text:
    Bell Telephone Company of Missouri, Appellant, v. F. A. Geary Appellee.
    Evidence&emdash;when boohs of account incompetent. The ledger of a telephone company purporting to show toll charges is incompetent where it is not a book of original entries and is not made up from original charge memoranda slips.
    Action commenced before justice of the peace. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    Wise & McNulty, for appellant.
    W. M. Vandeventer, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a suit instituted by appellant against appellee before a justice of the peace of St. Clair county and afterwards ■ appealed to the Circuit Court, where there was a verdict of a jury in favor of appellee, and a judgment against appellant for costs, from which the latter appealed to this court.

Neither the copy of the summons nor the transcript of the justice, as they appear in the record, gave any indication of the nature of the suit other than it was for a certain demand not exceeding $200.

In the Circuit Court appellant appears to have been ruled to file a bill of particulars and there was an order entered showing the rule had been in a measure complied with and reciting that the rule against appellant was therefore discharged. If, however, such a bill of particulars was filed it has not been preserved in the record. We learn, however, from the statements of counsel and the evidence in the case that this was a suit brought by appellant to recover a telephone bill, claimed to be "due and owing to it from appellee.

It appears from the record that appellee, a saloon keeper of East St. Louis, on February 2, 1906, made a contract with appellant to put a telephone in his saloon for the use of which he was to pay $3.50 at the end of each month. The contract was to run one year after which it could be terminated by either party, upon ten days’ written notice. Appellee also contracted for an extension telephone in his private office for which he was to pay at the rate of one dollar a month, making a total of $4.50 per month for the rental of the two ’phones, the contract for the extension telephone providing that the use of it should be paid for monthly in advance. The rate on the extension telephone appears to have been afterwards reduced to fifty cents a month. Under the contract, appellee had the right to use the telephone free of additional charge for messages in the city of East St. Louis, but if he desired to send a message outside of that city he was required to pay an additional amount called toll and such outside or toll messages were charged to him. There seems to have been some dissatisfaction on the part of appellee because customers or others used the ’phone for toll messages, the fees for which were charged to him. He thereupon, on January 14, 1907, wrote appellant a letter, notifying. it to give no futher toll connections over his ’phone to St. Louis and no long distance calls unless “0. K.’d” by him. Appellee was subsequently notified both by letter and a representative of the company that appellant could not comply with his request and at .a later date ■ the telephones were removed by appellant without the written notice provided for by the contract.

.It appears to be admitted that appellee paid $8 for the service of the telephones during the months of January and February, 1907. On April 11, 1907, appellant sent appellee a bill containing items for telephone service from January 1 to March 20, 1907, amounting to $10.53 and the use of toll lines $7.05, making a total of $17.58. Credit was given by cash paid March 20, 1907, to the amount of $8 leaving a balance of $9.58. This bill appellee returned to appellant, with a statement in writing indorsed on it indicating to the company that he would not pay the bill. To prove the account, appellant’s book-keeper was placed "upon the stand and he was interrogated concerning the statement of appellee’s account, as shown by entries on appellant’s ledger. It appeared, however, that in appellant’s toll department the original charges were made upon tickets which were after-wards sent to the auditor’s department where a bill was made out and that the entries in the ledger were made from that bill. He testified he did not know whether appellee ever had the long distance service or not; that he could not swear to the service or what appellee paid except from the record; that he went by the books and the entries on the books, not from his personal knowledge.

Objection was made by appellee to the admission of the ledger in evidence, which under the circumstances was properly sustained by the court. No other evidence was sought to be introduced concerning the question of tolls due from appellee, if any were due, and the only question which could have remained was, whether appellee should pay for the use of the telephones from the first to the 20th of March, 1907, inclusive, amounting to $2.53.

A collector for appellant stated that he presented a bill to appellee for rents and tolls up to March 1, 1907; that the tolls were for January and February and the services for the same month; that the amount of rental was $8 but he could not recollect the amount of the toll; that appellee paid him the $8 for services.

• In the absence of a bill of particulars we are unable to know definitely what appellant’s claim against appellee was and attorneys for the respective parties do not seem to entirely agree upon the subject.

Appellant insists that the only question before the jury was whether or not appellee was indebted to appellant in the amount of $2.53 for rental, while appellee firmly insists that the only issue before the jury was the question of tolls. While there was some evidence tending to show appellee used the telephones after March 1st, yet it was not definitely shown when the telephones were removed and the evidence on that subject was so uncertain that the jury could not have determined the exact amount due, if anything was due, appellant. As the evidence failed to show what amount, if anything, was due appellant, we do not feel warranted in disturbing the verdict of the jury in favor of appellee.

Appellant complains that the court gave instructions for appellee upon the subject of tolls which were confusing and misleading to the jury because, as claimed by appellant, that question had been eliminated by the refusal of the court to admit the ledger in evidence. An examination of these instructions, however, shows that they were well guarded and not subject to the criticism made by appellant.

Upon the case presented by the record here the judgment of the court below must be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    Edward Walter, Appellee, v. Francis Kirsch et al., Appellants.
    Torts&emdash;effect of excessive levy by constable. A constable who makes an excessive levy without regard to law is liable in damages to the person injured.
    Trespass. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    Alex Flannigen and B. H. Canby, for appellant.
    W. M. Vandeventer and W. E. Knowles, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, as it appears from the proofs, was on August 5, 1905, engaged in conducting a bakery and confectionery store in East St. Louis in a building owned by Minnie Kirsch. He rented the basement and first floor, using the basement for a bakery, the front room on the first floor for his confectionery and sales room and two rooms behind the front room for living-rooms. In the store room and basement he had goods and fixtures amounting in value to about $1,800. His lease, which he obtained through Francis Kirsch, the husband of Minnie Kirsch, was for one year at $50 a month rental, with a privilege of renewing for a second year, and at the time above named he had been in possession of the premises about eighteen months. Appellee had gotten behind with his rent, but a short time before said date had made a payment and reduced his indebtedness for the same to $50, and he thereupon gave Francis Kirsch a note for $86 which included, in addition to the rent due, a doctor’s bill for $36, Francis Kirsch being a physician. The $50 included in the note covered the rent to August 1, 1905. The latter part of July, Francis Kirsch served a notice on appellee that his rent from August 1, 1905, would be $60 a month. Appellee said he would not pay the increased amount for rent and some hard feelings grew lip between .the parties. Appellee testified that Dr. Kirsch told him he had to sell his business to a' proposed purchaser for $450; that he refused to make said sale for the reason that he had been offered $750 for his business and that the doctor then said “You will sell it for $450 or I will put you out of business. ’ ’ On Saturday, August 5, 3905, Dr. Kirsch swore out a writ of attachment against appellee for an alleged indebtedness of $306 and the writ was delivered to the appellant Latinette, a constable, for execution. That evening about half past eight o’clock the constable, Dr. Kirsch and his lawyer, Mr. Hunt, entered appellee’s business place for the purpose of serving the writ. As they came in the cashier, a young woman, began to take the money from the drawer, .seeing which Kirsch grabbed her by the wrist and demanded the money, saying, “You give me that money, that is my money” or as he says “Stop that, don’t take that money;” but he was compelled by appellee to desist. The constable therupon made the levy with the aid of Kirsch and his attorney upon a considerable portion of-the goods and fixtures in the room. Appellee requested them to remove the property levied upon, so that he could continue his business with the rest, but the constable said it was too late to do so and he thereupon put two watchmen in charge of the store and shortly after eleven o’clock he and his assistant left. Appellee soon afterwards caused the arrest of the two watchmen and thereby .regained possession of the store. On the following Monday morning, appellants Kirsch and Latinette, with several assistants, forced the door of appellee’s living room, throwing him over a table with which he had endeavored to fasten the door, -injuring him somewhat, and thence went into the store room, taking possession of all he had, both in his store room and living room, including even his clothing, and as appellee claims, some twenty cents in money found in the bedroom, which was given to one of the assistants to buy liquor with. All tifie property was afterwards turned over by the constable to Dr. Kirsch to keep, and with the exception of a soda fountain, it was removed into an adjoining room and none of it appears to have been offered for sale under the writ. • .

On August 12, there was a judgment before a justice of the peace in the attachment suit against appellant for $106 but an appeal was taken to the Circuit Court where on March 10, 1906; judgment was entered against appellee for $86.60 and special execution awarded but no such execution has been issued.

It was shown that some of appellee’s property taken by the constable and turned over to Dr. Kirsch, was not even levied upon by the writ. Some ten days after the levy appellant Kirsch rented the store room formerly occupied by appellee to Halpin and Klaus for the purpose of conducting a confectionery business and put them in possession of the fixtures and soda fountain taken from appellee. Previous to the levy of the attachment writ, appellee had given a chattel mortgage on the fixtures to secure an indebtedness of $289.20 and afterwards, on September 23, 1905, the same were replevied by the mortgagee. The soda fountain appellee claims to have been worth $500 and of this amount he had only paid $160. Dr. Kirsch claimed that he had made no levy upon the fountain but he let Halpin and Klaus have it and he assumed the payment of the indebtedness. Afterwards, however, it was replevied by the vendor for non-payment of the balance due thereon. On September 23, 1905, appellee instituted a replevin suit before a justice of the peace against Halpin and Klaus, Minnie Kirsch and the appellants herein, to recover his wearing apparel and certain other personal effects “not exceeding in value $100,” the amount of his exemptions, and upon the trial recovered a judg.ment against Minnie Kirsch and these appellants for $50.55 for property described in the replevin writ and not found, and against the defendants Klaus and Hal-pin for possession of the property replevied. From that judgment an appeal was taken to the City Court of Bast St. Louis, which was pending at the time of the trial of this cause.

