text:
    Helen Kulvie, Appellee, v. Bunsen Coal Company, Appellant.
    1. Mines and minees—when Shot Firers Act of 1901 inapplicable. An operator cannot urge that the right of action of a miner is under the Shot Firers Act of 1907 where it appears that the only-certificate issued to such miner hy the miners’ examining board, was one of competency as a “coal miner.”
    2. Mines and minees—what best evidence of proceedings of miners’ examining board. The records of such hoard, and not the testimony of a member thereof, is the best evidence of examinations conducted hy such hoard and the questions propounded hy the hoard and the answers given hy a particular applicant.
    3. Mines and miners—what evidence competent in action for loss of support. In such an action it is not only competent for the plaintiff, the widow of the deceased, to show the existence of surviving children, hut also to adduce testimony to establish that such deceased was the sole support of herself and such surviving children.
    4. Trial—what arguments of counsel not improper. While the practice of referring to the amount of the ad damnum in instructions has been often disapproved, no authority exists to the effect that a mere reference by the plaintiff’s counsel in argument to the amount claimed by him is prejudicial error.
    5. Instructions—when need not sum up entire case. Where an instruction does not conclude with a direction to the jury it is not necessary that the plaintiff in every instruction should anticipate and negative every defense.
    6. Instructions—must be predicated upon evidence. An instruction is properly refused which is not predicated upon any evidence in the cause.
    Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Scholfield, Judge, presiding.!
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    H. M. Steely, for appellant.
    Keeslar & Gunn and C. H. Beckwith, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This action is predicated upon the alleged wilful violation Tby the defendant of clause D, section 16 of the Miners Act, which, in enumerating the duties of the mine manager, provides that he “shall give special attention to and instruction concerning the proper storage and handling of explosives in the mine, and concerning the time and manner of placing and discharging blasting shots.” Upon a trial by jury, a verdict was returned in favor of the plaintiff, and judgment rendered thereon for the sum of $5,000.

The third and fourth amended counts of the declaration charge in substance, that the deceased and his buddy, one Wuysik, were working as ordinary coal diggers in the employ of the defendant, and were engaged in digging coal in a pillar off of room number 10 off of the 6th west entry off of the main south entry in said mine, and had been so employed for a period of four weeks; that it was the. duty of the defendant, under the statute, to instruct them as to their duties, and to give them special instruction concerning the time and manner of placing and discharging blasting shots in said mine. That on August 28, 1909, the defendant ordered and directed the deceased said Wuysik to discharge three blasting shots theretofore placed o in the pillar of coal between the end of room 17 and the 5th east entry off of said main south entry, but wilfully neglected to specially instruct them concerning the time and manner of discharging blasting shots in said mine, and that not having been so instructed in this regard, they discharged said three shots simultaneously and as one blast; that by reason of such violation and the force of the explosion, a large quantity of coal was thrown out, which struck Kulvie, and crushed and killed him. The survival of the plaintiff as widow and the injury to her means of support, are then alleged. The fourth count charges that no directions were given to Wuysik, while the third charges that no directions were given to either. The fourth count differs from the third in that it charges that Wuysik discharged two shots simultaneously, and that while Kulvie was attending to the firing of the third shot, it exploded at the same time. In other respects the two counts are substantially alike.

The evidence adduced by the plaintiff tends to show that on October 28, 1909, and for about a week prior thereto, the deceased and Wuysik had been working as ordinary coal diggers in the pillar of room 10 off of the 6th west entry; that they began work at about nine o’clock in the evening, and worked about seven hours, after which, on orders received from the assistant mine manager, they fired shots in other parts of the mine; that such latter work occupied about half an hour and that they received extra pay for the same; that on the day in question there were three blasting shots set in the room neck of room 17; that the deceased started to light part of the shots and Wuysik the others when for some reason, all three shots exploded simultaneously, in consequence of which Kulvie was killed; that prior to their employment as aforesaid, Wuysik had never fired a shot, and was unable to tell a good shot from a bad one, and that neither the mine manager nor his assistant had ever given either the deceased or Wuysik any directions or instructions whatever relative to handling explosives, or concerning the time and manner of firing shots. There was thus sufficient evidence to warrant the court in submitting to the jury the issue as to whether the defendant had wilfully violated the section of the Miners Act above referred to and whether said violation was the proximate cause of the death of Kulvie.

