text:
    Kate O’Rourke, Administratrix, Appellee, v. Louisville & Nashville Railroad Company, Appellant.
    1. Negligence, § 103
      —when contributory negligence of intoxicated passenger not a defense. In an action to recover for the death of plaintiff’s intestate alleged to be due to the negligent act of defendant, contributory negligence is not a defense where it appears that at the time of such act intestate was in such a state of intoxication as to be unable to care for himself.
    2. Negligence, § 103

      —how question of contributory negligence of intoxicated passenger determined. In an action to recover for the death of plaintiff’s intestate as a result of the alleged negligent act of defendant, and where it appears that at the time of such act intestate was intoxicated, the question of contributory negligence is controlled by the degree of intestate’s incapacity at such time due to the intoxication.
    3. Carriers, § 289

      —how question of negligence towards intoxicated passenger determined. In an action to recover iox the death of plaintiff’s intestate as a result of thé alleged negligent act of defendant, where it appeared that at the time of such act intestate was intoxicated, the question of defendant’s negligence would be controlled by the degree of intestate’s incapacity at such time due to the intoxication.
    4. Carriers, § 287

      —when abandoning passenger in dangerous position negligence. It is negligence for the servants of a railroad corporation to abandon a passenger in a known place of danger where such passenger at the time of abandonment is bereft of reason and without intelligence sufficient to enable him to care for himself by reason of intoxication and is known by defendant’s servant to be in that condition.
    5. Death, § 21

      —when abandonment of passenger must be shown to be proximate cause of death. In an action against a railroad corporation to recover for the death of plaintiff’s intestate as a result of the alleged negligent act of defendant’s servants in abandoning intestate while a passenger in a place of known danger, and when defendant’s servants knew intestate was intoxicated and unable to care for himself, plaintiff in order to recover in the action must show that the abandonment was the proximate cause of the death sought to be recovered for.
    6. Negligence, § 47

      —how rules relating to proximate cause applied. In actions involving negligence, the rule applicable to the determination of questions of proximate cause is the same whether the action be to recover for death or for personal injuries.
    7. Negligence, § 48

      —what constitutes proximate cause. The proximate cause of an event is that cause which in a natural and continuous sequence, unbroken by any new and independent cause, produces the event, and without which cause the event would not have occurred.
    8. Negligence, § 49

      —when negligent person not liable for act not cause of injury. In actions involving negligence where, after one of the causes of an event has been in operation, some independent force intervenes and produces a result not the natural effect of such first cause, or where such first cause has so far exhausted itself or has been overborne by other forces as not to be deemed the legal cause of the injury, the author of the first cause is not liable, although negligent, and although an injury would not have occurred but for the negligence.
    9. Negligence, § 49

      —when wrongdoer liable for negligent injury. A wrongdoer is liable if the injury sought to be recovered for is one which a reasonably prudent man, by the exercise of ordinary care, might have foreseen would occur, although such wrongdoer might not have foreseen the particular accident which actually occurred, but such a wrongdoer is not liable for injuries which could not have been foreseen or expected by the exercise of ordinary care.
    10. Death, § 21

      —when negligence of carrier in leaving passenger in Tcnown place of danger not proximate cause of death. The negligent act of a railroad company in refusing to permit an intoxicated passenger to re enter the train after leaving it at a station was not the proximate cause of the death of the passenger where he left the station and went to a livery stable where he was taken charge of by an officer, but subsequently was released and directed to the station of another railroad company, and was killed on the tracks of such other railroad.
    Appeal from the Circuit Court of Gallatin county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed with finding of facts.
    Opinion filed December 1, 1915.
    James M. Hamill and Charles P. Hamill, for appellant.
    Pillow & Stone and Bartley & Bartley, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, the wife and administratrix of the estate of James M. O’Rourke, deceased, brought suit to recover damages for the benefit of his next of kin, for his death alleged to have been caused by the negligence of appellant. The declaration alleged that appellant’s servants received appellee’s intestate while he was in a drunken condition, as a passenger on its train at East St. Louis, to be transferred to Shawneetown, Illinois; that such condition was apparent and known to said servants at the time he wás so received; that his state of intoxication increased after he was aboard the train and when it reached Ashley, fifty miles from East St. Louis, he had become physically and mentally incapacitated from exercising any degree of care for his own safety and that he was temporarily insane; that he was permitted to leave the train, and when he attempted to re-enter, appellant refused to allow him to do so and left him on the platform in a drunken condition at nine o’clock at night; that the place was a dangerous one, and about the hour of twelve o’clock at night, the decedent, while still in the same physical and mental condition above mentioned, was run over and crushed by one of the trains of the Illinois Central Railroad Company, without neglig’ence or blame on the part of said railroad or any of its servants, and afterwards at four o’clock in the morning of the following day, June 27, 1913, died from the effects of said wounds; that the abandonment of the deceased, while in such helpless condition at said dangerous place, was negligence on the part of appellant and was the direct and proximate cause of his death.

A demurrer was filed to the declaration find sustained by the court. Plaintiff below abided by her declaration and judgment was entered against her for costs to be paid in due course of administration. She appealed from that judgment' to this court, where the judgment of the court below was reversed and the cause remanded. The case is reported in 183 Ill. App. 593, where a more complete statement of the pleadings may be found. In the opinion filed in that case, we held that the declaration stated a cause of action and that: “If the plaintiff was, as the declaration alleges in such a mental state of intoxication as to be incapable of caring for himself, the question of contributory negligence would not be involved in the case. The degree of incapacity from drunkenness would control the question of due care, or negligence of both plaintiff and defendant. If plaintiff was, through intoxication, so bereft of reason that he was without intelligence to care for himself, and while in that condition and known by defendant to be in that condition he was abandoned in a known place of danger where injury would be likely to result, such facts would constitute negligence.” The case was redocketed and has been tried on the same declaration with a plea of general issue, resulting in a judgment and verdict in favor of the plaintiff below for $2,000. The railroad company has appealed, contending that the evidence does not disclose a right of recovery and that the jury were improperly instructed. To entitle appellee to recover in this case, it was necessary for her to prove, (1) that deceased was so incapacitated by intoxication as to be incapable of caring for his own safety; (2) that while in such condition he was left dr abandoned by appellant in a dangerous place; (3) that such abandonment was the proximate cause of his death. To these conditions appellant seeks to add a fourth, that is, that due care on the part of deceased must be proven, but this, as we have above seen, is not necessary, if appellee was incapacitated to take care of himself as charged in the declaration.

The proofs show that on June 26,1910, appellant ran an excursion train from Shawneetown to East St. Louis and return; that deceased, with several companions, purchased tickets at Shawneetown and went on the excursion train; that he had been drinking before he started, but acted properly on the "trip to Bast St. Louis, where he, with others, seems to have put in the day drinking and carousing. The excursion train, as, further shown by the proofs, started on its return trip at 6:25 that evening and for an hour before its departure deceased drank very heavily. He entered the train in a drunken condition, and when in the vicinity of Belleville became boisterous and ungovernable, passing through the car swearing and using obscene language, drinking out of a bottle, insisting-on others drinking and insulting passengers, going so far as to pull the nose of one and put his feet up on the back of a seat occupied by a young woman, and he finally became engaged in a fight. The conductor and brakeman remonstrated with him a number of times, when he would temporarily cease his drunken acts, but-would begin again as soon as the train men left. When the train reached Ashley, some fifty miles from Bast St. Louis at about 8:30 p. m., deceased ran through the car and jumped off, alighting backwards and partially falling. As he did so a bottle of whisky fell from his pocket, which the conductor kicked into the weeds. The conductor then offered to assist deceased, but he refused the proffered aid and cursed him. As the train started, deceased wanted to get back upon it but the conductor denied him permission to do so and the train went on leaving him standing on the platform. After the departure of the train, deceased asked appellant’s night operator where the livery stable was, saying he wanted to get his horse and buggy. The operator directed him to a stable about a block away and deceased started to it, going south down the platform, across the tracks of the Illinois Central Bail-road, which crosses appellant’s track nearly at right angles, a short distance east of the depot of the latter, thence on across the street and turning south proceeded to the stable which was located about the middle of the block. A horse hitched to a buggy was tied in the stable and O’Rourke immediately climbed into the buggy and attempted to drive away. The livery man told him to get out of the buggy and he complied with this request and started down the street. The night marshal, who had been informed there was a drunken man at the livery stable, had started to that place and when close to it found deceased leaning against a wire fence. The marshal testified the man appeared to be able to take care of himself, so he directed him to go over to the Illinois Central depot, which he did. When he reached the station he stood around mumbling to himself and attracted some attention by reason of his intoxication. Nothing, is known of O’Rourke or what he did, so far as the proof shows, from a short time after his arrival at the Dlinois Central Station until about 11:30 p. m. when his body was found along the Illinois Central tracks, about 1,000 feet south of the place where they crossed appellant’s track, with one arm and one leg cut off. He never regained consciousness and died about 4 o’clock the next morning. How he met his death was not shown, but one of the witnesses was permitted to testify that in his opinion deceased was attempting to board a southbound Illinois Central freight train that passed a short time before he was discovered and fell between the moving cars.

