text:
    Belleville Savings Bank, Appellant, v. Southern Coal & Mining Company, Appellee.
    1. Appeals and errors—saving questions. On appeal in an action on interest coupons, an objection that a mortgage introduced was not identified as the one securing the coupons should not be sustained where there is evidence that the coupons came from bonds of a certain number, a record of a mortgage securing bonds is introduced describing bonds with interest coupons similar to those sued on, and where though the admission of the mortgage for any purpose was objected to, the specific objection relied on was not made in the trial court and the record does not show that the point was raised'.
    2. Notice—record of mortgage. Where a recorded mortgage securing bonds provides that no action can be brought by bondholders until the trustee is notified of default, it would seem that the record of the mortgage is constructive notice of its provisions to bond purchasers.
    3. Mortgages—recovery on bond coupons. A bondholder is not entitled to recover on an interest coupon where the mortgage provides that no action can be brought on default unless, after default and notice thereof, the trustee fails to act, nor unless a majority of the bondholders request such action, there is no proof that such notice was given, and there is proof that officers of defendant had a conversation with officers of .plaintiff in which the provision in question was discussed and plaintiff’s proof merely raises a doubt as to whether certain officers were present.
    4. Judgment—res judicata. A judgment denying recovery on interest coupons, on account of non-compliance with a provision of the mortgage requiring notice of default to the trustee, and allowing him a reasonable time to act and requiring a request for such action by a majority of the bondholders, will not prevent recovery on the coupons involved either in plaintiff’s name or in the name of the trustees on compliance with the mortgage provisions.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed October 31, 1912.
    Fred B. Merrills, for appellant.
    Kramer, Kramer & Campbell and C. H. G. Heinfelden, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

This suit was originally brought by James P. Rich, trustee, before a justice of the peace, of St. Clair county, Illinois, on certain interest coupons, for $25.00 each, issued by appellee, an Illinois corporation, and judgment was given by the justice against appellee for $194.68. An appeal was taken from this judgment to the Circuit Court of St. Clair county, where, by leave of court, the name of the appellant was changed from said trustee to Belleville Savings Bank, the appellant here, and the owner of said interest coupons. The cause was tried by the court without a jury and the issues, having been found in favor of appellee, judgment was entered in favor of appellee and against appellant in bar of the action and for costs.

Appellant asserts, as reasons why the judgment of the court below should be held to be wrong, that the record does not show the mortgage introduced in evidence was identified as the one securing the coupons sued on; that even if said mortgage had been so identified, it does not appear that appellant was chargeable with actual or constructive notice of any facts, which would make the promise contained in said coupons uncertain, conditional or subject to any equitable defense; that in any event it was error to render judgment against appellant in bar of its action. On the trial appellant introduced in evidence seven interest coupons, the first of which was as follows:

“No. 6. $25.00
On the first day of October, 1908, the Southern Coal and Mining Company will pay to bearer, at the office of the Mercantile Trust Company, in the city of St. Louis, Missouri, twenty-five dollars, in gold coin of the United States, being six months interest then due on its first mortgage five per cent gold bond, No. 847.
James Y. Lockwood,
Treasurer.”

The other six coupons were identical with the above except as to the number of the bond referred to.

The record bearing upon the first point relied upon by appellant, for a reversal of the judgment, shows that appellant introduced in evidence seven coupons for six months interest, on bonds Mo. 847, 848, 849, 850, 852, 853 and 854 of the Southern Coal and Mining Company. The cashier of appellant testified that the bank owned first mortgage bonds of the Southern Coal and Mining Company of the numbers mentioned in said coupons, and that the coupons introduced in evidence came off of those bonds; that the bonds came into possession of appellant about October, 1905. Appellee introduced in evidence a record of a mortgage of said company, dated October 2, 1905, securing bonds to the amount of $1,100,000 and describing certain bonds with interest coupons similar to those sued on. The president of appellee also testified that he had a conversation with certain officers of the bank early in October, 1905, just prior to the delivery of the bonds concerning the terms of the mortgage, and especially a certain clause thereof, which appears in the mortgage introduced in evidence. The production of the original mortgage was waived, but appellant objected to the introduction of the mortgage as recorded, on the ground that it was not relevant for any purpose. Appellant did not make the specific objection to the recorded mortgage, that it was not, or had not been shown to be, the mortgage referred to in the coupons sued on, and there is nothing in the record to show that this question was raised upon the trial below. Under these circumstances, we are of opinion that appellant’s position upon this question should ■not be sustained.

Appellant’s claim is that it does not appear from the proofs that appellant is chargeable with actual or constructive notice of any facts which would make the promise contained in the coupons uncertain or conditional; that the instruments sued on are absolute and unconditional promises to pay the bearer a sum certain, at a time certain, without qualification, and that they are sufficient to support a judgment in an action of assumpsit. This raises the question of the right of appellee to rely as a defense upon the eleventh provision of the mortgage, which is in part as follows :

“No holder or holders of any bond or bonds or coupons, secured hereby, shall have the right to institute any suit, action or proceeding, in equity or at law, upon any of the bonds or coupons hereby secured, or for the foreclosure of this indenture or the execution of the trusts hereof, or for the appointment of a receiver, or any other remedy upon the said bonds or coupons, or under this indenture, without first giving notice in writing to the trustee of the fact that said default has occurred and continued as herein-before provided; nor unless the holders of a majority in amount of the bonds hereby secured, and then outstanding, shall have made a request in writing to the trustee, and have afforded the trustee a reasonable opportunity to exercise the powers herein granted, and to institute such action, suit or proceeding in its name, nor unless the trustee shall, for thirty days after such request in writing, have failed so to do, and such notification and request are hereby declared to be conditions precedent to the execution (except by the trustee), of the powers and trusts of this indenture or the appointment of a receiver, or any other remedy hereunder, or upon such bonds or coupons.”

There was no proof in the record that notice in writing had been given to the trustee that a default in payment had occurred nor that the holders of a majority in amount of the bonds, secured by the mortgage, had made a request in writing to the trustee to institute suit. It is further claimed by appellant that it had no notice of the conditions of the mortgage either actual or constructive. We are inclined to the belief that the record of the mortgage was constructive notice to appellant, and all other purchasers of bonds, secured thereby, of the provisions of the same, but waiving that question, there was proof in the record to show that the president of appellee, while negotiations were pending for the purchase of said bonds by appellant, had a conversation with certain officers of appellant in which the terms and conditions of the mortgage were discussed, particularly the eleventh provision above referred to; that this clause was pointed out to said officers as a safeguard in case some dissatisfied holder of a bond should attempt to bring suit. Appellant’s proof raised a doubt as to whether one of the directors named as having taken part in said conversation was in fact present thereat, but it was not questioned that the other two officers were present at such conversation. The question is therefore presented whether appellant, as a holder of said bonds and coupons, is bound by the conditions of the mortgage given to secure the same.

It is further claimed by appellant that it is only where the mortgagee pursues his remedy in rem, in the manner provided by the mortgage, that such conditions as the one referred to should prevail, and that they do not apply to an action in personam, such as this, against the party or company executing the obligations. The conditions in question, however, contain no exception in this regard and no reason is presented to us why it should be held to apply to one form of action rather than another. It is also contended by appellant that notwithstanding the provisions for notice to the trustee, and a request to him to bring suit as a condition precedent to the right of a holder of said bonds or coupons, to institute suit himself, the appellant had a common law right to sue and recover upon the coupons, which could not be taken away by the conditions of the mortgage and in support of this position he specially relies upon the case of Manning v. Norfolk Southern R. R. Co., 29 Fed. 838, where the court sustained the right of coupon holders to recover a judgment at law, upon the coupons, under conditions similar to those existing in this case. We do not accede to the soundness of the doctrine laid down in the case so relied on, but are of opinion that the true rule, governing the last two propositions of appellant, is laid down in the case of Boley v. Lake St. R. R. Co., 64 Ill. App. 305. In that case suit was brought to recover $25.00, the amount of an unpaid interest coupon of a mortgage bond of the railroad company. One of the articles of the mortgage or trust deed given to secure the same provided that no holder of any bonds or coupons should have the right to institute any action of law upon any coupon, or institute any suit or proceedings in equity, or otherwise, under said instrument except in case of refusal on the part of the trustees to perform the duties imposed upon him in that regard, after demand by such holder of such bonds or coupons and the compliance by the holder of the same, with certain conditions. The holder of the coupon had made the demand upon the trustee, but failed to comply with the conditions required by the trust deed. The trial court found in favor of the defendant and refused to give the coupon holder a judgment. On appeal it was said by the Appellate Court, in the course of its opinion, “A bond and the mortgage made to secure the same, when they are made at the same time, are to be construed together, as if they were parts of one instrument and in relation to the same subject, as parts of the same transaction, together constituting one contract. The mortgage may, as well as the bond, describe the debt, and may thus qualify the terms of the bond. In the present case, talcing bond and mortgage together, it appears that the holder of the bond has by express stipulation deprived himself of any right of action at law thereon, except in a certain contingency * * * nor are we in this case called upon to say directly whether the coupon under consideration is by itself a negotiable instrument. Suit is brought upon it by the holder of the bond to which it was attached; the question here involved is as to the rights of a holder of bonds and coupons thereto belonging. It is manifest that the party who purchased this bond, if he read the same, together with the trust deed, must have known that he acquired with it no right of action upon default in the terms of it, or any of the coupons belonging thereto; that such right was vested in the trustees named in the mortgage, and could not be exercised by the holder of the bond until the happening of other things. * * * We regard the mortgage, bonds and coupons as constituting one consistent contract.” The court thereupon proceeded to affirm the judgment of the trial court.

