for appellant.
    M. D. Baker, D. J. Sullivan and Whitnel, Browning & Gillespie, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellees filed their bill in chancery in the circuit court of St. Clair county, to enforce a mechanics ’ lien for labor and material, against two lots located in East St. Louis, one of which was owned by appellant. The cause was referred to the master in chancery and the evidence taken before him developed the following facts concerning which there was no dispute:

Appellant, William P. Launtz, owns what is known as the Metropolitan building, fronting on Missouri avenue in East St. Louis and also a lot 25 feet wide and 100 feet long fronting on the same street west of and adjoining the Metropolitan building. West of and adjoining appellant’s 25 foot lot was another lot of the same size, owned by Mrs. Ida M. Chivers of Los Angeles, California. The surface of these two lots was about ten feet lower than the street and sidewalk in front of them and the space under the sidewalk was not filled in. These lots were vacant, when in the early part of June, 1909, three men, Patton, Deerner and Boegner, came to appellant to rent his lot to he used in connection with the Chivers lot, for the erection of a structure called an airdome, for the purpose of giving open air summer entertainments. Appellant, the only witness, who testified as to the terms of the lease, swore that he leased them 18 feet of his lot, retaining the seven feet next to the Metropolitan building so that it would not affect the light of that building, for the months of July, August and September for $60 or $65 a month; that the renters were, at their own expense, to construct their airdome and, at their own expense, to remove it at the end of the .season, unless there should be some later agreement about the matter-; that he had no interest whatever in the airdome; that the lease was a verbal one and the rent money named was to be paid for the ground rent. The lessees, after the renting, proceeded to erect the airdome on the two lots. It consisted of a platform about 37 feet wide and 90 feet long level with the sidewalk and was supported on wooden posts, resting on stone footings some eight feet apart. There was a stage at the back end of the platform for giving exhibitions and dressing rooms connected therewith. In front was a building of corrugated iron of sufficient dimensions for ticket office, entrance and mechanics’ room, which rose ■some 14 feet above the sidewalk. The remainder of the platform was open, being protected from view on appellant’s side by the Metropolitan building and on the opposite side by a board fence. When the airdome was nearly completed but before any rent or bills for labor or material had been paid, the lessees used it to give some seven performances and then decamped. They never reappeared in East St. Louis .but were made parties to this suit and service was had upon them by publication. The building was permitted to stand until the front wall blew part way over and people complained of it as being a dangerous nuisance when appellant hired a man to tear the structure down and pile it under the sidewalk where it remained unclaimed at the time of the suit.

It was shown by some ten witnesses that the construction of the airdome was not an improvement to appellant’s lot but on the contrary a detriment thereto.

The court below entered a decree dismissing the bill as to Mrs. Chivers, who had also been made a defendant, on the ground that the proof failed to establish the fact she had knowingly permitted the erection of the structure on her premises; but decreed that unless appellant Launtz should within thirty days pay the sum of $586.35, which was one half of the total amount of the claims for materials, labor, etc., furnished by complainants and the costs of the suit, that such amount should become a lien on his lot and the same should be sold by the master in chancery.

Appellant’s position is that it was error in the court to decree a lien against his fee in the lot because under the agreement the structure was to be temporary and to be removed at the end of the three months ’ lease and that therefore the same was no improvement to the freehold; that the law is, that unless the structure becomes a part of the real estate no mechanics’ lien can be enforced and that it must not only become a part of but must add value to the real estate.

In 20 Am. & Eng. Ency. of Law, (2nd Ed.) 304, it is said: “It is usually considered essential to the existence of a mechanics’ lien that the improvement on account of which it is claimed must appertain to and have become a part of real estate” also, “The mechanics’ lien is given upon the principle that the work or labor or materials have been a benefit to the realty or have enhanced its value.”

It does not necessarily follow that structures placed by one person on the land of another, become a part of the real estate, as a house erected by one npon the land of another, under an agreement it shall belong to the builder, is personal property. C. & A. R. R. Co. v. Goodwin, 111 Ill. 273.

