text:
    Frank Blair, Appellee, v. Chicago & Eastern Illinois Railroad Company, Appellant.
    Statute of feauds—when agreement not within one-year provision. Held, that the contract in this case was one of that class where the time begins to run from the date the agreement is made and not from the date when performance begins, and that it was not within the statute.

      Assumpsit. Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.

      H. T. Dick and Kagy & Vandervort, for appellant; E. H. Seheee, of counsel.
    Charles H. Holt and George W. Smith, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in the Circuit Court of Marion county, by appellee against appellant, to recover damages for the breach of a contract with respect to the operation of an hourly hack line, day and night, from the offices of appellant company in the city of Salem, Illinois, to its yards, situate about a mile and a half from its offices. Trial by jury. Verdict and judgment in favor of appellee for $600.

The principal defense relied upon by appellant in the trial court, was the ‘ ‘ Statute of Frauds and Perjuries.” This was set up in a plea averring that the contract upon which appellee’s suit is based was not to be performed within the space of one year from the time of the making thereof, and that it was not in writing, as required by the statute. The principal questions urged on this appeal are questions pertaining to this defense.

We are of opinion that the Statute of Frauds and Perjuries is not involved in this case. The contract as proved does not, in our judgment, bring the ease under the statute. It is one of that class of contracts where the time begins to run from the day when the agreement is made and not from the day when performance begins.

We find no reversible error in the rulings of the trial court with respect to the admission or rejection of evidence, nor with respect to the giving or refusing of instructions. And we find that the verdict and judgment are supported and sustained by the greater weight of the evidence.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Creighton

license: Public Domain

text:
    Leon A. Colp et al., Appellees, v. George C. Hanford, Appellant.
    1. Instruction—when peremptory for plaintiff should fie given. In an action of assumpsit a peremptory instruction for the plaintiff should be given, leaving the amount to he determined by the jury, where there was no dispute that the defendant was indebted to the plaintiff.
    2. Instructions—when complaint will not he considered. Unless the particular errors complained of are pointed out the court will not undertake to search through the instructions for undiscovered errors.

      Assumpsit. Appeal from the County Court of Williamson county; the Hon. W. F. Slater, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    William W. Clemens, for appellant.
    Hartwell & White, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action of assumpsit, in. the Circuit Court of Williamson county, by appellees against appellant, to recover for legal services performed by appellees for appellant. Trial by jury. At the close of áll the evidence the court of its own motion gave to the jury an instruction as follows: “The jury are instructed that your verdict should be in the following form: We, the jury find the issues for the plaintiffs and assess their damages at..............dollars.” The jury returned their verdict assessing the plaintiffs’ damages at the sum of $311.65.

The only question of law, so raised and presented on this appeal as to call for either consideration or discussion, is as to the giving, by the trial court, of the instruction above quoted. Counsel for appellant opens his argument by stating: “We insist the court erred in instructing the jury of his own motion, to find the issues for the plaintiffs. If this instruction is justified, then of course it is unnecessary to discuss anything else in the case; and if it is not warranted under the facts and the law, then the judgment must be reversed.”

The wholly undisputed evidence conclusively proves that appellant was indebted to appellees and that appellees were entitled to recover. The only question was as to the amount. Upon this state of evidence it was the duty of the court to give the instruction given, and in the form in which it was given.

As to the other instructions in the case, counsel say: “Wé insist that the court erred in giving each of the instructions given to the jury on behalf of plaintiff, and erred in refusing each of the instructions asked by the defendant and refused by the court. The errors in giving and refusing instructions, we claim will appear from a reading of them, without any extended argument.” And this is all he says on that subject.

Where no particular error is pointed out the presumption is that none has been discovered, and the court cannot be rightfully called upon to “wade” through the record in search of undiscovered errors.

As above noted, the- wholly undisputed evidence conclusively proves plaintiffs ’ right to recover, and we think that the weight of the evidence abundantly warranted the jury in bringing in a verdict for the amount they specified.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mb. Justice Obeighton

text:
    Lula Jack, Defendant in Error, v. Prosperity Globe, Plaintiff in Error.
    Dbam-shop Act—what not essential to recover for loss of support. In order to recover under the Dram-shop Act for loss of support, the intoxication need not be shown to be the immediate, direct or proximate cause; it is sufficient if it be the cause, and it is “no matter whether the jury would consider it a proximate or a remote cause.”
    Action in case. Error to the Circuit Court of Williamson county; the Hon. W. W. Duncan, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Denison & Spilleb, for plaintiff in error; Habtwell & White and W. H. Wabdeb, of counsel.
    W. P. Lighteoot and Pillow, Smith and Stone, for defendant in error.
   Mb. Justice Obeighton

delivered the opinion of. the court.

This was an action in case, in the Circuit Court of Williamson county, by defendant in error against plaintiff in error, to recover for injury to the means of support of defendant in error, under section 9 of the Dram-Shop Act. Trial by jury. Verdict and judgment in favor of defendant in error for $1,000.

The substance of the declaration upon which the case was tried, as set out in their statement of the case by counsel for plaintiff in error, is as follows; “Charges in substance that plaintiff in error on, to wit, October 31, A. D. 1906, in Williamson county, Illinois, was engaged in the occupation of a dram-shop keeper, and on said date and prior thereto sold and gave intoxicating liquors to one John Jack, who was the father of the defendant in error; that said intoxicating liquors were drunk by the said John Jack and that by reason of such selling and giving of intoxicating liquors to the said John Jack by the plaintiff in error the said Jack became intoxicated and that by reason of his intoxication he procured a certain drug known as carbolic acid and in consequence of his intoxication as aforesaid swallowed said carbolic acid, thereby causing his death; that by reason of the death of her said father the defendant in error was injured in her means of support, to her damage of $3,000.” To this declaration plaintiff in error pleaded not guilty, and issue was joined thereon.

Counsel say: “Before defendant in error is entitled to recover in this case she must establish, by the greater weight of the evidence, four propositions. 1. That the plaintiff in error sold or gave to the defendant in error’s father, John Jack, intoxicating liquor. 2. That the giving or selling of such liquor, if any, caused in the whole or in part, his intoxication. 3. That such intoxication was the proximate cause of his death. 4. That by reason of his death she has been injured in her means of support.”

With respect to propositions 1, 2, and 4, above noted, the evidence so overwhelmingly proves each and all of them, that it would be waste of time and space to detail it, and discuss it here; as to them the proof is conclusive.

With respect to proposition 3, we do not understand the law, in this state, to be as- stated in that proposition. The question of “proximate cause,” in a technical sense, in the sense in which counsel argue it, is not involved in this case. A correct statement of that proposition would be: “That such intoxication caused his death.” The statute provides that one who shall be injured in means of support, in consequence of the intoxication of any person, shall have the right of action provided therein. It is not necessary to a right of recovery in this class of cases, under the statute, that the intoxication should be the immediate, direct or proximate cause; it is sufficient if it be the cause, and it is “no matter whether the jury would consider it a proximate or a remote cause.” Kennedy v. Whittaker, 81 Ill. App. 605 (608); Munz v. The People, 90 Ill. App. 647 (653). “The statute gives a rig’ht of action to any one who shall be injured in person, or property, or means of support, in consequence of the intoxication, habitual or otherwise, of any person, and the party causing such intoxication, in whole or in part, cannot escape liability because he may not reasonably have foreseen the consequences.” Roth v. Eppy, 80 Ill. 283.

Under the state of evidence shown by the record in this case, whether the intoxication of defendant in error’s father was the cause of his death was a question of fact for the jury and not a question of law for the court. That question can only be a question of law for the court where it is apparent to the court that all disinterested reasonable minds must agree that such intoxication was not the cause of his death. We think no court would be warranted in holding that all disinterested reasonable minds must agree that the intoxication of defendant in error’s father did not cause his death.

The evidence in this case tends to prove that the plaintiff, Lula Jack, was the minor daughter of the deceased, John Jack, and was dependent upon him for support; that on Monday evening John Jack came home drunk, and had a pint bottle of whiskey in his pocket and remained at home until the next morning, and on that morning went directly from his home to the defendant’s saloon and came back in about half an hour with another pint of whiskey in his pocket; that he procured at the defendant’s saloon at least two pints of whiskey each day and drank the same until he died eight days later; that he was continuously drunk for one week and one day, during which time he made regular trips twice a day to the Prosperity Globe Saloon; that when he would leave home for the saloon he would have no whiskey, or his bottle would be empty, and when he returned he would have a full pint bottle of whiskey in his pocket; that on the Sunday before he died he drank two pint bottles of whiskey, and continued to drink up unto the day of his death; that from the time he commenced drinking up to the time he killed himself, he stayed drunk all the time; that for two or three days before he died he looked crazy and wild out of his eyes and talked in a crazy manner, and continued in that condition up until the time he took the carbolic acid, which resulted in his death; that the deceased had long been addicted to the use of intoxicating liquors, and that when under the influence of intoxicating liquor he would be morose and threaten to commit suicide; that he was always either under the influence of intoxicating liquor, or recovering from a protracted debauch, when these threats were made; and that the deceased was a cheerful, industrious, hard working man when he was not under the influence of intoxicating liquor, or recovering from a protracted spree.