The defendant contends' that the Shot Firers Act of 1907 is applicable to the present case, and that plaintiff’s right of action, if any, must be determined thereunder; that the deceased and his buddy were “shot firers” within the purview of such statute; that under such act the declaration is defective in that it fails- to charge that Kulvie and Wuysik were not practical experienced men and such, as the defendant had the right under such statute, to designate as “shot firers.” Section 2 of said act provides in part, that “in all mines in this State where coal is blasted, where more than two pounds of powder is used for any one blast, * * * a sufficient number of practical experienced men to be designated as ‘shot firers’ shall be employed by the company, at its expense, whose duty it shall be to inspect all the firing of blasts prepared in a practical workmanlike manner in said mine or mines.”

The facts and circumstances in evidence fail to show that the deceased and his buddy were employed and acting as shot firers, within the intendment of the statute.' There is no evidence that more than two pounds of powder were used for one blast in the mine in question, thus bringing it within the class to which the statute is applicable, nor does it appear that the deceased was a practical experienced man. Moreover, the certificate of competency given him by the miners examining board under section 53, chapter 93 of the statutes, gives him the right to seek employment as a “coal miner” merely, and not as a “shot firer.” The defendant therefore would have no right to employ him as such. On the contrary, the fact that at the time they were engaged in firing the shots in question the defendant permitted the mining of coal in other parts of the mine, contrary to the provisions of such statute, leads to the suspicion that the assignment of such work to the deceased and Wuysik was with a view to evade the statute and escape the additional expense which would be necessary to a strict compliance with such statute. •

The court instructed the jury that they should return a verdict of not guilty if they believed from the evidence that the deceased and Wuysik, at the time of the accident, were shot firers employed by the defendant. The jury has found from the evidence, under such instruction, that they were coal diggers and not shot fixers, and for the reasons stated, we cannot say that it was unwarranted in such conclusion.

It is urged that the court erred in refusing to allow the witness Alloway, a member of the examining board which issued the certificate to Kulvie, to answer the following question: “Before issuing certificates by your Board, what examination did you give the miner? Objected to by plaintiff. Objection sustained. Exception by defendant. ’ ’ Counsel states in argument that his purpose was to show by that and other questions, that the deceased was examined by the Board as to the time and manner of firing blasting shots and answered their questions correctly. We think the ruling of the court was proper, for the reason that the evidence proposed to be offered was-not the best of which the case in its nature was susceptible. Section 5 of the act, which provides for the examination and issuing of certificates to miners, provides that the Board shall keep an accurate record of the proceedings of their meetings, and on said record shall show a correct detailed account of the examination of each applicant, with the questions and their answers, and that at each meeting the said Board shall keep said record open for inspection. Where the law requires a written record of an official act, the writing is the best evidence of such act. 1 G-reenl. Ev. see. 90. It does not appear that the production of the original record in court was impossible, or that it would cause inconvenience to the public, nor was an examined copy thereof offered. The defendant was therefore barred from introducing oral secondary evidence as to its contents.

The court permitted the plaintiff to testify that the deceased left two children surviving him, and afterward improperly excluded such evidence. There is but one cause of action given by the Miners Act. The present suit was for the benefit of not only the widow, but the surviving children, if any, and it was proper to show that there were such. Nor was it error to allow the plaintiff to prove that the deceased was the only support she had during his lifetime. While evidence as to the pecuniary circumstances of the widow, family or next of kin since the decease of the intestate, is incompetent, evidence that the wife, children or next of kin were dependent upon the deceased for support before and at the time of his death, and that he was their sole means of support, is competent. Claffy v. Chicago Dock Co., 249 Ill. 210; Cook v. Mining Co., 249 Ill. 41.

