text:
    Charles Mulvey Manufacturing Company et al., Appellees, v. Frederick W. McKinney et al., Appellants.
    Gen. No. 17,368.
    1. Appeals and errors—when brief does not conform to rules. An argument unaccompanied by a proper statement of facts and a list of authorities relied upon, is not a brief within the meaning of the rules of the First District.
    2. Appeals and errors—when assignments of error informal. A general assignment of “manifest error” followed by -specifications beginning with the word “because,” is informal and improper.
    3. Landlord and tenant—when assignment of lease subject to equities. An assignment by a lessor of all his interest in a lease transfers the same subject to existing equities.
    4. Landlord and tenant—when forfeiture of lease not permitted in equity. If substantial consideration has been paid to the lessor by the lessee in the form of cash and future maturing obligations, the lessor and his assigns taking subject to equities, will not be permitted to declare and enforce a forfeiture without returning the consideration which had been received.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed in part and affirmed in part.
    Opinion filed May 5, 1911.
    Charles Scribner Eaton, for appellants.
    Eugene Stewart, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

A temporary injunction was granted in this case on December 2, 1910, against the defendants, Frederick W. McKinney, People’s Trust & Savings Bank, and People’s Stockyards State Bank, in and by which each of them was, during the pendency of the suit, “restrained and enjoined from enforcing or attempting to enforce the certain judgment entered in the forcible detainer proceeding commenced by Frederick W. Me-Kinney in the Municipal Court of Chicago against said complainants or taking any action thereon or in relation thereto; from causing to be issued any writ of restitution upon said judgment; from attempting to evict said complainants or any of them from the premises occupied by them under the certain lease from Albert L. Berry to them, bearing date, to-wit: August 1, 1907, or from interfering with their possession of said premises in any manner whatsoever; from forfeiting or attempting to forfeit said lease or the rights of the complainants therein, based upon the pretended default in payment of the rent of said premises alleged to be due under said lease for the month of August, A. D. 1908; from prosecuting the certain suit in the Circuit Court of Cook county aforesaid, instituted by the said McKinney against said complainants based upon the certain note for $4,000 purporting to have been executed or endorsed by said complainants; from commencing any suit or proceeding upon said note; from negotiating or disposing of the same or putting it out of their possession and from making any endorsement thereon or any alterations thereof; from tearing up the railroad tracks or fences upon the premises occupied by the said Charles Mulvey Manufacturing Company, or interfering in any manner directly or indirectly with the business or plant of said company or any of said complainants; from causing any writ or other process to be issued or served upon said complainants or any of them, or levied upon the plant of said company for alleged default in payment of rent under the lease from Albert L. Berry to said complainants accruing prior to the date hereof, or concerning any of the matters aforesaid, or from instituting or commencing any suits on the certain bonds or any of them given in the prosecution of the review of a judgment in said forcible detainer proceeding, or taking any steps in relation thereof until the further order of this court; and that the People’s writ of injunction issue against said defendants as aforesaid.”

On December 3rd the special appearance of the defendant McKinney was entered, and on December 10th a motion made by him to dissolve the preliminary injunction and to dismiss the bill. No answer was filed. The motion was denied and an appeal in conformity with the statute was taken by McKinney from the order granting the injunction and the order overruling the motion to dismiss.

It appears from the record that the title to the real estate covered by the agreement and lease hereinafter referred to, stood in the names of John A. Spoor and Frederick S. Winston, as trustees, who had by written lease demised the same to Albert L. Berry for a term of thirty years, which said lease was assigned to the defendant People’s Trust & Savings Bank, of which Spoor and Winston were directors. Whether this term expired in 1935 or 1937 does not clearly appear from the record, but that is unimportant.

On April 23, 1907, a contract was entered into between Albert L. Berry and the appellees, in and by which Berry agreed to lease for a period of ten years 12,000 square feet of ground, that is to say, from June 1, 1907, to May 31, 1917. Berry agreed to erect a two-story building to contain an area of 8,800 square feet. The rental was to be $2,000 per year, payable in monthly installments^of $166.66, on or before the fifth day of each month in advance. Appellees agreed to pay Berry $2,000 in installments, the last installment to be paid when the building should be ready for occupancy. This sum was to be applied in payment of the rent for the tenth year of the lease, unless Berry desired to apply it on some year prior thereto. To evidence the payment of the $2,000, Berry was to give his note, which should also be in the nature of a receipt for the year’s rent. The note was to bear interest at five per cent, per annum “up to the beginning of the year which it shall apply as payment for the rent.” Appellees further agreed to give Berry the promissory note of the Mulvey Manufacturing Company for the sum of $4,000, due in three years “From said note,” and the note was to bear the personal endorsement of the other appellees. The contract recited that “This note is given for the purpose of assisting the party of the first part to secure funds for the erection of said building already mentioned. Said note is to draw six per cent, interest from date of said note.”

It further appears from the record that the last payment on the sum of $2,000 was made at or about the time that the appellee, the manufacturing company, entered into possession of the premises.

On August 1,1907, a lease was entered into, in which all of the appellees are named as lessees, and Berry as lessor. The document in the record purporting to be the lease between the parties, appears to have been signed by only three of the appellees, namely, the manufacturing company, by its president, and W. B. Gervais and W. H. Barry, individually. It bore upon it this endorsement: ‘ ‘ The rent hereinabove provided has been paid up in part by the Chas. Mulvey Mfg. Co., Lessee. See original agreement. Chas. Mulvey Mfg. Co.”

The agreement hereinbefore referred to appears to have been filed for record and recorded in the recorder’s office of Cook county, on April 2, 1908, and the lease on July 14, 1908.

The bill recites that in addition to the $2,000 payment made to Berry on or before July 11, 1907, rent was paid to Berry for the balance of the year 1907, and for the months of January, February and March, 1908, all of the payments being made after the time at which the rent fell due under the lease.

The bill further avers that complainants learned about April 25, 1908, that there had been a transfer of his interest in the lease by Berry to McKinney, which transfer purported to have been made April 17, 1908; that checks for the rents for the months of April, May, June and July, 1908, were made to McKinney, all of them after the rent should have been paid under the terms of the lease; that on August 7, 1908, a cheek was sent to McKinney for the August rent, but was returned by him to the Company, and that currency to the amount of $166.66 was tendered on August 10, 1908, it being the amount of the August rent. It is asserted in the bill that McKinney claimed on August 6, 1908, that he on that day elected to terminate the lease for non-payment of the August rent. It is alleged that a notice of the termination of the lease, signed by McKinney, copy of which is attached to the bill, although dated August 6, 1908, was not served upon the lessee until August 10, 1908; that on August 10, 1908, a suit in forcible entry and detainer was brought in the Municipal Court of Chicago, and such proceedings thereafter had that judgment of posession was obtained by McKinney in that court. From this judgment a writ of error was taken to this court, where the judgment was affirmed in an opinion rendered October 21, 1910.

The agreement for the lease was carelessly and improperly drawn; the lease following it did not by its terms protect the rights of the lessees, as should have been done; the bill of complaint in the case is in many respects open to serious objection, which perhaps may be obviated in the progress of the case by amendment. The appellees have not complied with the rules of this court with respect to the filing of a brief and argument. The document filed contains no proper statement of the facts and no list of authorities upon which the appellees rely. In other words, there is an argument but no brief.

Appellant has made one assignment of error, namely: “that in the record and proceedings, and in the granting of the injunction without notice, and denying the motion to dissolve said injunction and to dismiss said bill of complaint, there is manifest error.” There then appear twenty-three alleged assignments of error, all of which, however, begin with the word “because,” and are apparently reason in the mind of the solicitor for the appellant why the one assignment of error alleged should be sustained. As assignments of error, we think they are improper.

Proper defense was not made to the forcible entry and detainer suit hereinbefore referred to, no proof having been made in that record, so far as we have been able to discover, of the payment of the $2,000 upon the rental, nor were there interposed other defenses that are now suggested by the bill of complaint before us. It is quite clear that the sum of $2,000 was paid by the manufacturing company, appellee, to Berry, to be applied upon the rental during some one of the ten years, that being the duration of the lease. This sum was paid at or about the time possession was taken, and might at the option of the lessor be applied on the tenth or any previous year of the operation of the lease. It is also quite clear that the appellees had given their note for $4,000 to Berry, and that the amount of that note, if the same should be paid, was to apply as 'rental after three years from the date thereof; that this note was deposited with the bank, which is one of the defendants; that in some way or other McKinney obtained possession of the note and has instituted suit thereon; that McKinney paid no consideration for the note, and took it with notice.

The question naturally arises whether in equity Berry would have been allowed, if he had not assigned the lease, to obtain a forfeiture thereof without returning the sum of $2,000 so advanced to him, and without in some way indemnifying the appellees from having to pay the note for $4,000 if he had assigned it to others or,' if he had not so assigned it, without returning the same to appellees. In our judgment such forfeiture could not have been allowed by a court of equity without the violation of the plainest and most fundamental rules of equity.