This question has recently been carefully considered and the authorities reviewed in the case of Darlington Lumber Co. v. Burton, 156 Ill. App. 82. In that case a tract of land was leased for five years for an amusement park with the agreement that the buildings or fixtures they should erect thereon might be removed at the end of the lease. After the buildings were erected and a dam put in to form a lake, the lessee defaulted in the payment of rent and thereafter a bill was filed by certain parties who had furnished material for the structures, seeking to enforce a mechanics’ lien against the fee in the premises, on account of the permanency of the improvement. After reviewing a number of cases upon the subject, the court in its opinion by Mr. Justice Puterbaugh says: “The theory upon which the mechanics’ lien laws are based is that the owner of the fee is benefited by buildings and improvements erected on the premises, they becoming a part of the realty, and that he in right and justice should pay for this accruing benefit when it was induced or encouraged by his acts. It is founded upon the equitable doctrine that as the land is enhanced in value the owner of the fee should pay for the improvements when he encouraged them. Where however the lease provides that any buildings and improvements that are erected on the demised premises by the lessee may be removed by him at the expiration of the term, such buildings and improvements as are temporary in character and capable of being removed do not become part of the realty, but remain personal property. The fee is in no way enhanced in value and the owner can derive no benefit therefrom. In such, case there can be no sound equitable basis for requiring the owner to pay for the same and the lien of the material men, if any exists, extends only to the leasehold estate.”

In the present case it was shown by the proofs that appellant had no interest whatever in the building; that it was temporary in character and was to be removed at the end of the lease unless some further arrangement, looking to the retention of the building, was entered into between the lessor and the lessees, which was not done; also that the structure instead of being a benefit to the premises and enhancing their value was, as a matter of fact, a detriment. Applying the doctrine of the above case, with which we agree, appellees are not entitled to any lien upon appellant’s fee and as the leasehold interest has expired, they have no claim which can be enforced against the premises.

It is insisted however by appellees that as appellant knowingly permitted his lessees to place the structure upon the premises, he thereby 'subjected the fee to liens for labor and material furnished in connection therewith. The law on this subject as laid down in Haas Elec. Mfg. Co. v. Springfield, 236 Ill. 452, is, that where the owner of the fee consents- that the lessee shall make improvements, which shall remain upon the property for the benefit of the lessor at the expiration of the lease, his interest 'shall be subject to the lien. But where, as in this case, the structures erected by the lessee are to be removed at the expiration of the lease and no permanent benefit accrues to the premises, then only the leasehold estate and not the fee is liable to the lien.

Appellees assigned as a cross error that the court erred in admitting evidence of the terms of the contract between appellant and its lessee. In our view of the law as above expressed, the rights of the parties depended to a large extent upon the terms of the contract between appellant and his lessees and therefore it was both proper and necessary that the terms of that contract should be disclosed to the court.

For the reasons above given, the decree of the circuit court will be reversed and the cause remanded with directions to the court below to dismiss the bill for want of equity.

Reversed and, remanded with directions.


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    T. R. Kelley, Appellee, v. George W. Martin, Appellant.
    Accord and satisfaction—how must he established. An accord and satisfaction where relied upon must be established by a preponderance of the evidence.
    Assumpsit. Appeal from the City Court of Marion; the Hon. W. W. Clemens, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Sawyer & Kimmel, for appellant.
    W. W. Skaggs and D. T. Hartwell, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an appeal from a judgment of the city court of Marion in a suit brought by appellee, a real estate agent, to recover a balance claimed to be due him as commissions for the sale of 183 acres of land placed in his hands for sale by appellant.

The cause was tried by the court without a jury and resulted in a finding and judgment in favor of appellee for $207.50. There was no controversy as to the employment of appellee nor that he sold the premises for a satisfactory price. It was claimed however by appellant that at the time he placed the land in the hands of appellee for sale it was agreed between them that appellee would sell the same for him for a commission of $250, while on the other hand, appellee claims that appellant told him if he would take the land and sell it for him, he would pay full commission for it or all that appellee got for the same, over $60 an acre, and that he hoped appellee would make a thousand dollars. It was shown that by “full commission” was meant five per cent of the selling price. Appellee procured a purchaser for the premises, one Samuel Stearns, and after some negotiations, agreed to sell the same to him for $62.50 an acre. Stearns, appellee and appellant then went to the office of an attorney who prepared a bond for -a deed. Stearns made out his check for $1000 and gave it to appellant and the latter was about to sign the bond when he asked appellee how much commission he owed him and a controversy over the amount arose between them. Appellee insisted that he was entitled under his contract to a full commission of five per cent upon the price the land sold for. Appellant refused to pay this amount but offered to pay appellee $200 for commissions which offer he after-wards increased to $250.