It is further urged that counsel for the plaintiff, in argument to the jury, improperly stated that the plaintiff was asking the sum of $10,000, the amount claimed in the declaration, which statement, upon objection thereto being interposed, was withdrawn.

While the practice of referring to the amount of the ad damnum in the instructions has been often disapproved, we have been cited to no authority to the effect that a mere reference by the plaintiff to the amount claimed by him was prejudicial error. I. C. R. R. Co. v. Souders, 178 Ill. 585, cited by counsel for the defendant, does not so hold, and we are not disposed to do so.

The court did not err in giving the first instruction for plaintiff, which advised the jury that they could take into consideration the fact that in addition to leaving a widow, the deceased left children him surviving. Beard v. Skeldon, 113 Ill. 584; Claffy v. Chicago Dock Co., supra.

Complaint is made of the third instruction given for the plaintiff, which told the jury in effect that the plaintiff was relying upon a wilful violation of the statute, and that contributory negligence, assumed risk and the fellow-servant doctrine were not defenses to an action of that character, and then proceeded to state that the question for the jury to determine was whether or not the defendant was guilty of the wilful violation of the statute charged in the declaration, and whether such wilful violation was the proximate cause of the death of Kulvie. It is claimed that the instruction ignored the defense that the deceased was a shot firer. If the instruction had directed a verdict, the complaint would have been well-founded; as it did not, it is not. It has been held repeatedly that it is not necessary for the plaintiff, in every instruction, to anticipate and negative every defense. The plaintiff is obliged only to present the theory of the law applicable to his case. Coal Co. v. Rademacher, 190 Ill. 538.

We see no objection to the fourth and fifth instructions given for the plaintiff. They merely tell the jury the essential facts charged in each count of the plaintiff’s declaration, and neither of them directs a verdict on the proof of any such fact. There was no evidence upon which to base the defendant’s 15th and 16th refused instructions. Other objections are urged as to the rulings of the court upon the instructions. To discuss each of them in detail would unduly lengthen this opinion. It will suffice to say that we find no prejudicial error in the rulings of the court thereon.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Puterbaugh

license: Public Domain

text:
    Sarah C. Hubbard, Appellee, v. Charles A. Hubbard et al., Appellants.

      Subrogation-—who entitled to. A surety upon payment of the debt becomes entitled to be subrogated to all the securities held by the creditor.
    Bill in chancery. Appeal from the Circuit Court of Vermilion county; the Hon. W. B. Soholtteld, Judge, presiding.
    Heard in this court at the November term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    F. L. Draper, for appellants.

      Dwyer & Dwyer, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is. an appeal by the defendants from a decree granting to the complainant the relief prayed by a bill and supplemental bill in chancery. The bill, to which Charles A. Hubbard and W. T. Hubbard and their respective wives are made parties deféndant, alleges in substance the following facts:

On November 4, 1902, the defendant, W. T. Hubbard, executed and delivered to Lulu Robertson his seven promissory notes, aggregating the sum of $1,457.57, secured by a mortgage executed by himself and wife, upon certain real estate that day conveyed by said Lulu Robertson to the said Hubbard, which real estate was subject, however, to the life estate of the complainant. Thereafter said Lulu Robertson returned said notes to said W. T. Hubbard, and about November 20, 1902, the complainant signed the same as security and they were again delivered to Lulu Robertson. Four of said notes were afterward paid by the maker, and the remaining notes, due five, six and seven years after date, respectively, were assigned before maturity to one Richard C. Gregg. On November 20, 1907, Gregg recovered judgment upon the note due five years after date, against W. T. Hubbard and the complainant, which judgment, on December 31, 1907, Gregg assigned to defendant, C. A. Hubbard, who on February 4, 1908, caused an execution to be issued upon said judgment and levied upon the life estate of the complainant in and to certain lands of which she was in possession, and which were afterward sold under said execution to the defendant C. A. Hubbard, to whom a certificate of purchase was issued.