The assignment of the lease is in the following words: “In consideration of one dollar ($1.00) in hand paid, I hereby transfer, assign and set over to Frederick W. McKinney and his assigns all of my interest in the within lease and the rents thereby secured. ”

We are of the opinion that under this assignment, McKinney took the lease subject to any payments that had been made to Berry, and should not in equity be allowed a forfeiture of the lease without indemnifying the complainants for moneys theretofore paid by them upon the rental.

A full hearing of the merits of the case may develop facts which would materially modify the opinions we herein feel called upon to express, but on the present appeal we must assume the allegations of the bill to be true.

Under the allegations of the bill, McKinney obtained the note for $4,000 without consideration and, in our opinion, if the amount of the note is paid to him it should also be made to apply upon the rent.

The injunction restrains the appellant, and the other defendants, from instituting or commencing any suits on certain bonds given in the prosecution of a review of the judgment in the forcible detainer proceeding hereinbefore referred to. Inasmuch as McKinney was successful in that proceeding in this court, we see no reason why he should not be paid the amount to which he is entitled under such bonds or bond.

In our opinion, the injunction should be modified by striking out the portion last referred to.

The costs in this court will be taxed one-half to the appellant and one-half to the appellee.

Reve'rsed in part and affirmed in part.


source: Caselaw Access Project

author: Mr. Presiding Justice Puterbaugh

license: Public Domain

text:
    Mary L. Baker, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Personal injuries—obligation of care to licensee upon railroad track. A person who is upon a railroad track in the mutual interest of the railroad company owning the same and another company, is a licensee hy assent and request to whom the owner of such track owes the duty to exercise reasonable diligence.
    2. Personal injuries—when doctrine of assumed risk no defense. A defendant to whom the person injured sustained no contractual relation cannot rely upon the doctrine of assumed risk. This doctrine is peculiar to the relation of master and servant.
    3. Trial—when remarks of court improper. Remarks of the trial court in ruling upon evidence indicative of an erroneous view of the law are improper and if prejudicial constitute ground .for reversal.
    4. Appeals and errors—when exercise of discretionary power will not reverse. It is within the discretion of the trial court to refuse to allow counsel to read from a transcript of the notes of the stenographer, and unless an abuse appears an exercise of such discretionary power will not reverse.
    5. Evidence—when expert testimony competent. Held, that it was error to refuse to permit duly qualified experts to testify to what extent a switch engine like the one involved in this case, not equipped with pony trucks, would ordinarily dip when operated at a speed of six miles an hour over a track similar to that at the crossing in question.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Coles county; the Hon. William B. Scholfield, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    James W. & Edward C. Craig, for appellant; John G. Drennan, of counsel.
    Bryan H. Tivnen, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This suit was originally instituted against the Illinois Central Bailroad Company and the Vandalia Bailroad Company. A trial of the issues by jury resulted in a verdict of guilty as to the former company and of not guilty as' to the latter. Judgment for the sum of $8,000 was rendered against the Illinois Central Bailroad Company in accordance with the verdict.

The declaration charges, in substance, the operation by the Vandalia Bailroad Company in the city of Effingham, of a railroad, switches and “Y” tracks, and of a passing track by the Illinois Central Bailroad Company; that the plaintiff’s intestate, William A. Baker, was employed by the Vandalia as a yard switchman, and as a member of a switching crew moved and delivered cars for the Vandalia, from its tracks to and upon the passing track of the Illinois Central, by the request and consent of the latter company; that defendants negligently permitted one side of the passing track of the Illinois Central to be and remain out of repair, with a low and sunken joint at and in a rail thereof, and the rails to become separated from the tie there and to be unnecessarily dangerous to Baker in his work aforesaid; that fhe defendants knew, or by the exercise of reasonable care ought to have known of the disrepair and danger in time to have made it reasonably safe; that Baker did not know of the disrepair and danger and had no reasonable opportunity to discover it; and that while he was, in the usual line of his duty in that regard, standing upon the front foot-board of the Vandalia switch engine delivering cars from the Vandalia to the Illinois Central, upon the passing track of the Illinois Central, and in the exercise of ordinary care for his own safety, without warning or notice to him the switch engine suddenly tipped into the low and sunken place in the said passing track, and thereby with great violence he was thrown to the track and injured, and died from the injuries.

The evidence discloses the following facts: The Illinois Central runs north and south, and the Vandalia east and west, through the city of Effingham. Their joint depot is located on the east side of the Illinois Central and on the north side of the Vandalia. The two railroads are connected with a “Y” starting on the Vandalia at a point west of the junction of the two roads, and connecting with the Illinois Central at a point north of said junction. The Vandalia had its shops and switch-yards at Effingham and there maintained switch engines and crews in charge of the same. It had been the custom of each of the companies to deliver cars received by it, to the other, by means of the “Y” track. There is no proof of any specific agreement between the • companies relative to the delivery of such cars, but in view of the fact that the Vandalia maintained a switch engine at that point, it had been the practice for the Illinois Central to deliver cars received by it for the Vandalia on the “Y”, which cars were then taken by the switch engine of the Vandalia. The Vandalia having a switch engine, not only placed the cars that it received for the Illinois Central, on the “Y”, but also delivered them to the latter company by placing them on the passing track. At the point where the “Y” connected with the Illinois Central tracks, it maintained five tracks, the east one of which was known as the north-bound track, the next to the west the south-bound track, the next the passing track, and then two other tracks. The “Y” connected with the passing track, and from that track the Vandalia switch engine, in delivering cars, could enter the house track at either the north or south end. The passing track was used merely for the passing of freight trains. The north entrance to the house track was north and the south entrance south of Eailroad avenue, which ran east and west some distance north of the junction of the two roads.

Plaintiff’s intestate, William A. Baker, had for five years prior to his death, been in the employ of the Vandalia as a switch foreman in its yards at Effing-ham. He had charge of the switch engine used in the making up of trains in the Vandalia yards, and in delivering cars from the Vandalia to the Illinois Central, the crew of which were under his direction. The switch engine in use on March 9, 1909, had three pairs of drive-wheels, but there were no small wheels in front of the drivers. At the back and front of the engine were foot-boards, ten inches in width, used by the crew in getting off and on the engines. That on the front did not run clear across, because of the coupling device, but continued on either side thereof. The clear space between the top of the rail and the bottom of the front foot-board was one and seven-eighths inches. East of the coupling device the front foot-board slanted downward so that the front thereof was at least an inch lower than the back.

During the afternoon of March 9, 1909, Baker and the crew, of which he was foreman, started to deliver a mail car and a refrigerator car which were on the “Y” to the Illinois Central, using the switch engine referred to. The engine was headed to the north when it reached the Illinois Central tracks, with the cars in the rear. Baker stood on the east front hoard and another switchman on the west front board. "While the .engine was running at about six miles an hour the front foot-board struck the crossing at Railroad avenue. Baker was thrown from the fqpt-board, caught under the same, and dragged for some distance. The evidence shows that the foot-board upon which he was standing was at the time bent under so that it was at an angle of forty-five degrees pointing south. The evidence further shows that on that morning Baker had complained to the foreman of the Vandalia shop that the foot-board in question was too low, and stated that some one was going to get hurt on it, and that he had told others prior thereto that it had scraped at the crossing in question, and that on one occasion he “come very near getting throwed off” at such crossing; that immediately after the accident, while he was lying on the ground he told several members of his crew that he “knew this very thing would happen;” that the lowness of the foot-board was the cause of his injury, and “that it happened just as he expected it to happen and that he was the one who had to suffer.”

The evidence further shows that immediately south of the crossing in question, one of the ties was lower than the other, and that engines in passing over such tie depressed it at the point where the rails met, thereby creating what was known as a low joint. The defendant offered to show on the trial that the front foot-board in question was too low; that the standard height was not less than seven and a half inches above the rail; that it was unsafe to have the foot-board any lower; that the height adopted by the Vandalia railroad was the standard height; that other switch engines on the Vandalia had foot-boards from eight and a half to ten and a half inches high, and that the foot-boards on the switch engines of the defendant were from eight to ten inches high; and to further show that foot-hoards upon engines used by well-conducted, first-class railroad companies were not lower than seven and a half inches. The court refused to admit such evidence, and in ruling upon the same made the following statement in the presence of the jury: ‘ ‘ The Illinois Central and Vandalia use this track together. No Illinois Central switch engine there. 'This accident was caused by the Vandalia engine, and how the height of the Illinois Central switch engine comes in I don’t know. If they permit the Vandalia to use their track they have got to keep their track in such condition as to use this engine and the objection will be sustained.” The court also refused to permit the defendant to prove that the passing track at the point where there was a low joint would have been safe for a switch engine with a foot-board at the proper height. On the argument of the case the court refused to allow one of the attorneys for the defendant to read from a transcript of the notes made by the court reporter, the testimony of witnesses as to what Baker had said relative to the foot-board.