We do not find in the record any error warranting this court in reversing the judgment of the trial court.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mb. Justice Creighton

text:
    Wabash, Chester & Western Railway Company, Appellant, v. William Oetting, Appellee.
    1. Railroad—what not defense to action for damages for loss resulting from fire communicated hy spark. Evidence that the owner’s loss had been paid by insurance companies is no defense to such an action where it does not appear that such companies have availed of their right of subrogation.
    2. Parties—right of assignee of chose to sue. The assignee of a chose in action may by statute maintain an action in his oivn name.
    Action in case. Appeal from the Circuit Court of Randolph county; the Hon. Charles T. Moore, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    H. Clay Horner, for appellant.
    A. E. Crisler, for appellee.
   Mb. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Randolph county, by appellee against appellant, to recover damages for the destruction of a building and contents by fire, alleged to have resulted from negligence of appellant in allowing fire to escape from one of its locomotive engines. Verdict and judgment in favor of appellee for $900.

The amended declaration, upon which the case was tried, as abstracted by counsel for appellant, is as follows: “Amended declaration by William H. Getting alone. First, count avers that plaintiff and former joint plaintiff Dauer, owned on Dec. 19, 1906, a foundry building and contents; that defendant operated a railroad or switchyard consisting of main track, passing tracks and switch tracks; that it was duty of defendant to so construct and operate its road and locomotives that fire should not escape to plaintiff’s property; that on that date, defendant’s engine, number and description being unknown, passing within four feet of the property communicated fire, through carelessness of employees and imperfect equipment, to plaintiff’s building, burning same and contents, that afterwards, on Jan. 22, 1907, Dauer sold and assigned his interest in claim to plaintiff for consideration.”

Counsel for appellant raises and fully discusses three principal questions: “1. Is there any evidence fairly tending to prove that appellant’s engine caused the fire? 2. Has not appellant overcome any supposed prima facie case by proof of proper equipment and handling of the engine? 3. The trial court’s ruling in refusing to permit appellee to prove that the loss was fully paid by insurance companies.”

Questions 1 and 2, as they arise upon this record, are questions of fact to be determined from evidence, and we are of opinion that the state of evidence bearing upon these questions is such as to warrant the jury in resolving them against appellant, as was done by the verdict. .

Appellant offered to prove on the trial by proper evidence, that the building and contents in question were insured and that appellee’s entire loss had been adjusted and paid in full by the insurance companies. This evidence was rejected by the court and counsel contends that this was error. His position, as we understand him, is that if appellee’s loss had been fully paid by the insurance companies, then he could not maintain his action against appellant, for the reason that the insurance companies by paying the loss in full were subrogated to all the rights of appellee. Whether the insurance companies would avail of the rights to which they were subrogated, and in what manner, was for them to elect for themselves. Appellant, who sustained no relation to the parties, transaction or property, except that of wrong-doer, could not elect for them. Until the insurance companies had taken some step against appellant, appellant could not interpose these rights against appellee. A third party tort feasor cannot avail himself of an insurance company’s right of subrogation in a case like this, until after the insurance company has taken some step towards availing itself of the right, and that had not been done in this case. Appellant did not offer to prove that the insurance companies or any of them had commenced •any suit against it at any time, had in any manner interposed in appellee’s suit at any stage of its progress, or had given appellant any notice of any kind with respect to the matter. All it offered to prove was that the insurance companies had paid the entire loss in full. We think the court did not err in rejecting this proffered evidence.

At the time the building and contents were destroyed, they were owned by appellee and Lawrence A. Dauer, and this was true at the time this suit was begun, but after the commencement of the suit, Dauer sold'and assigned his interest to appellee, and appellee was permitted to file a proper amended declaration and continue the suit in his own name. Counsel insists this was error. This question does not appear to us to be embraced in appellant’s assignment of errors. However, we are of opinion that it is controlled by the Practice Act of 1907, sec. 18, “The assignee and equitable and bona fide owner of any chose in action not negotiable, heretofore or .hereafter assigned, may sue thereon in his own name, and he shall in his pleading on oath, or by his affidavit, where pleading is not required, allege that he is the actual bona fide owner thereof, and set forth how and when he acquired title; but in such suit there shall be allowed all just set-offs, discounts and defenses, not only against the plaintiff but also against the assignor or assignors, before notice of such assignment shall be given to the defendant.”

We find no material error in the rulings of the trial court with respect to the admission or rejection of evidence. And with respect to the instructions complained of, we think that one of them is subject to just criticism, but it does not appear to us that the jury was or could have been misled by it. We find no error in this record that in our judgment calls for a reversal. The judgment of the Circuit Court is affirmed.

Affirmed.


author: Me. Justice Cbeighton

text:
    Ohio Oil Company, Appellee, v. Thomas Scott et al., Appellants.
    Appeals atto ebbobs—when erroneous assignment will not he considered. Unless the brief and argument conform to the rules and practice the Appellate Court will not consider assignments of error.
    Bill in chancery. Appeal from the Circuit Court of Lawrence county; the Hon. P. A. Pearce, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    J. E. McG-aughey, for appellants.
    Callahan, Jones & Lowe, for appellee.
   Me. Justice Cbeighton

delivered the opinion of the court.

Rule 25 of this court requires that “The brief of appellant or plaintiff in error shall contain in the beginning a concise statement of the case, including in a general way, the form of action, the substance of the pleadings, without detail, the substance of the evidence, omitting the name of witnesses and all other details, the judgment and rulings of the trial court complained of.” Nowhere in appellants’ brief has there been any attempt to comply with this rule in any respect. In the alleged abstract, twenty-three pages are covered with the detailed verbiage of the bill, amendments, motions, demurrers, answers and exceptions. The presentation of the case is such that we do not feel called upon to state and develop it in our opinion.

The proceeding is in chancery, and appears to be a bill in the nature of a bill for specific performance through the exercise of the injunctive power of the court,—“negative specific performance.” The case was tried by the chancellor on evidence produced in open court; the court found that “all the material allegations in the amended bill are true” and decreed the relief prayed. And we think the evidence warrants the finding and decree.

Counsel for appellant says: “We believe that appellee had a complete and adequate remedy at law, and that it was error in the trial court in overruling demurrer filed to complainant’s bill,” but he does not disclose wherein the bill is insufficient or defective, nor suggest any complete or adequate remedy at law.

No error in this record has been pointed out to us that will warrant a reversal of the decree. The decree of the Circuit Court is affirmed.

Affirmed.


text:
    Isaac L. Gower, Appellee, v. J. W. Maher & Company, Appellants.
    Appeals and eeeobs—when reversal may he pro forma. If the appellee does not file a brief the Appellate Court of the Fourth District may order a reversal pro forma.

    Attachment. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holdeb, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    Wise, McNulty & Keefe, for appellant.
    No appearance for appellee.
   Mb. Justice Creighton

delivered the opinion of the court.

Appellants sued out a writ of attachment against appellee in the Circuit Court of St. Clair county and caused the same to be levied on certain real estate. Upon the trial of the case the court rendered judgment in favor of appellants for the sum of $141.42, found the issues upon the attachment in favor of appellee and rendered judgment on that finding.

From the judgment appellants have perfected an appeal to this court, and fully complied with all the rules of this court with respect thereto.

Appellee has filed no brief, therefore the judgment of the Circuit Court as to the attachment is reversed, under Buie 27 of this court, and remanded.

Reversed cmd remanded.


author: Me. Justice Ceeighton

text:
    The People of the State of Illinois, Defendant in Error, v. Albert Barton, Plaintiff in Error.
    1. Dbam-shop Act—what evidence competent in prosecution for selling liquor without license. Evidence which tends to establish proprietorship at the time of the sales proved is competent.
    2. New trial—when newly discovered evidence does not justify. Newly discovered evidence, hearsay or cumulative in character, will not warrant the granting of a new trial.
    Prosecution for selling liquor without license. Appeal from the County Court of Lawrence county; the Hon. Jaspeb A. Benson, Judge, presiding.
    Heard in this court at the February term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    S. J. Gee and J. E. Me Gau ghey, for plaintiff in error.
    Thomas H. Cunningham, for defendant in error.
   Me. Justice Ceeighton

delivered the opinion of the court.

This was a prosecution on an indictment, consisting of twenty counts, returned by the grand jury of Lawrence county, charging plaintiff in error with having sold intoxicating liquor without having a license. A trial was had in the County Court, by jury, resulting in a verdict of guilty on nine counts. A motion for new trial was interposed and overruled. The court rendered judgment on the verdict and imposed a fine of $25 on each count, “in all $225 and costs.”

Counsel for plaintiff in error contends that “there was no evidence introduced on the trial of this case to support the verdict rendered.” A detailed discussion of the evidence, here, would be bootless. Our judgment, with respect to the state of the evidence, is that it conclusively proves the guilt of plaintiff in error to the full extent found by the jury.