On December 31, 1907, said C. A. Hubbard purchased the notes due six and seven years after date. At the maturity of the notes five and six years after date, the maker, W. T. Hubbard, was wholly insolvent and unable to pay the same or said judgment and on March 17, 1909, the complainant was compelled to pay the sum of $329.85 to redeem her lands from the sale under said judgment upon the note due in five years. On the same day the complainant paid to 0. A. Hubbard the amount due on the note due six years after date.

The bill further alleges that at the time of said last mentioned payment, the said 0. A. Hubbard was the owner of the judgments and notes and mortgages securing the same, and that by reason of the insolvency of W. T. Hubbard, the complainant would be compelled to pay the note due seven years after date, that she was therefore entitled to be subrogated to the security, including the mortgage lien, held by the said C. A. Hubbard, and prays that an account be taken and that the defendants, or one of them, be decreed to pay whatever sum should appear to be due the complainant ; and that she be subrogated to the rights and benefits of the said mortgage liens; that upon default of the payments, the mortgaged premises be sold, and for general relief.

Defendants, W. T. Hubbard and Ms wife, were defaulted. 0. A. Hubbard and his wife answered denying that they had any knowledge of the insolvency of W. T. Hubbard, and averring that subsequent to the transfer of said notes and mortgage to Gregg, C. A. Hubbard had bought of W. T. Hubbard, the mortgaged premises, subject only to the life estate of the complainant, but not subject to said mortgage, and further denying that 0. A. Hubbard assumed the mortgage indebtedness or that he had knowledge of the existence of the notes or mortgage, or that he purchased the same from Gregg to protect Ms title. The supplemental bill avers that complainant had subsequent to the filing of the original bill, paid the seven year note which had matured on November 4, 1909.

The decree finds that the complainant was entitled to be subrogated to the rights of the original mortgagee or of any subsequent assignee of said mortgage or notes, and that W. T. Hubbard was at all times wholly insolvent and unable to pay said notes, and orders that said W. T. Hubbard pay to the complainant, within twenty days, the sum of $800.70, and that upon default of such payment the complainant be subrogated to all the rights of the said C. A. Hubbard in said mortgage deed, and that the premises be sold, etc.

The chancellor was warranted under the evidence in finding that W. T. Hubbard was insolvent as alleged in the bill, which was the only controverted issue of fact under the pleadings. The complainant therefore had no remedy at law. It further appears that prior to the rendition of the decree herein, the complainant had paid all the notes in question, and that C. A. Hubbard did not, as claimed in argument, pay the notes in question to protect his title to the real estate, but that he purchased the same from Gregg. The equitable doctrine that a surety, upon payment of the debt, becomes entitled to be subrogated to all the securities held by the creditor, is universally recognized. Under such rule there can be no doubt that if Gregg had retained title to the notes, or they had been assigned to a stranger to the fee of the mortgaged property, the complainant would have been entitled to the relief asked, and we are unable, after carefully considering the arguments of counsel, under the authorities cited, to perceive how or why the fact that C. A. Hubbard acquired the fee to the mortgaged premises, vested Trim with any greater rights or remedies at law or in equity, than he would otherwise have had.

Under the facts disclosed by the record no different decree than that rendered would have been proper, and the same is accordingly affirmed.

Affirmed.


author: Mr. Presiding Justice. Puterbaugh

text:
    Robert Woodward, Appellee, v. Springfield Coal Mining Company, Appellant.

      Verdicts—when set aside as against the evidence. A verdict clearly and manifestly against the weight of the evidence will be set aside on review.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. James A.. Creighton, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Conkling & Irwin, for appellant.
    Monroe & Monroe, for appellee.
   Mr. Presiding Justice. Puterbaugh

delivered the opinion of the court.