At Ashley, .-appellant’s track runs nearly east and west and crosses the Illinois Central railroad’s double tracks at right angles. The tracks of the latter were south of appellant’s station and platform, and east of these double tracks was what was known as Railroad street. The livery stable appears to have been in the middle of the block south of appellant’s track and on the east of Railroad street, it being about 350 feet from the place where deceased got off the train to the livery stable. The Illinois Central depot was on the east side of its tracks a short distance south of the crossing of the two roads and it was not necessary for deceased in going from the livery stable to that station to cross the tracks of either road. Whether deceased was so incapacitated by intoxication as to be incapable'of caring for his own safety and whether, while in that condition, he was left or abandoned by appellant in a dangerous place, are questions which we do not propose to discuss in 'this opinion, but assuming that these conditions were as claimed by appellee, yet before she is entitled to a recovery in this case it must appear that such abandonment was the proximate cause of the death of her intestate.

In determining what is the proximate cause of an injury or death in cases of this kind, we do not find the rule or reasoning different from that in other cases where negligence is alleged to be the proximate cause of the injury received. “The proximate cause of an event must be understood to be that which, in a natural and continuous sequence, unbroken by any new, independent cause, produced that event, and without which that event would not have occurred.” Wabash R. Co. v. Coker, 81 Ill. App. 660. But if, after the cause in question has been in operation, some independent force comes in and produces an injury not its natural or probable effect, or the cause in question has so far exhausted itself and become overborne by other forces as not to be deemed the legal cause of the injury, the author of the cause is not responsible. Bishop on Non-Contract Law, secs. 42 and 44. And this is so although the injury would never have occurred if the act of negligence complained of had not been committed. For instance, in Wabash R. Co. v. Coker, supra, the appellant stopped its cars across a public street in excess of ten minutes. Appellee and her husband in a wagon were compelled to stop, another party drove up and was compelled to stop, the noise caused by the coupling of an engine to the ears frightened the horse of the last party and his huggy struck appellee’s wagon, injuring her. The court held that the railroad was not liable, although the accident would not have occurred in the absence of the railroad’s negligence in blocking the street. The wrongdoer is to be held liable if the injury was such a one as a reasonably prudent man might, by the exercise of ordinary care, have foreseen would occur, although he might not have foreseen the particular accident that did occur, but he is not responsible for injuries which could not have been foreseen or expected. Pullman Palace Car Co. v. Laack, 143 Ill. 242.

In Keeshan v. Elgin A. & S. Traction Co., 229 Ill. 533, suit was brought against the railroad company by the administratrix of Edward J. Keeshan, and a declaration filed, charging that Keeshan was a, passenger on appellant’s car bound for the City of Elgin; that when he entered the car he was very much intoxicated and unable to care for himself, which was known to defendant’s servant in charge of the car; that before .the arrival of the car at Elgin, the defendant, by his said servant, forcibly and violently expelled said Keeshan from said car, and refused to permit him to re-enter the same; that it was nighttime, the weather was cold, the snow was falling and wind blowing very hard; that there was no shelter at said station or immediate neighborhood; that the home of Keeshan was at Elgin, five miles away; that he was still very much intoxicated and unable to care for himself; that he started to walk from said station to his home and in endeavoring to cross a bridge on Fox River, on the line of said railroad, on his way home and while using due care and caution for his own safety, he fell off or walked off such bridge into the river and his death resulted. The court sustained a demurrer to this declaration, and the plaintiff, having elected to stand by the same, judgment was entered against her for cost. The Appellate Court for the Second District affirmed the judgment of the trial court [132 Ill. App. 416] and the Supreme Court affirmed the judgment of the Appellate Court. The Supreme Court in the course of its opinion in that case says: “If putting’ Keeshan off at the time and place alleged was a wrongful act on account of the condition of the weather, the declaration shows no natural connection between that act and the consequences which resulted from his attempting to walk to his home, in his intoxicated condition, across defendant’s bridge. If it was not necessary to a liability of the defendant that its servant in charge of the car should be able to anticipate the particular injury which might result from a wrongful act, still the defendant cannot be held liable for failing to provide against a possible injury which could not have been reasonably anticipated. If Keeshan was expelled and left in a place where he was exposed to unnecessary peril in his drunken condition, on account of the cold and storm, there is no connection between that act and his walking or falling off the bridge.”

In this case O’Rourke was not injured at the place where appellant refused to permit him to re-enter the train, but, if that place was a place of danger, he had gotten beyond and outside of it and had gone to the livery stable where there was no danger from the trains of either railroad, and immediately after he left the livery stable, when he was found by the night marshal, he was also in- a place of safety. He was in fact at that time taken charge of by the officer to the extent that the officer, not considering him sufficiently intoxicated to be taken into custody, directed him to go to the Illinois Central station. Had deceased been struck by appellant’s train at the place where he was abandoned, or if while leaving that place and crossing over the Illinois Central tracks to a place of safety, he had been struck by a train on one of the latter tracks, the situation would have been different and mig'ht more readily appear to have been a natural consequence re-suiting from his ejection from the train or the refusal of appellant to allow him to re-enter. But he had entered a zone of safety, and it does not appear that he contemplated returning to dangerous proximity of the tracks of either of said railroads, and he in fact, so far as the proof shows, never did go into immediate proximity to appellant’s road, after he left its station. The reason why he went near to the Illinois Central Bail-road tracks was because he was directed to do so by the marshal who sent him to the Illinois Central Bail-road station. His death occurred more than 1,000 feet from where appellant left him, and resulted not from having been left by appellant, in a place of danger, but because after having reached a place of safety he after-wards went into a new place of danger or attempted a dangerous act at considerable distance from appellant’s station.

We do not think it can properly be said that a reasonably prudent man could have foreseen that O’Bourke, when put off the train would, after having gone of his own motion from appellant’s station to a place of safety, been directed by an officer to go to thé station of another railroad, and hours afterwards been injured along the tracks of the second railroad 1,000 feet away from the place where appellant left him. It does not appear to us that there was a direct, casual relation between the act of appellant and the injury received by appellee’s intestate. The judgment of the trial court will therefore be reversed.

Judgment reversed with finding of facts.

Finding of facts to be incorporated in the judgment. The court finds as a fact, from the record in this case, that the negligence of appellant charged and sought to be proven by appellee was not the proximate cause of the death of appellee’s intestate.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    T. P. Morey, Appellee, v. Ed Simpson, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Bond county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by T. P. Morey, plaintiff, against Ed Simpson, defendant, in the Circuit Court of Bond county, to recover on a promissory note. From an order that a judgment for plaintiff for $2,300 and costs entered by confession should stand, defendant appeals.
    It appeared that on December 7,1912, defendant executed and delivered a note payable to the order of the Paxton-Eckman Chemical Company for $2,200, due ten months after date, with interest at the rate of seven per cent, after maturity. A power- of attorney was attached to said note, authorizing any attorney of any court of record to appear in such court in term time or vacation, at any time thereafter and confess judgment without process, in favor of the holder of the note for such amount as might then appear to be unpaid, together with costs and $100 attorney’s fees. The note was afterwards, and before maturity, indorsed in blank without recourse by the payee, and on August 25, 1913, a judgment was entered in vacation by confession in the Circuit Court of Bond county in favor of plaintiff against defendant for the sum of $2,300 and costs. At the September Term, 1913, on motion of defendant, execution on said judgment was stayed and defendant granted leave to plead.
    Defendant finally went to trial on an amended plea, alleging in substance that he bought certain stock powder from a corporation under a written contract which was set out in full, the purchase price of which was $2,800, and gave the note in question in part payment, the balance being paid by the sale and delivery of a horse. The plea further alleged that after the contract was made and in consideration of the note, the payee agreed to furnish defendant with a salesman to sell some of the stock powder then on defendant’s possession, and that this was the sole consideration of the note, which the payee failed to do, whereupon defendant rescinded the agreement and so notified the payee. The plea alleged that the payee agreed to this but failed to return the note, and never delivered any powder under the contract. The plea further alleged total failure of consideration and that IT. H. Morey and defendant had notice of defenses, and were not innocent holders for value.
    Plaintiff in his replication denied notice of defenses, and averred an indorsement to him before maturity, and that H. H. Morey had no notice of defenses when the note was indorsed to him by payee. The replication further averred that the consideration had not wholly failed, and denied that defendant’s order for the stock powder had been rescinded as alleged in.the plea.
    At the trial below, defendant sought to show that the company, having failed to comply with its contract to furnish a man to assist in selling the powder defendant had on hand, consented to the cancellation of the contract ; that by reason of such cancellation nothing was due on the note, and defendant was entitled to the possession of it; that H. H. Morey had notice of this defense when he purchased the note; that plaintiff was the father of H. H. Morey, and that the transfer of the note to him was in the nature of a fraud or subterfuge. The court held at the trial that the burden was upon defendant to establish that notice of some defense was brought home to plaintiff before he purchased the note.
    It was admitted that the note was indorsed in blank by the company, and at the trial H. H. Morey testified that he gave his check to the company for the note, and afterwards sold it to plaintiff’s father, on February 27,1913; that he, at that time, called his father np over the telephone and made the sale in that way. It appeared that the note was in possession of H. H. Morey at the time he made an affidavit as to defendant’s signature, when the confession of judgment was taken, but he testified that the note had been sent back to him.
    Abstract of the Decision.
    1. Bills and notes, § 440

      —what degree of proof required to annul title of transferee of paper before maturity. Only a strong case will suffice to annul the title of a transferee of commercial paper not yet due, the tendency of the courts of this state being to sustain the negotiability of such paper, and to indulge every presumption in favor of its validity.
    2. Bills and notes, § 240

      —when indorsee or assignee before maturity protected against maker. The indorsee or assignee of commercial paper taking the same before maturity in good faith for value and without knowledge of defects is protected against the defenses of the maker thereto.
    3. Bills and notes, § 448

      —what proof required to defeat title of holder for value before maturity. The title of the holder of commercial paper for value and before maturity can only be defeated by evidence that such holder was guilty of bad faith in taking title to such note, and it is not enough to prove the existence of mere suspicion of defects in such title or that such holder at the time of taking such title knew of facts calculated to excite suspicion in the mind of a prudent man, or even that such holder was guilty of gross negligence at such time.