It is first contended by the appellant that the declaration failed to charge facts from which a duty on the part of the appellant to protect the deceased from the injury complained of would arise, or a failure on the part of the appellant to perform such duty, or of ah injury to the plaintiff resulting from such failure. Such position is predicated upon the theory that inasmuch as the relation of master and servant did not exist between the deceased and the appellant company, Baker was but a licensee upon the track so far as appellant is concerned. We think the facts stated in the declaration constituted a good cause of action against the appellant, and if established by the greater weight of the evidence, warranted a recovery thereunder. Under the relations created by the arrangement between the respective railroad companies, Baker became, at least, a licensee by assent and request. His presence upon the track was in the mutual interest of both companies. It became the duty of the Illinois Central to exercise reasonable diligence to keep its tracks in a reasonably safe condition for the operation of switch engines of the usual construction and in a reasonable state of repair and when properly handled. There is evidence tending to show that said company failed to fulfill such duty by permitting the presence of the so-called “low joint” and that such defect in the track contributed, at least, to the injuries received by Baker. The issues of fact involved were therefore properly submitted to the jury.

It is contended that under the facts and circumstances shown by the evidence, the .jury were unwarranted in finding that Baker was in the exercise of due care, for the reason that he knew of the condition of the foot-board and the danger incident to riding thereon. We are not prepared to hold as a matter of law, that the deceased was guilty of contributory negligence, and the question was properly submitted to the jury. The defense that Baker assumed the risk of injury by virtue of his employment, or by continuing in such employment with knowledge of the defect and danger, while proper to be invoked by the Vandalia, is unwarranted so far as a right of recovery against the Illinois Central Railroad is concerned, for the reason that no contractual relations existed between him and the Illinois Central. Shoninger v. Mann, 219 Ill. 242; Conrad v. Ry. Co., 240 Ill. 12. The facts and circumstances tending to show knowledge on the part of the deceased,'of the defect and danger of the track, were, however, proper to be considered by the jury as bearing upon the question of contributory negligence.

The court erred in refusing to permit appellant to show the height of foot-boards used by engines by well conducted first class railroads. While the term “well regulated and prudently managed railroads” would have been the more apt expression, the two are substantially the same. Ry. Co. v. Walker, 127 Ill. App. 212. The court also erred in making the remarks hereinbefore set forth, in the presence and hearing of the jury. As has been stated, it is not the law that if appellant permitted the Vandalia to use its track, it was its duty to keep the same in such condition that any locomotive that the Vandalia might choose to use could be operated thereon with reasonable safety. The remarks in question tended to mislead the jury, and were doubtless prejudicial to appellant. The court did not err in permitting the plaintiff to introduce evidence as to the condition of the tie beneath the so-called “low joint.” While a substantive right of recovery could not be based upon the condition of such tie, evidence thereof was competent as a part of the res gestae.

The court did not err in refusing to permit counsel for appellant, after stating that he proposed to read from a transcript of the notes of the stenographer, to do so. The matter rested in the sound discretion of the trial judge, and we do not think such discretion was improperly exercised. McConkie v. Babcock, 101 Iowa 126.

While we do not fully approve of all the instructions given at the instance of the plaintiff, we find no serious error in them. The effect of the twenty-second instruction offered by appellant would have been to correct in the minds of the jury any erroneous impression of the law induced by the remarks of the court above referred to. The instruction correctly stated the law, and its refusal was error. The court did not err in refusing to permit experts to testify whether or not the operation of the engine over the defective track was safe or otherwise, but did err in refusing to permit appellant to prove to what extent a switch engine like the one involved, not equipped with pony trucks, would ordinarily dip when operated at a speed of six miles an hour over a track similar to that at the crossing in question. The subject-matter of inquiry was one upon which inexperienced persons were not likely to be capable of forming a correct judgment without assistance. The opinions of witnesses shown to be by actual experience and long observation, skilled in the railroad business, were therefore competent.

The evidence clearly warrants a finding that the defendant’s track was defective and that it was negligent in that regard, but it is so close upon other of the issues involved, that we are constrained to hold that the errors indicated demand a reversal of the judgment and the remandment of the cause for another trial. One-half the cost of additional abstract will be taxed to appellant.

Reversed and remanded.


text:
    People of the State of Illinois, ex rel. John T. McKinney, Appellant, v. Board of Supervisors of DeWitt County, Appellee.
    1. Blind—act of 1903 providing for relief of, construed. The' power to relieve the blind in the manner prescribed by the act in question is purely statutory; the provisions of such act are not ministerial and it is within the discretion of the board of supervisors to grant or deny the relief prescribed.
    2. Mandamus—when writ does not issue. A writ of mandamus does not issue to compel the exercise of a discretion; a clear right to relief must be shown.
    Appeal from the Circuit Court of De Witt county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Monson & Gray, for appellant.
    Herrick & Herrick, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

John T. McKinney, appellant, on July 5, 1903, filed with the county clerk of DeWitt county a petition stating that he had been an actual resident of that county for eighteen years; that he was then and had been for thirteen years totally blind; that his income did not exceed $200 per year; that he was not a charge of any charitable institution of this state, and asking that the board of supervisors permit him to avail himself of an act for the relief of the blind, in force July 1,1903. The board of supervisors at a regular meeting refused to grant the prayer of the petition or to appoint an examiner of the blind as provided by said act, and has since continued in such refusal On October 17,1908, appellant filed in the County Court a petition for mandamus, settingup the above facts and that he was still totally blind, and praying that a writ of mandamus issue against the board of supervisors commanding it to appoint a regular practicing physician examiner of the blind; that the board cause the county clerk to register petitioner’s name as a person entitled to benefits for the blind, and that the board provide an annual appropriation for the payment to him of $150 per year from July 5, 1903. General and special demurrer to said petition was sustained by the court and judgment rendered against the petitioner in bar of action and for costs.

The power to relieve the blind in the manner prescribed by the statute sought to be invoked, is purely statutory. We are of opinion after reading and considering the act in question as a whole, as we properly should, that the provisions thereof are not mandatory and that it is within the discretion of the board of supervisors to grant the relief therein prescribed or not. This is manifest from the provisions of section 2, which provides that persons eligible thereunder “shall at the discretion of the board of supervisors receive the benefits therein provided.” The board of supervisors in the discharge of their official duties have not seen fit in the exercise of the discretion vested in them by this statute, to provide for the relief of the blind. As the matter is wholly discretionary it cannot be regulated by the courts. The appointment of an examiner of the blind is a mere incident to the principal relief sought. Such appointment if made, would accomplish no useful purpose whatsoever, and would be an idle act. A clear right to the relief sought by mandamus must be shown; otherwise the writ will be refused.

The judgment of the Circuit Court was proper and is affirmed.

Affirmed.


text:
    J. H. Fawver, Appellant, v. Charles Bailey, Appellee.

      Sales—when obligation to deliver terminated. If delivery has been tendered according to contract and improperly refused the vendor becomes thereafter absolved from any obligation to deliver.
    Assumpsit. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Earl D. Riddle and Welty, Sterling & Whitmore, for appellant.
    Wight & Alexander, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit to recover damages alleged to have been sustained through the failure of the defendant to deliver corn sold by him to the plaintiff. The declaration consists of two counts, one charging the sale of 1700 bushels of corn at fifty cents a bushel, and the other the sale of 1200 bushels at the same price, all to be delivered during the month of December, 1909. A verdict was returned for the defendant, upon which judgment was rendered.

The evidence discloses that the plaintiff was a grain buyer at Sabina, Illinois, and the defendant a farmer living in the vicinity. On August 25, 1909, the defendant sold to the plaintiff 1000 bushels of corn at fifty cents a bushel, and shortly thereafter an additional 700 bushels at the same price, all to grade number 3 and for December delivery. In November of the same year the defendant sold to the plaintiff an additional 1200 bushels at the same price and for the same delivery. Because of shortage in cars the plaintiff was not ready to receive the corn until the 24th day of December, although some time between the 9th and 12th of December, and again on the 20th of December, the defendant asked to be allowed to deliver the same. On the afternoon of the 24th of December, the plaintiff notified the defendant that he was ready to receive the corn. Defendant refused to deliver the same, and afterward sold it to another. By this action the plaintiff seeks to recover the difference between the contract price of fifty cents a bushel and the market price at the time the corn was to have been delivered under the terms of the contract. It is urged as ground for reversal that the trial court erred in its rulings upon the admissibility of evidence and in instructing the jury.

Much of the argument of counsel in this court was devoted to the question as to the proper legal construction of the word “by” as used in the contract. We do not deem it necessary to determine the same. Under the terms of the contract of sale the defendant had the right to tender the corn to the plaintiff at any time during the period specified therein, and the plaintiff was bound to accept the same when so tendered. It is undisputed that the defendant on at least two occasions prior to December 24th, offered to deliver the corn to the plaintiff, and that the plaintiff refused to receive the same. Upon such refusals the defendant became released from any obligation under the contract to thereafter deliver. The court so instructed the jury.