During the progress of the trial the prosecution was allowed to prove, over the objection of plaintiff in error, that on September 7, 1906, plaintiff in error took out a retail liquor dealer’s license from the United States Internal Revenue Collector of his district, and procured it to be dated so as to make it good from August 1, 1906. This was proved by the introduction of a duly certified transcript from the records of the Internal Revenue Collector’s office. And the court also permitted the prosecution to prove, or at least offer evidence tending to prove, that in November, 1906, this same license was “on the wall” in the room where the liquor or a part of it was sold. There was no error in admitting this evidence. The sales were made in September, 1906, on the very premises specified in the license, of which plaintiff in error during all that time had possession or control. This evidence tended to prove that he was the proprietor of that branch of the business from which the liquor was sold.

Complaint is made of the action of the trial court in refusing to grant a new trial on the ground of newly discovered evidence. The alleged newly discovered evidence consisted of matter purely hearsay in every respect except as to one item of it, and that item was purely cumulative evidence and in no sense conclusive. The court did not err in denying the motion for new trial.

The judgment of the County Court is affirmed.

Affirmed.


text:
    Thomas E. Wibel, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Appeals and errors—when objection to evidence not sufficient. Objections to evidence to be available must be specific.
    2. Instructions—when error to ignore or insufficiently to refer to defense of assumed risk. An instruction which undertakes to sum up the whole case and state all the requisites to a recovery is erroneous which ignores the defense of assumed risk which exists in the case or which refers to such defense in a meaningless way.
    3. Instructions—when erroneous modification cannot be complained of. If an instruction as asked was improper, an erroneous modification cannot be complained of by the party asking the instruction.
    4. Master and servant—when instruction stating duty of railroad company to employes erroneous. Held, that it was error to give an instruction upon this, subject which substantially rendered the railroad company an insurer, and likewise that it was error to modify certain instructions which correctly stated the duty of such company, by inserting the following clauses: “and was reasonably safe for employes;” and “unless it was necessary for the safety of its employes.”
    5. Master and servant—when instruction upon assumed risk defective. An instruction upon this subject is defective if it ignores the element of negligence upon the part of the master and does not state any of the requisites necessary to bring the case under the rule which requires that in order that a servant may be held to have assumed the risk resulting from his master’s negligence it must appear that the risk was obvious or known to the servant.
    6. Trial—what improper in argument. It is improper for an attorney in argument to tell the jury that the instructions are prepared by the attorneys.
    Action in ease for personal injuries. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    Kramer, Kramer & Campbell, for appellant; John G. Drehuae, of counsel.
    Webb & Webb, for appellee,
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the City Court of East St. Louis, by appellee against appellant, to recover for a personal injury sustained by appellee while in the service of appellant as a brakeman on one of its trains. Trial by jury. Verdict and judgment in favor of appellee for $10,000.

The amended declaration, upon which this case appears to have been tried, is based upon the charge that appellant negligently permitted a certain crossing and track to be in an unsafe condition, in this, that a plank in said crossing was too far from one of the rails of said track, also in that the ties adjoining the crossing were uncovered and projected above the surface of the ground and further in that the spaces between the ties were not filled, whereby appellee, while in the discharge of his duty as a brakeman, and in the exercise of due care and caution for his own safety, caught his foot between the plank and one of the rails of the track, was thrown forward and thereby caused to step into an open space between the ties and fall across the rail. While in that position a wheel of one of the cars passed over his leg and so crushed it as to render amputation necessary.

Counsel’s first contention is that the trial court erred in refusing to direct a verdict in favor of appellant. We think the state of the evidence warranted the court in submitting the case to the jury, and in as much as we have concluded, upon an examination of the whole record, that the judgment of the trial court should be reversed for errors of law and be remanded to the trial court where it may be again tried, we refrain from any discussion as to the weight of the evidence.

Counsel for appellant point out five instances wherein they claim that the trial court erred in its rulings with respect to the admission and rejection of evidence. Three of these refer to the sustaining of objections to questions asked appellee on cross-examination. Appellee had testified in chief in his own behalf to the effect that he had no knowledge of the condition of the crossing and track at the place of the injury, and in substance, that he had had no means of knowing or reasonable grounds to suspect the condition. On- cross-examination he was asked: “Q. Now, Mr..Wibel, I will ask you this question: If it is not a fact that where you did switching in the Gale district, that being the district in which Eeynoldsville is located, when you did switching there in the sixteen months prior to the time of this injury, isn’t it a fact that on the main track in small towns of the size of Eeynoldsville, or larger, that the space between the ties was not ballasted, was not filled up so the ties and the ends of the ties were covered?” The court sustained an objection to this question and to two others of like character. This was material error. It was, however,' to a great extent cured at a later stage of the trial, on the next day, when appellee was again placed on the witness stand, the objections withdrawn and an opportunity afforded counsel for appellant to again put to him these questions and others along the same line, which was quite fully availed of. As to one of the remaining instances, the objection was a general objection and cannot therefore be availed of on appeal, and the specific objection to the other, we think, was not well taken.

One of the- principal defenses relied upon by appellant was that appellee’s injury was the result of assumed risks, and there is evidence in the record tending to prove every requisite of that defense.

The third instruction given on behalf of appellee is as follows:

“If the jury believe, from the evidence and instructions of the court, that the plaintiff has proven the allegations contained in his amended declaration, by a preponderance of the evidence, and if the jury further believe, from the evidence and instructions off the court, that the plaintiff was injured as charged in his amended declaration, and if the jury further believe from the evidence and instructions of the court, that the plaintiff at and immediately before the time of his injury was in the exercise of reasonable care for his own safety, and if the jury further believe, from the evidence and instructions of the court, that the plaintiff ’s_ injury, if any, was caused by and" through the negligence of the defendant, if any, and as alleged in the plaintiff’s amended declaration, and that the plaintiff did not assume the risks of injury at the time he went between said cars, then the plaintiff is entitled to recover such damages, as you believe, from the evidence, will compensate him for the injury he received.”

This instruction undertakes to sum up the whole case, to state all the requisites of appellee’s right to recover, and calls for a verdict upon the case as therein stated. Such an instruction must be full and complete in itself and should neither ignore, obscure nor minify any defense which the evidence tends to prove. The only reference to the defense of assumed risk, to be found in this instruction, is as follows: “And that the plaintiff did not assume the risks of injury at the time he went between said cars.” This is entirely too limited. To the jury it was either wholly misleading, or it was meaningless. The question was not when did he assume the risks, nor was it wholly a question as to whether he assumed them at all by any specific act or at any specific time. The question was whether his injury resulted from any one or more of the assumed risks resting upon him. Certain of these he assumed at the time he entered the service of appellant, certain others he may have assumed at any time thereafter by remaining in the service with knowledge, and certain others may have been imposed upon him at the immediate time of his injury or at some previous time by his failure to observe conditions or to know facts which under the circumstances proved he ought to have observed or known. And further, this instruction gives the jury no information as to what risks, or class or character of risks, are meant by the term “assumed risks,” nor does it refer them to any other instruction or series of instructions where such information may be found. We are of opinion that this instruction is so materially defective and misleading as to practically exclude appellant’s principal defense from any proper consideration by the jury.

We are of opinion that the court erred in modifying the 15th and 16th instructions given on behalf of appellant. The instructions as asked stated the duty of appellant with respect to the safety of employes, engaged in the particular service in which appellee was engaged at the time and place of his injury, with substantial accuracy and should have been given as asked. The court added to one of the instructions the words, “and was reasonably safe for employes”; and added to the other, “unless it was necessary for the safety of its employes.'” The first one of the modifying clauses above quoted left the jury in position to conclude that if for any use the track was not reasonably safe for all employes they should find for appellee. And the second one makes appellant a guarantor of the absolute safety of its tracks to all of its servants for all purposes, whereas the law only requires that it should exercise reasonable care and diligence to make its track reasonably safe for any particular servant for the particular purpose for which he is required to use it at the time and place in question in any particular case.

The 17th instruction, as asked, bears upon one phase of the law as to assumed risk. It undertakes to set up all that is requisite to a complete defense and calls for a verdict in favor of appellant. The instruction as asked wholly ignores the element of negligence on the part of appellant, and does not state any of the requisites necessary to bring the case under the rule holding a servant to have assumed risks resulting from the master’s negligence, such as that the risk or hazard was obvious and apparent, or that it was known to the servant. As we understand the law the servant, “by his contract of employment” alone, does not assume risks due to the master’s negligence, but by remaining in the service after he has entered it, he does assume all risks or hazards incident thereto which are open and apparent, or which are known to him or by the exercise of reasonable diligence and care on his part would have been known to him, even though such conditions -are produced by the master’s negligence, if he continues in the employment without any promise by the master to remedy the defects. An instruction which wholly ignores the question of the master’s negligence and calls for a ver- ■ diet, must include these conditions or such of them as are involved in the case. We think the case of Kath v. East St. L. & Suburban Ry. Co., 232 Ill. 126, does not go beyond this view of the law. That case turned wholly upon the question of knowledge and opportunity with respect to knowledge on the part of the servant, of the dangerous condition produced by the master’s negligence, and his continuance in the service thereafter. We are of opinion, that under the issues and evidence in this case, appellant’s seventeenth instruction as asked was incomplete and wholly misleading, and the fact that the court in attempting to remedy its defects failed to make it good, and in effect ■ nullified it, cannot be availed of by appellant. The rule is: that one who asks the court to give an improper instruction cannot be heard to complain of the court’s action in modifying it, although the court fails to make it good. Swift & Co. v. Rennard, 119 Ill. App. 180; C. & A. R. R. Co. v. Tracey, 109 Ill. App. 568; Crown Coal & Tow Co. v. Taylor, 81 Ill. App. 66 (75).