. Upon the trial of the case before us the jury returned a verdict in favor of appellee for $3,750. A motion for a new trial - was made by appellants and afterwards appellee entered a remittitur of $3,000. Whereupon the court -overruled the motion for a new trial and rendered judgment in favor of appellee for $750.

Appellants assign a number of errors but their argument is confined to a discussion of the sufficiency of the evidence to support the verdict, the claim that the court erred in giving two of appellee’s instructions and the charge that the amount of the judgment is excessive.

The evidence appears to us to have fully justified a verdict in favor of appellee. The levy made by appellants seems to have been excessive and to have been made without regard for law or for the rights of appellee. After the levy had been made appellee was in effect forcibly expelled from the premises and the property levied upon turned over by the constable to Dr. Kirsch, who received and used it as his own without taking any steps to have it advertised and sold. Under the circumstances a jury could not have been expected nor would they have been warranted in finding a verdict for the defendants.

Complaint is made of the first instruction upon the grounds that it proceeded upon the theory of a malicious use of a writ of attachment, the getting possession of the property by reason of such use and the wilful and wrongful conversion thereof. The facts in the case fully justify the theory and these objections and others made to the instruction are not well grounded.

The second instruction told the jury if they believed from the evidence “plaintiff was in possession of the building described in the declaration and lived therein, and that the defendants wilfully, maliciously and forcibly broke and entered said building and forcibly expelled the plaintiff therefrom and kept him so expelled” they might allow damages, etc. It is said by appellants that this instruction authorized the jury to assess not only damages for the original entry but also for a continuance of the trespass and that it was in conflict with instruction No. 4 given for appellants, which told the jury that even though the defendants entered into and upon the possession of said premises -against the will of the plaintiff, and ousted him from the possession thereof, yet if they further believed from the evidence that appellee never entered into or regained possession thereof, then appellee could recover damages only for the trespass itself or first entry and not for a continuance of the trespass after the first entry. Appellee did not re-enter the premises after he had been ousted and the case .was tried upon the theory of damages occasioned to him by the original trespass and there was no claim, either in the declaration or evidence, of damages for any subsequent trespass. The instruction complained of does not allow plaintiff to recover damages for his forcible expulsion from the building and also additional damages for his continued expulsion, but requires as a prerequisite to any recovery at all, proof that appellants expelled appellee from the premises “and kept him so expelled.” This called for the proof of more facts from appellee than he was required by law or by appellants’ fourth instruction to make, but of that appellants cannot rightfully complain.

The series of instructions in the case, as a whole, stated the law applicable to the case with substantial accuracy, and appellants ’ theory of defense appears to have been particularly well presented and covered.

The judgment in the case was not, under the facts, excessive. The acts of appellants, as shown by the proofs, appear to have been wanton, reckless and in a large degree lawless, so that the case wa.s one calling for punitive damages and a verdict for a much larger sum might well have been sustained. The judgment of the court below will be affirmed.

Affirmed.


text:
    Mary Pipes, Administratrix, Appellee, v. American Car and Foundry Company, Appellant.

      Verdict—when disturbed as against the evidence. A verdict will be set aside on review as against the weight of the evidence, where clearly and manifestly so.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at February term, 1908.
    Reversed and remanded.
    Opinion filed September 12, 1908.

      Wise & McNulty, for appellant.
    J. M. Bandy and D. J. Sullivan, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

At the May term of the Circuit Court of Madison county, 1907, E. Gr. Pipes brought a suit against appellant to recover damages for personal injuries sustained by him and caused by the overturning of a car from which he was unloading steel plates in appellant’s yards, on April 22, 1907.

The declaration charged that at the time of the alleged injury said Pipes was a servant of appellant and was engaged in unloading said car under the direction of a foreman; that it was the duty of appellant to use reasonable care to see that said car was in a safe; condition and the king bolt, which fastened the bed of the car to the trucks, was .properly adjusted and safe; that appellant negligently permitted said king bolt to become broken and defective, so that the body of'the car, by reason of the steel being on one side, was liable to turn over; that while said Pipes was in the exercise of due care for his own safety, and by reason of the fact that said king bolt was broken, the car turned over and Pipes was permanently injured. The cause was continued and at the following October term, the death of said Pipes was suggested and appellee was permitted, by leave of court, to be substituted as plaintiff, and to file an amended declaration.

The charges in the amended declaration, so far as they set forth appellant’s duty and negligence, were the samé as in the original declaration. The amended declaration, however, alleged the death of the original plaintiff on August 12,1907, and that he left his widow, said Mary Pipes, and several children his next of km.

The declaration was afterwards amended by making certain changes and additions in regard to those claimed to be the next of kin. The general issue was filed and the trial resulted in a judgment and verdict in favor of plaintiff for $1,433. No plea in abatement nor demurrer to the original or amended declaration was filed after the death of the original plaintiff, nor was there any motion made by appellant in arrest of judgment, but both parties appear to have treated the suit as an original action brought by the administratrix for the benefit of herself as widow and the next of kin.

It appears from the proofs deceased, a colored man, had been in the employ of appellant at its plant in Madison, Illinois, for several years and was accustomed to be placed in charge of other men. On April 22, 1907, he was directed by his foreman to unload a car of steel plates on the switch track in appellant’s yards. These plates consisted of pieces of sheet steel about fifteen inches wide, eighteen feet long and a quarter of an inch thick, fastened together in bunches or bundles, each containing from twenty to fifty sheets. The bundles were placed in five rows or piles lengthwise of the car, each pile being about two feet high. The car containing the steel sheets was an ordinary coal car, the sides of which were about four feet high and the steel was unloaded by means of an overhead crane.. Chains suspended from the crane were fastened around the steel sheets and an entire pile was taken at one time. The car stood on a curve, the west side of the track being elevated a trifle higher than the east. In obedience to the command of the foreman, deceased, with two foreign workmen, proceeded to unload the car. After one or more of the piles had been taken from the car, and as still another pile was being raised by the crane, the body of the car toppled over, catching deceased between the pile being raised and the other side of the' car, and crushing him so badly that he subsequently died from his wounds. After the injury occurred the car was examined and it was found that the king bolt at one end of the car only extended down some two inches into the bolster of the truck, and the king bolt at the other end of the car was broken off between the body bolster and the truck bolster, a part of the break being old, as shown by the fact that it was covered with rust, and a part of it new, having apparently been made at the time the car turned over.

Appellant claimed and introduced evidence tending to show that the tipping of the car was caused by the improper manner in which Pipes was causing it to be unloaded; that he first took out the center pile of steel sheets and then instead of taking the sheets from the east or lower side of the car proceeded to take them from the west or higher side, where it claimed the piles were smaller; that this manner of unloading left too much weight on the lower side of the car and caused it to topple over when the weight on the upper side was lessened.

On the other hand appellee contended and produced evidence tending to show that the manner of unloading adopted by Pipes was the customary one, or at least not an improper one, and that the car did not turn over on account of the use of an improper manner of unloading, but because of the fact that the two king bolts were defective.

A number of reasons are urged by appellant as grounds for the reversal of the judgment in this case, none of which appear to us to be well founded except those which relate to the claim that the evidence in the case did not justify the verdict in favor of appellee.

Upon the question whether the car was being unloaded in a proper or improper manner, we find there was a conflict in the evidence which appears to us to have slightly preponderated in favor of the claim of appellant.

It is further claimed by appellant that the car in question was duly inspected by the car inspector of the terminal railroad association, and found to be in good-condition and also that the proximate cause of the injury was the breaking of the bolt which had the old crack in it; that this old crack was a latent defect which it was impossible to discover by an examination or inspection of the car. The car inspector above mentioned testified that it was his duty to inspect all cars delivered by his company to appellant; that he inspected each of the eight cars which were on appellant’s steel yard spur track on the day the injury occurred, and found them all in substantially good condition, except as to some minor defects mentioned by him as having been found in certain of the cars; that he examined the king bolts and found them in good condition; with nothing wrong or defective about them. The fact of the examination of the cars by the inspector was not controverted by any evidence introduced by appellee, nor did appellee attempt to show that an examination would have disclosed the defect in the pin- at the south end which had the old crack in it. It in fact appears from the evidence that an examination or inspection would not have disclosed the defect in that pin.