Under the nncontroverted facts and the law applicable thereto the judgment of the Circuit Court was proper, and notwithstanding the record is not free from error, substantial justice was done. The judgment of the Circuit Court is affirmed.

Affirmed.


author: Per Curiam.

text:
    David S. Milligan, Appellant, v. Jesse Miller, Jr., et al., Appellees.
    Appeals and errors—when -freehold involved. A freehold Is involved in an action of trespass quare clausum fregit to recover damages for the alleged wrongful conduct of highway commissioners in destroying a fence and otherwise damaging land for the purpose of opening up an alleged public highway over and across the land claimed to he owned by the plaintiff.
    Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the May term, 1910.
    Transferred to Supreme Court.
    Opinion filed May 26, 1911.
    George B. Rhoads and William H. Ragan, for appellant.
    Richardson & Whitaker, for appellees.
   Per Curiam.

The declaration in this case contains counts in trespass quare clausum fregit and in case, to recover damages for the alleged wrongful conduct of appellees as highway commissioners in destroying a fence and otherwise damaging certain land for the purpose of opening up an alleged public highway over and across said land, of which appellant claims to be the owner. The pleadings put in issue the ownership of the land and the existence of a public highway over and across the same, and the decision of the case necessarily involves a determination of such issues. A freehold is therefore involved and this court has no jurisdiction of this appeal. The case will be transferred to the Supreme Court and the clerk of this court is directed to transmit the transcript and all files in the case with the order of transfer to the clerk of the Supreme Court.

Transferred to Supreme Court.


author: Per Curiam:

text:
    Frank Turner, Appellee, v. Manufacturers and Consumers Coal Company, Appellant.
    1. Mines and minees—when wilful violation established. The operator is liable to a miner injured as the result of an explosion resulting from a failure to observe the provisions of the Mines and Miners Act. The fact that precautionary marks or signals were placed at the entrance to the room in which the explosion occurred does not relieve such operator from liability if such marks or signals were not intended as a notice to the miner to keep out.
    2. Mines and minees—what not defense to action charging wilful violation. Contributory negligence consisting in a failure to observe signals of precaution is not a defense to an action under the 'Mines and Miners Act where a wilful violation thereof has been established.
    3. Evidence—impropriety of questions calling for conclusions. It is proper to sustain objections to questions the answers to which would have usurped the functions of the jury.
    4. Evidence—when opinions as to mental capacity incompetent. It is improper to permit lay witnesses to testify to the mental capacity of a party the validity of whose execution of a release is in question without proper foundation for their opinions being laid.
    5. Appeals and ebbobs—when erroneous admission of evidence will not reverse. Erroneous admission of evidence will not reverse where the court after the admission of the improper evidence has emphatically directed and instructed the jury to disregard such evidence.
    6. Appeals and ebbobs—when special interrogatory cannot he complained of. A special interrogatory submitted by the court of its own motion cannot be urged as ground for reversal because of the omission of an alleged essential element if the complaining party in one of its instructions to the jury on the same issue has likewise omitted such element.
    7. Instbuctions—effect of me of “negligently” instead of “wilfully." In an action under the Mines and Miners Act, held, that the use of the word “negligently” instead of the word “wilfully” did not constitute ground for reversal.
    8. Instbuctions—when inaccurate upon question of exercise of ordinary care, will not reverse. In an action under the Mines and Miners Act where wilful violation of such act was established, held, that an instruction on the subject of ordinary care which improperly limited the exercise of such care to the precise time when the plaintiff was injured, did not constitute ground for reversal.
    Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Le Forgee, Vail & Miller, for appellant.
    McGinley & Wiley, for appellee.
   Per Curiam:

Appellee recovered a verdict and judgment against appellant in the Circuit Court of Macon county for $12,791, as damages for personal injuries. The declaration contains seven counts. The first three counts charge common law negligence and allege in varying phraseology that appellant negligently failed to keep that portion of its mine in which appellee worked in a reasonably safe condition for the use of its employes, but negligently permitted large quantities of gas to accumulate therein; that appellee being ignorant of the presence' of said gas and while in the exercise of due care for his own safety was severely burned by an explosion, caused by his lamp coming in contact with said gas. The fourth count alleges the wilful failure of appellant to maintain currents of fresh air sufficient for the health and safety of all men employed in the rooms, entries and passageways in said mine, and to force said currents of fresh air through said working places, so that all parts of said mine should be reasonably free from deleterious air, as required by section 19 of the Mines and Miners Act. The fifth count charges that appellant wilfully failed to inspect and mark dangerous conditions and also wilfully permitted appellee to enter and work in said mine except under the direction of the mine manager Refere all conditions had been made safe, as provided in section 18 of. said act. The sixth count charges a wilful failure of the mine examiner to make a conspicuous mark at appellee’s working place as notice to all men to keep out and to report his finding as to gas in that portion of said mine, as required by said section 18. The seventh count alleges knowledge by appellant of the presence of gas in said mine and that appellant permitted appellee to enter and work therein without being under the direction of the mine manager contrary to the provisions of said section 18. To this declaration appellant pleaded the general issue and three special pleas averring a release and settlement by and with appellee of the cause of action. To the special pleas appellee replied, first, that at the time said release was executed he was mentally incapable of understanding what he was doing and that appellant’s agents with knowledge of his mental incapacity fraudulently induced him to execute the same, and second, that appellee was mentally weak and incapable, and that appellant’s agents knowing that fact fraudulently represented to appellee that said release was for money paid out by appellant for the benefit of appellee and thereby induced him to execute the same.

Sometime prior to October 28,1907, being the day on which appellee was injured, a fall had occurred in one of the rooms in appellant’s mine, a distance of about seventy-five feet from the entrance, and gas had accumulated in a pocket in the roof of the room. At the time of the fall the room had been driven a distance of about 125 feet, and rails had been laid from the neck of the room to the face of the coal. After the fall the room was abandoned as a working place for digging coal, and about two weeks before the injury to appellee, all the rails in the room except for a distance of from twenty to twenty-five feet from the neck or entrance had been removed. A tie was placed across the ends of the rails toward the face and there was written on the tie with chalk the words ‘1 Gras in the hole don’t go by this tie. ’ ’ On a board at the right of the entrance to the room was written “Gas,” or “Gras in room,” or “Gras in hole.” Appellee was employed by appellant as a company man and at the time of his injury was working on the night shift. At about 10 o’clock on the night of October 27, appellee and one Tawzins were directed by appellant’s foreman, Rittman, to clean up a fall in the third south off of the main entry. In the prosecution of this work appellee and Tawzins used a coal car which they filled with material which had fallen and hauled the same to the fifth west entry filling the same. After filling said entry they searched for some other place in which to haul and unload the material and for that purpose selected the room heretofore described in which appellee was injured. They pushed the loaded cars into the room to the end of the rails and there unloaded the material. They had thus unloaded two cars and appellee was engaged in unloading the third car, when the open light in his cap communicated with the gas in the room causing a fire or explosion whereby he was burned and seriously and permanently injured. Appellee was alone at the time of his injury and testified that while unloading the car he stood at the end of the car about a foot beyond the ends of the rails and threw the material with a shovel as far as he could toward the face of the room; that when the explosion occurred he had stepped forward four or five feet from the ends of the rails for the purpose of throwing the material with his shovel. It is uncontroverted that an accumulation of gas had existed in the room for several weeks prior to the time appellee was injured and that appellant had actual notice of that condition.

The evidence relating to the direction in which the current of air was being forced in the room is conflicting. Cryer, appellant’s mine examiner, testified that the air in the room flowed away from the face toward the neck of the room, and we think the jury was warranted in so finding. The evidence also tends to show that the examinations made of the room for the purpose of determining the presence and extent of gas were made with a light which was carried near the floor of the room, and that the greatest accumulation of gas was above that point toward the roof.

It is insisted on behalf of appellant that the marks at the entrance of the room, and upon the tie at the ends of the rails within the room were sufficient notice within the meaning of the statute to all men to keep out, and that it is not liable under the count of the declaration which charges a wilful failure in that regard. A clear preponderance of the evidence discloses that said marks were not intended to effect that result, but were merely intended as precautionary signals ; that no specific directions were given to appellee and Tawzins as to where the material from the fall should be unloaded, but that they were at liberty to unload same in any proper and appropriate place; that the room in which appellee was injured was properly used by him as a “job” room in which to unload refuse material and that appellant. must be held to have anticipated and expected said room to be used for that purpose.