Complaint is made of the action of the court in refusing a number of instructions asked on behalf of appellant. A large number of instructions were asked and to a considerable extent they repeated in substance the same subject-matter and “overlapped”, and it is claimed by counsel for appellee that the substance of all that was proper in the refused ones is embraced in those that were given. We think, however, that the court might properly have given the twenty-third, twenty-fourth, twenty-fifth, twenty-six, twenty-eight and twenty-ninth.

We do not see anything particularly prejudicial to appellant in the remarks of counsel complained of when all that was said in that connection is considered together. We do, however, condemn the practice of telling the jury that the “instructions are prepared by the attorneys.” This can serve no proper purpose in any case, and might do harm.

For the errors noted in the foregoing opinion the judgment of the City Court of East St. Louis is reversed and the cause remanded.

Reversed cmd remanded.


text:
    Maggie J. Rettig, Appellee, v. Southern Illinois National Bank, Appellant.
    Banks and banking—what does not estop depositor from claiming mistalce in balance. The failure of a depositor to examine his pass-book within a reasonable time after it has been balanced, does not estop him from subsequently showing the incorrectness of the balance as given by the bank.

      Assumpsit. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    . Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    Wise, McNulty & Keefe, for appellant.
    D. J. Sullivan, for appellee.
   Me. Justice Cbeighton

delivered the opinion of the-court.

This was a suit, in the City Court of East St. Louis, by appellee against appellant, to recover an alleged balance due appellee upon a deposit of money made by her in appellant’s bank.» Trial by jury. Verdict and judgment in favor of appellee for $200.

On the 31st of January, 1907, appellee deposited in appellant’s bank $1,600. The deposit was made subject to a check and appellee was given a pass-book. She drew checks from time to time which were paid by appellant, and on the 28th day of June, 1907, her pass-book was balanced and the checks returned to her, enclosed in the pass-book. At that time the passbook showed a balance to her credit of $595. 'She continued to draw checks which were all duly paid, and her pass-book was again balanced on the 4th day of September, 1907, the pass-book and cheeks being returned to her as before. This time the balance to her credit was $405. No objections were made to the account or the balances shown in the pass-book until sometime in November, 1907, when appellee appeared with her pass-book at appellant’s bank and claimed that three items had been improperly charged against her, viz: One check, date March 25, 1907, for $175, one June 22, for $15, both embraced in the first balancing of the pass-book, and one June 29, for $10, embraced in the second balancing.

While we agree with counsel for appellant, that appellee did not examine her pass-book and make objections or complaint to appellant within a reasonable time after the book was balanced and returned to her, we also agree with counsel for appellee, that she was not thereby conclusively estopped or barred. The statement of the law by counsel for appellee is substantially correct as we understand it to be held by the courts of this State, and is as follows: “Where a depositor fails to examine his pass-book within a reasonable time after the same has been balanced by the bank and returned to him, he will not be estopped from showing error in his account, but his neglect will place the harden on him to show that the balance as returned is not correct.”

While we cannot hold that there is no evidence in this record tending to prove that the balances shown and returned to appellee, in her pass-book, were not correct, it does appear to us that she has fallen quite short of discharging the full burden which the law in such cases imposes upon her, especially as to some of the items embraced in her claim and in the verdict returned by the jury. To our minds the weight of the evidence so greatly preponderates in favor of the correctness of the balances, as stated in the pass-book, as to make it our duty to reverse the judgment of the trial court and remand the case.

The judgment of the City Court of Bast St. Louis is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Creightow

text:
    Ed. Wetzel, Administrator, Appellee, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    Master and servant—when latter cannot recover There can be no recovery for personal injuries sustained by a servant as the result of the servant’s failure to obey the proper orders and directions of the master with respect to the servant’s safety.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Movers, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed.
    Opinion filed March 4, 1909.
    Kramer, Kramer & Campbell, for appellant; Edward Bartow, of counsel.
    L. O. Whitwel, for appellee.
   Mr. Justice Creightow

delivered the opinion of the court.

This was an action in case, in the City Court of Bast St. Louis, by appellee against appellant, to, recover for the death of appellee’s intestate while in the service of appellant as a car repairer. Trial by jury. Verdict and judgment in favor of appellee for $1,400.

We quote the following from the statement of the case by counsel for appellee: “The appellant operates in connection with and as part of its railroad, certain switch and repair yards at Cone Station in the city of East St. Louis. One part of these switch yards consists of a lead track and sixteen switch tracks connected therewith. Another part consists of what is termed repair tracks. In these yards the appellant employs a large number of servants, among others, car repairers, who work on the repair tracks, doing what is termed heavy repair work, and also other car repairers who work in the switch yards on the sixteen switch tracks, doing what is termed light work. The distinction between heavy and light repair work is one of extent of injured or damaged condition of the car. The question of whether or not the car is in need of heavy or light work is determined by the car inspector who puts a blue card on the car indicating heavy repair. In these yards appellant does its switching of cars, breaking up and making up of trains; this work being done by switching crews. The car repairers work under a foreman known as foreman of car repairers, while the switching crews are directed by another and different foreman known as foreman of switching crew.

“About July 16th, Walla Casner, the deceased, was employed by appellant as car repairer, and went to work on heavy work on the repair tracks and continued in this service until about the 16th day of September, when he was transferred by appellant to light repair work out in the switching yards, where the work of switching, breaking up and making up of trains was done. The deceased had never had any experience in this work. On the morning of the 26th of September, there was sitting on track No. 8, among others, two cars. One of them was a steel car and the other a wooden car. The steel car had a knuckle pin out. The wooden car had what they call dead timbers pulled out, or the draw head. The work necessary to repair the steel car was light repair work and that necessary to repair the wooden car heavy repair work. The light repair work would be done on the tracks in the yards where the car would be found by the light repairer. On the wooden car there was a blue card, which indicated heavy repair wark, and on the steel car there was no card. Walla Oasner, the deceased, was, aforesaid, doing light repair work on these tracks. About fifteen minutes before he was found injured, the deceased was seen going across the yards in the direction of where the cars in question' were located, with a knuckle pin, or knuckle lock in his hand. He also had a bucket of tools at that time. When he was found dead, the knuckle pin was lying on the sill of the steel car with some of the tools. The bucket and other tools were three car lengths from the end of this car, or about perhaps 150 feet from the tools on the end of the sill to the place where the body was taken out from under the cars. The time intervening from the time the deceased was last seen going across the yards in the direction of the steel car until he was found injured was not exceeding fifteen minutes. During that time an engine had kicked a string of cars in on this track No. 8, without sounding the whistle or ringing a bell and running at a rate of speed of from ten to fourteen miles an hour.”

In addition to what is quoted above the undisputed evidence proves that when appellee’s intestate was transferred from the heavy repair works department to the department where the light repair work was done, he was given explicit instructions and was cautioned and warned by appellant, to put out a blue flag at both ends “of the track when at work thereon.” He was told by appellant, “Don’t fail to put out a blue flag at both ends of those tracks; don’t fail to do that now. Whatever work you do, or how long it takes you to do it, don’t fail to put out the blue flag; that is your only protection.” He was shown the blue flags and where they were kept for his use and how to use them to “protect himself” when at work repairing a car. The undisputed evidence also clearly proves that on the occasion of his injury and death, he did not put up the blue* flag, and the evidence wholly fails to prove that he did anything to give' notice of his presence on the track where he was injured. This state of case precludes a recovery. There can be no recovery for personal injury sustained by a servant as a result of the servant’s failure to obey the proper orders and directions of the master with respect to the servant’s safety. I. C. R. R. Co. v. Braden, 128 Ill. App. 265.

We are of opinion that the trial court erred in refusing to direct a verdict in favor of appellant. The judgment of the City Court of Bast St. Louis is reversed, and we find as an ultimate fact to be incorporated in the judgment, that appellee’s intestate was guilty of negligence which contributed to the injury of which he died.

Reversed.


author: Mb. Justice Cbeighton

text:
    Myrtle Aldrich, Administratrix, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Pleading—what allegations need not he proved. In an action of tort facts alleged by way of independent allegation which are not material to the cause of action, need not be proved.
    2. Master and servant—who not fellow-servants. Held, that the crew of a train bound in one direction were not, as a matter of law, fellow-servants of a crew of a train bound in the other direction.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    W. W. Babb and B. J. Stephens, for appellant; J. M. Dickinson, of counsel.
    Fbank F. Noleman and W. F. Bundy, for appellee.
   Mb. Justice Cbeighton

delivered the opinion of the court.

