author: Mr. Justice Adams

text:
    Illinois Steel Company v. John Brenshall.
    Gen. No. 13,821.
    1. Master and servant—when obedience of orders relieves servant from assumption of rish. The doctrine of assumed risk does not operate to prevent a recovery where the servant is injured while performing an act pursuant to the order of his master, unless the danger of obeying was so imminent that a man of ordinary prudence and caution would not have incurred it.
    2. Master and servant—when doctrine of fellow-servants toill not preclude recovery. The fellow-servant rule will not operate to preclude a recovery where the servant is injured while obeying an order of his master, unless the danger of obeying such order was so imminent that a man of ordinary prudence and caution would not have incurred it.
    3. Torts—when procuring discharge of employe gives cause of action. It is actionable for one company to procure the discharge of an employe of another company, pursuant to a rule existing between such companies, because of the refusal of such employe to release a claim for personal injuries held against the company obtaining such discharge. A rule of the kind in question is unconscionable, unjust, tyrannical and unlawful and subject to the severest condemnation.

      4. Instructions—when complaint as to, given in Municipal Court, will not reverse. Complaints of instructions given in a trial had in the Municipal Court even though well taken will not afford ground for reversal unless the Appellate Court is satisfied that the judgment “was contrary to the law and the evidence.”
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 30, 1908.
    Rehearing denied May 14, 1908.
    Statement toy the Court. The defendant in error, plaintiff below, recovered judgment against the plaintiff in error, defendant below, for the sum of $615.50 and costs, which judgment is sought to be reversed by this writ of error. The plaintiff’s bill of particulars is as follows:
    “Plaintiff’s claim is for an injury to his person caused by being burned by molten iron on or about May 21, 1906, while removing covers from molds containing molten iron while at work in the defendant’s plant at South Chicago, Illinois; said injury was occasioned by defendant’s negligence and misconduct. And for the wrongfully and maliciously procuring the discharge of the plaintiff from the employment of the Chicago , Lake Shore & Eastern Railroad Company, on or about the twelfth of December, 1906, and for preventing him from getting similar employment elsewhere in South Chicago.”
    The cause was tried by the court and a jury, and the jury rendered a verdict, finding the defendant guilty as to the charge of negligence, and assessing the plaintiff’s damages at the sum of $100, and also found the defendant guilty of unlawful interference with plaintiff’s contract of employment, and assessed his damages at $517.50, and the court, after overruling defendant’s motion for a new trial, rendered judgment on the verdict.
    Knapp, Haynie & Campbell and William Beye, for plaintiff in error.
    Graham & Rowan, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

We will first consider the charge of negligence. The plaintiff, John Brenshall, had worked for the defendant, the Illinois Steel Co., about ten years at the time of the accident. May 21, 1906, he had been working on the pouring platform at defendant’s plant about three weeks. The pouring platform was what the men stood on to pour molten metal into the molds, which metal was brought to the platform from the furnaces in ladles and in a molten state. The ladles were moved by a crane. The building lengthwise was north and south, and the platform was at the west side of the building and also ran north and south. Just east of and parallel with the platform there was a narrow guage railway track, and the cars which were operated on the track had cast iron tops, on which the molds rested, and each car could carry three molds. The molds were twenty-five inches in diameter and six feet high, and when brought alongside the pouring platform on a car were about two feet higher than the platform, the latter being about seven feet high. A ladleful of molten metal is called a heat, and fifteen^or eighteen molds are poured from a ladle, the ladle being moved along the line of molds as the pouring proceeds. After each mold is filled it is capped, by fitting a metal plate, called a cap, into the hole at the top of the mold. There are lugs on the side of a mold at the top, and the cap when put on is held in place by a bar passed through the lugs over the top of the cap, and driving a wedge between the bar and the top of the cap. After capping a mold, water is put on it to cool it. Sometimes alnminnm is put into the molten metal in the mold, which is called the heat, in order to quiet it down. It was the duty of John Pfister, the plaintiff’s immediate boss, to do this. There was no aluminum put in the heat which was poured at the time in question.

Shortly before the accident a heat had been poured into the molds, and the molds had been capped. During the three weeks that plaintiff had been working at the pouring platform, it was part of his duty to knock out the wedges which held the caps in place and take off the caps. Plaintiff testified that Pfister, his foreman, told him to take the wedges off, and he said no, that there might be an explosion, to wait five or ten minutes, and Pfister said, “No, go ahead, never mind.” Plaintiff further testified, in his imperfect English, “Well, you find out of course, I had to do that; if I don’t do it, he push me out. Then I started. I heard one explode. I run away. It catch me right here, right here on the back and hand. The metal struck me on the wrist of the left hand,” etc. The plaintiff used a hammer to drive out the wedges.

Pfister testified in chief that he was plaintiff’s boss, and that he was not at the platform when the accident occurred, but was a minute later, and that plaintiff, before he started to knock off the wedges and bars, did not complain of the heat being hot, and that he did not tell plaintiff to go ahead and do it anyway, or anything like that. But, on cross-examination, he was questioned and answered as follows:

“Q. Didn’t he say to you that they were too hot, that he was afraid of getting burned? A. No, sir, not that I know of. I don’t remember it.

Q. You are not sure whether he did say it or not? A. No.

Q. Did you tell him to go on and take them off, they were all right? A. I don’t remember.”

Counsel for defendant contend that the work which plaintiff was ordered to do was part of the ordinary routine of his work, and, therefore, he assumed the risk of doing it; also that the negligence, if any, was that of a fellow-servant. It is true that it was part of the plaintiff’s ordinary work to uncap the molds; but that he assumed the risk of so doing at the time in question, is, assuming his testimony to be true, an untenable proposition. From his experience in uncapping the molds and his observation at the time of the accident, he thought the metal was too hot, and that he was in danger of being burned if he then undertook to uncap the molds. So thinking, he requested delay for five or ten minutes, but was peremptorily ordered by his foreman to proceed with the work. Being so ordered, he was not required to disobey, unless the danger of obeying was so imminent that a man of ordinary prudence and caution would not have incurred it. Ill. Steel Co. v. Schymanowski, 162 Ill. 447, 456; Offutt v. Columbian Exposition, 175 ib. 472, 479; Gundlach v. Schott, 192 ib. 509, 512. And whether plaintiff, in obeying his foreman’s order, acted in a reasonably prudent and cautious manner, was a question for the jury. Ill. Steel Co. v. Schymanowski, 162 Ill. 460, and cases cited.

In Offutt v. Columbian Exposition, 175 Ill. 472, it appeared from the evidence that the plaintiff was a painter, and “thoroughly understood the hanging of ladders and the putting up of scaffolds,” and that he objected to the way in which his foreman directed him to hang a scaffold, saying it was liable to come down; but his foreman told him it was all right and to fasten it up, and he, the plaintiff, testified on the trial that the way he first fastened the strap and hook was the proper, usual and customary way, and that it was safe, and that he thought that the way the foreman told him to do it was the wrong way. The scaffold fell with the plaintiff on it, and he was seriously injured. The jury found for the plaintiff and the court affirmed a judgment rendered on the verdict.

Defendant’s counsel urge, in support of their second contention, that the negligence was that of plaintiff’s fellow-servant, in failing to put sufficient water on the molds to cool them. This proposition cannot be sustained. The order to the plaintiff was to go ahead and uncap the molds in the condition in which they were when the order was given, and after plaintiff had protested that the molds had not cooled sufficiently.

We will next consider plaintiff’s claim that the defendant wrongfully and maliciously procured his discharge from the Chicago, Lake Shore & Eastern Railway Company. After the plaintiff was injured, he went to the hospital and had his wounds dressed. He testified, in substance, that it was about a month before he could go to work, and that he then started to work for the Chicago, Lake Shore & Eastern Railway Company, and subsequently he went, by direction of his foreman, to see Mr. Young, who was safety inspector and claim agent for the defendant and also for said railway company, and Young told him that unless he would sign a release he would discharge him from the railway company. He refused to sign a release, and returned to his boss, who wanted to know what had occurred, and plaintiff told him that he had been hurt at defendant’s place, and Young wanted him to settle, but did not want to pay bim anything, and he would not settle. His boss then said, “All right; go ahead to work,” but in about five minutes his boss received an order and said to him, “I think you better go and settle up,” and, on plaintiff saying they did not want to pay him anything, his boss said he could not help him, to take up his tools, and when he started to put his tools in his tool box, his boss told him to remain during the afternoon, which he did, and then left.