This is also the doctrine laid down by the Supreme Court of Minnesota in Seibert v. Minn. & St. L. Ry. Co., 52 Minn. 246, where it was held that it was competent for bond holders to agree among themselves upon what condition the right to bring suit may be exercised by an individual bond holder, and a provision in the mortgage that no proceeding in law or equity shall be taken by any bond holder, secured thereby, until after the refusal of the trustee to comply with' the requisition first made upon him by the holders of a certain percentage of bonds secured by such mortgage is reasonable and valid; that such provisions are not made for the purpose of divesting the bond holders of their right to judicial remedies or to oust the courts of their jurisdiction, but are merely the imposition of certain conditions upon themselves in respect to the exercise of that right. We are therefore of opinion that the Belleville Savings Bank, the appellant, was not entitled, under the law and the proofs in this case, to recover upon the coupons introduced in evidence. It is plain that appellant might still, if the conditions provided for by the mortgage should be complied with, have a right to recover on the coupons in suit here, either in its own name or in the name of the trustee, and we have examined the judgment carefully to determine whether it would operate as res judicata to the extent of preventing a recovery on, or the collection of these coupons under any circumstances. As a result of this investigation, however, we have reached the conclusion that the effect of the judgment rendered by the court below is only to bar a recovery in this suit, or one commenced under similar conditions, but that it would not prevent the collection of the coupons involved, by suit or otherwise, under circumstances in harmony with those contemplated and provided for by the mortgage. The judgment of the court below will accordingly be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McBride Shirley, J.,

license: Public Domain

text:
    Charles A. Uzzell, Plaintiff in Error, v. The People of the State of Illinois, Defendant in Error.
    1. Officers—criminal violation of duty. Where no charge of any duty Imposed by ordinance is found in an indictment charging the mayor of a city with palpable omission of and malconduct in the discharge of his official duties, the prosecutor must rely upon the violation of some statutory duty such as imposed by the Cities and Villages Act, R. S. Ch. 24, Art. 2, to warrant and sustain a conviction.
    2. Indictment and information—duplicity. If an indictment alleges a series of acts, and said acts as a series constitute but one offense, it does not necessarily make the indictment bad as being double.
    3. Officers—indictment charging mayor with breach of official duty. An indictment containing several counts charging the mayor of a city with palpable omission of and malconduct in the discharge of his official duties, in that he neglected to use any effort to stop gambling and the operation of slot machines, setting forth numerous names of persons violating the law, on being construed with the Cities and Villages Act, R. S. Ch. 24, Art. 2, Sec. 14, concerning the liability of mayors to indictment, is not vague, uncertain, or bad for duplicity since a number of acts may be charged, which being considered together will constitute one offense.
    4. Officers—instructions where mayor indicted for breach of duty. On trial of the mayor of a city under an indictment charging a breach of official duty in failing to suppress gambling and the operation of slot machines, an instruction based on the language of the Cities and Villages Act, R. S. Ch. 24, Art. 2, Sec. 14, concerning the liability of mayors to indictment, is not erroneous.
    5. Officers—keepers of slot machines as accomplices of mayor. On the trial of the mayor of a city indicted for breach of official duty in failing to suppress the operation of slot machines, an instruction stating in substance that certain keepers of slot machines, testifying for the state, were accomplices and therefore their evidence should be acted upon with caution, is properly refused since such witnesses are not, as a matter of law, accomplices.
    6. Criminal law—instructions. An instruction that it is the duty of a jury to find the defendant guilty, if from all the evidence they are satisfied of his guilt beyond a reasonable doubt, omitting to add, “as charged in the indictment,” works no injury where on taking the instructions as a series and the evidence the jury must have understood that if they found the defendant guilty, they must find him guilty “as charged in the indictment.”
    7. Criminal law—instructions. An instruction advising a jury that they are “the sole judges of the weight to be given to the testimony of the defendant,” and that in judging its weight they have the “right to consider the reasonableness of the story he tells,” is not misleading and does not erroneously single out defendant, particularly when an instruction for defendant tells the jury, that defendant is a competent witness and states the law as to what extent the interest of defendant in the trial is to be taken into consideration.
    8. Criminal law—instruction on effect of number of witnesses. An instruction stating that the truth of a disputed fact is not to be determined alone by the number of witnesses, who may testify for or against the same, in a measure invades the province of the jury, and in effect tells them that they cannot determine the truth or falsity of a fact from the number of witnesses who testify in favor or against it.
    9. Criminal law—testimony of the greater number of wit nesses. It is for the jury to determine whether the proof of a disputed fact may be determined alone by the number of witnesses that may testify, for or against the truth of such fact, and if a greater number of witnesses testify to the truth of a fact than testify against it, and all the witnesses are of equal credibility, and no fact or circumstance in evidence either corroborates or refutes the testimony of the witnesses as to such facts, then the jury may determine the truth of the fact upon the ground that more witnesses have testified to its truth than have testified against it.
    10. Criminal law—harmless error. Where it appears from the whole record that substantial justice has been done, judgment will not be reversed by reason of erroneous instructions, provided no prejudice has resulted therefrom.
    Shirley, J., dissenting.
    Error to the City Court of Granite City; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed November 11, 1911.
    Rehearing denied June 10, 1912.
    Edward C. Knotts, for plaintiff in error.
    J. F. Gillham, for defendant in error; W. P. Sebastian, of counsel.
   Mr. Justice McBride

delivered the opinion of the court.

At the June term, 1910, of the City Court of Granite City, an indictment was returned against plaintiff in error, Charles A. Uzzell, the mayor of said Granite City, which contains four counts, the first and third of which charge the defendant with a palpable omission of his official duty, and the second and fourth charge him with malconduct in the discharge of his official duties as mayor.

A change of venue was granted from the judge of the City Court of Granite City to Honorable W. E. Hadley, one the circuit judges of the Third Judicial Circuit. A motion to quash the indictment, and each count thereof, was made by the plaintiff in error, and the same having been overruled, a plea of not guilty was entered, and the trial was had and a verdict returned by the jury, finding the plaintiff in error guilty under each of the four counts of the indictment. Motions for a new trial and in arrest of judgment were overruled, and judgment rendered on the verdict, and the court imposed on plaintiff in error a fine of $75.00 under each of the four counts of the indictment, and entered an order removing him from the office of mayor of said Granite City.

A writ of error was sued out and supersedeas granted, and the ease is now before this court for review.

The principal errors assigned are that the court erred in overruling the motion. to quash the indictment, and each count thereof, and in giving improper instructions on behalf of the people, and in refusing proper instructions offered on behalf of the defendant.

We will first consider the error assigned in overruling motion to quash each of the counts of the indictment. It is insisted by plaintiff in error that each count is double, vague and uncertain, and that neither states the duty of plaintiff in error as mayor, nor any duty as imposed by Statute, therefore no offense is charged. No charge of any duty imposed by ordinance is found in either count, and the prosecution must necessarily rely upon the violation of some statutory duty to warrant and sustain a conviction. The duties imposed upon the mayor by Statute are found in Art. 2, Chap. 24, of the Cities and Villages Act (Hurd’s R. S. p. 311), and Sections 8, 10, 13 and 14, of such Article, are the provisions which have application here.

Section 8 says that the mayor may exercise within the city limits the power conferred upon sheriffs to suppress disorder and keep the peace.

Section 10 provides that the mayor shall perform all such duties as are or may be prescribed by law, or by the city ordinances, and shall take care that the laws and ordinances are faithfully executed.

Section 13 provides that he shall have power, when necessary, to call on every male inhabitant of the city, over the age of 18 years, to aid in enforcing the laws, and ordinances, and to call out the militia to aid in suppressing riots and other disorderly conduct or carrying into effect any law or ordinance, subject to the authority of the governor as commander in chief of the militia.

Section 14 provides, in case the mayor or any other municipal officer shall at any time be guilty of a palpable omission of duty, or shall wilfully and corruptly be guilty of oppression, malconduct, or malfeasance in the discharge of the duties of his office, he shall be liable to indictment in any court of competent jurisdiction, and on conviction shall be fined in a sum not exceeding $1,000.00; and the court in which such conviction shall be had shall enter an order removing such officer from office.