The presence of the rails in the room and the mark, “Gras in the hole; don’t go by this tie,” upon the tie at the end of the rails were invitations to appellee and his buddy to enter and use the room, at least as far as the end of the rails. If appellee in the performance of his work in the room carelessly went beyond the end of the rails, his conduct in that regard would only amount to contributory negligence, which is not available to appellant as a defense under the appropriate counts of the declaration which charge a wilful failure to comply with the provisions of the statute. There is ample evidence to support a recovery under the fourth and seventh counts of the declaration and the court did not err in refusing to give the peremptory instructions tendered by appellant. Neither can we say that the verdict of the jury upon the issues presented by those counts of the declaration is clearly against the weight of the evidence.

Upon the issues raised by the special pleas and replications thereto, viz.: whether or not at the time he signed the release in evidence appellee had sufficient mental capacity to understand what he was doing and whether or not the agents of appellant had notice of such want of mental capacity on the part of appellee, the evidence is close and conflicting. We have examined the record with care, and without attempting an analysis of the testimony in detail we are compelled to the conclusion that we would be unwarranted in disturbing the verdict of the jury upon those issues, supported as it is by the approval of the trial judge.

The action of the trial court in sustaining appellee’s objections to certain questions propounded by counsel for appellant to the witness Overholt was proper. The answers to such questions would have usurped the functions of the jury.

It is urged that appellant was prejudiced by the admission of the testimony of the witnesses Bryson, McAdams and Sister Attila as to the mental condition of appellee in the hospital when he signed the release, and whether or not, in their opinion, he had sufficient mental capacity to transact ordinary business. The opinion evidence of these witnesses was improperly admitted because no sufficient foundation was laid therefor, but thereafter during the trial the court verbally directed the jury to disregard the same, and at the close of the evidence a written instruction to the same effect was given to the jury. We are of opinion that the error in admitting the evidence complained of was cured and rendered harmless by the emphatic direction and instruction by the court to disregard such evidence.

The trial court upon its own motion submitted to the jury two special interrogatories, as follows:

“1. At the time the release introduced in evidence by the defendant was presented to plaintiff did he have sufficient mental capacity to understand and appreciate the nature and effect and consequences of signing and delivering the release?”
“2. At the time the release introduced in evidence by the defendant was presented to plaintiff for execution did the defendant, by its agents, falsely and fraudulently pretend that it was merely a receipt for money already paid out and for the purpose of securing the services of a physician and to enable plaintiff to live at the hospital?”

The first interrogatory was answered by the jury in the negative and the second in the affirmative. It is urged that the second of said interrogatories was improperly submitted because an answer to it either in the affirmative or the negative would not be inconsistent with the general verdict, and because there is no evidence in the record upon which such interrogatory might properly be predicated. The first ground of objection is based upon the absence in the interrogatory of the element of any reliance by appellee upon the supposed false pretenses of appellant’s agents. If this element was necessary in the interrogatory, its omission was not harmful in view of the answer to the first interrogatory. Furthermore, appellant omitted the same element in its submission of the same issue by its seventeenth instruction. The second ground of objection, even if tenable, is not available to appellant because the seventeenth instruction given at its instance submits the same issue to the jury.

There is no force in the objection to the twelfth instruction given at the request of appellee that it improperly assumes he was injured in a working place within the meaning of the statute. That portion of the instruction merely recites the requirement of the statute in substance. The jury were fully instructed that appellee could not recover unless he was injured in a “working place” or a “place where men were expected to pass or work.” Furthermore the seventh instruction given at the request of appellant assumes that appellee was injured in a “working place” within the meaning of the statute. The instruction improperly uses the word “negligently” instead of the word “wilfully” in referring to the failure of appellant to comply with the provisions of the statute as set forth, but considering the record in its entirety we do not regard the error in that respect sufficiently prejudicial to require a reversal of the judgment. That appellant wilfully, that is consciously, permitted gas to accumulate and remain in the place where appellee was injured is not seriously controverted.

It is urged that the twentieth instruction given at the request of appellee improperly limits the exercise of due care and caution by appellee to the precise time when he was injured regardless of his conduct in putting himself in a place of danger. The instruction is not free from the fault indicated, but as it was only applicable to the counts which charge common law negligence, and the evidence warrants a recovery under the fourth and seventh counts which charge a wilful failure to comply with the statute, the error was not harmful to appellant.

The instructions tendered by appellant and refused by the court were sufficiently covered by other instructions given at its instance.

The record is free from prejudicial error and the judgment is affirmed.

Affirmed.


author: Per Curiam

text:
    Fitzsimmons-Kreider Milling Company, Appellee, v. Millers Mutual Fire Insurance Association of Illinois, Appellant.
    1. Pleading—when demurrer to plea properly sustained. A plea relying upon the provisions of an insurance policy is bad where it merely avers conclusions as to the tenor and effect of the provisions in question.
    2. Tbial—when overruling of challenge for cause not prejudicial. In the absence of a showing by the complaining party that it was required to take an objectionable juror after exhausting its peremptory challenges, the action of the court in overruling prior challenges for cause will not be considered.
    3. Appeals and erbobs—when estoppel to complain of instruction arises. An instruction cannot be complained of if the subject-matter thereof has been recognized as correct by an instruction given at the instance of the complaining party.
    4. Instbuctions—effect of inconsistency. A party cannot complain of the refusal of the court to give an instruction which is inconsistent with another instruction given at its instance.
    Assumpsit. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Kirby, Wilson & Baldwin and Barger & Hicks, for appellant.
    Bellatti, Barnes & Bellatti and Thomas Bates, for appellee.
   Per Curiam

: This is an action in assumpsit by appellee against appellant to recover upon an insurance policy issued by appellant to appellee covering loss or damage by fire to a flour mill owned by appellee and operated by Goebel & Burr as lessees. Upon the trial of the cause in the Circuit Court of Morgan county there was a verdict and judgment against appellant for $3,232.68. Appellee had a like policy of insurance upon the same property in the Ohio Millers Fire Insurance Company, an action upon which policy resulted in a judgment against said company and an appeal from said judgment to this court, where the judgment was affirmed. Fitzsimmons-Kreider Milling Co. v. Ohio Millers Mut. Fire Ins. Co., 158 Ill. App. 174. The evidence in both cases upon the issue involving the alleged failure of appellee’s lessees to operate the mill for a period of sixty days as required by the policies was the same and what is said relative thereto in the opinion in the former case is applicable to and is adopted in this case.

The third plea filed by appellant sought to set up as a defense the alleged failure of the lessees of appellee to keep a watchman on duty in the mill at all times when the same was not in operation, as provided in the application for the policy. To this plea a demurrer interposed by appellee was sustained by the court, and appellant elected to abide its plea and now assigns as error the action of the court in sustaining said demurrer. The demurrer was properly sustained because the plea avers merely the conclusions of the pleader as to the tenor and effect of the provisions of the application.

It is next urged that appellant’s challenge for cause of two jurors, who were peremptorily excused by it, was improperly overruled. Appellant after exhausting its peremptory challenges completed the panel with jurors, who, for aught that appears in the record were wholly satisfactory to it. In the absence of a showing by appellant that it was required to take an objectionable juror after exhausting its peremptory chailenges, the action of the court in overruling the prior challenges for cause will not be considered. Spies v. People, 122 Ill. 1.

Appellant cannot complain of the third instruction given at the instance of appellee, because the thirteenth instruction given at its request recognized the operation of the mill for other purposes than grinding wheat flour as proper within the terms of the policy. The eighteenth instruction tendered by appellant was properly refused because it was inconsistent with the thirteenth instruction given at its instance. There is no merit in appellant’s contention that a flouring mill may not be properly operated to grind other flour than wheat flour. There is no such restriction in the policy.

We observe no serious impropriety in the language used by counsel for appellee in argument to the jury, and the direction by the trial court to the jury to disregard the same was most favorable to appellant.

There is no reversible error in the record and the judgment will be affirmed.

Affirmed.


text:
    William T. Haywood, Defendant in Error, v. Dering Coal Company, Plaintiff in Error.
    1. Instructions—when improper omission cured by special finding. If an instruction improperly eliminates an issue from the cause the error is harmless if such issue has by special finding been found by the jury against the complaining party.
    2. Damages—what proper in action for personal injuries. In an action for personal injuries under the Mines and Miners Act, held, that it was not error to authorize the jury in estimating damages to consider the suffering of the plaintiff in body and mind if any resulted from such injury.
    3. Verdicts—effect as to size where several juries have con-\ curved. The Appellate Court will he slow to interfere with a verdiet after several verdicts have been rendered and approved by the trial judge of substantially the same size.
    Action in case for personal injuries. Error to the Circuit Court of Montgomery county; the Hon. A. M. Rose, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Lane & Cooper and Amos Miller, for plaintiff in error.
    Hill & Burlington and Hogan & Wallace, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This case is before this court for a second time. A former judgment against the defendant for $2,500 was reversed upon the former appeal, and the case remanded for errors in the rulings of the trial court upon the instructions and because the damages were excessive. The opinion, which is reported in 145 Ill. App. 506, sufficiently discloses the state of the pleadings and the general facts involved. Upon a second trial, under the same pleadings, a verdict for $3,000 was returned, upon which judgment was entered. The defendant again appeals.