This is an action in case to recover for personal injuries alleged to have been received by the plaintiff by reason of the violation by appellant of section 18 of the Mining Act. A judgment in favor of the plaintiff for the sum of $1,500 was rendered upon the verdict of a jury.

The declaration charges that the plaintiff was in the employ of appellant in its coal mine as a mule driver; that there was in said mine a switch connected with the main track by an automatic spring attached to a portion of the main track called the latch rail; that when cars passed through the switch and onto the main track, such spring would force the latch rail back and connect it with the rail of the main track, leaving the rails of the main track in such position as to allow cars to pass safely over the same; that on the day the plaintiff was injured, such automatic spring was and had been for a long time prior thereto, in a defective and unsafe condition; that the space between said spring and the latch rail was and had been for a long time prior thereto, clogged with dirt, so that it would not throw the latch rail and connect it with the line of the main track, whereby the latch rail was left standing open and unconnected with said main track; by reason whereof a trip of cars upon which the plaintiff was riding, ran off the main track into the open switch and upon the ground and ties, whereby the plaintiff’s foot was caught between the bumper of the front car and the rails and crushed. The declaration further avers that a dangerous condition was thus created; the failure of the mine examiner to inspect this place to discover such dangerous condition and report the same to the mine manager, and further that the plaintiff was allowed to enter the mine to work therein not under the directions of the mine manager before the dangerous conditions had been made safe.

The evidence shows that the plaintiff was injured by the derailing of a" trip of three loaded coal cars, while he was riding upon the same at or near a switch latch in one of the entries in the defendant’s mine; that the latch rail was held in place as a part of the main track by means of a spring placed on the side of the track rails and fastened to ties outside of the track at two points, leaving the spring about two feet long; that attached to the spring were wires which passed under the rails of the track and were fastened to a plate attached to the latch rail; that the end of the latch rail worked on a piece of plate iron; that when a car passed over the switch track going east, the wheels opened the latch and after the wheels passed through the latch the spring automatically forced the latch rail back into place as a part of the main track, and that springs of like character were in general use in all coal mines in that district.

The plaintiff testified that he had worked as a driver in this entry for two weeks prior to the accident; that during that time he had noticed dirt at the latch as high as the top of the rails between the rails of the track; that between the north rail of the track and the north rib of the entry the dirt was as high as the rail at the rail and slanted np to the rib; that he had no trouble with the latch at any time; that on the morning of the accident he removed a little dust from it, and that thereafter it worked all right until the accident; that he did not know the construction of the latch; that he had never seen the spring because it was covered with dirt and dust; that there was no record of any dangerous condition at this place, upon the board, when he went to work, and that he was given no directions by the mine examiner about his work that day.

The mine manager, the fellow-driver of the plaintiff, the mine examiner, the driver boss, and a timberman, who were called by the defendant, each testified in direct and positive contradiction of the plaintiff’s testimony as to the condition of the track, rails, latch and spring. The mine examiner testified further that he passed the place in question twice the night before the accident; that the latch rail was at that time up against the other rail in proper condition; that there were no dangerous conditions there to mark or report, and that he therefore made no mark or report. The fellow-driver of the plaintiff testified that the latch was in good condition prior to the accident; that he and the plaintiff each had passed over and through the same about twenty times that day and that it worked all right all the time; that on the trip before the accident he for the first time noticed a small piece of coal in between the latch and the track rail. The evidence further shows that after the accident the latch rail was found to be held open about a quarter of an inch by coal that had been mashed in it, and that after the same was removed the latch worked properly without repairing.

The material issue under the pleadings was whether or not the specific dangerous condition alleged to have existed was in fact present at the time of the accident. While other dangerous conditions may have existed which should have been discovered by the defendant, the evidence, together with all reasonable and legitimate inferences to be drawn therefrom, wholly fails to prove that the latch rail itself was either broken or defective, or that it had been for a long time prior to the accident clogged and obstructed with dust or coal as charged in the declaration. The testimony of the plaintiff himself negatives both of such propositions.