It would serve no good purpose to set out in full in this opinion the various counts of the indictment. After the formal part, the first count charges that the plaintiff in error, being mayor of the City of Granite City, and having been duly elected and qualified, unlawfully did wilfully and intentionally fail and omit to perform his official duty as mayor of said city, in that he did wilfully and intentionally fail, neglect and omit to use any effort and to make any endeavor or attempt whatever to stop gambling and the operation of slot machines,. which said gambling was then and there in progress, and said slot machines then and there being operated in violation of the laws of the state of Illinois, at various places in said city of Granite City by Fred Fuger, Harry Bricher, George Coke, Pete Radcliffe, Robert Burns, William Cool, K. A. Mitsareff, James Brittain and Steve Lovas; he, the said Charles A. Uzzell, then and there acting in his official capacity as mayor of said city, as aforesaid, and then and there well knowing that said gambling was then and there in progress, and said slot machines then and there being operated in said city, contrary to the law of the state of Illinois, also then and there well knowing that it was his official duty as mayor of said city to use all means in his power to stop said gambling and said operation of slot machines; and so the grand jurors charge that the said Charles A. Uzzell, mayor of the city of.Granite City aforesaid, in manner and form aforesaid, is guilty of a palpable omission of Ms official duty, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the said people of the state of Illinois.

The same objections that are urged to this count of the indictment are urged to each of the other counts of said indictment, in tMs, that they are bad for duplicity and are vague and uncertain.

Replying to the charge that the various counts are double, vague and uncertain, it is insisted by counsel for defendant in error that in each count there is only one breach of duty charged, and that it is not improper to specify a series of acts constituting that breach.

If the pleader in drawing the indictment alleges a series of acts, and said acts as a series constitute but one offense, it does not necessarily make the indictment bad as being double. It is true only one act may be sufficient to charge a breach or make the mayor of the city guilty of a palpable omission of duty or malconduct, but if the pleader sees fit to charge a number of acts, all of which, when considered together, constitute an offense as provided by the Statute, we are not prepared to hold that for that reason the indictment ought to be quashed.

The indictment, and each count thereof, contains all the elements necessary to constitute the offense that it is contended the plaintiff in error has committed. While each count of the indictment may contain surplusage, yet the mere fact that they do does not make them duplicitous. Considering all counts of the indictment in connection with Section 14, of Article 2, of said Chapter 24, of the Revised Statutes, heretofore quoted, we are of the opinion that the counts, and each of them, are sufficient to properly apprize the accused of the nature of the offense with which he is charged, and that the offense is stated so plainly that its nature may be understood by the jury.

“Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury. ’ ’ Paragraph 408, Chapter 38, Criminal Code. From the language of the statute just quoted it necessarily follows that the indictment is sufficient, even though not in the language of the statute, if it states the offense charged so plainly that its nature may be easily understood by the jury, and which contains every material and substantial fact required to complete the offense, and the counts are not double. From the indictment, the plaintiff in error was apprized fully of the nature and character of the charge that he was tried for. The charge was so definite and specific and gave him sufficient information that he was in a position to prepare his case for trial. “Where statutes create offenses, indictments should contain proper and sufficient averments to show a violation of the law. * * *”

“These great niceties and strictness in pleading, should only be countenanced and supported when it is apparently that the defendant may be surprised on the trial, or unable to meet the charge, or make preparation for his defense, for want of greater certainty, or particularity in the charge. Beyond this, it tends more to the evasion than the investigation of the charge, and becomes rather a means of escaping punishment for crime, than of defense against the accusation.” Cannady v. People. 17 Ill. 158; White v. People, 179 Ill. 356-360.

While we are of the opinion that there is language used in each count of the indictment that could have been dispensed with, yet we are convinced that it does not make the indictment, or any of the counts thereof, bad, because of the fact that the pleader specifies a series of acts that constitute each breach charged. We therefore are of the opinion that the ruling of the court in overruling the motion to quash the indictment, and each count thereof, was right.

It is insisted by plaintiff in error that several instructions given on the part of defendant in error are erroneous.

It is argued that instructions one and four of defendant in error are erroneous because they inform the jury that it is their duty to find the defendant guilty if from all the evidence they are satisfied of his' guilt, beyond a reasonable doubt, and omits “as charged in the indictment.” Taking the instructions as a series and the record as presented in this case, it cannot, with any degree of seriousness, be argued that the jury did not understand that if they found the defendant guilty, they must find him guilty “as charged in the indictment.” The omission of the words “as charged in the indictment” in these instructions works no injury to the plaintiff in error.

Instruction No. 2, given for defendant in error, is based on the language of Section 14, of Article 2, Chapter 24, of the Revised Statutes, which section was previously set out in this opinion, and is not erroneous.

Instruction Number 6 of defendant in error, while it would not have been error to refuse the same, we are unable to see where it could have worked any harm to the plaintiff in error in this case.

Instruction Number 8, given on the part of the defendant in error, advised the jury that they are “the sole judges of the weight to be given to the testimony of the defendant,” and that in judging its weight they have “the right to consider the reasonableness of the story he tells.” It is insisted that this instruction unduly singles out plaintiff in error, and for that reason the instruction is erroneous. So far as we are advised it has been the uniform practice since the adoption of the statute to give instructions which have application only to the evidence given by defendants on trial, and the propriety of such practice seems to have been recognized in the case of Bressler v. People, 117 Ill. 422, and numerous other cases. In the case of Dunn v. People, 109 Ill. 642, the jury were told with reference to the defendant’s testimony that they had “a right to take into consideration his manner of testifying, the reasonableness of his account of the transaction, and his interest in the result.” The court said, “The rule applied to the defendant may be adopted in regard to the testimony of any witness called to testify in the case, and no error is perceived in this charge to the jury.” This instruction, read in connection with instruction Number 1, given on the part of plaintiff in error, which tells the jury that the defendant is a competent witness, in his own behalf, and also informs them that they may take into consideration the fact that he is the defendant, and interested in the result of the trial, give to the jury the law correctly as to what extent they are to take into consideration the interest that the defendant had in the result of the trial and we do not think that instruction Number 8, in any manner, misled the jury.

Plaintiff in error also insists that refused instructions 1 to 5 inclusive should have been given, and that the court erred in refusing each of them. We deem it necessary to consider only the first and fifth refused instructions. The first refused instruction starts out by telling the jury that the truth of the disputed fact, or facts, is not to be determined alone by the number of witnesses who may testify for or against the same. The law is that it is for the jury to determine whether the proof of a disputed fact may be determined alone by the number of witnesses that may testify for or against the truth of such fact. That if a greater number of witnesses testify to the truth of a fact than testify against it, and all the witnesses are of equal credibility, and no fact or circumstance in evidence either corroborates or refutes the testimony of the witnesses as to such fact or .facts, then the jury may determine the truth of the fact upon the ground that more witnesses have testified to its truth than testified against it. This instruction, in a measure, invades the province of the jury, and in effect tells them that they cannot determine the truth or falsity of a fact from the number of witnesses who testify in favor of or against it.

We are inclined to the opinion that it was not error to refuse this instruction.

Refused instruction Number 5, announced in substance, that Fuger, Radcliffe, Bricker, Brittain, Coke and Grottselig were accomplices, and therefore their evidence should be acted upon with much care and caution. It will be seen by this instruction that the jury are told that these witnesses were accomplices. In some jurisdictions it has been held that where an instruction is offered instructing the jury how they should act upon and receive the testimony of accomplices, it should be done in such a way as to leave the question whether the witnesses are accomplices to be determined by the jury. This precise question, so far as we have been able to ascertain, has not been passed upon in this state by the court of last resort. This instruction, within itself, undertakes to confine the jury to a particular part of the evidence alone. The jury should be left to determine the case from the whole of the testimony. We are not prepared to say that these witnesses are, as a matter of law, accomplices of the plaintiff in error, and the trial court committed no error in refusing this instruction.

Other errors are assigned which are not discussed and are therefore waived. Where it appears from the whole record that substantial justice has been done, judgment will not be reversed by reason of erroneous instructions provided no prejudice has resulted therefrom. People v. Anderson, 239 Ill. 168; Dacey v. People, 116 Ill. 555,

If the jury believed the evidence of the witnesses for the prosecution, they were justified in returning the verdict that they did. The jury saw the witnesses, and were in a position to observe their manner and demeanor while testifying, and under an instruction, given by the plaintiff in error, it was pointed out the test that should properly be applied to the witnesses in determining what weight and credit should be given them.

We are therefore of the opinion that the jury were fully instructed as to the law of this case, and if they believed the witnesses for the people, they were justified in finding the defendant guilty.

The judgment of conviction therefore is affirmed.

Affirmed.