      At the close of all the evidence the court on motion of plaintiff directed a verdict for plaintiff, and after such verdict was returned, overruled a motion for a new trial, and made an order that the judgment by confession stand.
    Smith & Friedmeyer and John D. Biggs, for appellant.
    C. E. Hoiles, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

4. Bills and notes, § 412 —when burden on one attacking title of holder to show bad faith., Where a promissory note is in the hands of a holder for value before maturity, the burden is on one who attacks the title of such holder to show by a preponderance of the evidence that such holder was guilty of bad faith in taking title to such note.

5. Bills and notes, § 255 —what is basis of rule for protecting holder for value before maturity in absence of bad faith. The rule that the maker of the note can defend against the note in the hands of a holder for value before maturity only by showing that such holder acted in bad faith in taking title to the note Is based on the policy of the law giving full faith and credit to commercial paper transferred before maturity, in order that it may circulate with all the conveniences of currency as far as possible.

6. Bills and notes, § 448 —what does not constitute evidence of fraud. In an action to recover on a promissory note where plaintiff is a holder for value and before maturity, and where the defense is grounded on fraud, the fact that plaintiff received the note by indorsement from his son, who in turn received it by indorsement from the payee, does not tend to show fraud, which cannot be inferred from the mere fact of the relationship, such indorser having the same right to transfer the note to his father as to any other indorsee.

7. Fraud, § 87 —when not presumed. Where the defense to an action is fraud, the fraud relied on must be proved, and cannot be presumed.

8. Bills and notes, § 440 —what constitutes prima facie case. In an action to recover on a promissory note, a prima facie case is established by proof of the note showing on its face title in plaintiff.

9. Bills and notes, § 440 —when evidence sufficient to overcome prima facie case by proof of note. In an action to recover on a promissory note, where plaintiff was a holder for value before maturity, and where the defense was grounded in fraud, evidence held insufficient to overcome the prima facie case established by proof of the note.

10. Bills and notes, § 461 —when verdict properly directed. In an action to recover on a promissory note, where the evidence in defense is insufficient to overcome the prima facie case established by the proof of the note, it is proper to direct a verdict for plaintiff.


text:
    City of Lawrenceville et al., Appellees, v. Central Illinois Public Service Company, Appellant.
    1. Injunction, § 269

      —when motion to dissolve same effect as demurrer. A motion to dissolve a temporary injunction for want of equity has the same effect as a demurrer to the bill, in so far as the injunction is concerned.
    2. Equity, § 210

      —what questions considered on demurrer to bill. On demurrer to a bill the court is only concerned with questions which arise on the face of the bill.
    3. Equity, § 224

      —when matters in bill taken as true on demurrer. On demurrer to a bill, the matters therein alleged must be taken as true.
    4. Injunction, § 384

      —when lack of verification of bill not objection available on review. On appeal from an order denying a motion to dissolve a temporary injunction, the fact that the bill was not verified cannot be taken advantage of for the first time on review, where the point is not mentioned in the reasons assigned in the trial court for the motion to dissolve, and does not appear to have been raised in that court, it being an objection which could have been obviated at ■ the hearing on the motion had objection been seasonably made.
    5. Injunction, § 106

      -—when water company should be restrained from discontinuance of water service. In a bill by a city and certain of its citizens to restrain a public water company from discontinuing its water service to complainants, where it appeared that defendant secured the franchise to supply water to complainant city and its inhabitants by virtue of an ordinance providing that defendant should furnish water of a certain standard of purity, and that in case defendant failed to furnish water of such standard, compensation for water furnished should be denied until the ordinance was complied with, and it further appeared that defendant failed to furnish water of the standard required by the ordinance, and that complainants refused to pay defendant’s water bills, whereupon defendant threatened to discontinue furnishing water to complainants, held that complainants were entitled to the relief prayed for, it being inequitable to permit defendant to reap the benefits conferred on it by the ordinance without complying with such terms thereof as were for the benefit of the city and its inhabitants.
    6. Equity, § 1

      —when relief for grounds appearing on face of bill should be granted. Where it appears on the face of the bill that complainants are entitled to the relief prayed for, such relief must be granted unless a court of equity has no power to grant such relief.
    7. Injunction, § 106

      —when equity jurisdiction to grant temporary injunction against discontinuance of water service. In a bill to restrain a public water company from discontinuing its water service for failure to pay water bills, where it, appeared that the ordinance under which defendant secured the right to furnish water to complainants provided that defendant should be denied compensation for water furnished in case it failed to furnish water of a certain- standard of purity, a temporary injunction granting the relief prayed is proper, notwithstanding the provisions of the Public Utilities Commission Act, creating such commission and giving it jurisdiction over the equipment, appliances, facilities and service of public utilities, such injunction having nothing to do with the selection of a source of water supply, nor the installation of equipment for efficient service, and merely restraining an inequitable act, it appearing that defendant did not furnish water of the standard of purity required by the ordinance.
    Appeal from the Circuit Court of Lawrence county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Vause, Hughes & Kiger, for appellant.
    B. O. Sumner, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This is an appeal from an order overruling a motion to dissolve a temporary injunction granted by the master in chancery of the Circuit Court of Lawrence county, on January 27, 1915, restraining appellant from discontinuing its public water service to certain inhabitants of the City of Lawrenceville, Illinois, who had refused to pay their water bills, until the further order of the Circuit Court of said county. The bill upon which the restraining order was issued was filed by the City of Lawrenceville and a number of its citizens, and sets out the ordinances passed hy the city and accepted by appellant, under which the latter was furnishing water for public and private use throughout the city. One of said ordinances, known as No. 243, provided, as set forth in full in the bill, among other things, for the equipment and installation by the water company, of an improved and adequate filter system, known as the Mechanical-Chemical Filter system, and sections 3 and 4 of such ordinance were in the following language:

“3. The Lawrenceville Light and Water Company, its successors or assigns, shall, before it begins the furnishing of filtered water so taken as aforesaid, to the inhabitants of said city, and every ninety days thereafter, furnish to the city council an analysis made by some competent chemist selected or approved by s'aid city, with his certificate of such analysis thereto attached of the water furnished to the inhabitants of said city througii the said filter system, and if from said analysis said water so furnished as aforesaid, does not appear to be reasonably pure for domestic and drinking purposes, the said Light and Water Company, its successors and assigns, shall immediately take steps to repair their said filter system or make, such changes therein as will render the water furnished by it- reasonably pure for domestic and drinking purposes.
“4. If upon such analysis made by a competent chemist or board of chemists selected by said city, at any time, it shall appear that the water which is being furnished to the inhabitants of said city for domestic and drinking purposes is not reasonably pure, written notice of such fact shall be given to the said Light and Water Company, its successors and assigns, and if the said Light and Water Company, its successors and assigns, shall not within thirty days thereafter repair, remodel or change its said filter system so as to provide reasonably pure water for domestic and drinking purposes then said company or its successors or assigns, shall not be entitled to receive any further pay from said city or any inhabitant or consumer of water on account of any water furnished said city or any consumer or inhabitant until such changes or repairs shall have been made; and if said repairs or changes are not made by said Light' and "Water Company to its said filter system within ninety days from the receipt of said notice, all the rights and privileges granted to said Light and Water Company, by this ordinance or by its original contract or franchise with said city, under which it is now furnishing water to said city and the inhabitants thereof, shall cease and terminate and thereafter be null and void.”