It was shown, however, by appellee that the king pin in the north truck extended down into the truck bolster only about two inches and it is contended by her that this short bolt was insufficient to keep the car in place and was what caused it to start or tip over, and that a proper inspection would have discovered the short bolt and its insufficiency. On this subject it is sufficient to say that the evidence appears to have been overwhelmingly against the position taken by appellee. Upon the whole case we are of opinion the evidence so strongly preponderated in favor of appellant that the jury in finding their verdict must have been actuated by prejudice or have wholly misunderstood the effect of the proof.

The judgment of the court below will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    Maggie E. Rettig, Administratrix, Appellee, v. Swift & Company, Appellant.
    Master and servant—when doctrine of assumed risTc precludes recovery. If an experienced servant is injured as the result of a danger known to and appreciated by him at the time, he cannot recover.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Reversed.
    Opinion filed September 12, 1908.
    C. E. Pope, for appellant.
    D. J. Sullivan, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee brought suit as administratrix of the estate of Fred Eettig, deceased, for the benefit of herself as his widow and their three children, as next of kin, alleging that the death of her intestate was caused by the negligence of appellant while he was in its employ, and recovered a judgment for $5,000.

Appellant, which brings the record here for review, was, as it appears from the evidence,’ a corporation engaged in packing meat products at the National Stock Yards near East St. Louis. At its plant there are two engine rooms, No. 1 furnishing power for operating a portion of the plant and making electric lights, and No. 2 furnishing power for a portion of the plant and also operating refrigerating machines, which are there located. The appellant has a chief engineer, who has general supervision' of the machinery, and at each engine room there was an engineer who had charge of the machinery in that particular room and the men working under him.

Fred Eettig, the deceased, was at the time he received the injuries' which resulted in his death, an electrical engineer 43 years of age and had been so employed for a number of years. He had formerly been employed for a period of a year and a half by appellant at the same plant, where he had charge of engine room No. 1. He also worked for four months as engineer in a small refrigerating plant at Austin, Minnesota, and was employed at other places where there was no refrigerating apparatus.

About January 1, 1907, he was again employed by appellant and placed in charge of its engine room No. 2, under the general supervision of its chief engineer, Mr. Walker. The engine room in which he was employed was about thirty feet high and near the roof on the south side were some electric wires. About three feet below these wires was an inch pipe used for conveying ammonia. On the south side of the room there were two rows of windows, five in each row, while there were also windows in the end of the building and two skylights in the roof. On January 11, 1907, some of appellant’s electricians were engaged in making arrangements to repair cértain of the electric wires above mentioned and in doing so placed a ladder alongside of the inch ammonia pipe which at this point turned directly downward for a distance of some fifteen feet, the pipe and ladder being located between two windows. After the ladder was placed in position one of the electricians attempted to ascend it when he was affected by escaping ammonia and had to descend. It was then discovered there was a leak in the ammonia pipe at a flange joint near the ladder and that it would be necessary to stop the leak before the work of repair could be continued. The matter of the leak was reported to Chief Engineer Walker, who was in the engine room at the time, and he directed Rettig to take a wrench and tighten the bolts in the flange joint. Rettig took the wrench and ascended the ladder for the purpose of tightening the joint, but when he had gotten up part way, he was partially overcome by the ammonia escaping from the leak and coming down was assisted by the electricians into the open air. He after-wards reported the condition of affairs to Chief Engineer Walker, who instructed him to shut off a certain valve and pump out the line.

There is a conflict in the evidence as to what further, if anything, Walker told deceased. Walker testified, “I did not direct him to do anything except to shut the valve off and pump the line out and tighten the joint; he understood that the leak was to be fixed. I did not tell him to go the second time.” On the other hand one of the electricians testified that Walker “told him to go back up as soon as the valve was shut off and it would be all right” and another witness, an oiler in the engine room, that “he told Walker that the ammonia was too strong he could not stand it up there and Walker then told him to close those valves and pump the line out and then he could get up and fix it.”

Eettig followed the instructions of Walker in regard to closing the valve and pumping out the line and again took his wrench and went up the ladder. After he had been on the ladder but a very short time he suddenly fell to the floor, receiving injuries which soon afterwards caused his death.

Appellant urges a number of reasons for the reversal of the judgment in this case, but it is necessary to concern ourselves only with those which relate to the evidence. While it is contended by appellant that it is not shown what caused Eettig to fall from the ladder and that it may have been brought about by contact between his wrench and the electric wires or in other ways, yet we are of opinion the evidence was sufficient to warrant'the jury in finding that the fall was occasioned through his being overcome by the fumes of the escaping ammonia. Eettig was a man of mature years and was shown to have been an experienced and competent engineer. It also appeared he had other men working under him, engaged in oiling the engines and keeping the engine room and engines clean; that it was the duty of the engineer in charge of the engine room to make repairs that were urgent, were'small in, extent and could be done with a wrench or some similar implement; that deceased was directed to go up the ladder and stop the leak at the flange with a wrench; that such work was then apparently within the scope of his duty, though it subsequently developed that new bolts and a new gasket were necessary to repair the flange joint and that such repairs were the steamfitters’ work; that while he was not an expert in the handling of refrigerator appliances and in the use of ammonia, yet from his experience in the refrigerating plant in Minnesota, and in appellant’s plant, he must have acquired some knowledge of its character, its odor and the danger attending its inhalation, when present in large volumes; that even if he had not acquired this knowledge before, it became apparent to him from his experience when he attempted to ascend the ladder the first time and was so nearly overcome by the fumes of the ammonia, that he had to be helped to thé open air. The work which Eettig- was directed to do appears to have been in the line of his employment and the evidence shows he was acquainted with the dangers attending its execution. Under these circumstances we must hold that he assumed the risk incident to the employment in which he was engaged at the time he was injured.

The judgment of the court therefore will be reversed, and as in our opinion no recovery can be had upon the facts, as they are claimed by appellant to exist, the cause will not be remanded.

Reversed.

Finding of facts to be incorporated in the judgment: We find that said Fred Eettig’s death was the result of injuries occasioned by his falling from a ladder in appellant’s packing plant; that the fall was caused by his having been overcome by fumes of ammonia escaping from a leak in a pipe which he was then attempting to remedy; that deceased knew- of the danger attending the work which he was then about to perform and-assumed it as an ordinary risk of the business in which he was engaged.


text:
    James A. Goodall et al., Appellees, v. Eldorado, Marion & Southwestern Railroad Company, Appellant.
    1. Mechanics’ liens—when awarded against railroad company. Held, that the evidence in this case justified the award of a preferential mechanic’s lien against the' railroad company defendant
    2. Mechanics’ liens—propriety of including interest in decree. Held, that the lien claimant ■ having established his right to interest upon his claim was entitled to its inclusion in the decree awarded.
    Mechanics’ lien. Appeal from the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    Colp & Ferrell, for appellant.
    Denison & Spiller, for appellees.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellees, a firm of railroad contractors; filed a petition to enforce a lien under paragraph 1, section 7, chapter 82, Revised Stat. (Hurd, 1905), for work and labor done by them under an oral contract with appellant, whereby appellees undertook to do certain excavation work, clearing, grading and other work necessary in the building, construction and completion of a road-bed for appellant, "upon its right of way in Williamson county, Illinois, for a certain compensation then agreed upon between the parties.

The section of the statute above referred to is as follows: “That all persons who may have furnished, or who shall hereafter furnish to any railroad corporation now existing, or hereafter to be organized under the laws' of this state, any fuel, ties, materials, supplies, or any other article or thing necessary for the construction, maintenance, operation or repair of such roads, by contract with the said corporation, or who shall have done and performed, or shall hereafter do and perform any work or labor for such construction, maintenance, operation or repair by like contract, shall be entitled to be paid for the same as part of the current expenses of said road; and in order to secure the same, shall have a lien upon all the property, real, personal and mixed, of said railroad corporation as against such railroad, and as against all mortgages or other liens which shall accrue after the commencement of the delivery of said articles, or the commencement of said work or labor; provided, suit shall be commenced within six- months after such contractor or laborer shall have completed his contract with said railroad corporation, or after such labor shall have been performed or material furnished.”

The contract was entered into and work commenced in October, 1906, and completed in June, 1907, and this suit was commenced September 11, 1907. On January 1, 1907, appellant gave a deed of trust on its property to the Illinois State Trust Company, which was also made a party defendant. Both defendants answered and upon the hearing, a decree was entered awarding appellees a prior lien upon the real estate described in the petition as belonging to appellant, and also upon its rolling stock, for the amount claimed to be due and unpaid to appellees upon said contract, to-wit, $6,974.57, together with interest thereon as the several sums composing said amount respectively fell due to the date of the decree, amounting to $441.92, making a total of $7,416.49.

■This - appeal is prosecuted by the Eldorado, Marion and Southwestern Railroad Company alone, its co-defendant, the Illinois State Trust Company, not having perfected its appeal.

Appellant does not deny that it entered into the contract with appellees as claimed by them or that appellees did the work provided for by the contract and that it is indebted to appellees for a portion of said work.

It offered no evidence- whatever in its behalf upon the trial and its defense here is confined to technical objections to the sufficiency of the proof offered by appellees.