Shirley, J.,

dissenting. In my opinion the witnesses named in instruction number five asked by plaintiff in error and refused were accomplices, and the jury should have been instructed as to the weight and credit to be given their testimony. When such witnesses testified they were as they testified particeps criminis with defendant in the commission of the alleged crimes and were, so far as their credibility as witnesses was concerned, accomplices, and it was not necessary the jury should believe from the evidence they were actually such. They testified as such and this was sufficient to entitle defendant to an instruction as to what weight and credit the jury should give their testimony as accomplices. As I understand the opinion if holds' the instruction should have left it to the jury to determine whether they were actual accomplices, and if the jury found they were then their testimony should be weighed as such. By this reasoning the jury would have to believe the defendant guilty before they could weigh their testimony which seems to me illogical. These witnesses were not on trial themselves but were only witnesses. The instruction should have been given and its refusal in this case was highly prejudicial to plaintiff in error.


author: Mr. Justice McBride

text:
    John Vaughn, Appellee, v. O’Gara Coal Company, Appellant.
    1. Appeals and errors—harmless error. An instruction permitting a jury to pass upon the credibility of witnesses by considering the surrounding circumstances appearing on the trial is improper, but is not reversible error, where nothing is shown to have appeared upon the trial, outside of the evidence, that was calculated to influence the jury, and nothing appeared in the record that could possibly have such effect.
    2. Appeals and errors—harmless error. The giving of instructions in a personal injury case referring to the declaration for the charges contained therein and permitting the jury to determine that question is not reversible error where the counts contain the necessary allegations for recovery, and no claim is made of the insufficiency of such counts.
    3. Mines and miners—Instructions. In an action by a miner for injuries alleged to have been sustained by reason of violation of the Mining Act, it is not erroneous to incorporate such statute in an instruction.
    4. Mines and miners—that mine examiner did not appreciate danger will not excuse failure to mark a dangerous place. Where a miner is injured by the fall of roof, the fact that a mine examiner who saw the condition of the room did not appreciate the danger will not release the employer from liability if a dangerous condition did in fact exist and the mine manager wilfully failed to mark it.
    5. Master and servant—contributory negligence. Where a declaration charges a wilful violation of the Mining Act an instruction that under the charges in the declaration the plaintiff, a miner suing for . personal injuries, was not required to show that he was in the exercise of due care for his own safety, states a proper legal proposition.
    6. Mines and miners—only necessary to prove one count where several counts charge distinct acts of negligence. Where there are two counts in a miner’s declaration, each charging a distinct wilful' violation of the Mining Act, an instruction that it was not necessary for the plaintiff to prove both counts, but that if he proved either he was entitled to recover, states a proper legal proposition.
    7. Mines and miners—instruction as to custom in mine of ordering timbers. In action by a miner for injury from his employer’s alleged wilful violation of the Mining Act, in not furnishing timbers to prop an unsafe roof, an instruction referring to the custom of ordering timbers through the drivers when needed and of such timbers being cut to the proper length by timbermen and of such order being a legal demand for timber may be proper.
    8. Mines and miners—when custom, in ordering props compels employer to furnish same in compliance with statute. Where it was a custom in a mine for miners to order props and for timbermen to cut them into proper lengths when they are delivered to the place where needed, it cannot be contended that since a miner did not give any directions as to the number of props he wanted, or their dimensions, the furnishing of any kind of a reasonable prop would comply with the Mining Act.
    9. Mines and miners—evidence sufficient to go to jury. Where a miner is injured by falling roof and there is evidence that the slip in the roof appeared a few days before the injury and was in a dangerous condition, that the mine examiner said that it ought to be propped and that the mine manager and others knew it was dangerous, a jury is warranted in finding that a dangerous condition existed and that the mine examiner saw the condition of the room and wilfully failed to mark it as a dangerous place, even though he did not appreciate the danger.
    10. Witnesses—contradiction. An alleged statement of a witness is not admissible for the purpose of contradicting his testimony where it does not appear that he signed it, or that it contains the declarations exactly as he made them, or that it is in his handwriting or that it was made upon the same paper that was shown to him.
    Appeal from the City Court of Harrisburg; the Hon. A. E. Somers, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed March 21, 1912.
    Rehearing denied June 13, 1912.
    M. S. Whitley, for appellant; Mastin & Sherlock, of counsel.
    H. Robert Fowler and John L. Thompson, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment of fourteen hundred dollars recovered by appellee in the City Court of Harrisburg, Illinois.

On the 15th day of November, 1910, appellee was engaged at work in room No. 16 off the 9th west entry, off the south, in appellant’s coal "mine No. 4 at Harrisburg, Illinois, and while so at work a part of the roof fell upon appellee and injured him. It is claimed by appellee that this clod was about eight feet long, five or six feet wide, and by some of the witnesses that it was two or three inches thick and that it came from a slip, or roll as some of the witnesses denominated it. As a result of this fall appellee’s ankle was broken and he was otherwise bruised, but as we take it, no permanent injury excepting a partial loss of the lateral motion of the foot. It appears from the testimony of some of the witnesses that this slip or roll made its appearance in the room three or four days before the accident, and that it constituted a dangerous condition in this room and was not marked so as to indicate that it was dangerous. The evidence discloses that it was the custom at that mine to order props from the driver or mine manager, and that when the props were sent into the room, timbermen came in and cut the props a suitable length for the room. The evidence further discloses that the appellee and his buddy demanded props and cap pieces for this room at several different times but that the appellant failed to send any props to the room until about noon of the day of the injury, which occurred about 2:30 p. m. and at that time they had not been cut by the timberman of the proper length for the room, and were too long to be used as props in the room.

There are two counts in the declaration, each charging a wilful violation of the statute. The first count charges that a dangerous condition existed in the roof of the room in which appellee was engaged at work, and that such dangerous condition could have been discovered if defendant had made a reasonably, careful examination of said room, and that the defendant wilfully failed to place a conspicuous mark at the dangerous slip or place in appellee’s working place, and wilfully allowed the plaintiff to enter said mine not under the direction of the mine manager.

The second count charges that there was an unsafe condition in the roof of plaintiff’s working place necessary to he propped. That it was the custom in appellant’s mine to order props, cap pieces and timbers through the drivers when needed, and the timberman would then and there cut them in proper lengths. That appellee demanded props and cap pieces of the driver to be delivered to him on the miner’s car in proper length, a reasonable and sufficient length of time before the injury to enable the defendant to furnish the props and cap pieces, but that it wilfully failed so to do, and that by reason thereof appellee was injured.

A motion was made by appellant to strike appellee’s statement, brief and argument from the files and reverse the judgment because of improper remarks contained therein, and appellee has filed a suggestion that there is nothing in the record showing that all of the instructions are included therein. We have considered the motion and the suggestion but the motion will be overruled, and the suggestion made is not concurred in by this court.

At the conclusion of the plaintiff’s evidence and all of the evidence in the case, appellant entered its motion to exclude the evidence and direct a verdict as to each of the counts in the declaration, and insists that the court erred in not giving the instruction. To say the least of it, there was evidence in this case tending to show that a dangerous condition existed in the roof of appellee’s room, that it was necessary for the safety of appellee and his buddy to prop this place; that it was the custom in that mine to demand props of the driver and for a timberman to come to the room and saw the props of proper lengths; that the appellee and his buddy did on several occasions and on different days prior to the date of the accident demand props and cap pieces to prop the roof of his room; that appellant failed to deliver such props and cap pieces of proper dimensions to be used in propping the roof of the room; that if the props had been delivered at the times demanded the roof of the room could have been secured, and that as a result of the failure to supply the props and cap pieces a part of the roof fell upon appellee and injured him, and we think the court did right in overruling appellant’s motion to direct a verdict as to that count of the declaration. As to the other count of the declaration, the evidence tends to prove that a dangerous place existed in the roof of appellee’s room and that appellant failed to place a mark thereat indicating that it was dangerous, and suffered the appellee to enter the; room not under the direction of the mine manager, in violation of the statute, and the court did not err in refusing this instruction. This question, however, will be more fully discussed in connection with the instructions which raise the question as to the sufficiency of the evidence to sustain a verdict.

It is next urged that the court erred in giving many of the instructions offered in behalf of appellee. Many of the criticisms offered are without merit and only such of them as we think materially effect the question involved herein will be considered. The criticism' upon the first instruction is that as it relates to the credibility of witnesses, there is embodied in it, after directing the jury that they may consider their manner of testifying, their apparent candor and faittiess, their apparent intelligence or lack of intelligence, “and from all the other surrounding circumstances appearing on the trial,” determine which witnesses are the more worthy of credit. It is said that this gives the jury the privilege of considering the surrounding circumstances appearing upon the trial, which is true, and we think the giving of the instruction containing that clause was improper but do not believe it is reversible error, as nothing is shown to have appeared upon the trial, outside of the evidence, that was calculated to in any manner influence the jurors and we see nothing in the record that could possibly have this effect upon the jury, and this also applies to the criticism offered to instruction No. 4.

We see no error in instructions Nos. 2 and 3.

Again it is urged that it was erroneous to incorporate the statute in instruction No. 5 ; this was held to be proper in the case of Donk Bros. Coal & Coke Co. v. Peton, 192 Ill. 41.

The sixth and seventeenth instructions are criticised because they refer to the declaration for the charges contained therein, and permit the jury to determine that question. While the practice of giving such an instruction is not to be commended, it is said by our Supreme Court that it is not reversible error where the counts contain the necessary allegations for recovery. No claim is made of the insufficiency of these counts. Belskis v. Dering Coal Co., 246 Ill. 62. The other criticisms upon these instructions are not well taken.