We are of opinion that the verdict of the jury was clearly against the weight of the evidence, and it becomes our duty to reverse the judgment rendered thereon and remand the cause for another trial. We find no error in the rulings upon instructions.

Reversed and remanded.


text:
    James A. Elward, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Evidence—what testimony of medical expert incompetent. It is improper to permit medical experts (not attending physicans) to express opinions to the jury based upon subjective conditions and then to fortify such opinions by stating to the jury acts of the injured party which could apparently have been voluntary and under the control of the injured party, and which might have rested upon another basis than the truthfulness of the injured party. It is likewise improper to permit such witnesses to express their speculative opinions as to what might possibly have been the cause of the injury, and that such injuries- would probably shorten life, etc. .
    2. Evidence—as to what medical expert competent. A physician who has not treated an injured person but has made an examination to enable him to testify on the trial as to his condition, must base his opinion on objective and not subjective conditions. He cannot relate nor take into consideration the self-serving statements of the injured person made to him not with reference to treatment but with reference to his trial.
    3. Damages—what does not justify in action for personal injuries. A mere disability or even a reasonable probability that future pain or suffering may be caused by an injury and that some disability may result therefrom, is not sufficient to warrant an assessment of damages. To justify recovery of future damages the law requires proof of a reasonable certainty that they will be endured in the future.
    Action in case for personal injuries. Appeal from the Circuit Court of De Witt county; the Hon. W, G. Cochean, Judge, presiding.
    Heard in this court at the May term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Lemon & Lemon, for appellant; John G. Drennan, of counsel.
    Herrick & Herrick and Edward J. Sweeney, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

In an action on the case the plaintiff recovered judgment for the sum of $7,000 upon the verdict of a jury, for damages received by him while a passenger upon the defendant’s railroad, through a collision of the forward and rear portions of the train. The defendant urges a reversal of the judgment upon the ground that the damages awarded by the jury are manifestly excessive and based upon improper evidence relating to that question, claiming that such errors are so interwoven in the entire proceeding that a remittitur would not cure.

The evidence discloses that the plaintiff was for nearly twenty years immediately prior to the time he was injured, a traveling salesman; that on August 18, 1908, while he was a passenger on one of the defendant’s trains, the caboose in which he was riding, together with a freight car immediately in front of it, became detached from the main body of the train while going down grade. When the main part of the train stopped at a station, the caboose and freight car collided with it, whereby the plaintiff, who was riding in the caboose, was caused by the.force of the collision to be thrown eight or ten feet from his seat against a wooden partition, striking the same with his head. As the result he was rendered unconscious for a time; received numerous cuts and bruises, several of his teeth were broken or knocked loose; and he was injured in the back of his neck and in the region of the stomach. For six weeks thereafter he was under the care of Dr. Bosenberry, local surgeon of the defendant, and thereafter, on September 8, 1908, was taken in charge by the Doctors Edmonson. In December, 1908, and June, 1909, he was examined by Dr. Patrick of Chicago, who when called by the defendant testified that there had been no change in the condition of the plaintiff between said dates, and that it was impossible to tell approximately when, if ever, he would recover from his injuries; that the stiffness in his back would remain as long as the cause, and that there might be some organic results from the accident. Five surgeons called on behalf of the plaintiff, testified that he was permanently injured, and four of them, that his spinal chord had sustained injuries and was in an irritated and inflamed condition, which in turn produced other conditions of a permanent nature, incapacitating appellee from work of any kind. Dr. Bosenberry, who had the exclusive charge of appellee during three weeks following the injury, testified that as a result of concussion he was suffering from an inflammatory condition of the spinal chord, which would never improve, and from which he would never recover.