This was- an action in case, in the Circuit Court of Marion county, by appellee against appellant, to recover for the death of appellee’s intestate resulting from an injury received while in the service of appellant as a bralceman on one of its trains. Trial by jury. Verdict and judgment in favor of appellee for $8,000.

The declaration consists of two counts and states in substance that appellant was operating a double track railroad from Centraba to Mounds; that the west track was used for south-bound trains and the east track for north-bound trains; that south-hound trains had the right of way over the west track and north-bound trains had the right of way over the east track; that appellee’s intestate was one of the train crew operating a south-bound train on the west track, and other servants of appellant were operating a north-bound train on the east track; that the train crew operating the north-bound train were not fellow-servants of appellee’s intestate; that on the occasion of the injury resulting in the death of appellee’s intestate, the north-bound train had arrived over its own track and had stopped at the station of Hallidayboro, its train had been run into a passing track which lay between the north-bound track and the south-bound track, and its engine had been detached and taken to a coal mine, a short distance west of the railroad, to get out certain coal cars; that as this engine was returning from the coal mine with six cars attached, it went upon the south-hound track in attempting to get over onto the passing track, and while it was on the south-bound track the south-bound train, upon which the appellee’s intestate was- a brakeman, approached, coming from the north, on its own track, the two engines collided and appellee’s intestate was killed. In the first count it is alleged that it was appellant’s duty to have sent a flagman to warn the crew of the southbound train that their track was obstructed, and that it failed to do so. And in the second count it is alleged generally that appellant failed to give to the crew, or to any member of the crew of the south-bound train any notice or warning of the fact that their track was obstructed by the north-bound train. It is also alleged in each of the counts ‘1 that the said station of Hallidayboro was not a stopping place for the said freight train upon which the said deceased was then and there employed, nor was it a meeting point with any other train there.”

The brief and argument of counsel for appellant is devoted almost wholly to their contention that the trial court erred in refusing to direct the jury to return a verdict in favor of appellant. Their first proposition in support of this contention refers to the allegation in the declaration, “that the said station of Hallidayboro was not a stopping place for the said freight train upon which the said deceased was then and there employed, nor was it a meeting point with any other train there.”

As we understand counsel, they do not contend that proof of the facts stated in this allegation is material to appellee’s right to recover upon the merits of her case as made by the evidence. Their position as they state it is: “A party litigant, by the character of his pleading, may make material and necessary to be proven, matters and facts which, but for the manner of pleading, would be immaterial and unnecessary to be proven. In this case, appellee expressly averred, in both counts of her declaration, .not only that Hallidayboro was not a stopping station for the south-bound train, on which deceased was a brakeman, but that it was not a meeting point for any other train there; and we insist that she thereby made it material and necessary for her to prove the facts so averred. Yet she not only failed to offer evidence of the truth of her averments, but the same were expressly disproved by her own first witness and by all others who testify to those points.” We are of opinion that the rule here contended for does not apply in this case. The facts alleged are not, of themselves, material requisites of appellee’s case. This is not the pleading of a material requisite with needless particularity, nor is it a descriptive allegation qualifying or limiting any statement of a material requisite. We think the allegation here under consideration is in no sense other than an independent immaterial allegation. Such allegations need not be proved,—they may be entirely ignored.

Counsel insist that the crew of the north-bound train and the crew of the south-bound train were fellow-servants, as matter of law, and cite in support of this contention the following cases: I. C. R. R. Co. v. Ring, Admx., 119 Ill. App. 294; O. & M. R. R. Co. v. Robb, 36 Ill. App. 627; Klees v. C. & E. I. R. R. Co., 68 ib. 244; I. C. R. R. Co. v„ Swisher, 74 ib. 164; C. & A. R. R. Co. v. Hartley, 90 ib. 284; T. H. & I. R. R. Co. v. Leeper, 60 ib. 194; Same case, 162 Ill. 215; Clark v. C., B. & Q. R. R. Co., 92 Ill. 43; C. & E. I. R. R. Co. v. Driscoll, 176 Ill. 330, and Chicago City Ry. Co. v. Leach, 208 Ill. 198.

We are of opinion from an examination of all the cases bearing upon the question, to which our attention has been called, that whether the operating crews of two trains oh the same railroad under one general management are fellow-servants or not, is a question of fact tobe determined from the evidence in each particular case. It is true that the question need not in every case be submitted to the jury, for where the uncontroverted evidence proves a state of facts so conclusive that all reasonable minds must reach the same conclusion therefrom, then the court may assume the existence of the fact and apply the rule of law applicable thereto. It is only in this sense that this question ever becomes a question of law. It is always primarily a question of fact to be determined from the evidence in each particular case.

The case at bar does not fall in the same class with any of the cases relied on by counsel for appellant, in a number of respects, among them being the important fact that the road in this case was a double track road and the respective tracks were set apart for the exclusive use of the respective trains, the west track for the south-bound trains and the east track for north-bound trains. The case in 119 Ill. App. 294, the one most favorable to counsel’s position of any cited by them, holds no more than that such train crews “may” be held to be fellow-servants in that class of cases, when engaged in running engines and trains “over the same track,”—“track,” not road. In that case the road was a single track road, and this fact is noted in the opinion as one of the material features of the case. In the case in 36 Ill. App. 627, the road was a single track road and this fact is also noted in that case the court saying: “Two railroad engineers in the same grade of service, each running over the same track” may be held to be fellow-servants. The case in 60 Ill. App. 194 is one where two sections of a train were following each other “on the same track;” and the case in 162 Ill. 215, is the same case. In 68 Ill. App. 244 the respective crews were in the switching service in' the same yard and were required to use the “same tracks;” and the same is true of the case in 90 Ill. App. 284. The question of fellow-servant was not in any manner involved in the case in 92 Ill. 43. The case in 176 Ill. 311 is one where yard crews were employed to perform the same character of service at the same time, using the “same tracks;” and the case in 208 Ill. 198 is a case where separate grip cars were being operated “on the same track,” with other cars immediately preceding and following.

In the case of C. & A. R. R. Co. v. House, 172 Ill. 601, the road was double track road at the place of the injury, “the east one being for all trains going south and the west one for all trains going north.” The question as to whether the two crews were fellow-servants was submitted to the jury, and the jury found that they were not fellow-servants; and the court says: “We think the evidence sufficiently supports the finding that the crews of these two trains were not fellow-servants,—not so co-operating nor habitually associated as to make them such.” Of this class is the case of L. E. & W. R. R. Co. v. Middleton, 142 Ill. 550. We think the case at bar clearly falls within the same class, and are of opinion that the question as to whether the two crews were fellow-servants was a question of fact for the jury and not a question of law for the court; and we are also of opinion that the evidence fully proves every material requisite of appellee’s right to recover under both counts of her declaration.

We find no substantial error in this record. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    J. B. Piot, Administrator, Defendant in Error, v. E. R. Davis, Plaintiff in Error.

      Pleading—when replication in chancery deemed waived. Where the case has been heard “upon pleadings, evidence and proofs taken by the master in chancery, and upon depositions of witnesses and oral testimony,” the filing of a replication will be deemed to have been waived.
    Bill in chancery. Error to the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.

      James J. Baeter, for plaintiff in error.
    Louden & Crow, for defendant in error.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a hill in chancery, in the Circuit Court of St. Clair county, by defendant in error, to foreclose a real estate mortgage executed by Inez Schmith and Albert L. Schmith her husband, to H. D. Sexton, trustee, to secure the payment of a promissory note for the sum of $2000, given for money borrowed. The note and mortgage had been duly assigned and transferred by H. D. Sexton, trustee, to the intestate of defendant in error; and the bill contained an averment that plaintiff in error, “has or claims to have some interest in the premises in possession or otherwise,” and averring that whatever interest he has is subject to the rights of defendant in error. The bill makes plaintiff in error a co-defendant with the Schmiths, and in his answer he states that he had no knowledge of the mortgage other than from rumor; that he claims to be the owner in fee simple of the premises, by deed executed to him prior to the date of the mortgage, and by continuous possession thereunder; and he denies that his interest is subject to the rights of defendant in error.

The issues were tried by the court, and the court rendered a decree of foreclosure in favor of defendant in error, finding the amount due to be $2403.70, and finding, adjudging and decreeing that the interest of plaintiff in error in the premises is subject to the rights of defendant in error under the mortgage.

Counsel for plaintiff in error calls the court’s attention to the fact, that the record fails to show that any replication was filed to the answer of plaintiffs in error, and contends that under the statute the answer must be taken as true. This cause was not set down for hearing “upon the bill and answer” under the statute here sought to be availed of, but came on hearing and was heard “upon pleadings, evidence and proofs taken by the master in chancery, and upon depositions of witnesses and oral testimony.” Under such state of record the statute cannot be invoked. The filing of a replication will be deemed to have been waived in such case. Marple v. Scott, 41 Ill. 50; Jones v. Neely, 72 Ill. 449.