This ordinance as it appears from the bill was after its passage, by the city, accepted by the Lawrenceville Light and Water Company, February 18, 1900, and subsequently the rights and privileges vested in said Light and Water Company were duly assigned to appellant here. It is further alleged in the bill that on August 20,1913, and for a long time prior thereto, appellant had been furnishing to the city and its inhabitants water of a kind and quality wholly unfit for drinking purposes, and that prior to that date said city had caused an analysis of such water to be made by a competent chemist and that the analysis so made shows such water to be wholly unfit for many domestic uses and for drinking purposes and not reasonably pure for such purposes; that the city council on August 19,1913, passed a resolution reciting that as the State water survey had analyzed certain samples of water taken from the mains and reported it unfit for drinking purposes and not the kind of water which appellant was required to furnish, that in pursuit of said ordinance No. 243, a notice be served on appellant which was in the words and figures following, to wit:

“To the Central Illinois Public Service Company: You are hereby notified that samples of water taken from the public mains of said City of Lawrenceville, Illinois, which water was furnished by you to the inhabitants of said city for domestic and drinking purposes and submitted to the Illinois State Water Survey for examination and analysis, has been reported by said Illinois State Water Survey to be unfit for drinking purposes. You are further notified to repair, remodel or change your filter system so as to provide reasonably pure water for domestic and drinking purposes, within thirty days from this date, and for failing so to do the provisions of said ordinance will be strictly enforced against you.” That after the service of said notice on it, appellant failed to furnish said city and its inhabitants with the kind and quality of water it was required to furnish under said ordinance and that the water it did furnish was wholly unfit for drinking purposes; that it was salty, unsanitary, odorous, unpleasant to the taste, turbid and contained organic matter and disease germs and was only fit for use in bath tubs, sinks, water-closets and in steam and hot water pipes, and for laundry purposes; that after the service of such notice, appellees and many others of the inhabitants of said city refused to pay for water furnished them, for the reason that the same was impure and not the kind to be furnished under said ordinances, and that they still refused to pay for the same for such reasons; that appellant notified appellees and others that if their water rentals were not paid and settled by January 25, 1915, it would discontinue the supplying of water to such as refused to pay their water rentals and is threatening to cut oif the water supply of appellees and others who have refused to pay; that appellees have no means of supplying themselves with water for their bath tubs, water-closets, sinks and laundry and steam heating purposes other than the water furnished by appellant; that they and each of them have at all times been ready and willing and are now ready and willing to pay appellant for water of the kind and quality required to he furnished by said ordinances; that they believe appellant will cut off the water supply of appellees and all others who refuse to pay, unless restrained by the injunctive order of the court, and that irreparable damage and injury will result thereby to appellees and all other inhabitants of said city who are consumers of water furnished by appellant.

The prayer of the bill, so far as it relates to a temporary injunction, was that a" writ be directed to appellant, restraining it from discontinuing water service to appellees and all other inhabitants of the city who are consumers of water furnished appellant, and from cutting off the supply furnished by it to appellee or any of the inhabitants of said city who are consumers of water on account of their not paying their water bills for water used since the expiration of thirty days after August 20, 1913, until the further order of the court. Four reasons were stated by appellant why the injunction should be dissolved, and its motion presented for that purpose. They were that (1) there was no equity on the face of the bill; that (2) the State Public Utilities Commission had exclusive jurisdiction over the quantity and quality and efficiency of any commodity furnished by any public utility authorized to do business in the State; that (3) since the 1st day of January, 1914, the State Public Utilities Commission has had exclusive jurisdiction to determine what improvements and extensions can and shall be made in its plant or service station in said city, and that until an order of convenience and necessity is made and entered by said commission, appellant is without power to change or enlarge its filter system; that (4) it does not appear from the face of the bill that any order of convenience or necessity has been made by said commission or that appellant has ever refused to obey any order or direction made by the commission relative to the subject-matter. A motion to dissolve a temporary injunction for want of equity has the same effect, so far as the injunction is concerned, as a demurrer to the "bill. Williams v. Chicago Exhibition Co., 188 Ill. 19. We are therefore only concerned with questions which arise upon the face of the bill, and matters alleged therein must for the purposes of the motion be taken as true.

Appellant raises the question that the bill was not verified, but that question is hot mentioned in the reasons assigned by appellant for the dissolution of the injunction and does not appear to have been raised at all in the court below, and being an objection which could have been obviated on the hearing, the question cannot be raised for the first time here. St. John v. President & Trustees of Village of North Utica, 157 Ill. App. 504. The question of equity raised on the face of the bill concisely stated is, can appellant, after engaging to furnish the city and its inhabitants with water and agreeing that the same should not be paid for, when not fit for drinking and domestic purposes, cut off the supply if payment is refused therefor, although it is shown that the same is not of the quality agreed to be furnished, the inhabitants being ready to pay for the same, when of a proper quality and fit for drinking and domestic purposes. The furnishing of water of the quality named in the ordinance' was one of the considerations for the granting of the ordinance to appellant, and by that ordinance it gained certain privileges. It would therefore be manifestly inequitable to permit appellant to continue to reap the benefit of the privileges conferred upon it by the ordinance, without complying with those terms of the same instrument which were for the benefit of the city, and its inhabitants. It would appear clear, therefore, that upon the face of the bill, appellees were equitably entitled to the relief sought for and that such relief should be granted unless some reason exists why a court of equity has no power to grant such relief. Appellant insists that there is a reason why a court of chancery cannot grant relief of this kind and that the same is afforded by the act providing for the regulation of public utilities and creating a State Public Utilities Commission, in force July 1, 1914. That act provides, sections 49 and 50, that whenever a commission, after hearing had upon its own motion or upon complaint, shall find that the equipment, appliances, facilities or service of any public utility are unjust, unreasonable, unsafe, improper, inadequate or insufficient, the commission shall determine the just, reasonable, safe, proper, adequate or sufficient equipment, appliances facilities, service or methods to be observed and shall fix the same by order, decision, rule or regulation. Also that: “Whenever the commission, after a hearing had upon its own motion or upon complaint, shall find that additions, extensions, repairs or improvements to, or changes in, the existing plant, equipment, apparatus, facilities or other physical property of any public utility or of any two or more public utilities ought reasonably to be made, or that a new structure or structures should be erected, * * * to secure adequate service or facilities, the commission shall make and serve an order directing that such additions, extensions, repairs, improvements or changes be made or such structure or structures be 'erected in the manner and within the time specified in said order.”

Counsel for appellant state that the only question is,' in what forum shall the controversy be settled. They also say: ‘ ‘ The judge of the Circuit Court of Lawrence County, sitting as a chancellor, has no power to select a suitable source of water supply and order the defendant to install any particular kind of equipment to give efficient service. The G-eneral Assembly has vested that power only in the Utilities Commission.” Also that: “The State Public Utilities Commission is the only forum that has jurisdiction of the subject-matter of this controversy and is the only forum vested with requisite power and authority to make the necessary orders for the protection of the rights and property of the respective litigants.” We think counsel misconceived the scope of the bill and of the injunction granted in pursuance thereto. The prayer for a temporary restraining order was that appellant be restrained from discontinuing service of water to the complainants and all other inhabitants of said City of Lawrenceville, who are consumers of water furnished by appellant, and from cutting off the supply furnished by it to complainants or to any of the inhabitants of said city who are consumers of water furnished by said company, “on account of their not paying water bills rendered by said company for water used since the expiration of thirty days next from the 20th of August, A. D. 1913, until the further order of this court,” and the temporary injunction was in accordance with the prayer of the bill. The prayer of the bill and the injunction issued have nothing to do with the selection of a suitable source of water supply for the city or the installation of equipment of any kind to give efficient service. The bill simply asks that appellant be restrained from discontinuing its water service to complainants and the other inhabitants of the city, who are consumers of water furnished by it on account of their not paying their water hills, until the further order of the court. This restraining order only required appellant to continue furnishing water to those theretofore entitled to its use in accordance with the terms of the ordinance which granted them their franchise, until some further order should be entered by reason of a hearing of the case and determination thereof or for some other sufficient reason appearing in a proper proceeding in the course of the suit. It may be that proper steps may he taken by the parties to raise the questions here presented by appellant upon the trial of the main case before the chancellor, hut they do not appear to us to arise here, and in our opinion the order of the court below, overruling the motion to dissolve the temporary injunction, should be and it accordingly is affirmed.

Affirmed.


text:
    United States Operating Company et al., Appellees, v. James H. Finch et al., Appellants.
    1. Mortgages, § 503*—when evidence sufficient to sustain finding that mortgagee indebted to mortgagor on cross-bill by creditors. Where a mortgagee in a hill against the mortgagor corporation obtained a decree for the full amount of his mortgage debt and interest, and a cross-hill was filed by creditors of the mortgagor corporation, which had become insolvent, for the purpose, inter alia, of recovering money misappropriated, and it appeared that complainant in the original bill in making the mortgage loan to the corporation had borrowed money from a bank, and that while complainant was secretary of such mortgagor corporation a check was drawn on its funds which was used to pay the interest on plaintiffs mortgage, and it further appeared that in foreclosing his mortgage complainant made no allowance for this payment, held that a finding on the cross-hill that complainant was indebted to such mortgagor corporation for the amount of such payment was proper.
    2. Corporations, § 319

      —when cross-bill sufficient to sustain decree against officers for money illegally received. In a cross-hill by creditors of an insolvent corporation joining as defendants, among others, certain officers of such corporation, an allegation that defendants “paid themselves divers and sundry large sums of money and gave nothing to the corporation in return,” together with a prayer that the officers of such corporation he ordered to account for all sums of money and property received by them as such officers, and a stipulation that the case be decided on its merits, held sufficient to sustain a decree against such officers for the amounts illegally received by them as such officers.
    3. Costs, § 64