Appellant here insists there was no proof that it was the owner of the real estate described in the petition; no proof that it was in possession of said real estate; no proof that the work claimed to have been done, was done on that particular real estate; no sufficient proof as to the amount due and that there was no authority for decreeing the sum of $441.92 interest be made a lien on appellant’s property.

The proofs show that before and on the trial appellees notified appellant to produce its deeds of conveyance for its right of way through Williamson county and as they were not produced, the court admitted in evidence the records of the same from the recorder’s office of said county. The evidence also shows that appellant set appellees at work on the right of way-claimed by them; that the work was done upon said right of way as stated in the petition; that it paid appellees for a portion of the work and that it is still in possession of said right of way and has appropriated the work done by appellees for it. Appellant through its engineers furnished appellees with monthly estimates of the amount of work done by appellees and such payments as were made were made upon these estimates. The amount still claimed to be due is also based upon estimates furnished by appellant’s engineers and figured at the amount agreed upon in the contract. The estimates having been furnished by the engineers of appellant who were in charge of the work and appellant having recognized the correctness of that manner of settlement by former payments made upon such basis, the estimates furnished by said engineers upon which this suit is based must be held in the absence of any proof offered by appellant to the contrary, to be prima facie evidence of the amount of work for which appellant still owes appellees.

The claim for interest is based on a conversation had by appellee, James A. Goodall, with C. A. Gent, the general manager of appellant company and the person with whom the original contract was made in December, 1906. At that time the appellant was unable to meet the payment on the estimate then due and Mr. Gent told Mr. Goodall that they would thereafter-pay interest on the estimates as they came due and remained unpaid. The fact that appellees continued at the work they were employed by appellant to do, after the payment became due upon the estimates from time to time and after the promise to pay interest was made, was a sufficient consideration for the undertaking on the part of appellant to pay interest on the deferred payments as they should become due.

The point made by appellant however is that the interest should not have been made a lien on its property.

In Heiman v. Schroeder, 74 Ill. 158, which was a suit to enforce a mechanic’s lien, an instruction authorizing the allowance of interest was upheld by the Supreme Court, it being said ‘' such interest was a legal incident to the debt,” and in St. L. & P. R. R. Co. v. Kerr, 48 Ill. App. 496, which was a bill filed by a sub-contractor to enforce a lien against a railroad, the allowance of interest in the decree was approved by the court, and the case was affirmed by the Supreme Court in 153 Ill. 182.

In the two cases above referred to the contracts do not appear to have provided for interest but the court held that being in writing they, by the express provision of the statute, carried interest from the time they became due and allowed it as part of the lien. In the present case however while the contract was not in writing, yet 'the interest was made a part of the contract itself by the agreement between the parties and appellees thereafter proceeded to work under that contract. The interest due was also asked for in the petition in this case and being an incident of the debt was properly allowed as part of the lien:

The decree of the court below will be affirmed.

Affirmed.


text:
    Oscar G. Mueller, Appellee, v. Jordon Shoe Company, Appellant.
    1. Master and servant—when doctrine of assumed rislc precludes recovery by minor. A hoy, of the age of about 16 years who has operated a machine for upwards of a year and who is injured by reason thereof, if he has had sufficient opportunity to become familiar with the same and possesses sufficient intelligence to appreciate the dangers thereof, cannot recover.
    2. Master and servant—when doctrine of assumed rislc does not preclude recovery. The doctrine of assumed risk will not preclude a. recovery where the violation of a statutory obligation is alleged as the basis of the action.
    3., Instructions—when refusal to direct verdict upon particular count not ground for reversal. Notwithstanding there is no evidence to support a particular count, it is not reversible error to refuse to direct a verdict in favor of the defendant upon that count, if the jury upon special findings have indicated that they have found the defendant guilty upon both counts contained in the declaration, one of which was amply supported by the proof.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    Dan McGlynn, for appellant.
    Webb & Webb, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, a minor, by Ms next friend, brought this suit to recover damages for personal injuries received by Mm while in the employ of appellant.

The declaration contained two counts, one charging that On November 17, 1906, appellee, who was then under eighteen years of age, was employed by appellant in operating a large and complicated piece of machinery run by electricity, known as a Hercules leveling machine; that it was the duty of appellant to use reasonable care to protect the dangerous portions of said machine by means of a shield or.covering or otherwise, to prevent appellee’s feet being caught therein while said machine was being operated by him; that appellant failed to exercise reasonable care in that regard, and while appellee was running said machine in the exercise of due care, one of his feet was caught therein and seriously injured; the other charging a violation of that section of the Employment Act which forbids the employment of children under sixteen' years of age in any employment “that may be considered dangerous to their lives or limbs.”

The general issue was filed and the trial resulted in a verdict and judgment in favor of appellee for $2,000.

The proofs show that appellee was some three months over fifteen years of age at the time the injury complained of occurred; that he had been in the employ of appellant for about a year and a half before that time, seven months of which he had been daily engaged in operating the machine which caused the injury. This machine was held in an iron frame with two iron columns in front about six feet high and twenty-eight inches apart. Between these columns, a little above the floor, there was a bracket extending from one to the other and above the bracket at a convenient height for the Operator, a shelf for his use. Above the shelf were two large crane-necked arms, which when in operation came forward some fourteen or fifteen inches beyond the front line of the uprights. On the end of each of these arms was a figure in the shape of a shoe last and above each was another arm, upon the end of which there was a die into which, when the upper and lower arms were pressed together, the shoe last fitted. The operator’s place was on a stool in front of the shelf, and his dnty was to fit shoes upon the shoe last and then set the machine, which was run by electricity, in motion by pressing upon treadles with his feet. There were two of these treadles located near the floor, between and slightly to the front of the columns. Back of the bracket was a crank shaft, which when in operation, came towards and passed close behind the bracket. The distance between the crank shaft when nearest the bracket and the treadle, was about eight and one-half inches. At the time he was injured, appellee was sitting in front of the machine, the right hand treadle was up and his foot was off of it. He reached up for it with his foot and in doing so, in some manner raised the foot too high and placed it too far forward and it was caught between the- iron bracket and the revolving shaft and his foot injured so that afterwards his great toe had to be amputated:

The jury stated in their verdict that they found defendant guilty on both counts of the declaration and appellant insists the verdict cannot be maintained as to the first count, because the proofs show that appellee was injured by one of the ordinary risks incident to his employment which he must, under the circumstances, be held to have assumed.

The uncontradicted evidence in the case shows that appellee had worked for appellant for a year and a half and at this machine for seven months; that he not only operated it in leveling the shoes but that it was part .of his duty to and on occasion he -did oil the machinery inside the frame. He therefore had every opportunity of' becoming acquainted with the workings of the machinery, and under such .circumstances, one of the most ordinary intelligence, must have been able to appreciate that it would be dangerous to place his foot between the bracket and the revolving crank shaft. Ho good reason appears why one of the age and apparent intelligence of appellee should not have been aware of a danger so obvious and apparent. We are therefore of opinion that he must be held .to have assumed the risk incident to his employment and that he should not be permitted to recover under the first count of this declaration.

What is above said does not however apply to the second count of the declaration which relies solely upon the statute forbidding the employment of children under sixteen years of age at any employment that may be considered dangerous to their lives or limbs. The question whether the employment in which appellee was engaged at the time of his injury, might be considered dangerous to his life or limbs, was one of fact to be determined by the jury, under proper instructions as to the law from the court. •

The instructions upon the whole appear to us to have stated the law bearing upon the second count of the declaration, with substantial accuracy. We have been more concerned about the evidence, for the reason that while the proof is sufficient to sustain the jury in finding that the machine at which appellee was employed, might be considered dangerous to life and limb, and therefore warrant their finding in favor of appellee upon the second count, yet the evidence upon this subject was so intermingled with evidence introduced in support of the first count, that it was somewhat difficult to separate and apply the same. It appears, to us however, from a careful examination of the record, that the evidence bearing upon the question whether the employment might be considered dangerous or not, was so clearly sufficient to justify the finding of the jury, we do not feel warranted in disturbing the same.

Counsel for appellant contends that the judgment in this case should not be permitted to stand for the reason that the court refused appellant’s instruction offered at the close of appellee’s case, and again after all the testimony was in, to find appellant not guilty as to the first count of the declaration, and gave instructions authorizing a verdict in favor of appellee upon either of the counts of the declaration. He cites in support of his position, the opinion of this court in the case of East St. Louis Con. Ry. Co. v. Meeker, 119 Ill. App. 27. In that case the declaration upon which the case was tried had four counts, two of which charged wilfulness and wantonness on the part of the foreman of the appellant and the other two did not. The jury were told in the instructions, if they believed from a preponderance of the evidence, appellee had proved his case, as alleged in one or more counts of the declaration, they should find in his favor, and in pursuance thereof they found a general verdict in favor of Meeker. We there held that the charge of wilfulness was not sustained by the proofs and that the court below erred in giving instructions which authorized the jury to find for appellee under the counts which charged wilfulness. That case differs materially from the one under consideration here however, for the reason that the jury there gave a general verdict in favor of the plaintiff so that it was impossible to determine whether the verdict was found upon the counts of the declaration sustained by the evidence or upon those which this court held had not been sustained. In this case however the court especially instructed the jury at the request of appellant, if they found appellant ' guilty, to return with their general verdict a- finding as to what count or counts they found the defendant guilty upon, and the verdict was “We the jury find the defendant guilty on both counts of the declaration.” There was no uncertainty in this verdict, and it plainly found appellant guilty under the second count of the declaration, which as we have indicated, there was sufficient evidence to sustain.