The evidence in the case tended to prove, and the chancellor who heard and decided the case and rendered the decree was warranted in finding, that on and prior to the 10th day of June, 1891, the wife of plaintiff in error owned the premises in question and on that day she and plaintiff in error joined in the execution of a mortgage on said premises to one John Drury to secure a note of $1000, for money borrowed, and that this mortgage was duly recorded on the following day; that subsequent to June 10, 1891, and prior to June 11, 1895, Inez Davis, now Inez Schmith, the daughter of plaintiff in error, acquired title to said premises, subject to the above noted mortgage; that on the last named date she conveyed the same to plaintiff in error for the expressed consideration of $625; that this conveyance was withheld from record; that sometime after the conveyance to her father, Inez Davis was married to A. L. Schmith, her name becoming Inez Schmith; that in December, 1898, plaintiff in error procured insurance through Sexton, the trustee, who made the loan in question here, on a part of the premises in question, in the name of his daughter, Inez Schmith; that shortly prior to September 28,1899, the date of the execution of the note and mortgage to secure this loan, he joined A. L. Schmith, his daughter’s husband, in negotiating with Sexton for this loan telling Sexton “.they were very much in need of the money and that it would be all right to make the loan;” that the loan in question was consummated on the 28th day of September, 1899, and the daughter, Inez Schmith, and her husband, A. L. Schmith, signing the note and mortgage, and the mortgage was duly recorded on September 30, 1899; that out of the proceeds of this $2000 loan, the $1000 mortgage which plaintiff in error had joined his wife in making to John Drury, on June 10, 1891, was paid off and discharged, and a release deed therefor was executed September 28, 1899, and recorded September 30, 1899, concurrent with and incident to the consummation of the loan in question here; that during all this time and for years thereafter the title of record stood in the name of Inez Davis, the said daughter of plaintiff in error, and that he never during said time disclosed or claimed any interest in said premises, to .either Sexton or to defendant in error; and that on the 20th day of October, 1904, more than five years after the consummation of the loan, the execution and recording of the mortgage in question, plaintiff in error caused the deed from his daughter to him to be recorded.

As to some of the facts enumerated above the evidence is conflicting, but to our minds the foregoing is a fair statement of facts fairly proved by the evidence and the reasonable inferences deducible therefrom.

It is true that plaintiff in error establishes quite conclusively that he came to Springfield from East St. Louis with a horse and buggy on the 28th day of September, 1899, the day the note and mortgage were signed by his daughter and her husband, and that he remained there, for two weeks under a doctor’s care. But we think the evidence proves with equal conclusiveness that he had negotiated with Sexton, the trustee, and advised the making of the loan before that time.

We are of opinion that plaintiff in error was a proper party to the foreclosure suit, and that the decree of the trial court is equitable and just. The decree of the Circuit Court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. A. C. Willi et al., Plaintiffs in Error.
    1. Evidence—what competent to prove that certain territory was anti-saloon. Held, that the certificate of the county clerk showing the result of the submission of the question as to whether the particular territory should become anti-saloon was competent to prove the fact that such territory was anti-saloon.
    2. Evidence—how clerk’s certificate of result of election questioned. It is only in a direct contest that the correctness of an election result can be questioned and the certificate of the county clerk showing the result of such election cannot be impeached in a collateral proceeding.
    Prosecution for unlawful sale of liquor. Error to the County Court of Perry county; the Hon. Thomas X Myers. Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    B. W. Pope, for plaintiffs in error.
    A. B. Dry, H. E. Kimmel and H. L. Sheldon, for defendant in error.
   Mr. Justice Creighton

This was a prosecution by information, filed by the state’s attorney of Perry county, in the County Court of that county charging plaintiffs in error with selling-intoxicating liquor within the limits of the precinct of DuQuoin while the same was anti-saloon territory. Trial by jury. Verdict finding plaintiffs in error guilty. The court rendered judgment on the verdict and imposed a fine of $20 and costs upon each of them.

At the close of the People’s evidence in chief and again at the close of all the evidence, plaintiffs in error moved the court to instruct the jury to find the defendants not guilty, and the court denied the motion. Plaintiffs in error duly excepted and assign this ruling of the court as error; and say: “The most that can be said of this evidence is that the defendants bottled the drinks spoken of, viz: ‘Temperance Brew’ and ‘Weno,’ and had some of these bottles delivered to various places in the city of DuQuoin. ’ ’

The evidence proves that plaintiffs in error were doing business in the city of DuQuoin; that they received shipments from the Evansville Brewing Company, and the Rudolph Stecker Brewing Company; that such shipments came in barrels or kegs, in large lots; that there were internal revenue stamps on these kegs and barrels; that the names given to the contents of these packages were, “Temperance Brew,” and “Weno”; that plaintiffs in error bottled these liquors and delivered them to a number of retail dealers, in the city of DuQuoin; that one of these liquors contained 3 and 91-100 per cent, of alcohol, and the other 4 and 71-100; that these liquors looked like beer, tasted like beer and had the same effect—one bottle stimulated the drinker of it and a little while after he had drunk it, it made him drowsy, and a competent chemist who analyzed it testified: “I should class it as fermented beer.” The evidence proves beyond all reasonable doubt that plaintiffs in error were dealing in these liquors, selling and delivering them to customers in the city of DuQuoin, and that the liquors were intoxicating liquors within the meaning of the statute. No intelligent fair minded jury could have found otherwise.

Counsel complains of the ruling of the trial court with respect to the admission and rejection of evidence. While this complaint is made as to a number of rulings, we think only two of them are of material importance.

During the trial the People introduced in evidence, for the purpose of proving that the city of DuQuoin was in anti-saloon territory, the following certificate of the County Clerk of Perry county:

“State of Illinois, Perry county, ss; I, J. Gr. Taffee, Clerk of the .County Court of said county and state, do hereby certify that at an election held in said Perry county, on Tuesday the 5th day of November, A. D. 1907, the question ‘ shall this territory become anti-saloon territory?’ was voted upon in the. precinct of DuQuoin, and that the returns of said election were duly canvassed as the law directs, and said returns so canvassed show that upon said election there was voted 932 votes ‘Yes’ and 899 votes ‘No.’

“Witness my hand and the seal of said court, this 12th day of February, A. D. 1908.

J. Gr. Taeeee, Clerk.”

“County Seal.”

To the introduction of this certificate plaintiffs in error objected, “for the reason that it is not the best evidence; that it is not in the form required, and because the book containing the record was present in court and could have been introduced.” It was not pointed out in the trial court and is not pointed out here, wherein the certificate is not “in the form required.” The statute makes the official certificate of the clerk primary evidence. Section 7 of the Act is as follows: “The clerk shall record in a well-bound book, to be kept in his office by himself and his successors, the result of the vote upon said proposition, and such result may be proved in all courts and in all proceedings by such record or by the official certificate of the clerk, and in cases where such a record or certificate shows that a majority of the legal voters voting upon said proposition voted “Yes” the same shall be prima facie evidence that the political subdivision to which such vote was applicable has become anti-saloon territory.” We think the court did not err in admitting the certificate in evidence.

Plaintiffs in error “offered to prove by the county clerk that the petition which was filed with him asking for an election in. DuQuoin did not contain as many as one-fourth of the names of the legal voters who had voted at the last election in that precinct,” and also offered certain sheets of the petition upon which appear the names of a number of signers who did not put opposite their names the street and house number at which they resided, and the court refused to admit this offered evidence or any part of it.

The clerk’s record or certificate of the result of the vote can only be questioned by a contest as provided in Section 19 of the Act. It cannot be collaterally attacked or brought into question in a collateral proceeding. In the case at bar and like cases it is conclusive. We think this position well established by the great weight of authority. ■ The Ohio anti-saloon territory statute preceded ours by a number of years, and ours in purpose and language closely follows theirs, especially in the feature here under consideration. The Ohio courts have had this question under consideration, and in the case of Fike v. State of Ohio, 25 C. C. Rep. 554, among other things says: “It is further urged by counsel for the state that this question cannot be raised in this proceeding; that upon a plea of not guilty under a prosecution for a violation of the law, the defendant cannot be heard upon the question of the validity of the election for the reason that the statute itself provides a method for contesting the validity of the election. * * *

“The universal rule is that an election contest cannot be injected into a criminal prosecution by attacking the validity of such an election as this and we think that has been settled by the Supreme Court of this state. * * *

“The election having been held, the result having been declared, and the people having expressed their choice, the law has become fixed and whoever comes into the municipality thereafter is bound by it.

“The ascertainment and declaration of the result of the election was prima facie correct, and it was conclusive, until, in a proper action brought for the purpose, the true result otherwise should be ascertained by a judicial determination. * * * The law intends that one contest properly instituted for the purpose, shall establish the validity or invalidity of the election questioned.

“We hold that a defendant being prosecuted under this statute, cannot defend upon the ground that is urged in this case; that can only be taken advantage of by a contest of the election according to the provisions of the statute.”

As supporting the same view, counsel for defendant in error cite State v. Cooper, 101 N. C. 684; Woodard v. The State, 103 Ga. 496; Commonwealth v. Lilland, 10 Ky. Law 561; State v. Emery, 98 N. C. 768; and People v. Whitney, 105 Mich. 622.