Charles E. Wickliff, Jr., car foreman at the shops of the railway company, was plaintiff’s foreman at said shops. He testified, in substance, that on the morning of December 13, 1906, he received a notice, through the timekeeper in the office, that plaintiff was wanted at the safety department, and so told plaintiff, and on being informed by plaintiff that he was hurt at defendant’s place, he asked him if he had signed a release, and on plaintiff’s answering no, he said to him, “That is what they want you over there for, so you better go over. My advice to you is to sign a release, because I don’t think I will be allowed to let you work any longer unless you do.” Witness further testified, that, when plaintiff returned from the safety department, he let him go back to work; but, about noon, he received an order, through the clerk who had before notified him, that he had better let the man go, and he told plaintiff he would have to let him go, if he wouldn’t sign a release, and plaintiff then left.

Eobert J. Young testified substantially that he was in the employ of the Illinois Steel Company and the Chicago, Lake Shore & Eastern Eailway Company as safety inspector, looking after accidents, investigating them and settling claims, and that men injured while working for either company passed through his office before returning to work, to get a clearance paper showing that they had settled all claims against the company where they were injured. Witness further testified that the railway company’s shops were within the fence of the Illinois Steel Company’s plant. He testified as follows in reference to a rule of both companies: “There is a rule or regulation that a man injured while working for one company, is not knowingly allowed to work for either company, within the plant of the Illinois Steel Company, until he has settled.” The witness testified that the first time plaintiff came to see him, after the accident, was about the middle of June, and that plaintiff was not then given a clearance, and that the next time he saw him was in December; that he did not know that, in the meantime, plaintiff was working for the railway company, and learned it only by plaintiff’s attorneys coming to him in reference to a settlement. Witness also testified that he is the person who determines the question of the employment of men who have been injnred.

John Bowan, an attorney at law, testified that he had a conversation with Mr. Young, in which he asked Mr. Young questions, and the following occurred:

“Q. Mr. Young, I see you have got Mr. John Brenshall discharged from the C., L. S. & E. A. Yes, I did.” Witness said, “I don’t think you ought to have done that,” and Young said, “Why not? He treated us wrong?” “Q. What did he do?” “A. He asked us for money.” Witness testified that Mr. Young also said, “I got him discharged from the C., L. S. & E., and I will follow him to the Baltimore & Ohio and get him discharged.” This evidence is not contradicted by Young or at all.

Wickliff, plaintiff’s foreman while he was working' in the railway shops, corroborated Young as to the existence of the rule. Young testified that plaintiff asked $400 to settle, but plaintiff testified that he only asked $100. The evidence shows beyond question that Young, as the defendant’s agent and acting in the enforcement of the rule above mentioned, procured plaintiff’s discharge from the employ of the C., L. S. & E. Railwny Company, because the plaintiff would not settle with defendant on its own terms. The rule in question is the expression of a combination and agreement between the two companies to force a settlement and the execution of a release by any one injured in the employ of either company, by presenting to him the alternative of discharge by the company in whose employ he was injured, and the refusal of the other company to employ him, or if, by inadvertence, it employs him, his discharge by that company. The rule is unconscionable, unjust, tyrannical and unlawful, and cannot be too severely condemned. The following language used in Fidelity & Casualty Co. of N. Y. v. Gibson, 135 Ill. App. 290, is applicable in this case: “We think this ease is controlled by London Guaranty Company v. Horn, 206 Ill. 507, for many of the essential features here found are similar to those in the Horn case, supra. The court there say: ‘We therefore conclude, both upon reason and authority, that where a third party induces an employer to discharge his employee, who was working under a contract terminable at will, but under which the employment would be continued indefinitely, in accordance with the desire of the employer, except for such interference, and where the only motive moving the third party is the desire to injure the employee and to benefit himself at the expense of the employee, by compelling the latter to surrender an alleged cause of action, for the satisfaction of which, in whole or in part, such third party is liable, and where such cause of action does not depend upon and is not connected with the continuance of such employment, a cause of action arises in favor of the employee against the third party. ’ ” The judgment in the case cited was affirmed by the Supreme Court in 232 Ill. 49.

See, also, as to plaintiff’s right to recover, Doremus v. Hennessy, 176 Ill. 608, and cases cited ib. 616. Defendant’s conduct in the premises was malicious. In the case last cited, the court say: “An intent to do a wrongful harm and injury is unlawful, and if a wrongful act is done to the detriment of another, it is malicious.” Defendant’s counsel offered to prove reasons for the rule, and the court excluded the evidence. The defendant’s reasons for the rule are immaterial and the evidence was properly excluded. The reason for the rule, which defendant’s counsel offered to prove, was that plaintiff might not have access to defendant’s plant to procure evidence in respect to his injury. This was an admission that one object of the rule was the suppression of evidence.

The court instructed the jury orally, and defendant’s counsel asked fourteen instructions, all of which were refused, and counsel urge numerous objections to the rulings of the court in respect to instructions asked, and as to parts of the court’s oral charge. Section 23 of the act in relation to the Municipal Court, as amended, provides: “No order or judgment sought to be reviewed, shall be reversed unless the Supreme Court or Appellate Court, as the case may be, shall be satisfied from said statement or stenographic report, or reports, signed' by said judge, that such order or judgment is contrary to the law and the evidence,” etc.

In this case we are not so satisfied. On the contrary, we think the judgment in accordance with the law and the evidence. We will say, however, that even if we ignore section 23, we find no error in the court’s rulings on instructions which would warrant us in.reversing the judgment.

Counsel for defendant suggest, rather than argue, that the damages are excessive, and that defendant should not be required to pay punitive damages. We do not think the damages excessive. The plaintiff suffered actual damage, and, as said by the court in Gibson v. Fidelity & Casualty Co., 232 Ill. 49, 53, “There is evidence in the record which, if believed by the jury, would justify exemplary damages.”

The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    L. S. Vognild, for use of A. Wallin, Defendant in Error, v. Fredericke Voltz et al., Plaintiffs in Error.
    Gen. No. 13,847.