It is said that the seventh and eighth instructions should not have been given because in the seventh instruction the jury are told that under the charges in this declaration the plaintiff was not required to show that he was in the exercise of due care for his own safety; and in the eighth instruction that it was not necessary for plaintiff to prove both counts but that if he proved either he would be entitled to recover. We see nothing wrong with these instructions. They both state proper legal propositions.

It is urged that the ninth, twelfth and thirteenth instructions were improperly given because they gave the jury too much latitude in the assessment of damages. An examination of these instructions will show that in each one the damages- are limited to such as appear from the evidence, and this objection is without merit.

The fifteenth instruction is criticised because of its reference to the custom of ordering timbers by the miners, and such, timbers being cnt the proper length by the timbermen, and because the instruction at its conclusion says this would “certainly” constitute a legal demand, etc., for timbers. An examination of the original instruction in the record shows that this word “certainly” is not included therein, and that the printing of it in the abstract is an error. We think it was proper to give the instruction with reference to the custom and upon reference to appellant’s 18th instruction it will be found that it also incorporated this idea of custom therein. We think the principle embodied in these instructions is recognized in the case of Vindas v. Dering Coal Co., 145 Ill. App. 528.

Again it is claimed that the court erred in refusing appellant’s first, second, third, fourth and fifth instructions; the first, second and third of these em-' bodied substantially in the appellant’s' 18th given instruction. We see no reason why the fourth instruction might not have been given but its refusal is not error. The fifth instruction was too limited in the matters to be considered in determining the credit to be given to the testimony of John Vaughn. He was entitled to not only the matters stated in the instruction but also to all other facts and circumstances appearing in evidence in the case. All other criticisms made upon these instructions have been substantially disposed of by the principles laid down in this opinion, except as to instruction No. 11 given on behalf of appellee, and this instruction in fact raises the question as to the liability of the appellant under the first count of this declaration. To properly pass upon this instruction it will be necessary to review a portion of the evidence offered in this case with reference to the condition of the place. The evidence of the appellee’s witnesses is, that the roll or slip in the roof had made its appearance three or four days before the injury, and that the roll or slip was a dangerous condition and liable to fall at any time. That Meacham, the mine examiner, said to Vaughn that, “we ought to get some props and timbers in that room and timber it up.” The mine manager, Geo. Jacobs, testified that a slip may sound like it is solid and may fall in a little while and that he saw this after the fall and it looked like a kind of a slip, and- said, “It is a thing that would sound solid at one time and maybe then a very short time drop out, and such are dangerous places in a room.” Several other witnesses testified that a fault of this character was dangerous; while some of these statements are contradicted by witnesses for, appellant, and while the mine examiner says he did not see any dangerous condition there, we are unable to say that the jury was not warranted in finding that a dangerous condition did exist and that the mine examiner saw the condition of the room, and whether he appreciated the danger or not this would not relieve the appellant if a dangerous condition did in fact exist, and the mine examiner wilfully failed to mark it. The effect of appellant’s eleventh instruction and appellee’s thirteenth instruction is that if under such circumstances the mine examiner did wilfully fail to mark the dangerous place, if it existed, then a liability would attach. It is said by the Supreme Court in the case of Aetitus v. Spring Valley Coal Co., 246 Ill. 41, “These cases are sufficient to show that under the established construction given to the word ‘wilful’ in this statute the questions of the existence or non-existence of good faith or the presence or absence of an intention to comply with the statute on the part of the operator are not involved.” The evidence in this case at least tends to show that Meacham, the mine examiner, knew the condition of the roof of that room, and whether he regarded it as being dangerous or not could make no difference, as in the case last above cited the court says, “When the mine owner or operator is advised of the conditions in the mine he must place in the mine, if it is dangerous, the statutory marks, and if he fails to do so he acts at his peril and he can not excuse himself because he or his examiner or manager may think the mine safe. To so hold would be to permit the mine owner or operator or his examiner or manager to usurp the functions of the court and jury and to pass upon a question which, in every case like this,. is a matter of proof and is to be determined as a fact by the jury.” And this doctrine is recognized in the case of Olson v. Kelly Coal Co., 236 Ill. 502. We are satisfied from the evidence that the jury was warranted in finding that a dangerous condition existed in the room in question, and that it was not marked, and that it was wilful negligence to permit the appellee to enter this room except under the direction of the mine manager until this dangerous condition had been repaired.

Again it is insisted that as the appellee' did not give any directions as to the number of props he wanted, or their dimensions, that any kind of a reasonable prop could be furnished and that would comply with the statute under the decisions of the Springfield Coal Mining Co. v. Gedutis, 227 Ill. 9, and Hackart v. Decatur Coal Co., 243 Ill. 49. We do not regard these cases as having any application where it is shown that a custom exists with reference to the furnishing of props and their preparation by the Company after haying been placed in the room. Those cases simply permit the miner, where a bad condition exists in his room, to determine for himself the particular kind of timber that he needs to use but we think have no application to the facts as involved in this case. If the appellant had been employed to go from room to room and prepare the props that were sent down to be used, then it had knowledge of the fact that the props were not of the proper dimensions but had to be made so.

It is claimed that the court erred in refusing to admit in evidence the statement of Uhl Jennings for the purpose of contradicting his testimony. It does not appear that Jennings signed this statement or that it contains the declarations exactly as he made them or that it is in his handwriting or that it was made upon the same paper that was shown to the witness. We think the ruling of the court in excluding this statement was correct.

Many objections have been raised and urged for a reversal of this judgment. It would be entirely too •tedious and unnecessary to undertake to answer all these objections at length. We have examined and passed upon the principal ones and as the jury has found that the appellant was guilty of wilful negligence as charged in the declaration, we can not say that its verdict is manifestly against the weight of the evidence or that the court committed reversible error in any of its rulings, and the judgment of the lower court is affirmed.

Affirmed.


text:
    William Kammann, Appellee, v. St. Louis & Northeastern Railway Company and St. Louis, Spring-field & Peoria Railroad, Appellants.
    1. Railroads—when statutes applicable to electric railroads. Statutes passed to govern railroads are applicable to electric as well as steam railroads, unless it is apparent that they are not reasonably so.
    2. Railroads—statutory provisions. An electric car does not come within the provision of R. S. chap. 114, § 68, requiring a bell of at least thirty pounds weight and a steam whistle to be placed and kept upon each locomotive engine.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. Louis Bernreuter, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed March 21, 1912.
    Rehearing denied June 13, 1912.
    Terry & Gueltig, for appellants; George W. Burton and N. C. Dillon, of counsel.
    C. N. Burton, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

This is an appeal from the Circuit Court of Madison county prosecuted to reverse a judgment of nineteen hundred dollars, secured by appellee and against the appellants in said court.

The facts in general are, that appellee was hauling a load of wheat over the highway that crossed the appellants railroad, and while crossing the road he was injured by appellant’s car. It is claimed by appellee that appellants were operating upon its railroad an electric car, and that while he was in the exercise of due care the appellant was guilty of negligence in running into and upon appellee’s team and wagon with its electric car. It is also claimed that appellant failed to equip its car with a bell of at least thirty pounds weight, and a steam whistle placed and kept on its locomotive engine, and by reason of the failure of appellant to comply with Section 68 appellee was injured. Appellant’s car was not equipped with such bell or steam whistle and did not blow its whistle and ring its bell at a distance of eighty rods from the crossing, as required by such statute.

The first amended count of plaintiff’s declaration charges the appellant with common law negligence in that it so carelessly, negligently and improperly by its servants drove its car, propelled by electricity, across the public highway; that the said car then and there ran and struck with great force and violence upon and against the wagon in which plaintiff was riding, whereby he was injured, etc.

The second amended count charges that the defendant was then and there possessed of a certain car, propelled by electricity, and driven by its servants over and across a certain public highway, crossed by said railroad about two miles southwest of Hamel, and by so doing no bell of at least thirty pounds in weight, or steam whistle was placed on said car or bell rung’ or whistled by the engineer, fireman, motorman or other person at a distance of eighty rods from said crossing, and kept ringing and whistling until said crossing was reached by said car but therein made default, contrary to the statute in such case made and provided, and in consequence of such default the car ran and struck with great force against the wagon and injured the plaintiff while upon said highway, and while he was in the exercise of due care for his own safety.

After the evidence and argument of counsel the court instructed the jury for the appellee that, “It was the duty of the defendants to cause a bell to be rung or whistle to be blown on their car at a distance of at least eighty rods from the place where the railroad crosses or intersects the public highway in question, and keep the bell ringing or said whistle blowing until said highway was reached;” and refused the following instruction offered by appellants, “The court instructs the jury, that the car which came in collision with the team of plaintiff was an electric car and was not a locomotive engine operated by steam; that the law did not require that a bell of thirty pounds weight or a steam whistle placed on said car be rung or whistled at a distance of at least eighty rods from said crossing and kept ringing or whistling until the said crossing was reached by the said car.”