Appellee refused to accept the amount offered and thereupon appellant returned the $1000 check to Stearns and the trade was abandoned. About a week later, with no further or different agreement concerning the commissions, appellant, as he testified, met appellee and said to him “We had just as well go ahead with the trade,” and also saw Mr. Stearns and said to him “I guess we had just as well go ahead with the trade as I would have to pay Kelley anyway.” Appellee’s testimony is that appellant at this time said he wanted to make the trade “just like it was. ’’ Appellee accordingly got into communication with Stearns and the trade was consummated. The same check for $1000 which had been formerly made out by Stearns was given to' appellant- who, in company with Stearns and appellee, took it to the First National Bank of Marion where appellant presented it to the assistant cashier and told him to place $750 to his credit and make out a check for $250 in favor of appellee for his commission. Appellee thereupon said that was not all appellant owed him; that he owed him a full commission of five per cent; that he would not accept the check for $250 except part payment, to which appellant replied, that if appellee accepted it at all, he must accept it in full payment of all he owed Mm. Thereupon both appellant and appellee left the bank without having come to any agreement, appellant however leaving the check with the assistant cashier.

The court below could not, in our opinion from the evidence, do otherwise than find that there was a contract for commissions between the parties as claimed by appellee. When appellee undertook to sell a second time, it must have been on his own terms, as he had yielded nothing. Appellant however relies upon an accord and satisfaction based on what he claims was an acceptance of the check by appellee after the two had left the bank.

Upon the question as to what took place at the time of the claimed acceptance of the check, there is only the testimony of appellee and the assistant cashier.

Appellee testified that he went back to the bank later and found that the cashier had given him credit for the $250, but that appellant still owed him a balance of $321.85. The assistant cashier, Mr. Campbell, testified that after appellant left the bank he asked the cashier what to do with the check and he said "Give Mr. Kelley credit for it;” that Mr. Kelley was present when he was given credit for the check but whether or not Kelley heard the direction of the cashier, witness did not ■state.

Witness further stated: “Mr. Martin did not tell me not to let Mr. Kelley have the check unless in full payment; he told me that that was all he owed Kelley and if Kelley got any more it would be at the end of a law suit. He did not tell me not to pay this $250 to Kelley unless Kelley accepted it in full payment. He did not say that in substance.”

There being no controversy as to what took place in reference to the crediting of the check to appellee, it might well be that the question of accord and satisfaction should be considered a legal proposition and as there were no propositions of law presented to the court, the question was not preserved for determination by us; but, waiving this question, it was necessary for appellant, in order to sustain his claim of accord and satisfaction that he prove the same by a preponderance of the evidence and this it appears to us he failed to do.

The claim of appellee on the trial was that he was entitled to five per cent commission on the sale, which would amount to $571.85. As against this amount he gave credit for the amount of the check, $250, and claimed there was still $321.85 due him.

Appellee stated however that in his conversation with appellant, the latter said he would pay him the full commission or all that he would get over $60 per acre. There were 183 acres and the land sold for $62.50 per acre, which would be $2.50 per acre in excess of the amount named, and would make the total commissions figured on that basis, amount to $457.50. If from the total commission there be deducted the $250 check, there remains $207.50 which is the amount for which the court below gave judgment. While the evidence would have supported the judgment for the greater commission, there was no error, of which appellant can take advantage, in the giving of judgment against him for the lesser amount. The judgment of the court below will be affirmed.

Affirmed.