      Contracts—what performance of obligation to furnish merchantable title. A contract to convey “a good and merchantable title” to real estate is performed by the conveyance of a title free from legal objection other than an objection with respect to the chain of title failing to show that certain grantors were the heirs of a deceased owner, such objection however being met by satisfactory proof by affidavit and an incidental judicial finding of the fact of heirship.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantey, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 30, 1908.
    Statement by the Court; L. S. Vognild, July 13, 1906, entered into a written contract with Fredericke Voltz, Katie Voltz, Catherine Cabel and Louis Cabel, for the purchase by said Vognild from, them of the premises hereinafter described in the affidavit of Max Froehlich, for the sum of $16,750. L. S. Vognild brought suit to recover $500 paid by him as earnest money on the contract, on the ground that the title was defective. The cause was tried by the court, without a jury, and the court found for the plaintiff, assessed his damages at $500, and rendered judgment accordingly. The cause was tried on the following stipulation of facts:
    “It is hereby stipulated by and between the parties hereto that the following are the facts involved in the above entitled cause:
    Defendants contracted with the plaintiff to sell him certain real estate in Cook county, Illinois, as will appear by the contract hereto attached, marked Exhibit ‘A.’ Upon examination of the title to said real estate as shown by an abstract of title, plaintiff’s attorney made certain' objections to the title, as will appear by his opinion hereto attached as Exhibit ‘B.’ Of said objections he stated to the attorneys for the defendants that he insisted on objection Ño. 3, and that if said objection were cured he would waive the others. Said objection is as follows:
    . ‘Between No. 22 and No. 26, original abstract, there is a complete break in the chain of title. By No. 22 Truman G-. Wright conveys the title to Charles S. Wright, under deed dated August 14, 1854, and by No. 26, Salmon F. Heath and Julia W. Heath, the said ‘Julia W. Heath being the sole heir at law of Charles S. Wright, deceased,’ and Truman Gr. Wright and wife assume to convey the title to David S. Lee. Charles S. Wright’s estate was neither probated in Cook County, Illinois, nor an exemplification of it filed in the recorder’s office of said Cook county. An attempt is made to clear the objection by the affidavit of Truman Gr. Wright, recorded April 10, 1873, which states conclusions rather than evidentiary facts from which conclusions may be gathered. ’
    The affidavit of Truman Gr. Wright, recorded April 10, 1873, referred to above, as well as the affidavit of James B. Doolittle, recorded at the same time, appear in the abstract, and are as follows:
    ‘State op Wisconsin, Bacine County.
    Truman Gr. Wright, of Bacine City, in said county, being first duly sworn, doth depose and say that lie is the same person who November 4, 1837, with Julia Ann, his wife, mortgaged the west half of the northeast quarter of Section 6, Township 39 north, Bange 14, in Chicago, Cook county, Illinois, to Charles S. Wright of Bennington, Vermont, and afterwards by deed dated August 15, 1854, conveyed said land to said Charles S. Wright.
    Deponent says that said Charles S. Wright was a brother of this deponent, and this deponent was very intimate with him and his family; that said Charles S. Wright died in the year 1855 at Bacine, Wisconsin, intestate, leaving him surviving no wife, but one child, viz.: Julia W. Heath, wife of Salmon F. Heath, now residing at St. Joseph, Michigan, and that said Julia W. Heath was the only heir at law of said Charles S. Wright.
    Truman Gr. Wright.
    Duly sworn to.’
    ‘ State op Illinois, County of Cook.
    James B. Doolittle of Bacine, Wisconsin, being duly sworn, says that he has read the foregoing affidavit of Truman Gr. Wright, and that the matters therein stated are true to the best of his knowledge and belief. And he further says that he has lived at Bacine, Wisconsin, from May, 1851, till the present time; that he knew Charles S. Wright intimately until his death in 1855; that deponent was his counsel in business, and was intimately acquainted with Salmon F. Heath and well acquainted with his wife, Julia W. Heath; that after the death of said Charles S. Wright this deponent was appointed his administrator; that he died intestate; that deponent as such administrator settled the estate of Charles S. Wright; that from his knowledge thus acquired as the friend and counsel of said Charles S. Wright, in his lifetime and as his administrator after his death, he states that" said Charles S. Wright died in 1855, leaving no widow, and that he left only one heir at law, viz.: Julia W. Heath, wife of Salmon F. Heath, having no other child or children to the knowledge of this affiant.
    James B. Doolittle.’
    Duly sworn to.
    The defendants insisted that the abstract, as hereinabove shown, exhibited the proper chain of title, but in addition thereto they submitted to the plaintiff and his attorney, within the sixty days allowed by the contract, the following documents to correct whatever defect there might be in such title:
    A letter from the county judge of Bacine, Wisconsin, to the defendants’ attorneys, in answer to a request for a certified copy of the order of heirship, as follows:
    ‘Bacihe, Wis., September 22, 1906.
    GrOLDZIER, Bodgers & Froehlich,
    Chicago, Ill.
    Dear Sirs:—In reply to your of the 20th inst. directed to the Beg. in Probate, I beg leave to say that I have very carefully examined all of the papers in the Charles Wright estate and find no finding of heir-ship. I wish to call your attention to the fact that the records of this office were destroyed in the fire which burned our court house in 1861, and that this is a “restored record,” which may account for the absence of the heirship finding. I am,
    Bespectfully,
    Max W. Beck,
    County Judge.’
    An exemplified copy (duly certified in accordance with the law of the United States, with reference to the records of one state being admissible in those of another) of a final order allowing the final account in the matter of the estate of Charles S. Wright, deceased, entered in the County Court, in Probate of Bacine county, Wisconsin, said order being as follows:.
    ‘Bacine County Court 1 In Probate j
    In the Matter of the Estate of ) Charles S. Wright, dec’d. j
    At a term of the County Court of Bacine county held at the office of the judge thereof in the City of Bacine, said county, on the first Tuesday in November, A. D. 1861.
    W. E. Wording,
    Judge.
    On the seventh day of November, 1861, in the November term of the County Court of Bacine appears before this court Julia W. Heath, Salmon P. Heath and Truman G-. Wright, all of whom claim to be interested in the estate of said Charles S. Wright, deceased, and also James B. Doolittle, administrator of the said estate, the said day being the day appointed by this court for the examination of the account of the said administrator, and the same being adjourned from day to day until the twentieth day of November, 1861, and on the said last named day the said account being presented and the said Julia W. Heath, Salmon F. Heath being present, also Truman Gh Wright, and making no objections to said account, and it appearing also to the judge of this court that the said Julia W. Heath is the only heir of the said Charles S. Wright, deceased, and the said account being duly examined and found to be correct, it is ordered that the sum of $2,600 be and the same is hereby allowed to the said James E. Doolittle, administrator, as compensation in full for his services in settling said estate, including his commission for collecting proceeds due said estate and his per diem fees and also extra compensation on account of unusual difficulties and responsibility in settling said estate.
    Dated November 20, 1861.
    W. E. Wording,
    County Judge.’
    An affidavit of Max Froehlich, with reference to the possession of said premises, as follows:
    Max Froehlich, being first duly sworn, on oath says that he is and has been a resident of the city of Chicago, in said county, since 1854; that he was intimately acquainted with one John Buehler, who died in 1899, and his family, the said John Buehler having acquired title by deed from Orrin W. Potter and wife, dated March 1, 1872, and recorded April 9, 1872, in Book 48, page 487, to the property located in said county and described as lots one to fourteen inclusive in block one of David S. Lee’s Addition to the Original Town of Chicago; that lots forty-seven and forty-eight of block one in said David S. Lee’s Addition adjoin the first named premises to the west, being separated only by an alley, and were acquired by special warranty deed from Órrin W. Potter to John Buehler, dated November 22, 1880, and recorded December 28, 1880; that affiant was employed in a confidential capacity in the business of John Buehler in Chicago from May, 1873, until the latter’s death in May, 1899; that affiant resided in the immediate vicinity of said premises, to-wit, within one-fourth to one-half mile of said premises, from 1882 to 1903; that this affiant was well acquainted with all the aforementioned premises and with their occupants from the time of their respective purchases by said John Buehler to the present day; that such acquaintance was gained by reason of affiant’s sight of said premises during his residence in said neighborhood from several times daily to once a week, as well as affiant’s knowledge gained by keeping the private business and personal books of said John Buehler during his lifetime, and those of his widow after his death.
    Affiant further states that from the time of their respective purchases all the said premises were used by the said John Buehler as a homestead, he actually residing thereon with-his family and being in possession thereof; that later at different times portions of said premises were sold by the said John Buehler to various purchasers, whereupon said John Buehler relinquished possession of such respective portions as were sold and continued to reside on the remainder ; and. at the time of his death in 1899 he was in actual possession as his homestead of such of said premises described as follows; having continued therein without interruption under claim of ownership, such possession having further been hostile, adverse, visible, notorious and exclusive, to wit: Lots six (6), seven (7), eight (8), nine (9), ten (10), eleven (11), twelve (12), thirteen (13) and fourteen (14), the south 30 feet of lot forty-eight (48) and the east 2.75 of the south 30 feet of lot forty-seven (47), all in block one (1) in David S. Lee’s Addition to Chicago, excepting those parts of said lots 6, 7, 8, 9 and 10 conveyed to the Metropolitan West Side Elevated Railroad Company by deed recorded May 22, 1894, as Document No. 2,056,226 in book 4849, page 25, and also excepting those parts of lots 6 and 7 conveyed to Oscar A. Lewis by deed recorded February 9, 1895, as Document No. 2,171,930, in book 4997, page 480, in section six (6), township thirty-nine (39) north, range fourteen (14) east of the Third principal meridian, situated in the city of Chicago, County of Cook and State of Illinois.
    Affiant further states that in and by his last will and testament, which was duly probated, the said John Buehler devised his said homestead to his widow, Bosa Buehler, who continued to reside in the same as her homestead until her death in December, 1902; that in and by her last will and testament, which was duly probated, she devised her said homestead to her sisters, Fredericke Voltz, Catherine Gabel, and her niece, Katie Voltz, in common; that since the death of said Bosa Buehler her said devisees have been in possession of the said premises by and through their agents or tenants, and that they are at the present time so in possession.
    Affiant further says that since the purchase of said premises by said John Buehler, the same have been in actual possession" of and the taxes thereon have been paid by the following persons in succession: John Buehler, Bosa Buehler and Fredericke Voltz, Catherine Gabel and Katie Voltz, as tenants in common; that such possession was at all times exclusive, without interruption, under claim of ownership, hostile, adverse, visible and notorious.
    Duly sworn to. Max Froehlich’.
    The written contract between the parties was for the conveyance of the premises mentioned in the affidavit of Max Froehlich as being in the possession of these defendants; said contract containing the provision that the defendants were to convey a ‘good and merchantable title thereto’; and that ‘in case material defects be found in said title, and so reported, then if such defects be not cured within sixty days after such notice thereof, this contract shall, at the purchaser’s option, become absolutely null and void, and said earnest money shall be returned; notice of such election to be given to the vendor’; and that ‘should said purchaser fail to perform this contract promptly on his part, at the time and in the manner herein specified, the earnest money paid as above shall, at the option of the vendor, be retained by the vendor as liquidated damages, and this contract shall thereupon become null and void. Time is of the essence of this contract, and of all the conditions hereof.’ ”
    The vendors also agreed to furnish, except as to lots 47 and 48, a complete merchantable abstract of title, or merchantable title guaranty policy.
    “Said plaintiff insisted that the abstract of title does not properly show a good and merchantable title in the defendants, and demanded the return of his earnest money, five hundred dollars, which had been paid said defendants. The defendants insisted that the papers and documents submitted by them to the plaintiff, as heretofore set forth, completely corrected any defect which may have existed to the title, and they having duly made tender of deeds, and the plaintiff having refused to pay the balance due, the defendants elected to and did declare the earnest money forfeited, and so notified the plaintiff. The defendants further notified the plaintiff that the proper officers of the Chicago Title & Trust Company stated, after having the facts stated to them, that they would issue a guarantee policy on the title at any time the plaintiff might desire one.
    This suit is brought to recover that amount, and the question of title heretofore set forth is the only one involved in the suit.
    Bowebsock & Stilwell,
    Attorneys for Plaintiff.
    Goldzieb, Bodgebs & Fboehlioh,
    Attorneys for Defendants.”
    Goldzieb, Bodgebs & Fboehlioh, for plaintiffs in error.
    Bowebsock & Stilwell, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