Upon the controverted issues as to whether or not the mine examiner examined the mine before the injury, and whether the wall of the entry was marked in compliance with the statute,- the evidence was substantially the same as upon the former trial. We again hold that the jury were justified in finding that the place where the plaintiff was injured was not his working place, and that the mine operator had wilfully failed to comply with the provisions of the statute in the particular alleged in the declaration. This will dispose of the first ground for reversal argued.

The second contention is that the special finding of the jury that the defendant was in possession of and operating the mine at the time the plaintiff was injured, was not sustained by the greater weight of the evidence. The evidence relating thereto is practically the same as on the former trial, except that such as was held on the former appeal to be improper was eliminated, and is exceedingly close and conflicting. We have again considered and weighed the same, and, without rehearsing or discussing it in detail, are of the opinion that the special finding cannot be said to be clearly against the weight of the evidence.

The court did not err in admitting plaintiff’s exhibits “B” and “D. ” They were competent so far as they related to Mine 24.

The second and fourth instructions given for the plaintiff are peremptory in form, and told the jury, in substance, that if they found from the evidence that the plaintiff had proved the averments of his declaration, or any count thereof, they should find in his favor. It is contended that the effect of the instructions was to eliminató the defense that the plaintiff was injured in his working place, which he was required by the statute to keep or make safe himself, and the further defense that the defendant was not the owner, operator or in possession of the mine. The fact that the jury returned a special finding that the plaintiff was not injured while in his working place renders the omission of the first element harmless. Proof by the plaintiff of his case as laid in his declaration must necessarily have included the allegation therein contained that the defendant was operating the mine. The giving of the instruction was not prejudicial.

The plaintiff’s third instruction merely states the language of divisions “a” and “b” of section 18 of the Miners Act. It is claimed by the defendant that it is misleading in that it fails to direct the attention of the jury to division “b” of section 16, which makes it the duty of the miner to properly prop and secure his own working place. This objection, too, is obviated by the special finding in question. The plaintiff’s sixth instruction authorized the jury in estimating damages, to consider the suffering of the plaintiff in body and mind, if any resulted from such injury. The objection thereto is not well taken. Traction Co. v. Schritter, 222 Ill. 364. Complaint is made of several other of the instructions given for plaintiff, but we find no prejudicial error therein.

On the former appeal, we held that the verdict of $2,500 was excessive compensation for the plaintiff’s injuries. We are still inclined to such view, although the present record is slightly more favorable to the plaintiff upon the question of the permanency of the injury, than the former. In view of the fact, however, that two juries have returned verdicts, one for that and another for a larger sum, both of which have been approved by the judges presiding at the respective trials, we are not satisfied that the present verdict is so grossly excessive as to warrant a reversal of the judgment.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Dennis A. Devine, Appellee, v. Tazewell Coal Company, Appellant.
    1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the weight of the evidence unless clearly and manifestly so.
    2. Evidence—when form of questions improper. Questions which are leading and suggestive in form and call for conclusions upon material points in controversy are improper and objections thereto are properly sustained.
    3. Master and servant—doctrine of assumed risk does not apply. Held, under the facts of this case, and the authority of Miller v. Kelly Coal Co., 239 Ill. 626, 145 Ill. App. 453, that the plaintiff, who was a mule driver in a mine and injured through the viciousness of a mule, was not harred of his recovery by virtue of the doctrine of assumed risk.

      4. Variances—when objection comes too late. An objection of variance not sufficiently raised during the trial is waived and cannot be urged on review.
    5. Instructions—estoppel to complain. A party cannot complain of an instruction which contains a vice common to instructions given at his own instance.
    Action in case for personal injuries. Appeal from the Circuit Court of Tazewell county; the Hon. T. N. Green, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    W. R. Curran, for appellant; Mastin & Sherlock, Thomas Kennedy and M. D. Conaghan, of counsel.
    James P. St. Czerney and Black & Potts, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the conrt.

This is an appeal from a judgment for $10,000 rendered by the Circuit Court of Tazewell county in favor of appellee and against appellant, for personal injuries sustained by appellee while working as a mule driver in the coal mine of appellant. The first count of the declaration charges that on December 7, 1908, the plaintiff was employed by the defendant in moving cars of coal on iron tracks to the east main entry of its coal mine; that on said date the defendant ordered the plaintiff to use a certain mule called “Cricket” in hauling the cars of coal in said entry; that while the plaintiff was moving a car of coal in said entry and riding in the usual and customary place on said car said mule, while hauling said car, and without the fault of the plaintiff, began kicking; that the plaintiff in endeavoring to escape from the blows and struggles of said mule, fell from said car and became lodged between the rib of said entry and such car; that said car passed over the leg of plaintiff, crushing and injuring it; that plaintiff was squeezed between the car and the rib, and thereby permanently internally injured.

The second count charges that said main entry had inclines and elevations therein; that the cars furnished plaintiff were not equipped with brakes to prevent them from running upon the heels of the animal drawing them while going down hill; that the defendant negligently failed to provide brakes for said car; that on the date aforesaid while plaintiff was riding in the usual place upon one of said cars, by reason of not being provided with brakes, the same rushed upon the heels of said mule, which began kicking; that plaintiff in endeavoring to escape and being unable to stop the car, fell from said car and became lodged between the rib of the entry and the car, whereby the car passed over his left leg, and injured him, as charged in the first count. The third count charges that said main south entry was of insufficient height and width for the plaintiff to pass between the car and the rib; that the space between the ribs and sides of the cars was not more than six inches. Bach count charges that said mule “Cricket” was possessed of a vicious disposition and with a tendency to kick those using him; that the defendant had or should in the exercise of ordinary care have had knowledge of such dangerous disposition of said mule, of the dangerous character of said work, of the defective and dangerous condition of said car, and the dangerous character of said entry; that the plaintiff had not and would not have had by the exercise of ordinary care, knowledge of the disposition of said mule, or of the dangerous character of the work in which he was engaged, or of the defective condition of the car furnished, or of the dangerous character of said entry. Bach of said counts further charges that at the time the plaintiff was injured he was in the exercise of due care for his own safety.

There is evidence to show the following facts: On December 7, 1908, the plaintiff was in the employ of the defendant as a mule driver; on the morning of that day he was ordered by the boss mule driver to use a mule called “Cricket.” In the main south entry in which he was directed to work, the roof was not to exceed 4 feet 8 inches high in some places, and from 5 feet to 5 feet 6 inches in others. At the time the plaintiff was injured he was riding on the forward car of a trip, with his left foot on the chain, his right foot on the bumper, his left hand on the right hip of the mule, and his right hand on the corner of the car, which position was that usually taken by drivers. While going down an incline, the mule started to kick. It first kicked the car, one of its legs going on either side of the plaintiff; then while the plaintiff was stooping down, it kicked the coal on the car. The plaintiff then started to get off the car, when the mule wheeled and tried to kick again, but was unable to do so because of its closeness to the car. The plaintiff in order to avoid injury crowded against the rib of the coal, and when he tried to straighten up the advancing car struck him and knocked him down. He raised himself up again and the car hit him on the hips, and when he again endeavored to raise himself the car struck him and pushed him in between the rib of the coal and the car. The mule then gave a lunge and squeezed him in between the rib and the car so closely as to bind and stop the car, the front wheel of which had run over his left foot. His knee was so caught between the side of the car and the rib that he could not move his leg, and it became necessary to call upon several men to .assist in extricating him.

There is evidence tending to show further that the main south entry from a point at the seventh stub northward for a distance of 100 feet, was unsafe on account of its narrowness; that at the point where appellee was injured and at many places within the 100 feet, the entry was so narrow that the coal cars would barely miss the ribs or the props there constituting the ribs; that in the sides of the entry, gob of fire clay was piled as high as it could be without falling back on the track, and in many places to within a few inches of the roof, and that as a result there was no space for a driver to escape in case he was exposed to danger. There is also evidence tending to show that the driver boss and mine superintendent knew of this condition, and further that the plaintiff had never been in the entry and along the place where he was injured, prior to the morning of his injury, and that on each occasion when he passed through that entry on that morning, he was compelled to look ahead to avoid coming in contact with other cars or falls or anything that might be on the track. The evidence tends to show further that the mule was vicious and in the habit of kicking at unexpected times; that the boss mule driver knew or should have known of such disposition and habit, and that the plaintiff had no notice or knowledge of the same. As the result of the accident the plaintiff’s hip's were dislocated, the ligaments of the knee of his left leg ruptured, some of the minor bones of the left foot fractured and his kidneys injured. His left leg was so injured as to render amputation a few inches below the knee joint necessary. The plaintiff was at the time 28 years of age, in good health, sound in body and limb, and earning $2.56 a day. Since his injury he has not been able to do any work.