The case was tried upon the theory that it was the duty of the defendant to carry a bell of at least thirty pounds weight, and a steam whistle kept and placed on its locomotive engine, etc., and to this question much argument has been offered by counsel for appellant and appellee. Several other errors were assigned and argued but as we view the law, in this case, it is not necessary to determine but the one question and that is whether or not appellant’s electric car in its operation came within the provision of Section 68, Chapter 114 of the Revised Statutes, which required a bell of at least thirty pounds weight and a steam whistle to be placed and kept upon each locomotive engine; in fact counsel for appellee, in the argument of the case, stated that if the said Section 68 does not apply to a car of this character that then there is reversible error in the record.

The statute in question was adopted for the governing of railroads many years before the operation of cars on such railroads by electricity was in vogue; this, however, did not prevent its application to new methods or means of transportation on railroads so far as such statute was applicable to such means and methods, but as soon as it becomes apparent that some of the methods and means adopted do not come within the provision of such statute, by any reasonable construction or application to its provision, then the courts would not be warranted in requiring improbable, if not impossible attachments to new inventions or modes of travel, to adapt them to the provision of such statute, or abandon such increased facilities of travel because of their inability to do so. We are referred to the decisions of this court in the case of Roy, v. East St. Louis & Suburban R. R. Co., 119 Ill. App. 313. This was an action arising by reason of the Interurban R. R. Co. failing to stop its car “when approaching a crossing with another railroad upon the same level,” as provided in Section 75 of Chapter 114. We can find no fault with this decision as it was a reasonable requirement, of the appellant, to stop its car before reaching the other railroad, as provided by said Section. No reason exists why an electric car should not stop before crossing another railroad, as well as a steam locomotive.

The case of Malott v. Collinsville, Caseyville & East St. Louis Electric R. R. Co., 108 Fed. Rep. 313, 47 C. C. A. 345, was where the electric road was trying to secure a grade crossing over the Vandalia Bailroad at Caseyville, and in discussing the question as to whether or not this statute was applicable to electric roads, as well as steam railroads, the court very properly held that it was not unreasonable to require, electrie railroads to comply with the statute in that regard.. Counsel for appellee contends that the same reasoning will lead inevitably to the conclusion that appellants operating an electric railroad are bound to comply with section 68 of the same act, and equip their cars with “a bell of at least thirty pounds weight and a steam whistle placed and kept on each locomotive engine.” We do not believe that either one of the cases cited are decisive of the question presented in this case, for the reason that an electric road could as readily comply with the provision referred to in those cases, and were as well equipped to comply with such provision as steam railroads, and would not constitute an unreasonable requirement of such electric roads, and would not in any manner impede their operation or impose upon them an unnecessary burden, and we think the principles governing the cases cited are far from having any application to the question presented in this case. To comply with this statute the electric railroad would have to equip each car with a boiler and fire or other device to be used in generating steam so as to secure the “steam whistle” provided for; such an equipment is wholly foreign and the scheme or mode of operating such cars is not reasonably ‘applicable, and this or something of a kindred character must have been in the mind of the writer of the opinion relied upon in the case of Malott v. Collinsville, Caseyville & E. St. L. Electric R. R. Co., supra, as he says, “we cannot conceive that these acts, so far at least as they are reasonably applicable, were not meant to cover every form of railroad that in the march of events answers the purpose of general transportation,” and in using the words “so far as applicable” he certainly realized that some of the provisions of the statute were not applicable in all respects to electric railroads.

Because of the recent development in electric railroads the question here presented has not been, as we have been advised or able to ascertain, often passed upon by the courts of the several states. It has been, however, decided by the Supreme Court of Massachusetts, in the case of Fallon v. West End Street R. R. Co., 171 Mass. 249, that under the laws of 1887 making the employer liable for injuries to an employee resulting from negligence of a fellow employee in charge of “a locomotive engine or train upon a railroad” relates to those operated or originally intended to be operated to some extent by steam, and does not include electrically propelled cars on street railroads. And the case of Indianapolis & G. Rapid Trans. Co. v. Andis, 33 Ind. App. 625, decides that under the employers liability act of March 4, 1893, providing that every railroad or other corporation shall be liable for damages for personal injuries suffered by an employee where the injury was caused by the negligence of any employe in charge of any signal, telegraph office, “locomotive engine, or train upon a railroad,” does not apply to employees operating electric cars, such a ear not being a “locomotive engine' or a train upon a railroad,” within the meaning of the statute. While we are of the opinion that a car operated upon a railroad by electricity is not by this statute required to provide itself with a steam whistle or a thirty pound bell, it is not to be inferred that the defendant operating such car is to be absolved from liability in not giving warning to persons upon the highway crossing its road as there is a duty devolving upon such persons to give reasonable and proper warnings of their approach at all highway crossings or other places where persons may be expected to cross their track.

We are of the opinion that in as much as this case was tried upon the theory that the defendant must equip its car with a steam whistle and a bell of thirty pound weight, as provided by section 68, that such theory was erroneous and because of this error the judgment cannot stand, and is reversed and remanded with directions to proceed with the case in conformity with the views herein expressed.

Reversed and remanded.


text:
    The City of Carmi, Appellee, v. August Miller, Appellant.
    1. Cities and villages'—construction of ordinances. Although, the statute granting power to pass an ordinance must he strictly construed, the ordinance passed in pursuance thereof, if such power he found, should be liberally construed, so as to give it the effect. intended, if possible.
    2. Cities and villages—protection of pavements. An ordinance requiring that a person crossing a pavement with a traction engine must place two inch boards under the wheels thereof, which is silent as to the length and width of such boards, is not unreasonable or indefinite, as any one would conclude that it was his duty to keep two inches of board between the wheels of the engine and the pavement.
    Appeal from the Circuit Court of White county; the Hon. William H. Green, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed June 5, 1912.
    Noah C. Bainum, for appellant.
    Phil E. Whiting, Roy E. Pearce and Kern & Pearce, for appellee.
   Mr. Justice McBride

delivered the opinion of the court.

In this case the appellee recovered a fine of fifty dollars against the appellant in the Circuit Court of White County for a violation of ordinance 202 passed by the appellee, entitled “An ordinance regulating the running of traction engines on and across brick and other improved streets, and providing for penalties for the violation of the same.”

Section One provided, “That it shall be unlawful for any person or persons to run any traction engine on or across any brick or other improved street within the City of Carmi without placing two inch boards under the wheels of the same.”

Section Two provides that, “Any person or persons violating the provisions of this ordinance shall be fined not less than fifty dollars and not more than two hundred dollars for each offense.”

The case was heard upon a stipulation of facts as follows, “It is hereby agreed and understood by and between the parties in the above entitled cause that on the 27th day of Jnne,. 1911, one August Miller violated ordinance 202 of the City of Carmi, Illinois, by driving a traction engine on a brick paved street, Church street, in Carmi, Illinois, contrary to said ordinance; that no damage was done to said street and that on the 29th day of June, 1911, complaint was made by one George Daniels before the police magistrate of Carmi, Illinois, that said August Miller had violated said ordinance 202 as above, and that thereupon a warrant was issued for the arrest of said August Miller, and that he was duly apprehended by virtue of said warrant and a trial had which resulted in said August Miller being discharged, whereupon ah appeal was prayed by said City of Carmi to the October Term, 1911, of the White County Circuit Court of White County, Illinois.

It is further admitted that said ordinance No. 202 is in the words and figures as above set forth.” And thereupon the Circuit Court entered a judgment against appellant for fifty dollars.

The errors assigned are, that the court erred in admitting ordinance No. 202, in assessing a fine against the defendant and in entering judgment against the defendant. These errors, however, are covered by the complaint made by appellant that the court erred in permitting the ordinance to be introduced in evidence “for the reason it is unreasonable, uncertain and indefinite in its meaning and leaves a discretion as to how its terms shall be met by persons upon whom it is to operate and the discretion as to how it shall be enforced against persons violating its terms, by the appellee and its officers.”

We regard the authorities cited by counsel for appellant in Ms brief in support of the doctrine that the power to pass an ordinance and impose a penalty must be strictly construed where any doubt exists as to the legislature having granted this power to the city, as announcing a correct rule, but when it appears that the power is granted to the city and an ordinance is passed in pursuance of the power granted, and within the power, then as to the construction of such ordinance a different rule prevails and the ordinance should be liberally construed so that the effect intended by the city shall be given to the ordinance, if possible.

Dillon on Municipal Corporations, Vol. 1, Sec. 420, says: “In prosecutions or actions to enforce ordinances or in considering the question of their validity, courts will give them a reasonable construction and will incline to sustain rather than overthrow them, and especially is this so where the question depends upon their being reasonable or otherwise; thus, if by one construction an ordinance will be valid and by another void, the courts will, if possible, adopt the former.” The legislature has granted to cities the right to improve its streets and alleys and to regulate the use of the same. Sec. 62 of Chapter 24, Hurd’s Revised Statute. C. & V. R. R. v. People, 92 Ill. 170. The ordinance in question must be construed in the light of the principles above set forth.