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    Alfred N. Deming et al., Appellees, v. The Prudential Insurance Company of America, Appellant.
    1. Insurance—when partial exclusion of applications proper. If the policy sued upon recite that the same contained "the 'entire contract between the parties,” the applications upon which they are predicated are not necessarily competent in the entirety. Held, in this case, that the ruling of the trial judge in admitting only such portions of the application in question as distinctly pertained to the special pleas was proper.
    2. Insurance—what evidence incompetent to defeat recovery. Held, that where the application upon which the policy was predicated was not made part of such policy that it was proper for the court to refuse to permit a witness offered by the defendant to answer questions seeking to ascertain whether or not defendant insured the lives of persons having tuberculosis or the lives of persons .whose parents, brothers or sisters were known to have had consumption; also as to whether the answers of the applicant as to the condition of his health were material to the risk insured and whether the policy would have been issued had the answer to one of the questions disclosed that the applicant had a sister who died of consumption.
    3. Insurance—when unsoundness of applicant's health constitutes defense. A provision in a policy which provides that the company shall not be liable except to return the premiums paid if the insured on the date of the policy is not in sound health is a valid provision and if and where sustained by the evidence constitutes a good defense unless it appear that the defendant at the time it issued such policy had knowledge that the health of the insured was not sound. Knowledge of unsoundness is sufficient to constitute a waiver irrespective of knowledge of the exact condition which caused the unsoundness of the insured's health. , o
    4. Insurance—when instruction as to false answers in application erroneous. Held, in this case, that the instructions of the court as to what was essential to constitute the defense upon the ground of false answers made by the insured were proper so far as one policy sued upon was concerned but were erroneous as to the other policy in suit.
    5. Evidence—when leading questions improper. If a witness state that he does not recollect a part of a material conversation the party interrogating him is entitled to refresh his recollection but not by putting in the mouth of the witness the exact words which he desires him to employ.
    6. Instructions—when upon right to disregard testimony of wit

      ness erroneous. It is only where a witness has knowingly and wilfully sworn falsely to some fact material to the issue that the jury is entitled to disregard his entire testimony and an instruction which violates this rule is erroneous and ground for reversal.
    Assumpsit. Appeal from the City Court of Herrin; the Hon. Egbert T. Cook, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    John M. Herbert and Denison & Spiller, for appellant.
    William A. Schwartz and Herbert A. Hays, for appellees; A. D. Morgan, of counsel.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is a suit in assumpsit brought by appellees, as administrators of the estate of Claud Deming, deceased, to recover the amount of two life insurance policies, issued by appellant on the life of their intestate, who died January 19, 1910. One of the policies was for $190, and was dated May 10, 1909, while the other dated December 20, 1909, was for $500.

The declaration contained two counts each declaring upon one of the policies in the usual form and setting out the policies in full. Appellant filed five special pleas. The first averred, it was provided in the policies that the liability should be limited to a return of the premiums paid, if the insured was not in sound health at the time they were issued; that the insured was not in sound health at said time and therefore the liability was limited to the amount of the premiums paid. Special pleas 2, 3 and 4 set forth certain questions and the answers thereto, contained in the application for insurance, in reference to the health of the insured at that time and prior thereto, and the fifth a question and answer as to whether either parent or any brother or sister had died of consumption, and alleged that the answers made by the insured to these questions, were false. The replication to the first special plea stated that the insured informed appellant’s agent when he took the application, that he was not in sound health and that by issuing the same, with such knowledge, appellant waived such provision of the policy. As to the other special pleas, appellees replied that the answers relied on therein as a defense, were written by appellant’s agent without the knowledge or consent of the insured.

Upon the trial there was a verdict in favor of appellees for $458.33 1-3 which was followed by a judgment for a like amount.

Appellant assigns and argues as reasons why the judgment in this case should be reversed, errors claimed to have been committed by the trial court in its rulings in regard to the evidence and instructions.

Upon the trial appellant, to sustain the allegations in its special pleas offered the written applications made by deceased for insurance. Each of these applications contained the following statement:

"I hereby apply for insurance for the amount herein named and I declare that the answers to the above questions are complete and true and were written opposite the respective questions by me or strictly in accordance with my directions. I agree that said answers with this declaration, shall form the basis of a contract of insurance between me and the Prudential Insurance Company of America, and that the policy which may be granted by the company in pursuance of this application, shall be accepted subject to the conditions and agreements contained in said policy.”

Among the questions and answers in the application were the following:

"Q. What is the present condition of health? A. Q-ood.”

"Q. Has either parent or any brother or sister died of consumption? A. No.”

“Q. Has life proposed ever suffered from consumption? A. No.”

When the first application was offered in evidence, the court said: “The application will be admitted so far as it goes to the questions and answers with reference to sound health, with reference to the condition of the deceased, his condition of health, as to whether or not any parent or brother or sister has died with consumption.” The same ruling of the court was made in reference to the second application when it was offered. In this appellant claims the court erred, contending that it took the whole of the applications to present the full import of the matters and things represented by the deceased in his applications and the result was to deprive appellant of proper and material evidence under its special pleas. Special stress is laid by appellant upon the fact that by such ruling it was deprived of the statement of Deming, above referred to, that the answers made to the questions were true, were written in accordance with his directions and that he agreed they should form the basis of the contract of insurance between him and the company. The objections of appellant and the ruling of the court, raise the question whether the applications are to be taken and considered as part of the contracts of insurance. The first policy of insurance did not make the application a part of the contract, but on the contrary contains this provision:

“This policy contains the entire contract between the parties hereto and all statements made by the insured shall in the absence of fraud, be deemed representations and not warranties, and no such statements shall avoid the policy or be used as a defense to a claim thereunder. ’ ’

The language -of this provision appears to us unequivocal and easy to be understood. By its terms the application, including the questions and answers therein contained, is plainly precluded from becoming a part of the contract, and the agreement of the insured in his application that the same shall form the basis of the contract of insurance, cannot overcome the plain language of the policy thereafter issued and which constituted the contract of insurance. The provision upon this subject in the second policy was not as broad and far-reaching as that in the first, the whole statement being “this policy contains the entire contract between the parties hereto.” These provisions, however, were both suEcient to justify the court below in excluding all of the two applications, except the questions and answers admitted by him as set forth.

The next contention of appellant is, the court erred in refusing to permit a witness offered by appellant to answer questions seeking to ascertain whether or not appellant insured the lives of persons having tuberculosis or the lives of persons whose parents, brothers or sisters were known to have had consumption; also whether the answers of the applicant as to the condition of his health were material to the risk insured and whether the policy would have been issued had the answer to one of the questions disclosed that the applicant had a sister die of consumption. This evidence was incompetent under the provision of the first policy in reference to statements made by the insured last above mentioned.

It is not quite so clear as to whether or not this proof was admissible under the second policy, which did not contain the words last referred to, but did contain the statement that the policy contained the entire contract between the parties thereto. But even under this contract, we are inclined to the opinion that such evidence was properly excluded. We think it would not have been proper to have permitted this witness to testify as to what appellant might have done under any other circumstances, than those existing here. If the answers of the applicant to the questions referred to were admissible under the second policy, the question of their materiality was for the jury and not the witness to determine.

A witness on behalf of appellant, Dr. Brooks, was interrogated concerning a conversation he had with the insured and after detailing part of the conversation stated that he did not remember just what was said but there was a good deal. Thereupon counsel for appellant addressed this question to him, ‘ ‘ To refresh your recollection, didn’t he say he had fooled the company?” An objection on the part of appellees to this question was sustained by the court and of this ruling appellant also complains. While appellant had a right to learn all the conversation in question, yet it was manifestly improper for counsel to put the desired words in the mouth of his own witness, but the detailing of the conversation should have been left to the witness himself as the court determined. Appellant makes many other criticisms of rulings of the trial court in regard to the evidence, all of which we have examined, but we find in them no error affecting the trial of the case in any material way. •

The policies of insurance in suit each contained the following provision:

“The company’s liability under this policy shall be limited to a return of the premiums paid hereon if the insured die before the date hereof or if on said date the insured be not in sound health.”

This was a material provision of the contracts of. insurance and if as claimed by appellant, Deming was not in sound health at the time the two policies were issued, a recovery on the part of appellees could not be sustained under the pleadings in this case for more than the amount of the premiums paid, unless proof were made by them of such knowledge and such actions on the part of the agent of appellant, as would in law bar the right of appellant to insist on such defénse. With this in view appellees gave their first instruction, which was as follows:

"The court instructs the jury that an insurance company cannot insist upon a forfeiture of a policy for a cause which was in the knowledge of its agent at the time the application for the policy was taken and in this case, if you believe from the evidence that the agent of defendant was informed by the assured at the time the application for insurance was taken, that he was not in good health, then and in that case the defendant cannot insist upon a forfeiture of the policy in evidence, under the claim that the assured was not in sound health on the date of the policy, provided you believe from the evidence, that the condition of Claud Deming \s health was no worse on the date of the issuing of the policy in evidence, than when the respective applications for insurance were made."

Appellant insists that this instruction was erroneous for the reason, that although the agent might have known at the time the policies were issued the insured was not in sound health, yet he might not have known that the insured was at that time afflicted with consumption which the evidence shows subsequently caused his death; that in order to constitute a waiver, the knowledge on the part of the agent must have been that the insured was afflicted with consumption and the instruction should have so stated.