A number of the instructions given on behalf of defendant in error are criticised, and some of the criticisms are well warranted. But there are no errors in any or all of the- instruction that did or could have misled the jury. It is apparent to the court that the jury were not misled. Their verdict is the only verdict that could reasonably have been expected of an in.telligent, honest jury, and is fully supported by the evidence and the law. In such case errors in instructions will not reverse.

The judgment of the County Court is affirmed.

Affirmed.


author: Mb,. Justice Creighton

text:
    A. S. Johnson, Appellee, v. Corn Products Refining Company, Appellant.

      Variance—when complaint of not subject to review. In the absence of an objection or a motion to exclude upon the ground of variance, the point, even though good, as it was in this case, cannot be relied upon on review.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Bueeoughs, Judge, presiding. Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    Thomas Stallings, for appellant; John A. Bloomingston, of counsel.
    Webb & Webb, for appellee.
   Mb,. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of Madison county, by appellee against appellant, to recover for a personal injury alleged to have been sustained by appellee while in the discharge of his duty in the service of appellant. Trial by jury. Verdict and judgment in favor of appellee for $1250.

The declaration discloses that appellant operated a large corn products refining establishment and that appellee was engaged in its service in the “syrup department;” that the basement floor of that department was of granatoid, covering a space of about 60 by 300 feet; that there was a sink or hole in the vicinity of one corner of it, which at the time of appellee’s injury was uncovered. In the first count of the declaration it is alleged “that while walking upon the floor in said basement, in pursuance of his duty,” he fell into .the hole. In the second count as amended it is alleged that “he was passing over the floor of said basement to assist in the pouring out and emptying of certain boxes, cans and barrels containing products,” and stepped in the hole. (In each of these counts due care and absence of knowledge on the part of appellee and negligence and knowledge on the part of appellant áre fully set up.)

The undisputed evidence proves that on the occasion in question appellee had left his work and gone to a “toilet room,” for a purpose wholly his own, and on his return to the place of his work he took a different route from that traversed on his way to the toilet, and one he had never passed over before, through a part of the basement where he had never been and where he had no duty to perform, and there fell into the hole.-

Counsel for appellant insists that there is a fatal variance between the declaration and the evidence. Tested by the law as held and expressed in the case of Wabash Ry. Co. v. Billings, 212 Ill. 37, which we reg’ard as a leading and controlling case on this question, it is apparent that there is a material variance. In that case the court says: “It is a general rule in actions at law, that in order to enable a plaintiff to recover * * * what is proved * * * must not vary from what he has previously alleged in his pleading; and this is not a mere arbitrary rule, but is one founded on good sense as well as good law. Every allegation which is descriptive of the cause of action must be proved as alleged in the pleading,and any variance therefrom is fatal unless it is waived by not calling it to the attention of the trial court, or is cured by an amendment of the pleading. Even if there are unnecessary allegations descriptive of what is material they must be proved.” A variance may, however, be waived so that it cannot be availed of on appeal, by a failure properly to call it to the attention of the trial court in apt time.

“To present the question of variance as one of law, the evidence must be objected to at the time it is offered, on that ground, or, when the variance becomes apparent, the party should move to exclude the evidence, or in some other appropriate way raise that question, so that the trial court can pass upon it; and to properly raise the question in any of these modes, the variance should be distinctly pointed out, so as to enable the trial court to pass upon it understandingly, and enable the plaintiff to obviate the objection by amendment.” Libby, McNeil & Libby v. Schærman, 146 Ill. 540. “A party in order to avail himself of a variance between the proof' and the declaration in a court of review, must show from the record that the alleged variance was specifically called to the attention of the trial court.” Illinois Terminal R. R. Co. v. Thompson, 210 Ill. 226 (233).

During the progress of the trial in the case at bar no objection to the evidence was interposed on the ground of variance, nor was there at any time a motion entered to exclude any of the evidence on that specific ground. It is true that at the conclusion of all the evidence, counsel for appellant presented to the court the following motion and instruction, which the court denied and refused:

“And, now, at the close of all the evidence, comes the Corn Products Befining Company, by its attorney Thomas Stallings, and moves the court to exclude the evidence offered herein from the jury, and to instruct the jury to return a verdict finding the issues for the defendant, for the reason that said evidence is insufficient in law to support the cause of action, set out in the declaration, or either count thereof.

Warnock, Williamson, Burroughs.

Thomas Stallings.

Attorney for defendant.

The court instructed the jury that the evidence offered herein is insufficient in law, to support the cause of action, set out in the declaration or either count thereof; and it is therefore your duty to return a verdict finding the issues for the defendant. ’ ’

This motion to exclude the evidence did not raise the question of variance. It not only fails to specify in what the variance consists, but it does not even suggest that any variance does exist. “A motion to exclude the evidence and to instruct the jury to find for the defendant on the ground of variance between the pleadings and proofs does not raise the question of variance for review, unless the defendant indicates specifically in what the variance consists.” I. C. R. R. Co. v. Behrens, 208 Ill. 20. “A variance between the allegations and proofs, if relied upon as the ground of a motion to instruct to find for the defendant, must be particularly specified in the motion.” Zellers v. White, 208 Ill. 518. What is meant by “must be partieularly specified” is well disclosed by the second paragraph of the motion, quoted by the court in its opinion, in the case of Wabash R. R. Co. v. Billings, 212 Ill.37 (38): “Second. It is alleged in the declaration that plaintiff’s buggy in which he was riding across defendant’s track was struck by defendant’s car or train and plaintiff then and there thrown out and injured, whereas the testimony shows that plaintiff’s injuries, resulted from his falling from said buggy when some distance from defendant’s track or crossing.”

It is true in the case at bar that in their motion for new trial counsel mentioned a variance, but they made no attempt to “indicate specifically in what the variance consists,” or to particularly specify in any way, nor does the record anywhere show that the variance was in any manner, at any stage of the case in the trial court, distinctly pointed out, so as to enable the court to pass upon it understandingly,0 and to enable the plaintiff to obviate the objection by amendment.” All that appears is: “(12) There is a fatal variance between the allegations in the declaration and the evidence.” This is not sufficient. The question of variance has been waived in this case “by a failure to properly call it to the attention of the trial court.”

The evidence so far departs from the declaration as to introduce a new material element into the case, and the state of the evidence is such that proper proof with respect to all the issues raised by this element introduced into the case by this departure is necessary to a recovery. The question then is, with that new element involved in the case as a material requisite, does the evidence when considered as a whole make and properly support a case in favor of appellee, without respect to the state of the pleadings. We entertain such doubt upon this question as leads us to the conclusion that the judgment should be reversed and the cause remanded; not upon the ground of variance, for the right to avail of the variance was waived as above stated, but upon the state of the evidence, as a whole, with respect to the case which it tends to make; and, upon the further ground that the case which the evidence does tend to prove was not submitted to the jury upon any sound theory of the law consistent with it as a whole. This was no fault of the trial judge. It was the fault of counsel who failed to recognize the material departure of the evidence from the declaration and to call the court’s attention to it, so that the court might properly guide and direct the further course of procedure and trial and the submission of the proper issues of fact to the jury, under proper instructions applicable thereto.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    T. W. Howard, Appellee, v. Wabash Truss Hoop Company, Appellant.

      Contracts—when employment established by estoppel. Where a company conducts its business in such manner as to suffer appearances to exist and allow its manager and agents to so act as to give one employed to do work in connection with the carrying on of its business, reason to believe that he is employed by the company, and where such one in good faith does so believe, then he has a right to regard the company as his employer and to hold it bound as such.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Jasper county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    E. B. Greeu, Theo. G. Risley and George P. Ramsey, for appellant.

      Albert B. Islet, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit commenced before a justice of the peace of Jasper county, by appellee against appellant, to recover for labor performed by appellee and his minor son, for appellant. From the judgment rendered by the justice the case was appealed to the Circuit Court where it was tried de novo, by jury, resulting in a verdict and judgment in favor of appellee for $51.35.

Counsel for appellant say: “The theory of appellee in support of his claim against appellant is, that he and his son were employed to work for appellant through one Martin Gilbert, acting as agent of appellant, and that the work was done for appellant, and the theory of appellant is, that Martin Gilbert was an independent contractor, under appellant, to get out truss hoops at so much a piece, to be paid for by appellant on delivery; and that appellee and his son were employed by, and worked for, Martin Gilbert in getting out truss hoops under his contract, and were not employed by, and did not work for, appellant, and that appellant is not indebted to appellee for such labor. ’ ’

The evidence in this case is, to our minds, conclusive against appellant, and brings the case clearly within the rule laid down by this court in the case of Montelione v. Republic Iron and Steel Company, 143 Ill. App. 413. In that case we said: “Where a company conducts its business in such manner as to suffer appearances to exist and allow its manager and agents to so act as to give one employed to do work in connection wdth the carrying on of its business, reason to believe that he is employed by the company and where such one in good faith does so believe, then he has a right to regard the company as his employer and to hold it bound as such.”