It is contended by counsel for appellant that the ordinance is unreasonable, indefinite and uncertain in that it prohibits the passmg of any traction engine on or across any brick or other improved street, “without placing two inch boards under the wheels of the same;” that because the requirement given for the placing of two inch boards under the wheels leaves it to the discretion of the owner of the traction engine what kind of boards he should use, and its uncertainty in other respects makes it indefinite and delegates a power to him to use the kind of boards he wishes so that they have the qualification of two inch. He insists that some might use boards three feet long and ten inches wide, and others might use boards of different lengths and widths, and that a discretion vests in the owner of a machine as' to the character of boards or planks that he may nse. In the construction of this ordinance it should be kept in mind the object to be attained by the city council, which was to preserve the pavement and for the city council to have said that every man attempting to use a traction engine should place under the wheels a board ten feet long and a foot wide and two inches thick would be much more unreasonable than to permit the owner to use such boards as he may possess provided they were sufficient for the purpose intended, and' preserved the pavement. We do not think that because the manner of preserving the pavement is not described by the ordinance in detail, that it is susceptible of being construed as a delegation of power, any more than to say that all buildings within the prescribed limits of a fire district shall be made or constructed of fire proof materials, without describing the particular kind of materials to be used, and an ordinance of this character was sustained in the case of King v. Davenport, 98 Ill. 305. It does not seem to us that any one desiring to use the pavement could be misled as to the meaning of this ordinance, which prescribed that they should place two inch boards under the wheels of the machine; board is defined by Webster as being “a piece of timber, sawed thin and of considerable length and breadth as compared with the thickness used for building, etc.” The thing sought to be attained is to keep something between the wheels of the machine and the pavement to protect it from being crushed and we think the reasonable reading of this ordinance is, that it is merely required to keep two inches of boards between the wheel and the pavement, and whether they are one foot long or ten feet long could make no difference in fact if they only had the two inches of material under the wheels all the time. In the case of the City of Macomb v. Jones, 158 Ill. App. 271, the ordinance provided that sound, strong planks should be placed under the wheels, and the court in passing upon the validity of that ordinance said, “The unmistakable sense in which said words are used, coupled with the purpose sought to be attained, or the injuries sought to be avoided by the use of sound, strong planks, renders it impossible to misunderstand the duty imposed by said ordinance upon persons operating traction engines on paved streets.”

We are of the opinion that the ordinance introduced in evidence is not unreasonable or indefinite. The requirement of a protection to the pavement is a reasonable one and we think that any person upon the reading of this ordinance would unmistakably conclude that it was their duty to keep two inches of board between the wheels of the engine and the pavement and that it would require a very strict construction of this ordinance to say it was not sufficiently definite. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    George H. Perrine, Defendant in Error, v. Chicago & Herrin Coal Company, Plaintiff in Error.
    1. Mines and mining—damages for coal taken. A verdict finding the amount of coal removed from plaintiff’s land should not he disturbed though not exactly sustained by either party’s estimate where there was a great divergence in the testimony, and the finding is within the range of estimates made.
    2. Damages—when coal is wrongfully mined. In trespass for wrongfully mining coal, the owner is entitled to the value of the coal in its condition as soon as it is detached from the real estate.
    3. Damages—wrongful mining of coal. A jury’s finding that the cost of transporting coal from where it was mined to the top was 25 cents a ton, is not sustained where the lowest estimate in evidence is 44 cents a ton.
    Error to the Circuit Court of Williamson county; the Hon. W. W. Clemens, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 5, 1912.

      Denison & Spiller, for plaintiff in error.
    Neely, Gallimore, Cook & Potter, for defendant in error.
   Mr. Justice McBride

delivered the opinion of the court.

This case was tried by a jury in the Circuit Court of Williamson county, and resulted in a verdict and judgment for the plaintiff for $700, to reverse which this writ of error is prosecuted.

The defendant in error hereinafter called defendant, was the owner of lot five (5) of the assessment survey of the southwest quarter of the northwest quarter of Section thirty (30), Township eight (8) South, Range two (2) east, for which he received deeds in the years 1900 and 1901. The plaintiff in error, hereinafter called plaintiff, held a mining lease on the lands adjoining defendant’s and was engaged in the business of mining and removing the coal from the lands so leased, and in the prosecution of its work during the years 1907 and 1908, mined and removed some of the coal from defendant’s lands. Plaintiff’s mining lease was obtained from Albert Perrine, a brother of the defendant, and plaintiff claimed that his lease by its terms lapped over on the lands of defendant. There is, however, some dispute between the parties about this. When defendant discovered that the plaintiff had been mining the coal underneath his land he so advised plaintiff and plaintiff at that time claimed he knew nothing about any encroachment. Plaintiff, however, claims that after that he had a survey made and found that there was an encroachment upon defendant’s land. Defendant procured an order from court and had the mine surveyed. The plaintiff also had a survey made but there appears to have been a wide difference as to the number of tons of coal that were removed from defendant’s land. Plaintiff’s figures show from four hundred to four hundred eighty-seven tons, while the computation as made by some of the defendant’s witnesses places the amount at six thousand nine hundred seventy tons. A different mode and basis of computation was adopted by the different parties but neither of them were able to state that their computations were exactly correct, and were after all somewhat of an estimate. The jury, however, determined that the plaintiff had mined and removed one thousand tons of coal belonging to the defendant. The value of this coal, loaded on the cars, was fixed at about ninety-five cents per ton, and this was the value adopted by the jury. The cost of the production of the coal, including the transportation, was fixed by some of the witnesses at about ninety-one cents, and by other witnesses at sixty-seven to sixty-eight cents, and some of them in their estimates in the cost of transportation excluded the cost of loading the coal into the pit cars, and others in their estimates included this. The jury, however, found that the cost of transportation was twenty-five cents per ton, and the special findings of the jury constituted the basis of its general finding and the judgment.

The declaration was in trespass and charged that the defendant with force and arms broke and entered the close of the plaintiff without license and dug and removed the coal from his land. To this declaration the defendant filed the general issue. There were three special findings submitted to the jury which were answered by the jury, and are as follows:

“1st. If you find from the evidence that the defendant removed any coal from plaintiff’s premises state how much you find was mined and removed. A. One thousand tons.

“2nd. What was the fair cash market value per ton of the coal at the top of defendant’s mine at the time the coal was so mined and removed from plaintiff’s land if it was so mined and removed by the defendant? A. Ninety-five cents per ton.

“3rd. What was the cost per ton of transporting the coal from the place where it was shot or mined down from its natural location on the plaintiff’s premises to the top of defendant’s mine at the time the coal was mined or removed from the plaintiff’s premises, if it was so mined and removed? A. Twenty-five cents per ton.”

The errors assigned by the plaintiff are, that the verdict and special findings of the jury are contrary to the law and the evidence and that there is no evidence upon which to base such verdicts. That the verdict is excessive. That the court gave improper instructions and erred in refusing to grant a new trial.

The points argued in plaintiff’s brief, however, are more particularly directed to the fact that the special findings and the general verdict of the jury and the judgment of the court are not sustained by the evidence, and that improper remarks were made to the jury by counsel for defendant which were prejudicial to the plaintiff.

The plaintiff in his brief claims that there is no evidence supporting the special findings that it mined and removed one thousand tons of coal from the defendant’s premises. There was great divergence in the testimony of the witnesses as to the amount of coal removed; some estimating as low as four hundred tons and others as much as six thousand nine hundred seventy tons. It is true that the verdict is not sustained exactly by either estimate but it is within the range of the estimates made and we are not disposed to disturb the verdict for that reason.

Counsel for plaintiff and defendant are practically agreed as to the value of the coal which the jury fixes at ninety-five cents per ton. It is insisted, however, very strenuously by counsel for plaintiff that the price of twenty-five cents per ton for transporting the coal, from where it fell when shot down, to where it was loaded upon the cars is not warranted by any evidence in this record, and we agree with the plaintiff that the evidence of plaintiff or defendant does not sustain this finding. The plaintiff below (defendant here) placed John Alexander, manager of the coal mine, upon the witness stand and proved by him that the cost of transporting coal from where it was mined and placed on board the cars was sixty-seven and four-tenths cents; that there was no market for it until it goes up into the hopper and is dumped into the car. The next witness examined upon this question was W. A. Perrine who claimed that he had, at one time, been a stockholder of the defendant and was superintendent and general manager of the Watson Coal Company for several years and that in his judgment it would cost seventy-seven and one-half cents per ton to produce coal in the mines around Herrin, and that in the years 1907 and 1908 it cost about seventy-eight cents per ton and this included the shooting, digging and transporting and that the scale of wages paid to the miner for shooting and loading was forty-eight cents per ton. Robert Morris, another witness of the plaintiff below testified that in 1907 and 1908 the cost of producing coal on the cars at the top of the mine varied from sixty-eight to a little over seventy cents and that at that time it cost forty-eight cents to dig the coal and load it into the pit cars. And this was the substance of the testimony of the plaintiff below upon this question.