In Prov. Life Soc. v. Cannon, 201 Ill. 260, it is said: “Notice to the agent at the time of the application for the insurance, of facts material to the risk, is notice to the-insurer and will prevent it from insisting upon a forfeiture for causes within the knowledge of the agent." The instruction complained of followed the language used in the policy and covered and included in its terms, not only consumption but any other malady or disease which might cause unsound health. If the agent of appellant was notified when he took the application for insurance, that the insured was not in sound health, then it is not entitled to avail itself as a defense of that provision of the policy, which limited its liability if the insured was at such time not in sound health, and it is immaterial what caused such condition of health on the part of the insured. There was therefore no error in the giving of appellees' instruction No. 1.

The second instruction given for appellees told the jury that before appellant could avail itself of the answers made by Claud Deming to the questions set out in its special pleas, it devolved upon it to prove by a preponderance of the evidence that, among other things, the same were made by the said Deming to defraud appellant. This same statement of the law was contained in other instructions given for appellees and was inserted by the court as a modification in certain instructions given for appellant. The criticism of appellant to this theory of the law is, that it required more proof of appellant in order to avail itself of the defense named, than was required by law; that all that was necessary for appellant to show was that the statement was made by the insured, that it was knowingly false and was material to the risks, and that under such circumstances it must be presumed to be fraudulently made. We think these instructions and this theory of the law were proper so far as the right of recovery under the first policy, was concerned, as that policy contained the provision above referred to, that, “all statements made by the insured shall, in the absence of fraud be deemed representations and not warranties, and no such statement shall avoid the policy or be used as a defense to a claim thereunder. But this provision was omitted altogether from the second policy, as we have above seen, and in the absence of such provision all that was necessary to permit appellant to avail itself of the defense referred to, was that it should appear from the proofs the answers of Deming were false at the time they were made, that he knew that they were untrue and that the fact concealed or the falsehood expressed, was material to the risk. Globe M. Ins. Ass’n v. Wagner, 188 Ill. 133; Prov. Life Savings Soc. v. Cannon, 103 Ill. App. 534; Aetna Life Ins. Co. v. King, 84 Ill. App. 171. The theory of the law adopted by the court as above set forth and the instructions given containing the same, were therefore erroneous as applied to the case under the second policy.

Appellant complains of the 15th instruction given for appellees, which informed the jury if they believed from the evidence, that any witness had wilfully and knowingly and corruptly sworn falsely to any material element in the case, or that any witness had wilfully and knowingly and corruptly exaggerated any fact or circumstance, material to the issues in the case, they had a right to reject the entire testimony of such witness, except in so far as corroborated by other credible evidence or by facts and circumstances appearing-in the case. In Chicago City Ry. Co. v. Allen, 169 Ill. 287, the court in discussing an instruction,- containing language somewhat similar to that used here, says: “It is not the law the entire testimony of a witness may be rejected from consideration by the jury, upon the ground the witness has knowingly and wilfully exaggerated any fact or circumstance but only when he has knowingly and wilfully sworn falsely to some matter or thing material in its character.” And in C. & S. L. Ry. Co. v. Kline, 220 Ill. 334, it is stated, that the law “has never sanctioned any such proposition as that a jury may disregard the entire testimony of a witness, who, they think, has either belittled or exaggerated some material fact about which he testified. The doctrine falsus in uno falsus in omnibus, is only applied as a rule of law, to a witness who has knowingly and wilfully sworn falsely to some fact material to the issue.”

The rule of law above referred to, does not appear to us to be in conflict with the case of the Chicago City Ry. Co. v. Bundy, 210 Ill. 39, where somewhat similar language was used in an instruction given for appellant, but the only question raised was as to whether the court rightfully modified the instruction by striking-out other portions thereof. Instruction No. 15 was therefore, in our opinion, erroneous and the giving of it constituted reversible error.

On the trial appellant presented seven special interrogatories, which were refused by the court. All of these might well have been submitted to the jury and we think it was error for the court to refuse to submit the first two, one of which asked the question, “Was the deceased, Claud Deming, in sound health at the time the policy involved in this case was issued?” and the second presented the same question in reference to the second policy.

Appellees contend that the special interrogatories above referred to are not properly before this court and a motion was made by them to expunge or strike the same from the record. We do not think it necessary however to discuss the question raised by this motion and a countermotion of appellant upon the subject, for the reason that the case must be reversed and remanded for errors in instructions, as above set forth, and we have only referred to the special interrogatories in order that our views upon the question might be given for the benefit of the court below, should there be another trial of the case.

Reversed and remanded.