Appellant was a corporation with its principal place of business at Mt. Carmel, Illinois, and Martin Gilbert had been employed by it in connection with- its business at that place. In May, 1907, Gilbert came from Mt. Carmel, to the vicinity of West Liberty in Jasper county, representing himself as acting for appellant, bought, timber on appellant’s credit, employed men for the purpose of getting out truss hoops, and appellant sent its machinery and appliances there for doing- the work. When the machinery was on the ground the president of appellant company, with two of his sons, one of whom was secretary of the company, came and set up the machinery, managed and operated the same. They performed all the expert and skilled labor in connection with the prosecution of the work, and exercised a general control over the work and the men. The president increased the wages of certain of the employes, discharged some, employed others, bought material, paid part of the laborers, and stated that “he was back of the debts.” Appellant company got all of the truss hoops that were made.

Whatever arrangements appellant may in fact have had with Gilbert, as between it and him, were wholly unknown to appellee. He was justified, under the circumstances, in believing that appellant was conducting the business on its own account.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Louise Neumann, Appellee, v. Johann Neumann, Appellant.
    1. Vebdiot—when not disturbed. A verdict not manifestly against the weight of the evidence will not be set aside on review in the absence of errors of law.
    2. Instructions—when omission of essential element to recon

      ery will not reverse. If the omission in question is one concerning a fact not in dispute, it will not reverse.
    3. Instructions—when containing abstract propositions of law will not reverse. An instruction which, contains a correct abstract proposition of law will not reverse unless calculated to mislead.
    Trover. Appeal from the Circuit Court of Madison county; the Hon. Benjamin R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    E. B. Glass and D. H. Mudge, for appellant.
    Springer & Buckley, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit in trover, in the Circuit Court of Madison county, by appellee against appellant, to recover the value of two mules alleged to have been owned by appellee and to have been converted by appellant to his own use. Trial by jury. Verdict and judgment in favor of appellee for $300.

Appellant was at one time the owner of the mules in question, having bought them in St. Louis for $350. Appellee, the wife of one of appellant’s sons, claims that soon after her marriage appellant gave her these mules as a wedding present. The testimony of appellee and her mother proves a consummated gift. Their testimony is denied by appellant and he is corroborated more or less by other witnesses.

The questions raised on this appeal are wholly questions of fact, except that appellant challenges the correctness of the first and third instructions given by the court on behalf of appellee.

The questions of fact were fairly submitted to the jury and we think their verdict should be accepted by this court as conclusive.

The two instructions complained of are as follows:

“1. The court instructs the jury that if you believe from the evidence that the defendant made a gift of the two mules in question to the plaintiff and that she took possession of thé mules after such gift, and if they further believe from the evidence that the defendant afterwards took the mules from the plaintiff, and if they further believe from the evidence that a demand was made on the defendant to deliver up possession of the said mules to the plaintiff, then the plaintiff has the right to recover from the defendant the value of said mules as shown by the evidence.

“3. The jury are instructed that when one person has property of another whether rightfully or wrongfully, in his possession and the owner is entitled to immediate possession of the property, then a demand for such possession by the owner and a refusal to deliver the property by the one so having it in possession is prima facie evidence of a wrongful conversion of the property to his own use by the latter. ’ ’

Counsel claim that these instructions are misleading. While the first one is incomplete in this, that it does not contain the clause, “and that he refused or failed to do so,” following the clause with respect to demand upon appellant “to deliver up possession,” we think it did not and could not have misled the jury, for the reason that appellant’s refusal and failure- to deliver up possession of the mules was clearly proved and not denied. His claim was that he owned the mules and had a right to keep them. He did not. defend on the ground that he had ‘1 delivered up possession” of the mules to appellee, nor upon the ground that he had not refused or failed to do so.

The third instruction states a correct proposition of law applicable to the evidence in this case though it is abstract in form. Such form is sometimes properly condemned as being calculated to mislead, still, it is only where it is apparent to the court that such an instruction has misled the jury, or that it probably has done so in the particular case, that a court is warranted in reversing a judgment on such grounds. Such is not the case here.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    J. S. Lewis, Appellee, v. Lottie Story, Administratrix, Appellant.
    1. Appeals and errors—effect of absence of propositions of law. In an action upon a contract if no propositions of law have been presented no questions of law are involved on appeal except those that pertain to the construction of the contract upon which the plaintiff’s claim was based and to rulings of the court with respect to evidence.
    2. Judgment—effect of uncertainty. If there is uncertainty as to the finding of the court and a variance between the finding and the judgment, a reversal will be ordered.
    Contested claim in court of probate. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    M. S. Whitley, for appellant.
    E. S. Marsh, for appellee..
   Mb. Justice Creighton

delivered the opinion of the court.

This was a claim, filed in the County Court of Saline county, by appellee against the estate of J. D. Story, deceased. Appellant as the administratrix of said estate objected to the claim. A trial was had in the County Court, and an appeal was prosecuted from the judgment rendered in that court to the Circuit Court, where trial de novo was had by the court, without a jury. From the judgment of the Circuit Court appellant prosecutes an appeal to this court.

No propositions of law were presented to the trial court, and no questions of law are involved in this appeal except those that pertain to the construction of the contract upon which appellee’s claim is based, certain rulings of the court with respect to the admission of evidence and the finding and judgment.

The contract upon which appellee’s claim is based is as follows:

“It is hereby understood between J. S. Lewis, hereafter called the seller, and W. B. and J. D. Story, hereinafter called .the buyers, that the seller has this day, viz.: August 17th, 1903, surrendered to the buyers his entire stock of merchandise in Carrier Mills, Ill., known as the stock of the J. S. Lewis Store Co., together with the books of the former firm, upon these express conditions:

1st. That the buyers pay all outstanding accounts of the J. S. Lewis Store Co., as the bills mature, so as to keep sacred the credit of the seller.

2nd. The buyers are to pay any over-drafts with the firm of Lewis and Ozment, bankers, at Stonefort, Ill., by not later than Jan. 1st, 1904; and,

3rd. That the buyers pay to the seller the sum of $2500.00, twenty-five hundred dollars, in payments of not less than fifty dollars on the first day of each and every month from date hereof, together with interest at 7 per cent, per annum on all unpaid balances, until both principal and interest are paid. This trade being incomplete should the buyers fail in either or any of the above conditions, the seller shall have the right at any time to take charge of the stock or any stock that may be subsequently acquired by- the sellers and sell or dispose of as he, the seller, may think proper. Privilege to examine the books and stock of the buyers by the seller to be allowed when so requested, and in event the seller feels unsafe, his right to take charge of stock shall not be questioned. When payments and conditions, above named are made and performed, as above enumerated, this obligation, together with full possession of stock, shall be surrendered to the buyers by the seller.

In witness whereof, the buyers as a firm and as individuals have this day set their hands and seals, Aug. 17th, 1903. In case seller has to or does take charge of stock he shall use his best efforts to protect interest of buyers by getting best prices, paying what is due as above enumerated, and then pay all other proceeds to the buyers. If buyers can find or suggest better sale, seller agrees to take same for stock, and settle upon that basis.

• Story Store Co. [Seal.] Nora Story [Seal.]

J. D. Story [Seal.]”

It is conceded that items 1 and 2, specified in the contract, were paid in full and that some payments were made on item 3. Counsel for appellant contends that all payments made in pursuance of the requirements of item 2 of the contract, which amounted to about $2,100, should be applied in discharge of the amount specified in item 3. His contention being as we understand him, that the $2,500 specified in item 3 represents the full purchase price of the store, and that the trial court erred in not so construing the contract.

We cannot agree with counsel’s view of the meaning of the contract. It appears to us that the amount of the outstanding bills payable, mentioned in item 1, and the amount of the over-drafts, mentioned in item 2, are as clearly parts of the purchase price as is the sum specified in item 3, and we think the trial court did not err in refusing to apply the payments made in taking up the over-drafts as credits on the $2,500, specified in item 3.

Counsel complains of the ruling of the trial court as to the admission of evidence, and specifies appellee’s affidavit attached to his claim as filed in the County Court, and certain conversations of appellee. With respect to the affidavit, it is true that the claim filed in the County Court with the affidavit attached was admitted in evidence, but it does not appear that the court accepted the affidavit and acted upon it as evidence. As to the conversations of appellee, they all appear to have been had with appellant’s intestate or with others in his presence, and were therefore properly admitted.

There is uncertainty as to the" finding, and a wide variance between the judgment and any view that may be taken of the finding, and there is uncertainty as to the judgment. The finding and judgment, as they appear in the record, are as follows: “Now on this day the court finds the issues for the plaintiff and assesses his damages at the sum of ($2,826.20) two thousand eight hundred and twenty dollars, and twenty cents. It is therefore ordered and adjudged by the court that the plaintiff have judgment for the sum of two thousand, twenty-six dollars and twenty cents against the plaintiff” etc. Here two amounts are specified in the finding viz.: $2,826.20 and $2,820.20; and the ‘judgment is rendered in favor of the plaintiff against the plaintiff for $2,026.20.

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.