P. H. Carrol testified that, where one miner shot the coal and another loaded it, it was the custom to give each of them half of the forty-eight cents allowed for shooting and loading. John Alexander again testified on behalf of the defendant that the men were paid for loading the coal into the pit cars twenty-four cents per ton or one-half the amount allowed for mining and shooting. He gave the details of the cost of transporting the coal from where it was shot down to the cars at the top of the mine, and repeated his former statement, that it cost sixty-seven and four-tenths cents per ton for transporting and that this included twenty-four cents of the forty-eight cents that was paid to the miner for shooting and loading. According to the most favorable testimony for the plaintiff below, the cost of transporting the coal, which would include the mining, loading on the pit cars and transporting to the freight cars above, was sixty-eight cents, and that of that amount it cost twenty-four cents to mine and shoot down the coal, as the evidence disclosed, then this would make the cost of transportation at the very least calculation, under this evidence, • forty-four cents, and would have justified a verdict for fifty-one cents per ton only, or five hundred ten dollars under the special finding of one thousand tons at ninety-five cents per ton; and if the testimony of part of the plaintiff’s witnesses and the defendant’s witnesses, that the cost of transportation alone is sixty-seven and four-tenths cents per ton, then the verdict should have been $276, but upon the theory of plaintiff or defendant the cost of transportation fixed by the jury is much less than that shown by the evidence, and the general verdict of seven hundred dollars is excessive. The measure of damages recognized by the courts in cases of this character is the value of the coal after it was loaded upon the cars, if it was so loaded, less the cost of transporting it from the place where it was dug to the place where it was loaded upon the cars, and this rule seems to have been adopted by counsel for appellant and appellee in the trial of this case, and we think it a correct rule that the owner of the coal is entitled to its full value in its severed condition. In other words, as soon as the coal has become detached from the real estate and converted into personal property the owner is entitled to its value in its then condition, and this rule is clearly recognized in the case of Donovan v. Consolidated Coal Co., 187 Ill. 28, and many other cases which may be referred to.

It is also complained that counsel for plaintiff in the trial below made improper remarks in addressing the jury which were calculated to prejudice the minds of the jury against the defendant. We have examined the remarks contained in the abstract and believe that some of them were improper and calculated to prejudice the minds of the jury against the defendant but it is not necessary to determine that the remarks were of such a character as would necessitate a reversal of the judgment as the judgment must be reversed upon other questions, and in another trial such remarks can and should be avoided.

We are of the opinion that there is no evidence in this record that will sustain the special finding of the jury that the cost of transporting this coal from where it was mined, to the top, was only twenty-five cents. We think the jury failed, even upon the theory of plaintiff’s witnesses, to count the cost of loading the coal into pit cars, as part of the transportation, which should have been done, and if they had adopted the theory of the defendant a much greater amount should have been allowed for transportation. The special finding of the jury as to the cost of transportation under any view of this evidence is incorrect and for that reason the judgment is reversed and the cause remanded.

Reversed .and remanded.


text:
    Sylvester Hanson for use of C. C. Hutchmacher and First National Bank of Grand Tower, Appellee, v. Weber Implement Company and John G. Hardy, Appellants.
    1. Interest—action on replevin bond. In an action on a replevin bond interest may be allowed at 5% on the value of the property from the time it was taken under the replevin writ to the date of trial when judgment de retorno was had against plaintiff in replevin, but the property had been immediately sold at public auction since the .value was determined from the market price and the demand was not unliquidated.

      2. Tender—action on replevin bond. In an action on a replevin bond it is not error to exclude evidence offered under a plea of tender as to whether defendant was willing to return the property or whether it was within his power to do so, where it is shown that the property was widely scattered and that no claim was made that it had been tendered, or any offer made to put plaintiff in possession.
    3. Tender—what constitutes. There must be a delivery or an offer to deliver property to constitute a tender, in the case of ponderous articles it is necessary to show an offer to deliver them and to have them in such presence as to give such possession that an action for damages might be brought if the property is interfered with.
    Appeal from the Circuit Court of Jackson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed June 5, 1912.
    Robert J. McElvain and Otis F. Glenn, for appellee.
    James H. Martin and John M. Herbert, for appellant.
   Mr. Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment in the Circuit Court of Jackson county against the appellant for $994.16, and the appellant seeks by this proceeding to reverse the judgment below.

The statement of the case made by counsel for appellant, which is not controverted by appellee, is substantially as follows:

This is a suit by appellee against the appellant and John G. Hardy on a replevin bond for twelve hundred dollars, executed by them to indemnify the sheriff in réplevining one Illinois Special Separator, one fourteen horse power engine and one saw mill; the bond is dated July 29,1908. The sheriff took charge of the property and turned the same over to Weber Implement Company, plaintiff in the replevin suit. Possession was taken under said writ and the plaintiff advertised the property under a chattel mortgage given it by one W. H. Confer, was sold at public sale and bid in by plaintiff Weber Implement Company. On the trial of the replevin suit judgment was obtained against the plaintiff for the return of the property. The property was not returned and this suit was brought to recover the value of the property and damages, including three hundred dollars attorney’s fee. The affidavit for replevin alleged that the property was worth six hundred dollars. The usual declaration was filed on the bond to the September term, 1911, to which a demurrer was filed and overruled. The pleas of general issue, tender of two hundred dollars attorney’s fee and offer to return property were filed and issues joined thereon. On the trial ‘ the jury returned a verdict of debt for twelve hundred dollars to be satisfied by payment of $994.16. Motions for a new trial and in arrest of judgment were made and overruled and appeal granted to this court.

Two errors are assigned and argued, the first of which is, the giving of an instruction authorizing the jury to allow five per cent, interest on the value of the property from the date of its taking under the replevin writ, July 30, 1908, to the date of trial, September 20, 1911. We have examined the cases cited by appellant in support of this contention but do not tbiuk they sustain the proposition of counsel that interest cannot be allowed where the value of property is in question, and its value can be ascertained and determined from the testimony of witnesses as to its market price. In the case referred to of Harvey v. Hamilton, 54 Ill. App. 512, the court says, “But it is safe to say that in Illinois interest is not allowable on unliquidated demands, in any case, where the amount of damages is not ascertainable by simple computation, or by reference to generally recognized standards such as market prices.” The value of this property was determined from its market price at the time it was taken and we do not believe it comes within the rule prohibiting interest upon unliquidated demands.

The question of recovering interest for the taking and failure to return property under a replevin writ, where the plaintiff was defeated in his suit is not an open one in our courts. As far back as the case of Hopkins v. Ladd, 35 Ill. 178, the court says, “As to the question of interest on the value of the property, the defendant not having returned the property interest was recoverable.” Rowley v. Gibbs, 14 Johns, 485. And in the case of Franks v. Matson, 211 Ill. 347, the court says, “Where there is a judgment of return against the plaintiff in replevin and he fails to return some of the goods and those which are returned are injured, the measure of damages in the suit on his undertaking is the value of the goods not returned, with legal interest from the time of the replevin and deterioration in the value of those returned resulting from such injury with legal interest thereon from the date of their return.” And in support of this many authorities are therein cited. In the case of Sanderson v. Read, 75 Ill. App. 193, the court says, “But demands based upon market values, susceptible of easy proof, though unliquidated until the particular subject of the demand has been made definite and certain by agreement or proof, are not so uncertain that no default can be predicated of any delay in making payment.” It seems to be the settled doctrine of our courts that interest may be allowed upon the value of the property taken on a replevin writ and not returned upon judgment being awarded against the plaintiff and that such interest properly comes within the damages recoverable upon replevin bonds; and there was no error in the giving of the instruction complained of.

Complaint is next made that the court erred in refusing the introduction of evidence offered by the appellant on the plea of tender. The evidence offered, as shown by the abstract, was that when George Weber, president of the appellant was upon the witness stand he was asked these questions: "Q. Are you willing to return this property? Objected to and sustained. Q. Is it in your power to return this property? Objected to and sustained.” To constitute a tender there must be a delivery, or at least an offer to deliver the property itself. While it may be true in case of ponderous articles it would not be necessary to carry the goods into court, yet it is necessary to show an offer to deliver them to the plaintiff and to have them in such presence as to put the plaintiff in possession so that he might sustain a suit for damages in case the property was interfered with.

The evidence in this case shows that at the time of the trial the machinery in question was part of it in East St. Louis and part in Montgomery City Missouri, and no claim made that the property had been tendered to the plaintiff or that there had been any offer in any manner to put the plaintiff into actual possession of this property. We cannot believe that under such circumstances the mere statement by the witness that he was willing to return the property or had it in his power to return the property is sufficient to constitute a tender. We are not able to perceive how counsel arrives at the conclusion that appellant was prevented by the court from delivering the articles in question; if appellant had desired to have returned the property to the appellee he could have collected the property together and by some act have offered to put the appellee in the absolute control and possession of such property at his place of business, or where the contract was entered into, without expense to appellee. There is nothing in this record that indicates any such willingness upon the part of appellant. We find no reversible error in this record and the judgment of the lower court is affirmed.

Affirmed.