It appears from the stipulation between the attorneys for the respective parties that the plaintiff’s attorney made certain objections to the title, but stated to the attorneys for the defendants “that he insisted on objection 3, and that if said objection were cured he would waive the others.” An abstract of title was furnished to the plaintiff by the defendants and examined by plaintiff’s attorney. His objection numbered 3 is as follows:

“Between No. 22 and No. 26, original abstract, there is a complete break in the chain of title. By No. 22 Truman Gr. Wright conveys the title to Charles S. Wright, under deed, dated August 14, 1854, and by No. 26, Salmon F. Heath and Julia W. Heath, the said ‘Julia W. Heath being the sole heir at law of Charles S. Wright, deceased’, and Truman Gr. Wright and wife assume to convey the title to David S. Lee. Charles S. Wright’s estate was neither probated in Cook County, Illinois, nor an exemplification of it filed in the recorder’s office of said Cook County. An attempt is made to clear the objection by the affidavit of Truman Gr. Wright, recorded April 10, 1873, which states conclusions rather than evidentiary facts from which conclusions may be gathered.”

Counsel for plaintiff, defendant in error here, claim that the statements in Truman Gr. Wright’s affidavit that he was very intimate with Charles S. Wright and his family; that Charles S. Wright was his brother and died in 1855 at Bacine, Wisconsin, intestate, leaving no widow and but one child, viz., Julia W. Heath, wife of Salmon F. Heath, now residing at St. Joseph, Michigan; and that Julia W. Heath was the only heir at law of said Charles S. Wright, are all conclusions. We cannot concur in this view. The statements, with the exception of the statement that Julia W. Heath was the only heir at law of Charles S. Wright, are statements of fact, which would be admissible between the parties in a suit at law. They are evidentiary facts. Objection number 3 contains no objection or reference to the affidavit of James B. Doolittle, in which the affiant states that Charles S. Wright died in 1855, leaving no widow and that he left only one heir at law, viz.: Julia W. Heath, wife of Salmon F. Heath, “leaving no other child or children, to the knowledge of this affiant.”

It does not appear from the affidavit of Wright or Doolittle that Charles S. Wright had not other children, who may have died during their father’s lifetime, leaving heirs; but the order of the County Court of Racine county, Wisconsin, of November 7, 1861, contains the following: “And the said Julia W. Heath, Salmon F. Heath being present, also Truman Gr. Wright, and making no objections to said account, and it appearing also to the judge of this court that the said Julia W. Heath is the only legal heir of the said Charles S. Wright, deceased,” etc. It is contended by counsel for the plaintiff that the duty of the County Court being, as appears from the order, to examine into and pass on the account of the administrator of the estate of Charles S. Wright, deceased, the question of heir-ship was not before the court, and therefore the statement in the order that Julia W. Heath was the only legal heir of Charles S. Wright, deceased, was obiter dictum and cannot be regarded as a judicial finding of heirship. It is fully shown by the affidavits of Truman Gr. Wright and James R. Doolittle that Julia W. Heath was the surviving child of Charles S. Wright, deceased. The heirs of Charles S. Wright were interested in the estate of the deceased, and were entitled to be present when the administrator’s account was presented for examination and approval, and it was the court’s duty to see either that they were present in court, or that they had been properly notified and failed to appear. And, in order that the heirs should be bound by the order, it was necessary that it should appear in it, either that the heirs were in court, or had been notified and failed to appear. Therefore, the finding that Julia W. Heath, who was in court, as appears from the order, was the only heir of Charles S. Wright, deceased, was not a mere dictum, but was a judicial finding of the fact of heir-ship.

No objection is made as to the parts of lots 47 and 48 described in the contract and in Max Froehlieh’s affidavit. Objection 3 relates to the other lots described in said affidavit. ' The lots in question, other than lots 47 and 48, are lots 6 to 14, both inclusive, in block 1, in David S. Lee’s Addition to Chicago. Max Froehlich, in his affidavit, deposes that he was intimately acquainted with John Buehler and his family, and that said Buehler acquired title by deed of date March 1, 1872, and recorded April 9, 1872, from Orrin W. Potter and wife to said John Buehler, to lots 1 to 14, inclusive, in block 1, in David S. Lee’s Addition to Chicago, and that said premises, from the time of said purchase, were used by said Buehler as a homestead; that he and his family actually resided thereon, and he was in actual possession of the same; that later he, at different times, sold portions thereof, but continued to reside on the remainder; that he died in 1899, and at the time of his death he was in actual possession of lots 6, 7, 8, 9, 10, 11, 12, 13 and 14, etc., having continued such possession under claim of ownership his possession having been hostile, adverse, visible, notorious and exclusive; that he devised his said homestead to Rosa Buehler, his widow, and she continued to reside on the same till her death in December, 1902, when by her last will she devised the same to Fredericke Voltz and Catherine Cabel, her ‘sisters, and Katie Voltz, her niece, in common, and since the death of Rosa Buehler her said devisees have been in possession of the same, by their agents and tenants, and are now in possession thereof, and that the taxes have been paid on said premises by John Buehler, Rosa Buehler and said devisees in succession. This affidavit shows continuous and exclusive possession for more than twenty years in John Buehle.r, his widow and her devisees, under claim of ownership, and the payment of the taxes on the property during such possession. No objection is made to the affidavit by objection 3, and the only objections to it made in argument are that the Statute of Limitations does not run against minors, insane persons and others laboring under disabilities, and there may be such persons, and that such continuance in possession is not a matter of record, and that plaintiff is entitled to a record title. In support of the proposition that plaintiff is, by the contract, entitled to a record title, Page v. Greeley, 75 Ill. 400, and Parker v. Porter, 11 Ill. App. 602, are cited. In the latter case the contract provided for “the delivery by defendant of a warranty deed and abstract of title, brought down by the recorder’s office to date, showing good title.” In Page v. Greeley the contract provided: 11 The said parties shall respectively furnish, each to the other, abstracts of title, made by competent abstract makers, to the premises herein agreed to be sold,” etc. The court construed this provision as a contract for a good title of record. The contract of the defendants here is “to convey to said purchaser a good and merchantable title thereto, by general warranty deed, with release of dower and homestead rights, subject to existing leases by month. ’ ’ The contract here is to furnish a merchantable abstract of title.

McDuffee v. Sinnott et al., 119 Ill. 445, was a suit for partition between the heirs of John Sennott, deceased. The deceased and his heirs had been in actual and exclusive possession of the premises for more than twenty years. Some of the parties to the partition suit claimed as heirs of one Henry Jackson; but the court held that at the time of the commencement of the suit the Jackson title was barred, both by the twenty and seven years’ limitation. The court say: • The only answer made to this position is that limitation acts can only be availed as a shield, and not as a sword, and a number of authorities are referred to as sustaining this position. In view of the repeated decisions of this court, it would be a fruitless consumption of time to enter upon a discussion of the cases decided outside of this state, for whatever the rule may be elsewhere, it is now well settled in this state that whenever the bar of the statute has become absolute, and the party entitled is in possession under it, it is thereafter just as available for attacking as for defensive purposes, and its availability in this respect will not depend at all upon the occupant continuing in the actual possession of the property. His rights in that respect are precisely the same as those of any other absolute owner of land. He can vacate it or occupy it, just as convenience or interest may dictate.” Citing numerous cases.

In Riverside Co. v. Townshend, 120 Ill. 9-20, the court say: “Where the plaintiff in ejectment shows an adverse possession for twenty years, so that the right of entry is barred, he is entitled to recover even against a defendant whose possession for a less period is lawful,” citing authorities. The cases cited are a complete answer to the plaintiff’s contention that a good title means, necessarily, a record title.