      —when decree that all defendants pay all costs inequitable. In a cross-hill by creditors of an insolvent corporation to fix the liability of stockholders for unpaid subscriptions of stock, and to recover money misappropriated by those in control of the corporation, where separate judgments were entered against five defendants, each based on some matter distinct from the claims against the other defendants, some of the judgments being for large and some for small amounts, a decree that all defendants pay all the costs of suit held improper and inequitable as against the defendants against whom small judgments were rendered.
    Appeal from the Circuit Court of Edwards county; the Hon. James R. Creighton, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed December 1, 1915.
    Theodore G. Risley and E. B. Green, for appellants.
    H. J. Strawn and S. E. Quindry, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellant James H. Finch filed a bill against the Edwards Vitrified Brick and Sewer Pipe Company, a corporation, to foreclose two mortgages. The court found he had a lien upon the mortgaged premises for the full amount of the first mortgage but that the second one was given at a time when the corporation was insolvent and should be paid pro rata with other creditors, and a decree was entered in accordance with such findings. The United States Operating Company, The American Clay Machinery Company and George Stroup, who were creditors of the corporation, filed a cross-bill, which was afterwards, by leave of court, amended. The purpose of this amended cross-bill was to determine and fix the liability of stockholders in said defendant corporation, for unpaid subscriptions of stock of the corporation and for the misappropriation of money belonging to the same by those in control thereof. A large number of parties were made defendants to the cross-bill, among them being James H. Finch, the complainant in the original hill, S. A. Zeigler and H. L. Zeigler, who are appellants here. The cross-bill having been answered, the cause was referred to a special master, who made his report and the complainants in the cross-bill filed exceptions thereto. Thereafter a written stipulation was filed in the case, whereby it was provided, among other things, that the cause be ‘ submitted to Honorable J. E. Creighton to be heard on exceptions to the report of the special master in chancery, filed by complainants in the cross-bill to said report at Carmi, Illinois, in vacation and after disposing of such exceptions to be further heard as to all other questions arising in such case as are consistent with the rules of chancery practice so that the ease is to be decided upon its merits.” The case was so heard and the court sustained the objections to the report of the special master and found in favor of certain defendants and that certain others were indebted to the corporation in large amounts for unpaid stock. The court also found among other things that appellant J. S. Finch was indebted to Edwards Vitrified Brick and Sewer Pipe Company, the original defendant, in the sum of $150 for interest paid by said company for his use and benefit; that appellant S. A. Zeigler was indebted to said original defendant company in the sum of $160 for money illegally paid him as salary, as secretary of the board, and that appellant, H. L. Zeigler was indebted to said company in the sum of $105 for money unlawfully paid him as salary as secretary of the board of directors. It was separately decreed that each one of said three last mentioned parties pay to said original defendant company the amount due it as aforesaid, and also that each pay the costs of suit. Said James H. Finch, S. A. Zeigler and H. L. Zeigler alone appealed.

It is insisted by appellants that there is not sufficient evidence to support the finding against appellant Finch and that as to the other appellants, the allegations of the hill are not sufficient to permit a recovery, and it is also urged by each .of the appellants that it was error to enter a decree against him for all the costs. It appears that appellant Finch, in making- his loan to the Sewer Pipe Company, had borrowed money from the Poseyville Indiana Bank and that, while he was acting as secretary of the company, a check was drawn on its funds which was used to pay interest on the amount due from' Finch to said bank; that when Finch’s mortgage was foreclosed, he obtained a decree for the full amount of the principal and interest due him and did not allow credit for the $150 for the interest paid for him by the Sewer Pipe Company to the bank; and under these circumstances, the chancellor properly found that he was liable to said corporation for such amount so paid for him. While there was no specific charges in the cross-bill that appellants S. A. Zeigler and H. L. Zeigler had wrongfully been paid the amounts found by the court to have been illegally received by them while they were respectively acting as secretary of the board, yet it was charged therein that they and the other defendants “paid themselves divers and sundry large sums of money and gave nothing to the corporation in return, ’ ’ and the prayer of the cross-bill was that the officers of said Sewer Pipe Company be ordered to account for all sums of money and property received by them as such officers. We are of opinion that this allegation and prayer, taken in connection with the stipulation providing that the case was to be decided upon its merits, were amply sufficient to support the decree against these two appellants. In the course of the decree it was found that other defendants in the cross-bill were indebted to said Sewer Pipe Company in the total sum of over $30,000, that a receiver be appointed for the company to collect and assemble all the judgments and other claims in its favor and to bring said proceeds into court, and that other relief prayed for in the cross-bill be granted. Separate judgments were entered against five different defendants, each judgment being based on some matter distinct from the claims against the others. It is therefore improper and inequitable that appellants who are found to be indebted in such small amounts should each be ordered to pay all the costs of suit. We are of opinion that each of the five defendants who were decreed to make payments to said Sewer Pipe Company should have been ordered to pay one-fifth of the costs, and that in all other respects the decree was correct.

The decree will be reversed and the cause remanded with directions to the court below to.modify the same, by providing that each of said five defendants who were decreed to make payments to said company be also decreed to pay one-fifth of the costs of suit.

Decree affirmed in part and reversed in part and remanded with directions.


text:
    Carrie Arnold, Appellee, v. City of Centralia, Appellant.
    1. Mobs—when evidence sufficient to establish injury to property by mob. In an action against a city under Hurd’s Rev. St., ch. 38, sec. 256a (J. & A. If 3917), to recover three-fourths of the value of property injured by a mob, evidence held to show that the injury sought to be recovered for was done by a mob within the meaning of section 256s of the same chapter (J. & A. If 3911), defining a moh to he “any collection of individuals, five or more in number, assembled for the unlawful purpose of offering violence to the person or property of any one supposed to have been guilty of a violation of the law, or for the purpose of exercising correctional powers over any person or persons by violence, and without lawful authority.”
    2. Mobs—when evidence sufficient to sustain verdict for injury to property by mob. In an action against a city under Hurd’s Rev. St., ch. 38, sec. 256a (J. & A. If 3917), to recover three-fourths of the damage to property injured by a mob, where it appeared that the assemblage of persons whose acts caused the injury was a mob within the meaning of section 256s of the same chapter (J. & A. If 3911), evidence held to entitle plaintiff to recover.
    3. Mobs—when instruction as to right of recovery for injury to property by mob not prejudicially erroneous. In an action against a city under Hurd’s Rev. St., ch. 38, sec. 256a (J. & A. If 3917), to recover three-fourths of the damage done to property by a mob, an instruction that plaintiff’s right of recovery would not be “affected by the negligence of the city in preventing damages .being done" to plaintiff’s property, held not sufficiently faulty to warrant a reversal, although inartificially drawn and not sufficiently guarded.
    4. Mobs, § 3

      —when city liable for injury to property by mobs. Hurd’s Rev. St., ch. 38, sec. 256a (J. & A. jf 3917), providing that a city or county shall be liable for three-fourths of the value of property destroyed therein by mobs and riots, is not based on any elements of negligence on the part of the city in failing to disperse the mob or to prevent injury to property, and a recovery may be had where the evidence warrants such recovery regardless of any question of negligence.
    Appeal from the Circuit Court of Marion county; the Hon. James C. McBride, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.

      W. G. Murphey and S. L. Dwight, for appellant.
    L. B. Skipper and Gr. F. Merion, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee sued appellant for injuries to a house she owned in Centralia, Illinois, seeking to recover under section 256a, ch. 38, Rev. St. (Hurd’s 1912, J. & A. 3917) which provides that: “Whenever any building or other real or personal property, except property in transit, shall be destroyed or injured in consequence of any mob or riot composed of twelve or more persons, the city, or if not in a city, then the county in which such property was destroyed shall be liable to an action by or in behalf of the party whose property was thus destroyed or injured, for three-fourths of the damages sustained by reason thereof.” To the declaration filed, the general issue was pleaded and there was a verdict in favor of appellee for $60. A remittitur of $3.75 was entered by appellee, and a motion for a new trial having been denied, judgment was given against appellant for $56.25. Appellant seeks to reverse the case, contending that under the evidence there is absolutely no liability on its part and the court should have given a peremptory instruction in its favor at the close of all the evidence; that the court erred in refusing its motion to set aside the verdict and grant a new trial; that the verdict is contrary to the law and the evidence, and that the sixth instruction given for appellee was erroneous, because it assumed negligence on the part of appellant.

The real ground of reversal urged by appellant, which includes all the contentions above referred to except that relating to appellee’s sixth instruction, is that the proofs do not show the injury to the property to have been caused by a mob composed of twelve or more persons. It is not questioned on this appeal that the property was injured or that the amount allowed is too large if a recovery is proper. According to the proofs, a family by the name of Bryant lived in a tenement house owned by appellee in said city, and a negro named Sherman stayed with them. Fred Beid, a policeman, had a criminal warrant for Sherman and went to Bryant’s house to arrest him. Sherman came to the door and on pretense of getting his hat stepped back, got a gun and fired at Beid, wounding him severely, and then hid in the hous'e. Beid managed to get word to the chief of police, who came with a deputy sheriff, one Guy Livesay, whom he had deputized. They entered the house, and Sherman, who was concealed under a bed, fired upon them when he was discovered, breaking Livesay’s leg. Immediately after this, the chief of police and a constable, named Watts, deputized a number of citizens from the crowd which had been attracted by the firing of the revolvers, and had assembled in that vicinity, and made arrangements to capture the negro. There were some twelve or thirteen persons in all who were deputized, and they, with others, began shooting through the doors and windows and all parts of the house with guns and pistols, seeking to either hit Sherman or run him out, directions being given by some one in authority to shoot him if he appeared. Threats of hanging the negro were made and application was made to appellee for permission to bum the building, which she refused. Several hundred people gathered on the scene and the shooting lasted for two or three hours before the negro surrendered. The evidence for appellee showed shooting was general by men and boys and that it came from all directions; that first one and then another would fire regardless of whether he was deputized or not, while the proof on the part of appellants tend to show that the injury was done by the shooting of officers and those who had been deputized to assist them, alone.