The foregoing evidence, although controverted, was sufficient not only to warrant the court in refusing to direct a verdict, but also to justify the jury in finding that the defendant was not only negligent in failing to exercise reasonable care to furnish the plaintiff with a reasonably safe place in which to work, but also in directing him to use a mule which the boss mule driver knew, and the plaintiff did not know, was possessed of a disposition to kick. This issue and that of contributory negligence, were questions for the determination of the jury, and we cannot say, after a careful consideration of all the evidence, that their findiug was clearly and manifestly against the weight of the evidence.

The defendant endeavored to show by a number of witnesses, what unsafe, fractious, violent, dangerous or wicked acts, if any, at any time, they had noticed this mule perform, while driving, handling or feeding' him, or at any time during their acquaintance with him. To all of the questions propounded to these various witnesses objections were sustained. The defendant claims that each of these witnesses, if permitted to answer, would have testified in substance that the mule was not unsafe, not dangerous, not fractious or wicked, and not of violent and vicious disposition; that he did not have a tendency to kick or hurt those using him; that in their various experiences with the animal his actions were neither dangerous, unsafe, violent nor vicious, and that he did not have a tendency to kick and injure those using him.

While the general line of the testimony was competent, the questions asked by counsel of the witness to elicit such facts were leading and suggestive and called for the conclusion of the witness upon a material point in controversy, thereby invading the province of the jury. Moreover, each of the witnesses to whom these questions were propounded had before testified fully as to their acquaintance with the mule ‘ ‘ Cricket, ’ ’ and as to their observation of his habits and disposition. There was no prejudicial error in the rulings of the court in this particular.

The contention that the plaintiff assumed the risk of the injuries sustained by him as an ordinary incident to his employment, and that such injuries were not the proximate result of the negligence of the defendant, are settled by Miller v. Kelly Coal Co., 239 Ill. 626; 145 Ill. App. 453, a case very similar on the facts to the one at bar.

The rulings of the court upon the hypothetical questions propounded to Charles Martin and Thomas Ryan were proper. Wullner v. Coal Co., 145 Ill. App. 491.

The question of variance between the declaration and the proof, if any exists, was not sufficiently raised during the trial, and is therefore waived. City v. Bork, 227 Ill. 60. Moreover, complaint is made that several instructions given for the plaintiff improperly limit the exercise of care and caution by the plaintiff to the time when he was in danger, regardless of his conduct in putting himself in that condition. A like phrase is employed in several of the instructions given at the request of the defendant. We do not think, however, the complaint is well-founded. Knox v. Rolling Mill, 236 Ill. 437; Peterson v. Traction Co., 231 Ill. 324; Krieger v. R. Co., 242 Ill. 544.

While the verdict is large, we do not think it can properly be said to he excessive. We find no prejudicial error in the record, and the judgment of the Circuit Court is accordingly affirmed.

Affirmed.


text:
    Sylvanus L. Hill, Appellant, v. John W. Dougherty, Appellee.
    1. Instructions—when should sum up entire case. An instruction which concludes with a direction to the jury is properly refused if it excludes consideration of a material issue.
    2. Instructions—when submission of question of law not prejudicial. While it is improper to tell the jury that the plaintiff must prove all the material allegations in the declaration, etc., such error is harmless where the declaration consists merely of the common counts.
    3. Instructions—estoppel to complain. A party cannot complain of an instruction which contains a vice common to instructions given at his own instance.
    Assumpsit. Appeal from the Circuit Court of Jersey county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Ferns & Sumner, for appellant.
    Hamilton & Hamilton, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

The plaintiff brought suit in assumpsit for the recovery of the sum of $1,736, being the difference in the price for which he claimed the defendant had agreed to sell him certain land and that for which the defendant afterward sold the same to another. The declaration consisted of the common counts.

The evidence discloses that on April 27, 1909, the parties entered into a contract in writing by the terms of which Dougherty sold to Hill a farm of 124 acres, for the sum of $10,664, the purchase price to be paid on March 1, 1910, at which time Dougherty agreed to furnish an abstract showing merchantable title in himself, and to convey the property. During the following February, Hill employed one Rhodes to sell the farm in question at a price of not less than $90 per acre and agreed to divide with him equally all that he p might obtain over that price. Within a few days thereafter Rhodes, pursuant to said latter agreement, contracted in writing to sell the farm to one Berndt for $100 per acre, the consideration, except the sum of $10, to be paid on March first following, or within five days from the date of delivery to Berndt of an abstract showing merchantable title. After the making of such contract Hill advised Dougherty, both by letter and in person, that he had sold the farm to Rhodes, of the terms of the sale, and that the contract was in the bank at Waverly, requesting that he send the abstract of title at once, and stating that the purchase money for the farm would be at the bank. He suggested that Dougherty convey the land direct to Berndt and after deducting from the consideration paid the amount due him, he pay the balance to Hill. Dougherty acquiesced in such arrangement and furnished the abstract of title. On February 27th, Hill wrote to Dougherty asking him to meet him at Waverly on the following morning, stating that the purchase money was in the hank for him, but that the abstract of title was imperfect. Dougherty went to Waverly as requested and met Hill, who again stated that the money was ready at the bank. Later in the day Dougherty ascertained that not only had Bhodes not purchased the farm but that there was no money in the bank as claimed by Hill. He proceeded to have the abstract of title perfected. On March first, the following day, upon Dougherty’s suggestion, Bhodes telephoned to Hill and learned from him that he had no money, and on March second, was advised by Hill in person to the same effect. He thereupon demanded the balance of the purchase price from Hill and served notice upon him that in the event of his failure to pay the same by noon of March third, his rights under their contract would be forfeited.

The evidence further shows that in the meantime Bhodes, acting for Hill, had been negotiating with one Caruthers for a loan of $10,000 upon the land; that Caruthers had inspected the property, examined the abstract of title, and had agreed with Bhodes that if certain money due to him on March fifth following should be paid, he would make the loan; that on March fifth Caruthers loaned said sum to Berndt, who had obtained from other sources the balance of the purchase price, and upon payment of the sum to Dougherty he conveyed the farm to Berndt upon the terms specified in the contract between Bhodes and Berndt, which still remained in the bank.

The conclusions reached by us from the entire evidence, which we shall not further rehearse or discuss in detail, are that the plaintiff entered into the contract involved purely as a speculation and without any financial ability to perform the same; that he failed to comply with his agreement within the time stipulated, and misrepresented the facts to the defendant; that the defendant would have been justified in refusing to convey after March first, and his agreement to extend the time to March third at noon, if made as claimed, was a concession which the plaintiff cannot attack as unreasonable, it being a mere matter of grace. The merits of the case are clearly with the defendant, and there is no reasonable theory either at law or in equity under which the jury could have found for appellant upon the facts.

The plaintiff’s tenth refused instruction eliminated the question of time from the alleged modified contract, and was properly refused. The defendant’s third given instruction, which told the jury that the plaintiff must prove all the material allegations in the declaration by a preponderance of the evidence, and that in case he failed to do so they should find for the defendant, was erroneous in the use of the word “material.” Inasmuch as the declaration consisted of the common counts only, the plaintiff was not prejudiced. The fourth instruction given for the defendant should not have been given, though when read in connection with the other instructions it could not have misled the jury. It is, however, substantially the same as the fifth instruction given at the request of plaintiff, and he is therefore estopped to complain.

The judgment of the Circuit Court is affirmed.

Affirmed.


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    Decatur Coal Company, Appellant, v. August Hackert, Jr., et al., Appellees.

      Judgments—what essential to interference "by court of equity. Before a court of equity will decree a judgment as null and void and award a new trial upon the ground that such judgment was obtained by perjured testimony, it must satisfactorily appear .that the true facts when introduced on a new trial would produce a different result.
    Bill in chancery. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Whitley & Fitzgerald, for appellant; R. J. Folonie, of counsel.
    Jack & Deck and Redmon & Hogan, for appellees.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a decree sustaining a general demurrer to a bill in chancery dismissing the same for want of equity, after the complainant had elected to abide thereby. The bill, in which August Hackert, Jr., and B. A. McG-orray, sheriff of Macon county, are named defendants, prays for relief against a judgment at law alleged to have been obtained by Hackert against the complainant, through the perjury of a suborned witness. It prays that execution upon the judgment be enjoined, the judgment decreed to he null and void, and a new trial at law ordered. The material averments of the bill, which must be taken as true, are the following:

That August Hackert, Jr., brought an action in the Circuit Court of Macon county, against complainant, for personal injuries sustained by the said Hackert in complainant’s coal mine; the declaration in said cause consisted of three counts, two of which charged complainant with a violation of the Mining Act in that it wilfully failed and neglected to provide the plaintiff, at his request, with sufficient props and cap-pieces to support the roof of the mine at the place where he was at work at the time of his injuries, and another that complainant violated its common law duty to use reasonable care to provide its employes with a reasonably safe place in which to work, in that it charged complainant with providing the said Hackert with rotten and decayed props; that upon a trial of the cause at the October term, 1907, of said court, the evidence of complainant shows that the injuries to Hackert were caused by a weak condition of' the roof of the mine at the place where the injuries occurred, due to the existence in said place of “horsebacks” in the roof of the said mine; that the said condition was a defect which could not at that place be guarded against by propping, and was therefore one of the dangers or risks assumed by the plaintiff; that a verdict of not guilty was returned, and thereafter, upon motion of Hackert, a new trial of said cause was granted, the sole ground therefor being that the court had given on behalf of the defendant an erroneous instruction.