The judgment of the court below will he affirmed.

Affirmed.


text:
    The People, ex rel. William Schaumleffel, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    1. Mandamus—when evidence not competent in proceeding to compel furnishing of adequate train service. In an action to compel a railroad company to furnish adequate train service, it is not competent to show that the relators and others feared that if a mine were opened at the place in question, sufficient train service would not be afforded and that damage would result.
    2. Railroads—who cannot question manner of exercise of fram chise. The propriety of the manner in which a railroad company is exercising its franchise is a question which can only be raised by the state. Any question of illegal combination or arrangement that might affect the franchise of such a company can only be raised by The People in a proceeding instituted for that purpose.

      Mandamus. Error to the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    H. E. Schaumleffel, for plaintiff in error.
    Kramer, Kramer & Campbell, for defendant in error; John G. Drennan, of counsel.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.'

The purpose of this suit, the grounds of the relief sought and the nature of the defense interposed, are so fully" set forth in the pleadings of the respective parties, that we shall refer to them here with some particularity.

A petition for mandamus was filed by plaintiff in error in the Circuit Court of St. Clair county, alleging that the St. Louis, Alton and Terre Haute Railroad Company is a corporation organized under a special charter granted it by the general assembly of this state; that for many years prior to the year 1898 it operated a railroad between East St. Louis and Belleville in said county, running passenger and freight trains both ways'between said points; that it established and kept on said railroad a station called Ogle station, where passengers are received and discharged by all regular trains; that about the year 1896 said company entered into an agreement with the defendant, the Illinois Central Railroad Company, by means of which the control and operation of said railroad passed to the defendant; that about the year 1898 defendant ceased to run trains over said railroad from Bast St. Louis to Belleville, for the carriage of either passengers or freight, and that the service to the public upon said railroad is only in one direction; that said Ogle station is still maintained for the purpose of receiving and discharging passengers to and from trains operated in one direction only, that is from the city of Belleville to Bast St. Louis; that the relator is and has been for many years the owner of a large tract of land lying near said station and through which said railroad runs, and that his residence is within a hundred yards of said station; that if the. trains on said railroads ran both ways, he and several hundred other residents of said station, would have occasion to frequently travel on said road, but that as the railroad is now run they are largely deprived of the use and accommodation of the same; that the land owned by the relator has underlying it, a vast quantity of coal which if raised to the surface of the ground would be worth a large sum of money; that by the failure of defendant to run its trains towards the city of Belleville, loaded cars are not drawn in that direction and the shipping of coal in that direction is thereby greatly hindered; that because of the failure of defendant to run empty coal cars from the city of Bast St. Louis and to haul loaded cars towards the city of Belleville, the business of opening and operating a coal mine on said tract of land is hindered and the value of the coal to relator practically destroyed ; that a coal mine on said tract would be of vast interest to the general public as well as the relator; that unless defendant is compelled by mandamus to do otherwise, it will continue to operate its railroad in the manner aforesaid and to fail in its duty towards the public and the relator. A writ of mandamus is therefore prayed for, commanding defendant to operate said railroad by regular and proper trains both passenger and freight and return empty cars over said line of railroad from the city of East St. Louis to the city of Belleville in said county, as well as from the city of Belleville to the city of East St. Louis and to stop its passenger trains to receive and discharge passengers at said Ogle station.

The answer of defendant states that it acquired control of the St. Louis, Alton and Terre Haute Railroad about the year 1895, since which time said road has been operated by the defendant; it admits that since the road passed into the control of the defendant passengers and freight have been transported in one direction only as alleged in the petition. But it denies that the petitioner or the people of the State of Illinois are injured or otherwise prejudiced by reason of that fact or that petitioner is entitled to the relief prayed.

Defendant further says that about May 23, 1896, it entered into a contract with the St. Louis, Belleville and Southern Railway Company, a corporation operating a railroad running from said city of East St. Louis to said city of Belleville, whereby defendant acquired the right to run its trains over the tracks of said railway company and from that date has operated its passenger and freight trains from the city of East St. Louis to the city of Belleville, over the tracks of said company; that the city of Belleville is about fourteen miles from the city of East St. Louis; that from the city of East St. Louis to the station of Church, a point about midway between said cities, said railroad lines run parallel, at no place between said points being more than 300 feet apart; that at said station there is an agency maintained for the accommodation of the patrons of both of said railways; that about one-half mile east of said station, there are high bluffs over which it is. necessary to pass in going from Bast St. Louis to Belleville and over which it is difficult to construct railroad lines with suitable grades; that after it acquired the use of the line of the St. Louis, Alton and Terre - Haute Bailroad Company, it spent a' large amount of money for labor and- material and improvement of said line, so that its trains might be operated- with safety to passengers, freight and employes ; that after said improvement had -been made defendant learned that said line between the station of. Church and the city of Belleville could not be constructed so that a- suitable grade could be -had for the movement of passengers and freight over said line in both directions; that defendant was wholly unable- to meet the wants and demands of the public and discharge its duties as a common carrier, and it became' necessary for defendant to enter into the contract with the St. Louis, Belleville and Southern Railway Company above mentioned, so that it could' meet the wants and demands of the public and discharge its duties and • obligations as a common carrier and move passengers safely and expeditiously between the cities of Bast St. Lóuis and Belleville; that it expended a large amount-of-money in improving the line of said railway company last mentioned, and thereby a suitable grade was acquired for the same between the stations' of Church and Belleville over and along which -trains could be moved with safety to passengers, freight and employes; that at the time it entered into the contract-last mentioned, and since, it has been necessary for defendant to operate a double line of railway tracks between the cities of Bast St. Louis and.Belleville,, without which the wants and demands of the public could not have been met with safety; that, since said lines have been improved* freight and passengers-can be safely and expeditiously carried from the city of Belleville to the city. of Bast St. Louis -over the line of said St. Louis, Alton and Terre Haute Railroad Company and from the city of East 'St.' Louis to the city of Belleville over the line of said St. Louis, Belleville and Southern Railway Company; that said lines of railway from the station of Church to said city of Belleville, run as nearly parallel as it is practicable for them to be; that the station of Ogle on the line of St. Louis, Alton and Terre Haute ■Railroad Company, is about three miles in a southeasterly direction from said station of Church and is only a flag station, no agency being maintained there and that there is a similar station maintained on the line of the St. Louis, Belleville and Southern Railway Company, about three-fourths of a mile directly south of said station of Ogle on the other line; that the relator and people living in the neighborhood of said stations are provided with ample railroad facilities and are not deprived of any right or convenience by reason of the manner in which the trains are operated on said railroad lines; that the wants and demands of the relator and the people living in the vicinity of Ogle, do not demand that a station be maintained thereat, and that trains be operated in both directions on- said line of railway formerly owned by said St. Louis, Alton and Terre Haute Railroad Company; that if the relator has any causé of complaint it accrued more than five years prior to the commencement of this action and is barred by the Statute - of Limitations; that this action was commenced without notice of any kind to defendant; that there was no complaint concerning the matters and things above mentioned. There was also a special plea of the Statute of Limitations filed by the defendant.

The petitioner filed a replication denying the material allegations contained in defendant’s answer, and further replying as to so much of said answer, as sets up the use and operation of said St. Louis, Belleville ánd Southern Railway by the defendant, as a double .track, said he should not thereby be precluded because said railway was, when defendant commenced to use and operate it, a parallel and competing line of railway with the line of railway then and there operated and controlled by defendant between the cities of East St. Louis and Belleville and was engaged in general business between said points in opposition to and in competition with the railroad of defendant, and that since defendant entered into said contract with said railway company, it has destroyed all competition between said railways.

There was a trial by jury, a verdict in favor of the defendant and a judgment against the petitioner, to review which this cause has been brought here by writ of error.

Plaintiff in error asserts that the verdict is contrary to the evidence, that it is, contrary to the law because founded on an immaterial issue and that the court erred in excluding proper evidence, admitting improper evidence and giving improper instructions.

There was little controversy regarding the material points in the evidence and it is sufficient to say that defendant in error produced abundant evidence to sustain the allegations in its answer.

The point made by plaintiff in error that the verdict is contrary to the law, is based upon the theory that a railroad company when it has once established its route cannot relocate it. We are of opinion that this question is not raised by the pleadings or proofs in this case. It is not asserted or proven that either of the two lines in question have been changed from their original location although.it is shown that they have been materially improved in the matter of grade and otherwise.

The complaint made by plaintiff in error in his petition is that the defendant in error is not properly operating that part of its line formerly known as the St. Louis, Alton and Terre Haute Bailroad, for the carriage of passengers and freight between East St. Louis and Belleville, and that proper and sufficient railroad service is not given to him or to the public generally, especially that portion of the public living near Ogle station. As the question above mentioned is not presented by the record in this case therefore it is not necessary, nor are we at liberty, to discuss it.