Paragraphs of section 256s, eh. 38, Rev. St. (J. & A. ft 3911), above referred to, provides that: . “Any eollection of individuals, five or more in number, assembled for the unlawful purpose of offering violence to the person or property of any one supposed to have been guilty of a violation of the law, or for the purpose of exercising correctional powers over any person •or persons by violence, and without lawful authority, shall be regarded and designated as a ‘mob.’ ” That threats of burning, the house and hanging Sherman came from among those who were not deputized is well proven, and we find ample proof that others than those deputized assisted in inflicting the injuries complained of by shooting. Regardless of the question whether, under the law, the city would be liable for injuries inflicted upon appellee’s property by officers and those deputized, under the circumstances mentioned, yet the proofs here show that a mob, as defined by the statute, had collected around appellee’s premises and that the persons composing such mob indiscriminately assisted in inflicting the injury complained of. We are of opinion that under the proofs, appellant was liable for three-fourths of the injury to appellee’s property, by virtue of the statute upon which the suit is based.

The sixth instruction, given for appellee, told the jury: “If you believe from the evidence in this case that the plaintiff is entitled to recover, then such right of recovery would not be affected by the negligence of the city in preventing damages being done to the property in question, provided the plaintiff herself was not negligent or careless in permitting such damages to be done, as it is no defense to an action for damages that the city could not have prevented the injury or destruction of the property.” The criticism made by appellant of this instruction is that it assumes the city was guilty of negligence in not preventing damages being done to the property in question. The instruction was inartificially drawn and might, properly have been more carefully guarded, but the fault it contains was not of sufficient importance to warrant a reversal of the judgment for that reason. The question as to whether the city was negligent or not was wholly immaterial in this case, as the liability imposed by statute is not based upon any elements of negligence on the part of the city, and recovery may be had in a case' where the evidence otherwise justified it wholly, regardless of the fact whether the city or its officers were or were not guilty of negligence in failing to disperse thé mob or prevent injury to property. Sturges v. City of Chicago, 237 Ill. 46.

The record discloses no substantial reason why the judgment in this case should be reversed and the same is therefore affirmed.

Judgment affirmed.

Mr. Justice McBride having tried this case in the court below, took no part in the case here.


text:
    The People of the State of Illinois ex rel. J. W. McGinnis and D. E. Pate, Defendants in Error, v. E. A. Paynter, Plaintiff in Error.
    1. Municipal corporations, § 41

      —what power possessed to enact ordinances. A village board can enact ordinances only when empowered thereto by statute.
    2. Municipal corporations, § 112

      —how village marshal must he appointed. Under section 11 of article XI, part I, of the Cities, .Villages and Towns Act (J. & A. If 1528), providing for"the appointment of village officers, the power to appoint a village marshal is in the president and the board of trustees, and the president acting alone has no such power.
    3. Municipal corporations, § 85

      —when ordinance giving village president power to appoint village marshal illegal. On quo warranto to oust respondent from the office of village marshal, to which it appeared that respondent had been appointed under an ordinance providing that “the president shall annually appoint a chief of police by and with the consent of the board of trustees,” an appointment of respondent as village marshal by the village president without the concurrence of the board of trustees held without effect, such ordinance being illegal under section 11 of article XI, part I, of the Cities, Villages and Towns Act (J. & A. 1f 1528), in so far as such ordinance tended to give a village president, acting alone, power to make the appointment of respondent as village marshal, the statute giving such power to the president and board of trustees.
    4. Officers, § 23

      —when right of officer to hold over dependent upon proper appointment under statute. The right of a village officer appointed under a village ordinance enacted under authority of section 11 of article XI, part I, of the Cities, Villages and Towns Act (J. & A. If 1528), to hold over after the expiration of the term of office of such officer until the appointment and qualification of his successor, depends on the question whether the provisions of the statute were observed in making the appointment of such officer.
    5. Municipal corporations, § 120

      —when bond of village marshal does not comply with statute. In quo warranto to oust respondent from the office of village marshal, where it appeared that the bond filed by respondent on his appointment to the office in question was payable to the People of the State of Illinois; that it bore an indorsement “approved by me this 9th day of May, A. D. 1913. H. P. Morgan, president. T. J. Dunn, Clerk”; that the bond was never approved by the village board of trustees, nor was the amount of the bond fixed by ordinance or resolution, held that respondent’s bond was not in compliance with section 4 of article VI, part I, of the Cities, Villages and Towns Act (J. & A. If 1347), providing that such officers before entering on their duties shall “execute a bond to be approved by the * * * board of trustees, payable to the * * * village, in such penal sum as may, by resolution or ordinance, be directed.”
    6. Municipal corporations, § 120

      —how bonds of village officers must be approved to comply with statute. Under section 4 of article VI, part I, of the Cities, Villages and Towns Act (J. & A. If 1347) providing that certain village officers shall, before entering on the duties of their offices, “execute a bond with security, to be approved by the * * .* board of trustees,” the approval by a majority of such board of the bond filed by such officers is necessary in order to invest such officers with title to the offices to which they are appointed, and the approval of such bonds by the village president acting alone is not a compliance with the statute.
    7. Municipal corporations, § 114

      —when village marshal failing to furnish proper bond not invested with title de jure to office. A village marshal whose bond is not in compliance with section 4 of article VI, part I, of the Cities, Villages and Towns Act (J. & A. If 1347), is never invested with his office de jure, although during the term for which he was appointed such officer holds the office and exercises its functions de facto.

    8. Quo warranto, § 53

      —what evidence necessary to sustain plea of justification. On quo warranto to oust a person holding an office, a plea oí justification can only be sustained by proof of respondent to hold the office in question de jure, and it is not enough to show that respondent held the office and exercised its functions de facto.

    9. Quo warranto, § 56

      —when judgment of ouster proper. On quo warranto to oust a person holding an office, a judgment of ouster is proper where respondent fails to sustain his plea of justification with proof that he holds the office de jure.

    Error to the Circuit Court of Franklin county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at-the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    W. G. Murphey and W. P. Seeber, for plaintiff in error.

      W. F. Spiller, for defendants in error; W. H. Hart, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This was a quo warranto proceeding brought by the State’s Attorney of Franklin county on the relation of J. W. McGinnis and D. E. Pate against E. A. Paynter, plaintiff in error, to oust Mm from the position of chief of police or marshal of the village of Sesser in said county. A jury was waived and the court found the issues for the’ relator, and entered judgment against Paynter, ousting him from said office. Plaintiff in error filed a plea of justification to the information, alleging that prior to the filing of the information he was duly appointed, confirmed and selected by the president of the board of trustees and the village trustees of the village of Sesser, as chief .of police or village marshal, according to law; that he accepted the assignment, qualified for the same, took oath and gave bond therefor and was duly commissioned; that he entered upon the duties of his office and served in that capacity and still continues to hold said office by virtue of said appointment; that he has never resigned from said office, has never been removed therefrom according to law, that no successor has been duly appointed, confirmed, qualified and commissioned as required by law; that by this warrant he has held and executed, during the time mentioned in the information, and still holds and executes said office as he well might.

Plaintiff in error was appointed chief of police or village marshal for said village by the president and was confirmed by a majority of the village board at the first meeting thereof in the municipal year in May, 1913. He claims that he gave bond, took the oath of office and was duly commissioned as such officer. At a regular meeting of the board in May, 1914, the president of the board of trustees again assumed to appoint Paynter as chief of police or village marshal, but a majority of the board of trustees refused to confirm or approve the appointment. The petition for leave to file an information in the nature of a quo warranto was filed June 6, 1914, and the trial was had on the 17th day of the following September. At the times covering the appointments of Paynter,.as aforesaid, the village of Sesser had the following ordinance: ‘‘ Section 54. The president shall annually appoint a chief of police or village marshal, by and with the advice and consent of the board of trustees. Said chief of police or village marshal shall hold his office for the term of one year unless discharged for cause, and until his successor is duly appointed, confirmed and qualified.” It was under this ordinance that the president of the board claimed the right to make the appointment. The village board could pass only such ordinances as they were given power to enact by statute. Section 11 of article XI of the statute in relation to Cities, Villages and Towns (J. & A. ft. 1528). provides: “The president and board df trustes may appoint a clerk pro tempore, and whenever necessary to fill vacancies; and may also appoint * * * a village marshal, and such other officers as may be necessary to carry into effect the powers conferred upon villages, to prescribe their duties and fees, and require such officers to execute bonds as may be prescribed by ordinance.” Under this statute the power to appoint the village marshal was in the president and board of trustees jointly, and the president alone had no power to make such appointment. Rowley v. People, 53 Ill. App. 298; McKean v. Gauthier,132 Ill. App. 376; People v. Hitchcock, 148 Ill. App. 456. Therefore the attempted appointment of Paynter as marshal, made by the president of the board in 1914 and not concurred in by the board, was without force and effect and the ordinance, so far as it may tend to give the president alone power to make the' appointment, was illegal. It is claimed however, by counsel for plaintiff in error, that even if this were so, yet that Paynter was legally appointed chief of police or marshal in May, 1913, and that he qualified and was commissioned according to law, that therefore he was entitled to hold his office until his successor was duly appointed, confirmed, qualified and commissioned, and that no successor having been so appointed and qualified, he is still entitled to hold the office. The right of Paynter to hold over under the appointment made in 1913 depended upon whether the provisions of the statute were fully complied with on that occasion.