Clark v. Jackson, 222 Ill. 13, is relied on by plaintiff’s counsel, and, as appears from the record, influenced the decision of the trial court. That case is not an authority for the proposition that affidavits cannot be used in support of the title, the court expressly saying: “The question whether any defect in an abstract can be cured by affidavits does not arise in this case, as the contract did not require that an abstract of the title to the Attica Lithia Springs realty should be furnished.”

When title is sought to be established under the twenty-year Statute of Limitation, we cannot perceive how it can be proved otherwise than by parol evidence.

We are of opinion that the evidence cures objection 3 of plaintiff’s counsel. This renders it unnecessary, in view of the stipulation between the parties, to consider other objections urged in the opinion of plaintiff’s counsel on the title. Counsel for plaintiff say, in their argument: “The objection No. 3 not being cured to the satisfaction of the vendee, then the vendee insists upon the other objections enumerated in the opinion of title.” The stipulation does not require that objection 3 shall be cured to the satisfaction of the vendee, which, as counsel for defendants pertinently sug’gest, might be impossible. The language of the stipulation is: “Of said objections he stated to the attorneys for the defendants that he insisted on objection No. 3, and that if said objection were cured, he would waive the others. ” This warranted the attorneys for the defendants to confine their defense to objection No. 3, and to hold that they were required to produce evidence curing the objection to the satisfaction of the plaintiff, would make the stipulation a mere trap.

The judgment will be reversed.

Reversed.


author: Mr. Justice Brown

text:
    Mary J. McArdle v. Chicago City Railway Company.
    Gen. No. 13,734.
    1. Judicial notice—of what taken. Judicial notice will be taken of the statutes chartering and granting power to the Chicago City Railway Company.
    2. Nuisances—how defense of non-liability pursuant to judicial grant cannot be raised. The defense that a plaintiff cannot recover damages against a defendant traction company as for a nuisance for actions which in a private individual would constitute a nuisance and be actionable, because the acts complained of are performed under legislative sanction, cannot ordinarily be raised by demurrer. It must he pleaded.
    3. Nuisances—what does not grant immunity for maintenance of. Immunity from legal or equitable actions by an individual against a traction company because of the latter’s illegal and unauthorized maintenance of a structure upon private land, does not follow from the fact alone that such structure is connected with a railroading business.

      Action in case. Appeal from the Circuit Court of Cook county; • the Hon. Charles M. Walkeb, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 30, 1908.
    Statement toy the Court. The appellant, Mary J. MeArdle, began an action on the case against the appellee, the Chicago City Eailway Company, February 26, 1904. She filed a declaration therein and amended the same at some time previous to June 29, 1905, on which date a demurrer of the defendant to an amended declaration was sustained by the court. A second amended declaration was filed on July 3, 1905, and to this amended declaration a general and special demurrer was filed by the defendant on July 19, 1905. February 19, 1907, after argument, the Circuit Court sustained the demurrer and entered judgment in favor of defendant “eat inde sine die.” From that judgment the plaintiff appealed to this court and here assigns as error, that the court erred in sustaining the demurrer of the defendant to the said amended declaration, and in entering judgment against the plaintiff in bar of her action.
    The question in this court therefore is, does the amended declaration of July 3, 1905, sufficiently state, as against the said general and special demurrer, a good cause of action?
    The said amended declaration is in five counts.
    The first states the ownership and possession by the plaintiff, Mary J. MeArdle, of “the north thirty feet of the south 113 feet of lot two in Lynch’s addition to Hyde Park in the west half of the southwest quarter of section ten, township thirty-eight north, range fourteen east of the third principal meridian, in. the county of Cook,” and that she maintained thereon, before and at the time of the committing of the alleged grievances by the defendant, a residence for herself and her family, and that with her family during all that time she occupied and inhabited said residence, which was known as 5203 Michigan avenue, in Chicago. It also states that the said defendant, the Chicago City Bail-way Company, was during said time possessed of a certain other piece or parcel of real estate situated within five hundred feet of the said residence of the plaintiff, with “certain buildings and steam boilers, engines, electrical machinery, smoke chimneys, exhaust steam pipes, coal elevators, coal crushers, and such like appliances, devices and machinery thereon situated.” It alleges that these “premises, buildings, machinery, engines, smoke chimneys, steam pipes, coal elevators and crushers, the said defendant during all the time hereinafter mentioned, operated day and night.” Also, that the said real estate of the plaintiff and defendant is located within a thickly settled residence district of the city of Chicago, but that nevertheless “the defendant, regardless of.its duty in the premises,” on the first day of March, 1899, and thereafter, “in the said operation of said powerhouses, wrongfully and injuriously caused divers noxious and offensive vapors, steams, fumes, gases, smoke, soot, smells and stenches and divers great noises and severe vibrations to issue and proceed” “from said real estate of the said defendant and the aforesaid buildings, machinery, etc., thereon, whereby and by means whereof, the said noxious and offensive vapors, steams, fumes, gases, smoke, soot, smell and stenches, entered into and spread and diffused themselves over, upon, into and through said real estate and residence of the said plaintiff, and the air over, through and about the same was thereby greatly filled and impregnated with said vapor, steam, fumes, gases, smoke, soot, smells and stenches, and on several days and times aforesaid, became and still is corrupted, offensive, unwholesome, unhealthy and uncomfortable, and said noises and vibrations were carried to and through said premises and residence of the said plaintiff, and caused the same to tremble, jar, vibrate and shake on the said several days and times aforesaid, and the plaintiff and her family have thereby been and still are greatly annoyed and incommoded in the use, possession, occupation and enjoyment of her said real estate, and have thereby also been and still are greatly injured in their comfort, health and enjoyment of said plaintiff’s said premises, and up to and prior to the commencement of this suit she hath been and is by means of the committing of the grievances aforesaid by the said defendant aforesaid, úp to and prior to the commencement of this suit, otherwise greatly injured and damnified.”
    The third count differs from the first principally in adding to the other allegations, statements that the defendant is a corporation existing1 under two statutes of Illinois—one of February 14, 1859, entitled “An act to promote the construction of horse railways in the city of Chicago,” and the other of February 6, 1865, entitled “Am act concerning horse railways in the city of Chicago,” and that'the defendant is vested with the powers by said acts conferred, and that the building of the defendant is, with its appurtenances, commonly called and known as a power house, and that in the said building the defendant has generated steam and electrical power used in street railroading and in operating two thousand street cars over two hundred miles of street railroad in Chicago.
    The fifth count does not add anything to or materially differ from the first and third.
    The second and fourth counts add an allegation that during the time of the commission of the grievances complained of, there were in force ordinances of the city of Chicago declaring the emission of dense smoke from any chimney anywhere within the city to be a public nuisance. Said ordinances are set out in the declaration in haec verba, and it is further alleged in each of these counts that notwithstanding said ordinances, the defendant, regardless of its duty in the premises, on, to wit, the first day of March, 1899, and on divers times and occasions thereafter, wrongfully and injuriously caused, suffered and permitted dense smoke to be emitted from the said chimneys and to be spread and diffused over, upon, in and through the plaintiff’s residence and premises; whereby and by means whereof the air, through, over and about the same became and was thereby greatly filled and impregnated with said dense smoke and the offensive, unwholesome, unhealthy and uncomfortable fumes and smells accompanying said smoke, and on said days and times the plaintiff and' her family have thereby been and still are greatly annoyed and incommoded in the use, possession, occupation and enjoyment of the plaintiff’s real estate and in their health, comfort and enjoyment, and have “prior and up to the commencement of this suit, by means of the committing of the aforesaid grievances, been and are otherwise greatly injured and damnified,” etc.
    The second and fourth counts differ materially from each other only in that the fourth count contains the allegations concerning the statutes under which the defendant corporation exists and is vested with power, while the second does not.
    The demurrer which was filed to this declaration, besides its allegation that no count of said declaration is sufficient in law to maintain the action, assigns as special causes of demurrer to the declaration and each count thereof, “that said declaration as amended, and each and every count, both in the allegations of duty and in the allegations of breach of duty, is too general, vague, indefinite and meagre, and wholly fails to inform the defendant of the particulars in which the duty and negligence complained of consists.”
    McArdle & McArdle, for appellant.
    George Gillette, for appellee; E. B. Bliss, of Counsel.
   Mr. Justice Brown

delivered the opinion of the court.

In our opinion the defense which the defendant company interposes by its argument in this appeal to the allegations of the plaintiff’s declaration, was not properly raised by the demurrer to said declaration.

The defense is that the plaintiff cannot recover damages against the defendant corporation as for a nuisance for actions which in a private individual would constitute a nuisance and be actionable, because the actions complained of are performed under a legislative sanction—under indeed a grant of power from the legislature to do these very things.