Upon the trial of the case, the- plaintiff offered evidence to show the extent of his coal interest and the adaptability of his land for a coal mine; that the royalties from mines which could be located on his land would be worth a large amount of money, and the fact that the trains did not run both ways kept people intending to invest in mines there from doing so. But this evidence was, on motion of defendant in error, excluded by the court. This evidence was properly excluded as it was based merely on conjecture of possible injury to the relator under certain contingencies. Had there been a mine in operation upon the relator’s lands or in that locality, and evidence was offered to show that the manner of operating the trains interfered with the conduct of the mine or the shipping of the product, such evidence would have been proper. But evidence that the relator or others feared if a mine was opened it would not have sufficient railroad service, was not proper.

Plaintiff in error also offered to show the St. Louis, Belleville and Southern line was a competing and parallel road with the St. Louis, Alton and Terre Haute line, before defendant in error operated trains on it, and that since then it had ceased to be a competing line and that the trackage contract introduced by defendant in error did not cover the true relations between it and the St. Louis, Belleville and Southern Railway Company, but upon objection being made the court refused to admit the evidence.

The question sought' to be investigated by the proposed evidence might be raised in a direct proceeding instituted by the state for that purpose, but cannot be raised in a collateral proceeding like this. This question has been passed upon by the Supreme Court in the case of Thomas v. St. Louis, Belleville and Southern Railway Company, 164 Ill. 634, where it is said: “The defendants then offered to prove that the railway of petitioner was a parallel line to the Cairo Short Line Railroad (St. Louis, Alton and Terre Haute Railroad), from East St. Louis to Belleville, and that 'both lines, were operated by the Illinois Central Railroad Company. There was no offer to show the franchise of petitioner had been forfeited and the court refused to admit the.offered evidence. It was sufficient for the purpose of the proceeding that the petitioner was a body corporate de facto. (McAuley v. Columbus, Chicago and Indiana Central Railway Co., 83 Ill. 348). "While it retained its franchise, the question of whether or not it was improperly exercising such franchise, was one between it and the state. Any question of illegal combination or arrangement entered into by it that might affect the franchise, could only be. raised by the' people in a proceeding instituted for that purpose.”

It is next urged by plaintiff in error that the court admitted improper evidence on the part-of defendant in error". The evidence complained of was introduced to show that Ogle station and intervening territory was included by defendant in error within the switch limits, and that such territory was given the same service as was given industries located in Belleville, at some distance from the depot, and that the service so given was ample. The objection' to this evidence was properly overruled as it was pertinent to the charge in the petition, that the relator and the public in the vicinity of Ogle station on the St. Louis, Alton and Terre Haute Railroad were largely deprived of the use and accommodation of said railroad, and that defendant in error was failing in its duty to the public in that regard.

• But two instructions were given on behalf of defendant in error, both of which plaintiff in error asserts were erroneous. The .first instructed the jury that the maintenance of a proper station at Ogle was not involved in the suit. The complaint made by plaintiff in error to this instruction was that there was no evidence concerning what was a “proper station” and the instruction had a tendency to lead the jury to believe as a matter of law, plaintiff in error and others had no possible interest at said station. It is admitted by both parties that there were stations at Ogle on both lines of road and while the instruction was not necessary, yet it was not erroneous for the court to tell the jury what was the fact, that the question of the maintenance of a proper station was not involved.

The second instruction was as follows: ■

The court instructs the jury that if you believe from a preponderance of the evidence that the relator William Schaumleffel and the public living near the station at Ogle are given reasonably good service by the defendant in the operation of its trains as shown by the evidence in this case, then you should find the issues in this case in favor of the defendant.”

The first objection raised to this instruction is that it tells the jury what the evidence shows and infers that it shows reasonable service. We do not think this instruction is reasonably subject to the objection made. The words “as shown by the evidence in this case” must manifestly be taken in connection with and as limiting the words immediately preceding them relating to the operation of trains, and evidently refers to the manner of the operation of the trains as shown by the evidence.” The manner of operating the trains was in fact shown by the evidence on. both sides and concerning it there was no controversy. Another objection made is that this instruction tells the jury defendant in error might re-locate its lines. It does not appear to us that the instruction is subject to this criticism, but it plainly bears directly upon one of the questions raised by plaintiff in error in his petition.

Complaint is also made that the court submitted to the jury a special interrogatory asking a finding upon the question whether the evidence in the case showed that a double track was necessary for the transaction of the business of defendant in error, between the cities of Bast St. Louis and Belleville, which the jury answered in the affirmative. This question was pertinent to one important phase of the controversy being investigated, and it appears to us unobjectionable. "

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

Affirmed.


text:
    Maria G. Baum, Appellee, v. Bernhard Hartmann et al., Appellants.
    Appeals and errors—duty of nisi prius court upon remandment. When a case has been tried in the Supreme or Appellate Court and remanded with specific directions to do some act, the court below has no power to do anything but to carry out the specific directions.
    Bill in chancery. Appeal from the Circuit Court of St. Clair county; the Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion fired September 12, 1908.
    L. D. Turner and Charles A. Karch, for appellants.
    Winkelmann, Dill & Miller, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

On August 3, 1894, Simon Baum was appointed by the County Court of St. Clair county guardian of his two children, Maria C. Baum, appellee, and Charles W. Baum, and gave bond as such guardian with Bernhard Hartmann and Jacob Spies as sureties. The sum of $3,400 belonging to his wards came into the hands of the guardian, with which on June 26, 1895, he purchased certain real estate in said county and at the same time executed and delivered to Hartmann and Spies a mortgage on the same to indemnify them as sureties on his said guardian’s bond. Maria C. Baum, appellee, became of age June 1, 1899, and seven days later her guardian presented his report to the Probate Court, showing that he was indebted to her in the sum of $1,700. On June 10, 1899, she executed and delivered to her father and guardian, a receipt in full for the amount due her. The receipt was then presented, in her presence, to the Probate Court and the effect thereof fully explained to her by the judge of that court, who told her that her father was insolvent and if she released him she would have no other recourse for. her money, but would, in effect, make him a present of it. She insisted however on her receipt,' giving reasons therefor which seemed to be satisfactory to her, and the probate judge thereupon approved the settlement and discharged the guardian as to appellee. On January 19, 1902, Simon Baum died intestate and insolvent and in August of the following year appellee filed a bill in the Circuit Court of St. Clair county to set aside the receipt given by her to her guardian and the order of the Probate Court discharging him, and to recover the $1,700 shown to be due her in her guardian’s report, with interest. A decree was entered in her favor which on appeal to the Appellate Court, was reversed for want of proper parties.

The cause was then reinstated in the Circuit Court and Elizabeth Spies, administratrix of the estate of Jacob Spies, deceased, was made defendant with Hartmann and a decree was afterwards entered against appellee dismissing her bill, which was subsequently, at the February term, 1905, of this court, affirmed. Baum v. Hartmann, 122 Ill. App. 444.

The case was taken by a writ of error from the Appellate Court to the Supreme Court, which on February 21, 1907, filed an opinion reversing the judgment of the Appellate Court, and the decree of the Circuit Court, and remanding the cause to the Circuit Court “with directions to enter a decree in favor of plaintiff in error for the amount which may be found upon an accounting to be due, disregarding the alleged receipt and order-of discharge.” Baum v. Hartmann, 226 Ill. 160. At the April term, 1907, the cause was redocketed in the Circuit Court.

Appellants answered setting up substantially the same defense made by them in the first instance and in addition thereto, alleged that Simon Baum, the. guardian, in his lifetime conveyed the real estate purchased with his ward’s funds, to his wife and that she on February 20,1903, conveyed the premises to Frank C. Bux, as trustee for appellee, and that afterwards Bux conveyed the property to appellee, and that appellee accepted the deed to said real estate in full satisfaction and settlement of the amount due her, and has since said time been receiving and collecting the rents from same. The answer also referred to the fact that appellants filed their bill to foreclose their mortgage above referred to on said real estate and that appellee had filed a bill of interpleader claiming she was the owner of the undivided one-half of said real estate. On motion of appellee, the answers were stricken- from the files and subsequently second amended answers were filed, alleging the same facts and further setting up certain things claimed to have taken place since the reversal of the former decree in this case by the Supreme Court, which it is alleged appellants did not learn, until appellee’s deed to said premises was placed on record, on December 18, 1905. On motion of appellee the second amended answers were also stricken from the files. The case then proceeded to trial and the court heard evidence introduced on behalf of the respective parties as to the amount then due appellee, if anything, upon said guardian’s account. The finding of- the court was adverse to appellants and a decree was entered against them in favor of appellee, for- the sum of $2,422.50, being the amount of the original indebtedness as shown by the report of the guardian and interest to the date of the decree.

Appellants contend that the Circuit Court erred, in sustaining the motions of appellee to strike the amended and second amended answers from the files, in setting aside the final settlement of the guardian, made at the request of appellee, and in rendering a decree against appellants as sureties on the guardian’s bond.