Section 4 of article VI of the statute in relation to Cities, Villages and Towns (J. & A. If 1347) provided, among other things, that all city ór village officers, except aldermen and trustees, should “before entering upon the duties of their respective offices, execute a bond with security, to be approved by the city council or board of trustees, payable to the city or village, in such penal sum as may, by resolution or ordinance, be directed, conditioned for the faithful performance of the duties of the office and the payment of all moneys received by such officer, according to law and the ordinances of said city or village, * * * which bond shall be filed with the clerk.” It appears that Paynter’s commission was issued two days before he took the oath of office and executed the bond, but a more serious matter is that the bond executed by him did not comply with the provisions of the statute. Instead of being made payable to the city or village as provided by law, it was made payable to the People of the State of Illinois. It also appears that there was no resolution or ordinance fixing the amount of the bond to be given by the marshal, and Paynter is bond does not appear to have been approved by the board of trustees as required by law. The indorsement upon it in this regard is, ‘ ‘ Approved by me this 9th day of May, A. D. 1913. H. P. Morgan, President. T. J. Dunn, Clerk.”

The appointment of Paynter and the proper approval of his bond were both necessary to invest him with the office of chief of police or marshal, and his bond could not be approved except by a majority of the board of trustees. Launtz v. People, 113 Ill. 137. As Paynter failed to file the bond required of him by statute, before he could enter upon the duties of his office, and the same was not approved as required by law, he was as a matter of fact never properly invested with his offióe. While he was no doubt during the term he served a de facto officer, yet this suit is one brought to directly attack his right to the office, and before he can sustain his plea of justification and right to the office he must show that he was a de jure officer. Crook v. People, 106 Ill. 237; People v. Karr, 244 Ill. 374. He failed to do this and the court below properly gave judgment of ouster against him.

Judgment affirmed.


text:
    Mary E. Bell, Administratrix, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 1, 1915.
    Statement of the Case.
    Action by Mary E. Bell, administratrix of the estate of John Bell, deceased, plaintiff, against the East St. Louis & Suburban Railway Company, defendant, in the Circuit Court of Madison county, to recover for the death of plaintiff’s intestate by reason of the wrong-' ful act of defendant. From a judgment for plaintiff for $2,250, defendant appeals.
    In 188 Ill. App. 350, a former judgment in this action was reversed by this court.
    On January 29, 1913, at about three o’clock in the afternoon, John Bell, while delivering goods with a wagon drawn by a mule team, in Collinsville, Illinois, was run into by one of defendant’s cars and so injured that he died about six days afterwards, and from that judgment the defendant has again appealed, contending that the judgment was contrary to the weight of the evidence, and that the court erred in the admission of certain evidence offered by appellee.
    It appeared that at the time of the injury Bell was on his way to deliver goods to a Mrs. Johnson, who lived on the south side of Main street in Collinsville, in the second house west of Guernsey street, and that defendant has a single track for electric cars along the center of Main street, which runs east and west. Bell was going west along Main street and one of defendant’s cars was behind him going in the same direction. After passing Guernsey street which crossed Main street at right angles near Mrs. Johnson’s the wagon in which he was riding, being then upon the railroad track, was struck by defendant’s car and Bell was thrown out and received the injuries resulting in his death. Plaintiff claimed that the deceased was in the exercise of due care and was at the time driving west with one wheel of the wagon between the rails and the other on the north side of the track; that the car was being run at an excessive rate of speed; that those in charge of the ■ car gave no signals; that there was nothing to obstruct the view of those in charge of the car when it arrived within two hundred feet of the team and wagon, and that they failed to have the car under control, permitting it to strike the team and-wagon, causing the fatal injury to plaintiff’s intestate.
    Defendant contended that the car was being run at a moderate speed, that the proper signals were given and that Bell was guilty of negligence, in that while driving clear of the track outside of the rails on the north side, he suddenly turned his team straight across the track in front of defendant’s car, so that the car could not he stopped in time to avoid the collision.
    For plaintiff, Martin Bardsley testified that he was on Main street a short distance west of Guernsey street about twenty feet from the street car track, and first saw Bell approaching from the east three hundred feet away; that as Bell came on, he observed that the wheel of his wagon was caught on the inside of the tracks “skidding along,” and the mules seemed to be trying to pull the wagon over to the north; that he turned away when the wagon was seventy or eighty feet from him, continuing in the same way as before; that he looked around on hearing a crack; that Bell and the mules were down on the street, or in front of the car; that the car was stopped after the collision about sixty feet west of Guernsey street. Charles Grater swore that he was talking to Bardsley on Main street, about forty feet from the center of Guernsey, and saw Bell sixty-five or seventy feet away; that Bell was driving in the center of the street with one wheel in the center of the track and one on the north side of it; that walking east about forty feet and passing Bell, he heard the crash, but did not see deceased after passing him until after the collision. Guy R. McCaslin was driving east in an automobile, and testified he passed deceased about two hundred feet from the place where the accident occurred, and the latter was then driving with one wheel between the tracks, but that he did not know where Bell drove after witness passed him. On the part of defendant, Jesse Drake testified that Bell drove with one wheel between the tracks until he reached the center of Guernsey street when he swung to the curb a little bit and drove parallel with and outside the tracks to a point about forty feet beyond the intersection of Guernsey street, and then turned south across the tracks, where he was struck. Five other witnesses also testified they saw deceased just before the accident; that he was between the curb and the rail on the north side and that just before the collision he turned south across the track. These witnesses for defendant were corroborated by undisputed testimony, showing that the mules and the left front wheel of the wagon were struck by the car; that deceased, after the accident, told his employer that he had an order to deliver at Mrs. Johnson’s; that he went down Main street and attempted to cross over to her place to make the delivery, and the further fact that he did actually make the delivery of the goods after he was injured and before he was taken away for medical treatment.
    Abstract of the Decision.
    1. Death, § 42

      —when necessary to show exercise of ordinary care by deceased by preponderance of evidence. In order to recover, in an action for death due to the negligent act of defendant, plaintiff must prove by a preponderance of the evidence that at the time of sustaining the injuries resulting in death, and just prior to such time, deceased was in the exercise of ordinary care for his own safety.
    2. Appeal and error, § 1410

      —when determination of weight of evidence conclusive on review. In actions involving the alleged negligence of street car companies in failing to give signals of the approach of cars, where the evidence as to the giving of such signals is conflicting, the jury and trial court who hear and see the witnesses are in a better position to determine the value of the testimony than a court of review.
    Williamson, Burroughs & Ryder, for appellant.
    Charles H. Burton and Trautmann, Flannigen, Baxter & Hamlin, for appellee.

      See Illinois Notes Digest, Vols. XI -to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

3. Evidence, § 465 —when positive evidence of greater value than negative evidence. In actions involving the alleged negligence of street car companies in failing to give signals of the approach of cars, the positive evidence of those witnesses who testify that they heard the signals is generally of more evidential value than the negative testimony of those who did not hear such signals.

4. Street railroads, § 131 —when evidence sufficient to establish giving of proper signals. In an action to recover for the death of plaintiff’s intestate as a result of a street car striking the wagon in which deceased was riding, throwing deceased out and' causing injuries which resulted in his death, where the evidence was conflicting as to whether those in charge of the car gave proper signals of the approach of the car, weight of evidence held to show that such signals were given.

5. Street railroads, § 83 —when motorman not bound to assume that driver of team mil turn on track, ahead of car. The motorman of a street car is not bound to assume, in the absence of anything to warn him, that the driver of a vehicle proceeding along the streets in the same direction as the car will suddenly turn upon the tracks ahead of the car.

6. Street railroads, § 75 —when evidence insufficient to sustain finding that car was operated at excessive speed. In an action to recover for the death of plaintiff’s intestate as a result of a street car striking the wagon in which deceased was riding, throwing him out and inflicting injuries causing his death, the fact that the car in question was stopped within ten feet of the place where the accident occurred, held to tend strongly to contradict plaintiff’s claim that at the time of the accident defendant’s car was being run at an excessive rate of speed.