There is also evidence tending to show that the plaintiff, for almost eighteen months, and up to the time of the trial, was incapacitated from following his usual employment; that his head was turned to one side, his muscles thickened and stiff, his back, shoulders and neck rigid, and the motion of his arms limited; that he had chronic diarrhea, and that his liver was affected; that he had continuously suffered.pain and loss of sleep; that his gait was affected, and that he had many of the symptoms which precede paralysis.

The liability of the defendant is not controverted. There is sufficient evidence in the record, the competency of which cannot be questioned, to justify a substantial verdict. We find nothing in the proceedings upon the trial which would warrant the assumption that the prejudice, sympathy or passion of the jury was in any way unduly aroused. If the rulings of the trial court upon the evidence were proper the amount of the verdict was fully justified, inasmuch as such evidence shows that there was a reasonable probability that the injuries were permanent in character and effect. On the contrary if the jury, by reason of having been permitted to consider incompetent evidence, were led to believe that the injuries were permanent and in consequence awarded larger damages than they would otherwise, their verdict should not be permitted to stand. The evidence upon this issue consisted almost entirely of the testimony of physicians who had examined him, not in the regular course of treatment, but for the purpose of qualifying themselves as witnesses upon the trial. It was therefore manifestly important that the rules of evidence governing the admissibility of such testimony should have been accurately observed. The decisive question for our determination is, therefore, whether or not the court erred in its rulings upon the evidence in the particulars specified by counsel for the defendant, and thus led the jury to believe that they were warranted in finding that such injuries were permanent.

Dr. J. 0. Myers, who had on three different occasions since the institution of the suit, examined the plaintiff, solely with a view to informing himself of his physical condition, and not for the purpose of treating him, was permitted to state over objection, that the muscles of the plaintiff’s neck were rigid and stiff and of limited motion; to state to what extent the motion of the head was affected by the muscular, condition which he found; that the motion of appellee’s left arm was limited and painful, and the motion of the right arm much better; that he tested the motion of the arm by taking the patient by one hand and shoulder and rotating the arm; that the superficial reflexes were tested by pricking the skin with a pin and that the same were sluggish and not responsive. The witness was also permitted, over objection, to elaborate this symptom and upon that symptom, combined with others, to express his opinion that the conditions indicated by such symptoms were the natural result of some kind of a concussion. He was also permitted to state, over objection, that at an examination of the plaintiff on the day previous, “the perspiration just oozed out of him and streamed down the side of his face and all over him”; that a man could not simulate sweating; that the plaintiff was stripped at the time and that “he was doing as he told him and standing- up .and attempting to bend his body or whatever else we told him.,” and that in the opinion of the witness the cause of the sweating was ‘ ‘ exhaustion. ’ ’ He was further permitted to give his opinion based upon the symptoms narrated by him, that there was an injury to the plaintiff’s spinal column and to the medulla oblongata and the muscles of the back, and that in his opinion the injuries indicated by the symptoms mentioned by him were growing, worse, and that in the future the plaintiff would be paralyzed on the left side and his life shortened. Hpon cross examination the witness stated that one of the tests he had made to determine the degree of muscular contraction, was to have the plaintiff lift a bucket of water; that he examined the superficial reflexes by pressing on the dorsal muscles, upon which the plaintiff flinched, and from which the witness concluded there was tenderness over the spine.