Some question is raised by appellee whether exceptions to the rulings of the court on the motions to strike the amended and second amended answers from the files have been properly preserved, but waiving that question we are of opinion the Circuit Court committed no error in its rulings .on those motions. The opinion and judgment of the Supreme Court fully disposed of and set aside the receipt signed by appellee and the order of discharge entered by the Probate Court and established the liability of appellants on the guardian’s bond. The only question left to be determined was the exact amount of the indebtedness, which the Circuit Court was directed to ascertain by an accounting.

When a case has been tried in the Supreme or Appellate Court and remanded with specific directions to do some act, the court below has no power to do anything but to carry out the specific directions. Union Nat. Bank v. Hines, 187 Ill. 109; People v. Gibbons, 161 id. 510; Boggs v. Willard, 70 id. 315.

The greater portion of the amended answers and second amended answers referred to questions raised at the former trial and the disposition made of them by the Supreme Court was final and amounted to res judicata. Union Nat. Bank v. Hines, supra.

The new matter set up in the amended and second amended answers was not necessary, as so much of the matters therein stated as was competent could be shown under the order of the Supreme Court to state the account between the parties, and appellants were in fact permitted to introduce evidence thereof by the court below in determining the state of the account. The claim that the court below erred in setting aside the final settlement of the guardian of appellee, cannot be sustained, that question having been distinctly settled by the Supreme Court. The Circuit Court did -not err in rendering a decree against appellants in favor of appellee as sureties on her guardian’s bond for $2,422.50, as the evidence introduced on this trial clearly warranted the same.

The decree of the court below is accordingly affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Joseph Leiter, Plaintiff in Error.
    1. Mines and Miners Act—who not competent to make mine examinations. No person however well qualified may he lawfully employed to make miné examinations until he shall have procured "a statutory certificate of qualification.
    2. Mines and Miners Act—when criminal prosecution under, will not. he sustained. A criminal prosecution under the Mines and Miners Act must have been conducted strictly in accordance with the law to be sustained against a defendant who is admitted to have had no criminal intent, where wilfulness is not proved dr claimed and where the evidence fails to show any actual knowledge on his part, either of the intention of any one connected with the mine to violate the statute, or of the fact that it has been violated.
    3. Mines and Miners' Act—when instruction in criminal prosecution not erroneous. In a criminal prosecution under the Mines and Miners Act in which wilfulness is charged, it is error to instruct a jury that they may disregard the question of wilfulness.
    Information for violation of mining laws. Error to the County Court of Franklin county; the Hon. Thomas J. Myers, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed September 12, 1908.
    H. J. Hamilton, H. R. Platt, W. S. Cantrell, and W. H. Hart, for plaintiff in error.
    W. H. Stead and W. P. Seeber, State’s Attorney, for defendant in error; W. F. Spiller and D. G. Thompson, of counsel.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

In the year 1905 and for some years prior thereto, the Zeigler Coal Company, a corporation, owned and operated a coal mine at Zeigler, in Franklin county, Illinois. On April 3,1905, an explosion occurred in its mine resulting in the loss of a large number of lives. On June 6 the state’s attorney of said county filed in the County Court an information against Joseph Leiter, "the president of the company, containing sixty-two counts, charging him with violation of the state mining law. The defendant was arrested and on June 10, following, gave recognizance for his appearance. Sixteen counts of the information were afterwards eliminated through proper action taken by the state’s attorney and at the February térm, 1907, of said court, the defendant was tried on the remaining forty-six counts before a jury, which returned a verdict of guilty on the twelfth count alone.

The count upon which the defendant was convicted was as follows:

“And the state’s attorney aforesaid, in the name and by the authority of the People of the State of Illinois aforesaid, comes into open court this day and prosecutes in this behalf for and on behalf of said people and informs the said court that Joseph Leiter, late of said county and state, on the- 9th day of March, in the year of , our Lord one thousand, nine hundred and five, at and within the said county of Franklin, being then and there the president of the Zeigler Coal Company, a corporation then and there owning, possessing and operating a certain coal mine in said county; and he, the said Joseph Leiter, as such president, then and there having the supreme control and authority in the management of the business.of said corporation including the authority to employ and dismiss employes and servants of the said corporation did then and there wilfully, unlawfully and negligently employ and suffer to serve as mine examiner in said mine one Thomas Carraher, a person who did not then and there hold a certificate of competency, either as mine manager or mine examiner issued by tlie State Mining Board of the State of Illinois, contrary-to the form of the statute in such case made and provided and against the peace.and dignity of the. people of the/ State of Illinois.”

Motions for a new trial and in arrest of judgment were overruled and the defendant sentenced by the court to pay a fine of $500 and the costs of suit and to be committed to jail until the fine and costs were paid. To review the record of the trial in the County Court, the defendant below prosecutes this writ of error. On the. trial no evidence was introduced on the part of-the defendant. The evidence introduced by the people showed that the defendant Joseph Leiter was president of the Zeigler Coal Company; that he did not live at Zeigler but visited that place from time to time and on occasion gave directions concerning the installation of machinery, for the improvement in conditions at the mine, for the erection of buildings for the comfort and education of the miners and their families .and in other matters connected with the mine. He is not charged in -the count of the information upon which he was convicted, of being the operator of the mine nor does the evidence show that he was actually engaged in directing the mining of the coal, although it does appear that he was a person of authority at the mine whose wishes were deferred to and whose suggestions in the lines offered were followed as commands.

It appeared that the company had in its employ a general manager or superintendent who had general control of the management of the business and operation of the. mine, also a mine manager who had direct charge, under the general manager, of the work below the ground, and a mine examiner. The general manager at the time mentioned in the information, was Gr. D. Hurd, who testified that he was in supreme control and management, of the mine and property ■ locally, except where a large amount of money was involved in which case he followed instructions which came from Mr. Leiter.

In October or November, 1904, John Graham who was then mine manager, had occasion to go to Colorado and before his departure directed Thomas Carraher, who had no certificate of competency either as.mine manager or mine examiner, to make examinations during his absence. Graham was gone seven or eight days and during that time Carraher made the examinations. Subsequently on March 23 and 24,1905, Carraher made examinations of the mine under the direction of William Baxter, who was at that time the mine manager. Carraher, who was at the time of the trial, assistant mine manager, testified that he was twenty-seven years of age; that he came to Zeigler in the fall of 1904 from Pennsylvania where he had been engaged in mining from the time he was twelve years of age and had worked at everything “from trapping to managing,” but that he “was not in this country long enough” at the time he made the examinations in question, to obtain a certificate of competency.

Sub-section G, section 8, chapter 93 Rev. Stat. (Hurd 1905), upon which this prosecution is founded, provides as follows:

“It shall be unlawful for the operator of any mine to employ or suffer to serve as mine examiner any person who does not hold a certificate of competency issued by the State Mining Board: Provided, that any one holding a mine manager’s certificate may serve as mine examiner.”

By section 33 of the same chapter it is further provided that:

“Any wilful neglect, refusal or failure to do the things required to be done by any section, clause or. provision of this act, on the part of the person or persons herein required to do them, or any violation of any of the provisions or requirements hereof or any attempt to obstruct or interfere with any inspector in the discharge of the duties herein imposed upon him, or any refusal to comply with the instructions of an inspector given by authority of this act, shall be deemed a misdemeanor punishable by a fine not exceeding five hundred dollar's, or by imprisonment in the county jail for a period not exceeding six months or both at the discretion of the court.”

It was not shown by the proofs nor is it claimed by counsel for the people, that the defendant Leiter had any knowledge whatever that Carraher had made the examinations of the mine above mentioned or that he was not competent to make the same. But it is claimed by counsel that Leiter, as president of the company, had supreme control and authority in the management of the business of the corporation, and was therefore responsible and liable to be punished criminally under the statute, for the acts of his mine managers, though he may have been wholly ignorant of the same; that it was his duty to know the statute was being compiled with; that it was not necessary to prove that the statute had been wilfully violated; and that it was immaterial whether Carraher was actually qualified to make the examination or not.

It is also suggested by the same counsel that while the first part of section 33 provides for the punishment of “any wilful neglect, refusal or failure to do the things required to be done by any section, clause or provision of this act,” yet the word “wilful” does not occur in the words following in said sub-section which provides ‘ ‘ that any violation of any of the provisions or requirements hereof * * * shall be deemed a misdemeanor,” etc., and they assert that defendant was subject to indictment and punishment under the latter portion of the statute, notwithstanding the fact he may have had no intent whatever of violating the statute and had no knowledge whatever that the statute was about to be or had been violated. We agree with counsel for the people that the question whether Carraher was actually qualified to make the examination, was immat.firial so long as he had no certificate of competency. No matter how much knowledge of mining operations he may have had, theoretical or practical, or both, he could not be legally employed to make the examination until he had procured a certificate of competency. The assertion of the people’s counsel of the right to sustain a conviction of a criminal offense against a defendant, who is admitted to have had no criminal intent, where wilfulness is not proved or claimed, and where the evidence fails to show any actual knowledge on his part either of the intention of any one connected with the mine to violate the statute, or of the fact that it had been violated, is necessarily based on technical grounds, and in such case all the proceedings leading up to the conviction must be shown to have been strictly in accord with the law.