7. Street railroads, § 131 —when evidence insufficient to sustain verdict for death as result of collision of wagon with car. In an action to recover for the death of plaintiff’s intestate as a result of a street car striking the wagon in which deceased was riding, throwing him out and inflicting injuries resulting in his death, where the evidence tended to show that deceased suddenly turned from the street directly in front of the car, which was being run at a proper speed, a verdict for plaintiff held manifestly against the weight of the evidence.


text:
    Arthur Cohen, Appellee, v. Cleveland, Cincinnati & St. Louis Railway Company, Appellant.
    1. Carriers, § 503

      —when passenger not paying fare or showing 'ticket may he ejected. In order to be entitled to be transported as a passenger on a train, the passenger must either pay his fare or deliver to the conductor his ticket showing his right to be so transported, and in case of refusal such passenger may be removed from the train.
    2. Carriers, § 531

      —what injuries of ejected passenger carrier liable for. Where a passenger is removed from a train for refusal to pay fare or to produce a ticket, the carrier is liable only for physical injuries sustained as the result of the use of unnecessary force and violence in removing such passenger therefrom.
    3. Carriers, § 499

      —when passenger failing to produce proper ticket may recover for ejection. Where a passenger has demanded and paid for a ticket to his destination but has failed to receive the proper ticket owing to a mistake of the carrier’s agent, he may recover for being removed from the train in consequence of failing to produce the proper ticket or to pay the extra fare demanded, though no unnecessary force or violence was used in removing such passenger.
    4. Carriers, § 531

      —what is measure of damages for ejection of passenger not producing proper ticket through fault of agent. In an action to recover for wrongful removal from a train, where it appears that plaintiff demanded and paid for a ticket to his destination, which he failed to receive owing to the mistake of carrier’s agent, and where plaintiff was removed for refusal to pay for the extra fare demanded, the elements of plaintiff’s damages are the difference between the ticket paid for and the one delivered, any loss and delay caused by being removed from the train and reasonable damages for the indignity and humiliation suffered in being so removed.
    5. Carriers, § 531

      —when damages for personal injuries to passenger sustained by being ejected recoverable. Damages can be recovered from a carrier by a passenger for personal injuries sustained in being ejected from a train for refusal to pay fare only where the ejection is wanton and malicious, although such passenger produces a proper ticket which the carrier refuses to accept.
    6. Carriers, § 527

      —when instruction as to nonliability for ejection of passenger not furnishing proper ticket properly refused.
      In an action to recover for being removed from a train for refusing to pay fare as demanded by the conductor, where it appeared that plaintiff demanded and paid for a proper ticket, which he failed to receive owing to a mistake of defendant’s agent, and where the declaration claimed damages for the anxiety, humiliation and disorder sustained by plaintiff in being removed from the train, held that the court properly refused to give an instruction that the jury find defendant not guilty if it was found that plaintiff refused to pay fare as demanded, and that defendant’s conductor used no unnecessary force in removing plaintiff, although plaintiff had demanded and paid for a proper ticket which he failed to receive owing to a mistake of defendant’s ticket agent.
    7. Action, § 38

      —when objection as to form of action unavailable. The objection that an action should have been brought in contract and not in tort is unavailable after judgment entered where defendant did not demur or move in arrest of judgment.
    Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    D. E. Keefe, for appellant; L. J. Hackney, of counsel.
    Geers & Geers, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

Appellee, who was a horse buyer, living at Edwards-ville, Illinois, having purchased some horses in Bunker Hill, started from home on August 29, 1914, with two boys, John Davis and Edgar Hicks, to get them. They went as far as Mitchell on a trolley line and at that place went into appellant’s ticket office, where appellee asked for three tickets to Bunker Hill, handing the agent a two dollar bill. The agent gave him. three tickets, charging him three regular fares of forty-six cents each and gave him back sixty-two cents, -the proper change. The three boarded the train and appellee gave the tickets to the conductor. After leaving Mitchell, the train passed through Bethalto, Moro and Dorsey. Beyond Moro the conductor asked them which one of them was supposed to get off at Bethalto and appellee told him none of them; that he purchased three tickets for Bunker Hill. The conductor then said that one of the tickets read to Bethalto and asked appellee to pay the additional fare from Bethalto to Bunker Hill, amounting to thirty-three cents, and told him that if he did not do so he would have to leave the train at Dorsey, the next stop. Appellee replied that he did not see why he should have to pay his fare twice, that he had paid for three tickets from Mitchell to Bunker Hill and that he ought to be permitted to ride. The conductor said that was not any of his lookout, that it might be a mistake of the ticket agent, that appellee would have to get off the train or pay his fare again. As the train was leaving Dorsey the conductor came to appellee again for his fare, which appellee refused to pay and he also declined to get off the train. The conductor then stopped the train, took appellee by the arm or shoulder and led him from the train. There was no resistance on the part of appellee and no violence used by the conductor. After leaving the” train appellee was permitted by the conductor to get on again, pay his fare and ride to Bunker Hill. Subsequently, the mistake having been discovered, appellant’s agent sent appellee an American express order for thirty-three cents. It is not claimed that appellee received any physical injury or suffered any pecuniary loss beyond the thirty-three cents which was returned to him by appellant, but he brought this suit to recover damages for the indignity and humiliation suffered by him in being removed from the train.

The verdict of the jury and judgment was in favor of appellee for the sum- of one hundred dollars. There was no controversy of moment in the facts, and appellant insists they presented a case upon which appellee was not entitled to recover; also that there was error in the instructions. It is undoubtedly true, as a general rule, that a passenger desiring to pursue his journey upon a train must produce to the conductor his ticket, showing his right to be carried to his point of destination or pay his fare, and in case he refuses to do so he may be removed from the train; that in such case if the passenger has failed to purchase a ticket to his destination and refused to pay the fare, the company is only liable for any physical injury he may receive from force and violence used in excess of that necessary to put him off the train. But a different rule prevails under the decisions of this State where the passenger had demanded and paid for a ticket to the proper destination but, by mistake of the company’s agent, had failed to receive it. If in such case the passenger is removed from the train, because he does not produce the proper ticket and refuses to pay the additional fare, the rule appears to be that he is entitled to recover, not only for the difference between the ticket purchased and the one delivered, but also for the delay and loss occasioned thereby and reasonable damages for the indignity and humiliation suffered by him in being expelled from the train.

In Chicago, B. & Q. R. Co. v. Griffin, 68 Ill. 499, a passenger paid his fare to a certain station and the ticket agent inadvertently gave him a ticket to an intermediate station. He. refused to pay the fare to his point of destination" and the conductor, with his assistants, put him off the train. It is said in the course of the opinion: "The evidence tends to prove the mistake occurred at Mendota, through the inadvertence of the ticket agent in giving out the wrong ticket. If so, the conductor was right in demanding fare a second time. He was not bound to rely upon the statements of appellee that he had paid his fare to the station to which he desired to be carried. It was the duty of appellee to pay the fare démanded,' and if the company refused to make suitable reparation for the indignity to which he had been exposed in being compelled to repay his fare, he could maintain an appropriate action.” In Pennsylvania R. Co. v. Connell, 112 Ill. 295, where a passenger had purchased a coupon ticket from Omaha to New York, issued by the Wabash, St. Louis & Pacific Railway Company on account of the Pennsylvania Railroad Company, which the latter refused to accept, and where on refusal to .pay the regular fare demanded, the passenger was ejected from the train and brought suit against the Pennsylvania Railroad Company, it is said by the court: “We entertain no doubt that appellee was entitled to recover the amount of the cost of a ticket from the place he was ejected from the cars, to New York. He was also entitled to recover such damages as he sustained on account of the delay occasioned by the expulsion, and all additional expense necessarily occasioned thereby, as. well as reasonable damages for the indignity in being expelled from the train; but we perceive no ground upon which he can recover for personal injuries received, unless the expulsion was malicious or wanton.” We hold to the belief that under the admitted facts in this case plaintiff was entitled to recover for the indignity and humiliation occasioned by his ejection from the train.

Appellant complains that the court refused an instruction offered it by it, which after setting forth the facts, in substance, told the jury that if they found the facts as stated then they were instructed, “that although the agent who sold Cohen a ticket may have charged him a price sufficient in amount to entitle him to be carried to Bunker Hill, as a passenger, still, you are instructed that the plaintiff had no right to ride upon said train without either producing a ticket or offering to pay his fare to the point of destination, and if he failed to do so, and the conductor for that reason ejected him from said train, using no more force than necessary, then you are instructed that the plaintiff is not entitled to recover in this case under the declaration in this cause, but you should by your verdict find the defendant not guilty. ’ ’ The declaration in the case claimed damages for the great anxiety, humiliation, mental anguish and disorder suffered by appellee, and from what is above said and in our view of the law as above expressed, was sufficient to show the right of recovery which was established by the facts. The instruction was therefore erroneous and was properly refused.

Appellant complains that even though appellee was entitled to recover, his action should have been for breach of contract and not for tort. We do not consider this claim of appellant well founded, but even if it were otherwise, yet as appellant did not demur to the declaration nor move in arrest of judgment he cannot, after judgment entered, take advantage of the points relied on. Under the law and the evidence in this case, appellee appears to have been entitled to the judgment which he obtained and the same will therefore be affirmed.

Judgment affirmed.