We think this is a substantive defense, necessary to be pleaded and proved to be available.

If it is available to the defendant on the general and special demurrer filed to the declaration, it must be on the general and not the special grounds asserted. The special ground set forth resolves itself into the „ indefiniteness of the charges in the declaration—a very different defense from that made in argument, and which could not be sustained, in our opinion, against those allegations of a nuisance made in said declaration.

If the defense is held available under the general demurrer, it must be on the theory that the first, second and fifth counts of the declaration, simply by virtue of the fact that the defendant is the ‘£ Chicago City Bailway Company,” of the acts affecting the incorporation of which we must take judicial notice, and the third and fourth counts for the same reason, and their further mention of said acts (of February 14, 1859, and February 6, 1865) contain the means of their own destruction and are self-condemned.

It can hardly be claimed, we think, that the allegations of the second, third and fourth counts, that the “steam and electrical power” generated in the buildings of the defendant described in the declaration were “used and applied by it in its business of street railroading,” would be sufficient to raise a question whether the defendant was not exempt from the ordinary liability of a person causing such a nuisance as is charged in those counts.

At all events we could admit no such claim. An unauthorized and usurped transaction of a street railroad business would give no immunity from the ordinary liability for damages in a case like this. The Supreme Court in Doane v. Lake Street Elevated Railroad Company, 165 Ill. 510, said that as against an unauthorized and illegal structure in the streets or highways, of which streets and highways the public authorities were the proper guardians, equitable relief was confined to such public authorities, but that an action for damages would lie at law to a private person suffering a special damage.

We know of no case which lends any color to the proposition that any immunity from legal or equitable action by an individual belongs to an illegal and unauthorized structure upon private land merely because it is connected with a railroading business. The case cited by counsel, Chicago General Railway Co. v. Chicago City Railway Co., 186 Ill. 219, certainly does not.

This leaves us the question, therefore, whether the statutes chartering and granting power to the Chicago City Railway Company, brought to our attention by the declaration and judicially known to us, do, by themselves, without proof of city ordinances or attendant circumstances or of what has been done under those statutes other than operating a large system of street railroading, authorize the said Chicago City Railway Company to cause, and hold it harmless in causing, “noxious and offensive vapors, steams, fumes, gases, smoke, soot, smells and stenches” and “great noises and vibrations” to issue forth from its real estate and diffuse themselves over the plaintiff’s residence to her great damage; and also to “cause, suffer and permit dense smoke to be emitted from the chimneys of its building,” to the great annoyance and injury of the plaintiff, although the city of Chicago by its ordinance has declared that the emission of dense smoke from such a chimney is a public nuisance.

We do not so read the statutes in question.

The first (of February 14, 1859), under the title of “An act to promote the construction of horse railways in the city of Chicago,” constitutes several persons named the Chicago City Railway Company for twenty-five years, and authorizes the said company “to construct, maintain and operate a single or double track railway, with all necessary and convenient tracks for turn-outs, side tracks and appendages, in the city of Chicago, and in, on, over and along such street or streets, highway or highways, bridge or bridges, river or rivers, within the present or future limits of the south or west divisions of the city of Chicago as the common council of said city have authorized said corporators, or any of them, or shall authorize said corporation so to do, in such manner and upon such terms and conditions, and with such rights and privileges as the said common . council has or may have contracted with said parties or any or either of them may prescribe,” etc. Except the final clause making it a public act, the only other provision needing notice from us, is that giving the corporation power, in order to enable it “to construct any or all of the railways authorized or their appendages,” to take and apply private property for the purposes and in the manner prescribed by certain acts for the condemnation of private property, “ascertaining and making recompense for all damages sustained, agreeably to the provisions of” such acts.

The other Act (of February 6, 1865) is the famous “Ninety-nine Year Act,” which extended the corporate life of the company and used thereafter ambiguous language which led to prolonged controversy concerning the duration of certain grants of power and licenses from the city. But neither of these Acts in and by itself, disjoined from permission and license through ordinances of the city council, authorizes the use of an electric or cable car system on the streets of Chicago, nor does the case of Blair v. Chicago, 201 U. S. 400, so decide. The reasoning of the court in its opinion in that case points to exactly an opposite conclusion. It places its decision on the main question in the case indeed, on the proposition that after as well as before the act of 1865 the street railroad companies were “required to obtain the authority of the city before using the streets, such use to be upon terms and conditions and with such rights and privileges as the city had or might thereafter prescribe by contract with the companies.”

The court did, however, decide that the grant of power in the acts was “broad enough to authorize the city to grant and the railway company to accept a changed method of operation of the railways by applying thereto a new and more efficient and economical power.”

We certainly are not undertaking to decide to the contrary in this case, either with reference to the issues raised in Blair v. Chicago, or to those in the case at bar." The question is not before us, for under the record in this case we know nothing of any grant from the city to the defendant corporation changing the method of the operation of its railway, nor of any acceptance by said corporation. We have judicial knowledge of the statutes under which the Chicago City Railway Company was organized and is acting. We have none of the ordinances of the city which have made those acts effective in various directions.-

We have mentioned this want of anything in the record as it stands showing that the defendant company has authority from competent law-making power to use steam or electric power, more as an illustration than otherwise. For we think that even if that authority were shown, further proof on the part of the company to render it immune from liability for the injurious acts complained of by the plaintiff would be necessary, even in an action like this based on the nuisance. It must at least prove the authority to use electrically driven cars and the necessity and inevitableness, in so using them, of the acts and injury as well.

Counsel for the defendant rely on the case of Chicago North Shore Street Railway Co. v. Payne, 94 Ill. App. 466,—192 Ill. 239, as establishing a different rule. We do not think it does. The Payne case did not go off on demurrer; it was tried. The Supreme Court decided contrary to the contention of the company, that an additional count to the declaration, which declared on a permanent injury, did not state a cause of action different from that declared on in the first count, and that the permanent damages might properly be (as they were) recovered in the action. It also said: “If the power house was built and operated by the authority of the charter, it cannot be held a nuisance, but the liability of defendant in this suit is in no way affected by that circumstance. While in such case the plaintiff could not sue as for a nuisance, the right of compensation is guaranteed by the constitution and may be enforced in an action on the case.”

In another connection it says: “The defendant, acting within its charter, had a legal right to maintain its power house at that place, and plaintiff had no legal right to interfere or compel a change. In such a cáse, in legal contemplation, all damages which will be sustained as the effect of the Act are sustained immediately, and the measure of damages is the depreciation in market value.”

As we have said, the Payne case was tried, and there is no reason to assume that the court was stating the right of the defendant to keep and operate its power house in the locality involved as an admission of, or inference from, the declaration. It was presumably a proved fact in the case. If not, it resulted from legislative Acts, of which the court had judicial notice, very different from those involved here.

The court in the Payne case decided that the first count of the declaration in that case authorized and would have required a recovery, if there were any recovery, for all damages past, present and future. The opinion indeed does call attention to the averment in that count that the market value of the plaintiff’s premises was reduced by the alleged grievances (in which alone it differs materially from the declaration in the case at bar), but the essential matter which the court held determined the character of the damages which might and must be recovered, if any, was apparently the proof that the building complained of was a permanent structure. The declaration in the case at bar does not allege in terms injury to market value, and apparently, deliberately and designedly, attempts to limit the allegation of plaintiff’s injury and damnification to the period “up to and prior to the commencement of tins suit.” But the declaration nevertheless alleges that the plaintiff “still is greatly injured in the enjoyment of the premises, and is otherwise greatly injured and damnified.”

We have no means of anticipating what may or may not be proved in this case, nor any desire of prejudging or prejudicing the course which the litigation may take, but it is possible that the evidence might be such that while allowing a recovery, the decisions in this state would demand that the recovery be entire for all damages, past, present or to come.

However that may be, our opinion is clear that the declaration as it stands states a good cause of action and is not demurrable. To that we confine our decision and our opinion.

The judgment of the Circuit Court is reversed and the cause remanded with directions to overrule the demurrer to the declaration and require the defendant to plead thereto.