The bill further alleges that thereafter at the January term, 1908, of said court, said cause was again tried and a verdict and judgment had for the plaintiff in the sum of $3,135; that said judgment was upon appeal affirmed by the Appellate Court for the third district, and then appealed to the Supreme Court, where it was again affirmed, the Supreme Court holding to the effect that some of the props furnished by the defendant to the plaintiff for the place in which he was working when the accident occurred, were unsound, rotten and decayed, and that the defendant was chargeable with notice of their condition, which evidence tended to support the common law count of the declaration; that there was no evidence admitted upon the second trial tending to show any notice or knowledge of the complainant that said props were insufficient or defective, except the testimony of one Thomas J. Coker, called by the plaintiff, who testified that about six out of every ten props in the pile from which the props used by said Hackert were secured, were worm-eaten and that about three or four out of every ten props were rotten, a transcript of the evidence of said Coker being attached to the bill and made a part thereof.

It is further alleged that the only evidence upon the second trial as to the condition of the props which broke, and which were claimed to have caused the injuries to said Hackert was that of August Hackert, Sr., who testified that the outside of such props appeared good, and that after they were broken he noticed that three of them were wormy oh the inside, and further that the condition of said props could not be seen until after they were broken; that other than the testimony of said Coker, there was no evidence which could charge the complainant with any notice or knowledge that said props were defective. The bill alleged that the evidence of said Coker respecting the condition of said props was false and perjured, and that he was solicited and suborned by the said Hackert, by the promise to him of $50 in consideration of which said Coker agreed to and did testify falsely that the pile of props was, in the main, rotten, and that three or four out of every ten were rotten, and about six out of ten were worm-eaten. The facts respecting such conspiracy and perjury of the said Coker, and the subornation on the part of said Hackert, are set forth in an affidavit of said Coker, the original of which is attached to the bill and made a part thereof. The bill also charges that neither complainant nor its agents ever learned or suspected the perjury of said Coker, nor of the conspiracy between him and said Hackert or the subornation so practiced by said Hackert, until after said cause had been affirmed by the Supreme Court; that said Coker was the man in charge of the props stored and piled at the top of said mine, and that his false testimony in regard to their condition was the moving cause of the verdict for the plaintiff upon said common law count; that if the said Coker had truthfully testified to the true state of the facts, that the props were not unsound and rotten but were sound and strong as set forth in his said affidavit, a different verdict must have been returned in said cause; that immediately upon learning of the said agreement and conspiracy between Hackert and Coker, complainant elicited from said Coker the true state of facts in regard to the said props as aforesaid, and that the said Coker thereupon, voluntarily and without compulsion on the part of complainant, made and signed the said affidavit; that complainant’s agents and attorneys, in preparing for both of said trials of said cause, made a thorough and complete examination of the facts and circumstances of the case, interviewed all the witnesses whom they supposed would have knowledge of the matters in question and subpoenaed them to appear upon the trial, and diligently upon the trial sought to establish the truth by such witnesses; that at the time of the injury to the said Hackert the top-boss of complainant’s mine was one John Fahay, and that the said Fahay had general charge and superintendence of the props and caps purchased by complainant and kept and stored at the top of the mine, and knew their condition at that time; that the first trial of this cause was had on December 5, 1907, that the said Fahay departed this life on December 9, 1907, and that during all of the first trial of said cause the said Fahay was confined to his bed from the illness of which he died; that it was therefore impossible for complainant to procure the testimony of the said Fahay at either of the said trials, and that if the said cause was tried again and the evidence in regard to the condition of said props was truly related to the jury, complainant believed that a verdict for the defendant would result.

The bill still further alleges that the judgment of the Supreme Court rested solely upon such false and fraudulent testimony of said Coker, but for which the Supreme Court would have reversed the judgments of the Appellate and Circuit courts and awarded a new trial; that Hackert had sued out an execution and placed the same in the hands of the defendant Mc-Gorray, sheriff of Macon county; that the complainant had property within the county of much greater value than the amount of said execution, and that if not restrained the defendants would levy upon and sell the same, and thus work irreparable injury to complainant. 'The bill sets out the testimony of Coker upon the second trial, in the following language: “That said witness did upon said trial testify that about six out of every ten props in the pile from which the props were secured that were used by the plaintiff in said common law action, being the said August Hackert, Jr., were worm-eaten, and that about three or four out of every ten props were rotten.” His affidavit, the original of which is attached to and made a part of the bill, so far as it relates to the condition of the props in question, is verbatim as follows: “Affiant says that in truth and in fact that there was but a few of the props worm-eaten and that in the main the props were strong and substantial and capable of doing the work and supporting the weight expected of them; and that all of said props were in the main well-seasoned and in good condition.”

It is not averred in the bill that Coker would testify upon another trial to the facts above quoted from his affidavit. The bill alleges merely that “his false testimony in regard' to their condition was the moving cause of the verdict for the plaintiff upon said common law counts; that if the said Coker had testified truly, according to the true state of facts as set forth in his affidavit aforesaid, to-wit, that the props were not unsound and rotten but were sound and strong, a different verdict would have been returned in said cause.” The averments that the false testimony of Coker was the moving cause of the verdict, that if he had testified truthfully a different verdict would have been returned, and that upon another trial if the evidence relating to the props was truthfully related a verdict for the defendant would result, are clearly conclusions of the pleader. The conclusions we draw from the facts averred in the bill, do not coincide with those of counsel. The purport of the statement by Coker in his affidavit, as to the condition of the props, is that a less number or lesser proportion of them were worm-eaten and unsafe, than testified to by bim upon the second trial; that while in the main they were strong and substantial, well-seasoned, in good condition and capable of supporting the weight expected of them, a few of said props were worm-eaten. It is not improbable that if Coker so testified upon another trial, the jury would nevertheless find that the fact that those employed by the company to handle and send props to the miners, were sending even a small number which were worm-eaten and defective, was a neglect of its duty to exercise reasonable care to furnish its miners with safe and sufficient props. Neither are we satisfied that the fact that Coker testified that a greater number of props were defective than actually were, was the moving cause of the verdict returned, although it may have been a contributing cause.

In Boring v. Ott, 138 Wis. 260, 119 N. W. Rep. 865, it is said: “It is established by all the authorities that a very high degree of proof in such cases is required, many cases holding that there must be a conviction for perjury before equity will interfere, while others hold that it must be established beyond a reasonable doubt, either by admission, documentary evidence, or by such other proof as to leave no reasonable ground for doubt.” (Citing authorities.) “The reason of the rule is obvious as laid down in the cases. If a litigant were permitted to restrain the enforcement of a judgment regularly entered after a trial in a court of law upon conflicting or uncertain evidence as to whether perjury were committed in securing the judgment, it is easy to see what interminable litigation such a rule would invite. Courts of equity, therefore, should not restrain the execution of judgments, except where the ground for interference is established beyond all reasonable controversy by evidence clear, convincing and satisfactory. Linde v. Gudden, 109 Wis. 326. All the authorities agree that evidence of the highest dignity is.necessary to justify the interference of equity in such cases. ’ ’

“To warrant a court of equity in enjoining a judgment at law and awarding a new trial in the action because of newly discovered evidence, substantially the same grounds must be shown as are necessary to justify a court of law in awarding a new trial. In other words, it must satisfactorily appear that the judgment is manifestly wrong; * * * And the inquiry is whether, if the judgment were set aside and a new trial awarded complainant, upon the showing made, would be entitled to a recovery in the action at law.” 1 High Inj. 101.

In Holmes v. Stateler, 57 Ill. 209, the court held: “It is only in cases which commend themselves strongly to equitable relief, that the chancellor feels at liberty to interpose his power to vacate the judgment of a court of law. * * * Before a new trial will be granted in equity, it should appear with reasonable certainty, that a different verdict would result. It is not in every case where new evidence is discovered, or when such evidence only renders it probable that the jury would find a different verdict, that the relief should be granted.”

Waiving the questions as to the right of the complainant to maintain a hill of the present character, and whether the complainant had exhausted all reasonable means and effort to discover the alleged conspiracy and subornation before the trial, we are unable to arrive at the conclusion that the true facts when introduced on a new trial would, produce a different result.

The decree of the Circuit Court was proper and is affirmed.

Affirmed.