It may not be amiss in this connection to say that it appears from an affidavit filed in support of the motion for a new trial in this case, that an information substantially in the same language as the one in question and for the same alleged offense was filed by the state’s attorney of said county against the Zeigler Coal Company, which was pending at the time of the trial of this cause, and that the same was afterwards on April 26, 1907, tried before a jury which returned a verdict of not guilty, and that judgment was entered upon said verdict and said company discharged.

The information charges that the defendant did “wilfully, unlawfully and negligently employ and suffer to serve as mine examiner in said mine, one Thomas Carraher, a person who did not then and there hold a certificate of competency either as mine manager or mine examiner,” etc.

Instructions 5, 6, 7, 8 and 9 given for the people, wholly ignored the question of wilfulness and authorized a conviction in case the jury found that Carraher was employed or suffered to serve as mine examiner by defendant at the mine in question, and at the time he was so employed did not -hold a certificate of competency, regardless of the question whether the defendant’s act was wilful or not. Said instruction 7 in fact specifically tells the jury “You are instructed that it is not necessary in this case to prove that Joseph Letter, the defendant intended to commit a crime. No specific intent is necessary to a conviction in this case.” It cannot be proper to charge a defendant in an information with a wilful violation of the law and then tell the jury in the instructions that they may disregard the charge of wilfulness in determining the question of the defendant’s guilt. Even if it could be conceded, as claimed by counsel for the people as aforesaid, that section 33 of the law has two divisions and that under the second division it is not necessary to prove a wilful violation of the law to warrant a conviction, yet that could not avail them here for the reason that the information in this case does not follow the language of that portion of the statute and omit the word “wilful” but directly charges the wilful violation of the law and defendant could not legally be convicted of a criminal offense other than that charged in the information.

Other questions of serious import are urged by counsel for plaintiff in error, as reasons for the reversal of this cause, which it is unnecessary for us to consider in this opinion.

For the errors in the instructions given for the people above mentioned, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Andrew Boa, Plaintiff in Error.
    1. Criminal law—who entitled to carry concealed weapons. A deputy game warden while in the discharge of his duties is authorized by law to carry concealed deadly weapons.
    2. Criminal law—who not entitled to carry concealed weapons. A justice of the peace is not authorized by statute to carry concealed deadly weapons.
    Information for carrying concealed weapons. Error to the County Court of Crawford county; the Hon. John C. Maxwell, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed September 12, 1908.
    William A. Thompson, for defendant in error.
    George W. Jones and Bradbury & Mac Hatton, for plaintiff in error.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

An information consisting of two counts was filed in the County Court of Crawford county against the plaintiff in error, Andrew Boa, charging him in the first count with unlawfully carrying a concealed weapon and in the second with unlawfully displaying and flourishing a deadly weapon in a boisterous and threatening manner.

Subsequently a jury was waived and a trial had upon the following state of facts:

“First. It is admitted that within eighteen months before the filing of the information in this cause that the defendant, Andrew Boa, then and there carried and had in his possession a revolver and that the same was concealed upon his person.

Second. It is admitted and agreed that the defendant was then and there a duly elected and qualified and acting justice of the peace of said county.

Third. It is admitted and agreed that the defendant, Andrew Boa, was then and there a duly appointed and qualified deputy game warden in and for said county, authorized to act as such. ’ ’

The court found plaintiff in error guilty upon the first count and not guilty upon the second and sentenced him to pay a fine of twenty-five dollars and the costs of suit. It was also ordered that he be committed to the county jail until fine and costs were paid. Plaintiff in error objects to the sufficiency of the complaint, but as this question was not raised in the court below it cannot properly be considered in this court.

The principal question raised by the record is that which relates to the claim of plaintiff-in error that the trial court erred in finding him guilty under the stipulation as to the facts, for the reason that it therein appears he was of that class of persons exempted from the operation of the statute against carrying concealed weapons.

The information was based upon section 4 of the act relating to deadly weapons which provides, “Whoever shall carry a concealed weapon upon or about his person, of the character in this act specified, or a razor as a weapon, or whoever in a threatening or boisterous manner, shall display or flourish any deadly weapon, shall be guilty of a misdemeanor, and shall be fined in any sum not less than twenty-five dollars ($25) nor more than two hundred dollars ($200).” Bev. Stat. (Hurd 1905) chap. 38 sec. 54d.

The only persons exempt from the above provision of the law are those named in section 6 of the'same act, which reads as follows: “Section four (4) of this act shall not apply to sheriffs, coroners, constables, policemen, or other peace officers, while engaged in the discharge of their official duties, or to any person summoned by any of such officers to assist in making arrest, or preserving the peace, while such person so summoned is engaged in assisting such officer.”

Plaintiff in error takes the position that because it appears from the agreed statement of facts that he was at the time he carried the concealed weapon in question, "a duly elected and qualified and acting justice of the peace of said county,” he fell within that class of persons denominated in the section last referred to as “other peace officers;” also that the further averment in said statement that he was at the time “a duly appointed and qualified deputy game warden in and for said county, authorized to act as such,” brings him in the same class and exempts him from the operation of the law against carrying concealed weapons above quoted.

Section 1, Division 5 of our Criminal Code, Rev. Stat. (Hurd 1905) chapter 38, paragraph 319, provides that, “All judges of courts of record within their respective jurisdictions, and justices of the peace in their respective counties, are conservators of the peace and shall cause to be kept all laws made for the preservation of the peace, and may require persons to give security to keep the peace, or for their good behavior or both, as provided by this act.”

While it is true that by the section of the statute last above set forth, the judges of courts of record and justices of the peace, within the limits therein named, are made conservators of the peace, which gives them large latitude and power in doing those things necessary to preserve the peace, yet after all the authority given them is that which pertains to judicial, not executive, officers.

In our opinion the section of the statute above referred to, which exempts “other peace officers” from the law against carrying concealed weapons, refers to and intends to include only those officers whose duties and powers are similar to the duties and powers of the officers named in said section just before the words ‘ ‘ other peace officers, ’ ’ namely,' sheriffs, coroners, constables and policemen, that is, to executive officers and not to judicial officers, and that therefore plaintiff in error did not, simply by virtue of his office as justice of the peace, come within the exemption. The statute relating to game provides (section 17, chapter 61 of the Eevised Statutes, Hurd 1905), “Such state game commissioner, game wardens and their deputies shall have the full power to execute and serve all warrants and processes of the law issued by any justice of the peace or police magistrate, or by any court having jurisdiction under the law relating to (the) game in the same manner as any constable may serve and execute such process, and may arrest on sight and without warrant, any person detected by them actually violating any of the provisions of the laws of the state relating to game and birds, and may take such person so offending before any court having jurisdiction of the offense and make proper complaint before such court, which shall proceed with the case in the manner and form provided by law for misdemeanor. It shall further be the duty of such game commissioner, game wardens or their deputies, upon receiving any information that any law relative to game and birds has been violated, to immediately cause a thorough examination of such complaint to be made, and to cause proceedings to be instituted if the proof at hand warrants; and all sheriffs, deputy sheriffs, coroners and police officers of the state are hereby declared to be ex-officio deputy game wardens, and it shall be the duty of each and every one of them to assist the state game commissioner, game wardens and their deputies in the enforcement of the state game law the same as it is their duty to assist in the enforcement of other laws, and such state game commissioner, game wardens and deputy game wardens shall seize on sight without process, any game found in the possession of any person or corporation which is so in possession contrary to law.”

The duties which are thus cast upon the deputy game wardens, as such, are executive in their nature and similar to those performed by sheriffs and.constables, and said section of the statute in effect recognizes that fact by declaring all sheriffs, deputy sheriffs, coroners and police officers of the state, deputy game wardens, ex oficio. It appears therefore that a deputy game warden, is, for the purpose of discharging the duties cast upon him by the statute, a peace officer and entitled while so engaged, to the same right to carry concealed weapons that other peace officers have. The right of an officer to carry weapons when it exists, is not conferred upon him simply because he is an officer* but arises out of considerations relative to the discharge of his official duties. The statute of this state recognizes that theory by expressly providing, as above set forth, that the exemption from punishment for carrying concealed weapons, shall apply to the officers named “while.engaged in the discharge of their official duties.”

In the case before us, while the stipulation of facts states that plaintiff in error “was then and there a duly appointed and qualified deputy game warden, in and for said county, authorized to act as such, ’ ’ it does not state nor can it be legally inferred therefrom that at the time named he was actively engaged in the discharge of his official duties as such deputy game warden, and for aught that appears he may have been then engaged in other business which had no connection whatever with his duties as deputy game warden and under circumstances which could admit of no occasion for the exercise of such duties.

The agreed statement of facts did not present such a case as would entitle plaintiff in error to be exempted from the operation of the law relative to the carrying of concealed weapons and the judgment of the court below against him is accordingly affirmed.

Affirmed.