Reversed and remanded with directions.


text:
    Philip Bulfer et al. v. The People of the State of Illinois.
    Gen. No. 13,794.
    1. Conspiracy—when indictment for, insufficient. An indictment for conspiracy, charging that the defendants “unlawfully and feloniously did conspire, combine, confederate and agree together with each other and divers other persons, whose names are to the jurors unknown, to do a certain illegal act, to-wit: to then and there unlawfully obtain the signature of one Louis Perlman to a written instrument, with the intent to cheat and defraud the said Louis Perlman by means of false pretenses, such obtaining of a signature by false pretenses then and there being an act by law prohibited. Contrary to the form of the statute and against the peace and dignity of the same People of the State of Illinois,” is insufficient either at common law or under the statute.
    2. Conspiracy—what not punishable. The charge of a combination to secure the signature of a person to a written instrument, although the further allegation is made that the securing of the signature is to be with the intent of cheating and defrauding that person by means of false pretenses, is not the charge of a punishable conspiracy either under the Illinois statute or at common law.
    3. Conspiracy—what not evidence of participation in. Failure to speak in denial of accusations when the right of silence exists is not evidence which tends to establish participation in a conspiracy charged.
    Criminal prosecution for conspiracy. Error to the Criminal Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed April 30, 1908.
    Addison Blakely, William R. Chamberlain, TJtt Bros, and A. L. Flanningham, for plaintiffs in error.
    John L. Healy, State’s Attorney, for defendants in error; Edward S. Day, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiffs in error in this cause were, in the Criminal Court of Cook county, indicted for and convicted of conspiracy. The punishment of Bulfer, Touhy and Burnett was fixed by the jury at confinement in the penitentiary, and that of Daubach at a fine of $250, and they were so accordingly sentenced June 17, 1907. The writ of error sued out from this court to reverse these judgments was made a supersedeas by the court.

We think that the indictment should have been quashed on the motion made by each of the defendants, and that no conviction can be sustained thereon.

The question was saved below not only by the motion to quash, but by the motion in arrest of judgment.

The indictment had but one count, which charged that Bulfer, Touhy, Burnett and Daubach on the sixth day of January, 1906, in the county of Cook, etc., “unlawfully and feloniously did conspire, combine, confederate and agree together with each other and with divers other persons, whose names are to the jurors unknown, to do a certain illegal act, to wit: to then and there unlawfully obtain the signature of one Louis Perlman to a written instrument, with the intent to cheat and defraud the said Louis Perlman by means of false pretenses, such obtaining of a signature by false pretenses then and there being an act by law prohibited. Contrary to the form of the statute and against the peace and dignity of the same People of the State of Illinois. ’ ’

It is not a statutory offense which is thus charged.

The statute says (An Act to Revise the law in relation to Criminal Jurisprudence; in force July 1, 1874—Section 46, as amended):

“If any two or more persons conspire or agree together, * * * with the fraudulent or malicious intent wrongfully and wickedly to injure the person, character, business or employment, or property of another, or to obtain money or other property by false pretenses, or to do any illegal act injurious to the public trade, health, morals, police, or administration of public justice * * * or to commit any felony, they shall be deemed guilty of a conspiracy, and every such offender * * * and every person convicted of conspiracy at common law, shall be imprisoned in the penitentiary, not exceeding five years, or fined not exceeding $2,000, or both.”

The indictment on the other hand does not say the defendants conspired “to obtain money or other property by false pretenses,” but “to unlawfully obtain the signature of one Louis Perlman to a written instrument. ’ ’

The word “unlawfully” is merely a gratuitous epithet, for obtaining the signature of a man to a written instrument is, of course, not unlawful in itself. Were this, then, all of the indictment, it is plain that it could not be claimed that it charged “a concerted action to accomplish a criminal or unlawful purpose,” or “a concerted action to accomplish a lawful purpose by unlawful means”—one of whch the alleged combination must be to be a conspiracy.

But as the indictment is drawn, that part of it which we have last above quoted, is, in our opinion, the entire gist or substance of the charge.

It is true that the indictment goes on to say that the proposed purpose of obtaining the signature of Louis Perlman to a written instrument, was “with the intent to cheat and defraud the said Louis Perlman by means of false pretenses,” but it does not state how or what “false pretenses” this intent to do something with the signature after it was obtained was carried out, or was designed to be carried out. The indictment then proceeds: “Such obtaining of a signature by false pretenses then and there being an act by law prohibited. ’ ’

Without inquiring at this point whether “the obtaining of a signature by false pretenses” is by itself “an act by law prohibited,” we must note that the pleader drawing the indictment overlooked the fact that there was preceding this particular clause no charge in it of obtaining or conspiring to obtain a signature by false pretenses and nothing, therefore, to which the word “such” was properly referable. The charge was conspiring to obtain the signature, and the “false pretenses” are only mentioned in that charge as the method by which the intent to cheat and defraud by means of that signature when obtained was to be carried out. The distinction is very plain. It might be that persons might use and agree to use none but strictly legitimate and truthful methods and representations to secure a signature, and have an intent to use it when obtained in connection with false pretenses concerning it, to cheat the signer, or some other person, and those false pretenses might be conceivably of a great variety of kinds. On the other hand, it might be that persons might use false pretenses to secure a signature, with no intent to use it for any nefarious or dishonest purpose whatever. Autograph hunters, we are told, often act thus.

It is the first alternative, however, with which the plaintiffs in error here are charged—conspiring to procure the signature with the intent to use it dishonestly to cheat and defraud in connection with false pretenses.

It is charged in the indictment that this is “an illegal act,” and it may be that in a liberal use of the word illegal, it must be so considered. But it is not an “illegal act, injurious to the public trade, health, morals, police, or administration of public justice” under the construction given to those words by our Supreme Court. In Maloney v. The People, 229 Ill. 593, where this clause is discussed and construed, it is also expressly held that an indictment charging a conspiracy to do. “an illegal act,” would not. charge a punishable conspiracy under our statute, unless it also charged, or at least by its allegations showed, said illegal act to be included among those specifically mentioned in the conspiracy statute, or a felony.

If the charge were of a conspiracy to “obtain money or other property by false pretenses” from Louis Perlman, it would state a statutory conspiracy.

If the charge, on the other hand, were of a conspiracy “to secure by false pretenses with intent to defraud him, Perlman’s signature,” it would state perhaps a common law conspiracy, because although not a felony, the object of that conspiracy would be an indictable offense under the Criminal Code. (Section 96 of the Act of 1874, before referred to.) This, however, might be doubtful under the doctrine of Maloney v. The People, supra. But it is not necessary to decide that question here, because the accusation is neither to obtain money nor to obtain a signature by false pretenses, but to obtain a signature with intent to cheat and defraud the signer by means of false pretenses, presumably and according to the natural intendments of language, by the signature after it was obtained.

This indeed was what the proof introduced by the state tended and was intended to show—an attempt after the signature was obtained to use it in concert and combination for purposes of extortion.

We do not see how, under the decision in the Maloney case, we can hold that the charge of a combination to secure the signature of a person to a written instrument, although the further allegation is made that the securing of the signature is to be with the intent of cheating and defrauding that' person by means of false pretenses, is the charge of a punishable conspiracy either under our statute or at common law. In any event, it is plain that it cannot be considered as a conspiracy under the statute. The indictment concludes, however, “contrary to the form of the statute,” and there has never been any decision in this state overruling the decision in The Town of Paris v. The People, 27 Ill. 74, that such a conclusion of an indictment forbids the proof under it of a common law offense not included in the statutes.

In Maloney v. The People, No. 13187 in this court, although not placing our decision on that ground, we expressed a doubt whether this rule would be longer adhered to, but the reversal of our decision in that case, without an expression of opinion by the Supreme Court on that point, would leave us unwilling to disregard it, even were there no other reason against sustaining this indictment.

We are not unmindful of the statutes of Illinois which provide that: “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language- of the statutes creating the offense, or so plainly that the nature of the offense may be easily understood by the jury.” (Criminal Code, Division XI, Sec. 6.) And that “All exceptions which go merely to the form of an indictment shall be made before trial, and no motion in arrest of judgment or writ of error shall be sustained for any matter not affecting the real merits of the offense charged in the indictment.” (Criminal Code, Division XI, Sec. 9.) These are, however provisions that were in force long before Paris v. The People (supra) was decided, and they did not lead the Supreme Court to look with indifference on the point therein made against the indictment. But in the case at bar, there is something more than a technicality involved. It is certainly a fundamental principle of justice, as Lord Ellenborough said in The King v. Perrott, 2 Maule & Selwyn, 379, that “Every indictment ought to be so framed as to convey to the party charged a certain knowledge of the crime imputed to him.” Whatever might have been said in this regard of an indictment which merely stated in the words of the conspiracy statute, that the defendants had “conspired to obtain money by false pretenses,” or had stated with reference to the “False Pretenses” Statute, that they had conspired “by a false pretense to obtain a signature to a written instrument”—concerning which we are not called on to express an opinion—it seems quite evident to us that to accuse them of conspiring to procure Perlman’s signature, with the intent to defraud him by false pretenses, is not to give them any information worth having as to what particular unlawful and criminal acts they are charged with conspiring to do.

The spirit of the constitutional provision that accused persons shall have the right to demand the nature and cause of the accusation against them is by no means complied with in such an indictment.

Nor would it matter if it could be pointed out in this case that the evidence in the record is of such a character as to indicate that probably the defendants, when brought to face the indictment in question, must have known what that evidence was likely to be. The sufficiency of the indictment having been challenged before trial by the plaintiffs in error, they are entitled to have from us our judgment as to what should have been done with the motion to quash when made. Our opinion is that it should have been granted. This disposes of the cause here, for the conviction cannot be .upheld on an indictment which was erroneously sustained by the court below against a motion to quash. It becomes, therefore, unnecessary for us to discuss the evidence adduced, and to decide whether or not it is sufficient to convict the plaintiffs in error of a criminal conspiracy, had the indictment been properly drawn. But we have in our investigation of the cause considered it, and deem it proper to say that in our judgment no such case as would justify a conviction for any conspiracy was made out against Patrick L. Touhy.

It requires some active participation in a conspiracy to make a conspirator. There is no evidence of active participation against Touhy. That which most nearly approaches it is, that letters were written about, and suits were brought on, the alleged contracts, in the name of Touhy, and it does not appear that he repudiated them. But neither does it appear affirmatively that he knew of them. We emphatically disagree with the argument that because Touhy did not, at the Harrison street police station, answer the questions of the police officer Woolridge, or speak out in denial of Buffer’s statement that he (Touhy) ran the Chicago Mercantile and Reporting Agency, he is to be considered as admitting it. He was not in that situation called on to speak. He had a right to keep silent, and it was error to admit the testimony of Woolridge on this point.

The judgment against Philip Buffer, the judgment against Patrick L. Touhy, the judgment against L. E. Burnett and the judgment against J. C. Daubach are and each of them is reversed.

Reversed.


text:
    Chicago City Railway Company v. Robert Grossheim.
    Gen. No. 13,803.
    1. Verdicts—power of Appellate Court to review, rendered in Municipal Court. The several statutory provisions pertaining to the review of the judgments of the Municipal Court do not affect or take away the power of the Appellate Court to review the sufficiency of the evidence to sustain a verdict and to set aside a verdict manifestly contrary to the weight of the evidence. The duty of the Appellate Court with respect to verdicts rendered in the Municipal Court is the same as in cases where the verdicts are rendered in either the Circuit or Superior Court.
    2. Appeals and errors—what essential to reversal of judgment of Municipal Court. Except in cases where the Appellate Court determines that a verdict rendered is manifestly against the weight of the evidence, a reversal will not he awarded of a judgment rendered in the Municipal Court unless the Appellate Court is “satisfied” that the judgment in question did result from the particular error or errors complained of.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed April 30, 1908.
    Statement by the Court. This is a writ of error to the Municipal Court to reverse a judgment of that court rendered against the Chicago City Railway Company in favor of one Bobert Grossheim on the verdict of a jury. The action was for a.personal injury, and was tried before a jury. The prcecipe and bill of particulars filed claimed $1,000 for a tort; that is, “for injuries to the plaintiff’s person received about January 1, 1907, while about to enter defendant’s street car in Archer avenue near Armour avenue, caused by the sudden starting of the car through defendant’s negligence.” The verdict of the jury and the judgment rendered thereon were for $500. A motion for a new trial was denied before the entry of judgment.
    The certificate of the trial judge was obtained, as provided for by the Municipal Court Act, to a stenographic report of the proceedings, which states that the document to which it is attached is a correct statement of the facts appearing on the trial of the cause, and of all questions of law involved in the cause, and of the decisions of the court on said questions of law, and that it is a complete and correct stenographic report of the proceedings upon said trial.
    In this court the defendant assigns as error that the court below erred in making certain remarks in the presence .of the jury, in excluding from the jury an exhibit offered by defendant in evidence, “in each and every instance in refusing to instruct the jury as requested by the defendant,” and “in each and every instance in instructing the jury in the manner objected to by defendant.”
    Also it is insisted that the plaintiff’s counsel improperly argued the case to the jury, that verdict and judgment were contrary to the law and the evidence, and “resulted from substantial errors of the court •directly affecting the matters at issue between the parties,” and that a new trial should have been granted.
    Sheriee, Dent, Dobyns and Freeman, for plaintiff in error.

      Wendell Huston, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The Municipal Court Act, in providing for the review of cases decided in that tribunal which belong to the classes known to that act as the “Fourth” and “Fifth” (of which the one at bar is an example), provides for a statement or stenographic report of the proceedings in the Municipal Court, to be signed by the trial judge, and then enacts that “no order or judgment so sought to be reviewed shall be reversed unless the Supreme Court or Appellate Court, as the case may be, shall be satisfied from said statement or stenographic report, signed by said judge”: First, “that such order or judgment is contrary to the law and the evidence”; or, second, “that such order or judgment resulted from substantial errors of said Municipal Court directly affecting the matters at issue between the parties.”

It also provides, in the following section, that “It shall be the duty of the Supreme Court or the Appellate Court, as the case may be, to decide such case upon its merits, as they may appear from such statement or stenographic report, signed by the judge.”

It is very apparent that this act does not take away from the Appellate Court, in cases coming from the Municipal Court, any right, nor relieve it from any duty, to weigh the evidence which it possessed or which was imposed on it by law, in cases coming from the Circuit or Superior. Courts. Nor, although the duty of passing on the merits is- somewhat accented, is it in reality increased over what it has always been in cases coming before this court for review.

If the verdict and judgment be, in our opinion, clearly and manifestly against the weight of the evidence, we are bound to interfere, and at least to correct the error which in such case inhered in the denial of a new trial. On the other hand, no mere conflict of evidence nor opinion concerning the credibility of contradictory witnesses, nor feeling that as jurymen we might or even probably should have come to a different conclusion, is sufficient to warrant our setting aside a verdict and judgment as “against the evidence.”

But although in this important part of our reviewing work it is plain that our duties are the same in cases coming from the Municipal Court as in those coming from other courts of record, it is equally plain that in considering other assignments of error we are to be governed by a different rule.

In the review of cases from the Circuit Court, for example, our attention is directed to some “substantial error” in instructions or in rulings on evidence, or in the making or permitting of improper remarks in the presence of the jury. If, in our opinion, this error may, in reasonable probability, have influenced or determined the verdict below and the judgment based on it, it becomes our duty to reverse and remand the cause.

But the Municipal Court Act expressly enacts that in such a case we shall not reverse the judgment unless we are “satisfied” that the judgment did result from such error.

The distinction is marked and very important. In this case at bar we think that in following this rulé set for our action, the alleged errors other than the denial of a new trial, on the ground that the verdict was against the weight of the evidence, may be quickly dismissed.

The trial judge instructed the jury orally, as it was provided in the Municipal Court Act he might. An examination of the instructions, connected as they are in a series and a logical sequence, has shown us that they are a careful, complete and impartial statement /of the essential principles of law governing the case, and that they doubtless directed the attention of the jury to those particular issues of fact which were properly controlling, and which were those that both sides of the controversy agreed were controlling.

The jury, by these instructions, were called upon to decide whether the plaintiff was in the exercise of due care when trying to board the car, and were told that if he was not, he could not recover. They were told that if he attempted to board the car at a place not a usual stopping place, and had not proved that by some action of the defendant’s agents he had been invited to do so, he could not recover. They were told that if the plaintiff was, by reason of intoxication, unable to take the ordinary care of himself that would be required of a sober person, and that this intoxication and want of care contributed to the injury, he could not recover, although the motorman was guilty of negligence in operating the car, and though the motorman was more to blame for the accident than the plaintiff.

On the question of the burden of proof and the preponderance of evidence they were not incorrectly instructed, although we should have preferred language still more guarded concerning the slight preponderance of proof sufficient to require a verdict for the plaintiff. But we are very far from being “satisfied” that any language of the court or of counsel which could be criticised, “resulted” in a verdict different from that which would otherwise have been rendered. The verdict was rendered because the jury believed the account of the accident which was given by the plaintiff and his witnesses, as against the testimony of other witnesses who contradicted them.

It is argued that the smallness of the verdict, in proportion to the injuries suffered, shows that the jury were not in truth persuaded of the justice of plaintiff’s claim. We do not think we are at liberty so to conclude; but we can infer from the amount of the verdict that it was not the result of passion or of prejudice.

We have examined the evidence carefully; it would serve no useful purpose for us to rehearse it here. It was conflicting, and on each side would have been unconvincing to many minds. But it does not so clearly and manifestly preponderate in favor of the defendant that on this ground we feel that we should overrule the decision of the jury and of the trial judge by holding that a new trial should have been awarded.

The judgment of the Municipal Court is affirmed.

Affirmed.