To Dr. Albert W. Myer, whose examination of the plaintiff was with a view of testifying as to his condition and not for the purpose of treatment, a hypothetical question was propounded which assumed that the plaintiff received certain injuries in a railroad wreck on or about August 18,1908, and upon such hypotheses and the conditions he found in his examination, was allowed to state that in his opinion such conditions were the result of the injuries received in said railroad wreck. He was also allowed to state that, the stiffness of the muscles of the back, neck and shoulder of the plaintiff was due to spinal irritation. Upon being examined relative to the perspiring of the plaintiff during the examination, he was permitted to state, over objection, that he attached importance to that fact, and upon being asked what significance he attached to it he answered, “The pain produced by the examination and the worry and exhaustion of the patient were ■both factors, I think,” which answer the court refused to exclude. He was also permitted to state, over objection, that he discovered by pressing along the course of the plaintiff’s spine, that he had irritation of the spine; that the effect of such irritation was to interfere with his nutrition and sleep in every way; that it made him more nervous, more irritable, and affected his ability to concentrate thought, and to sleep, digest and assimilate food; that the effect of the condition which these symptoms indicated, would be to shorten the life of the plaintiff. On cross examination he stated that he got his information as to the injuries that the plaintiff had received, from another doctor and from the plaintiff himself; that in order to make a fair and full examination he got the history of the case, and that if he had not known something of the plaintiff having been in a railroad train somewhere and something happening to him, he did not believe he could have stated what his condition was. He further stated that there was not a superficial muscle of the back that was not subject to the control of the mind.

Dr. Bath, who had examined the plaintiff on two different occasions in order to qualify himself to testify, was asked whether a violent blow or shaking about might cause the injuries described by him to the plaintiff’s neck and shoulders, and was permitted to answer that- he thought it was possible. He further testified that in two of the examinations he found that the head of the patient was turned considerably to the left side, and that in his opinion, a violent blow might have caused,such injury; and further that the plaintiff had spinal irritation; that the injuries to his head and neck were permanent, and the result of the injury to his spine would be to lower the plaintiff’s mental and physical usefulness. He was asked what in his opinion would be the usual and probable result of the injury to the spine upon the life of the patient, and answered that it would certainly not make the patient’s life any more comfortable, and would probably shorten it; that it was “usually considered to shorten life.”

Proper objections, exceptions, and motions to exclude necessary to preserve exceptions to such of the foregoing evidence as was incompetent, were interposed by the defendant. It was clearly improper to permit these witnesses to express opinions to the jury based upon subjective conditions and then to fortify such opinions by stating to the jury, acts of the injured party which could apparently have been voluntary and under the control of the injured party, and which might have rested upon another basis than the truthfulness of the injured party. Greinke v. Ry. Co., 234 Ill. 564; Casey v. Ry. Co., 237 Ill. 140. It was also error to permit these witnesses to express their speculative opinions as to what might possibly have been the cause of the injury and that such injuries would probably shorten his life, or that a violent blow could or might have caused such injuries, and upon such opinions intermingled with subjective conditions, such as that the plaintiff’s head was turned considerably to one side, that the injuries to his head and neck were-permanent and that his spine was injured.

A mere possibility or even a reasonable probability that future pain or suffering may be caused by an injury, or that some disability may result therefrom, is not sufficient to warrant an assessment of damages. It would be plainly unjust to require a defendant to pay damages for results that may or may not ensue, and that are merely problematic. To justify a recovery for future damages, the law requires proof of a reasonable certainty that they will be endured in the future. Amann v. Traction Co., 90 N. E. 673; 243 Ill. 263. Future consequences of the injury must be shown by the evidence to be reasonably certain to result, and they cannot be purely speculative. Lauth v. Traction Co., 244 Ill. 244. It is now well settled in this state that a physician who has not treated the injured person, but has made an examination to enable him to testify on a trial as to his condition, must base his opinion on objective and not subjective conditions. He cannot relate nor take into consideration the self-serving statements of the injured person made to him not with reference to his treatment but with reference to his trial. Greinke v. Ry. Co., 234 Ill. 564; Casey v. Ry. Co., 237 Ill. 140; Shaughnessy v. Holt, 236 Ill. 485; Fuhry v. Ry. Co., 239 Ill. 548. Appellee was thns allowed to enhance his damages by self-serving statements—to what extent it is impossible to say. The law admits in evidence the declarations of an injured party as to his physical condition given to physicians during treatment, because it is presumed that the injured party will not falsify in his statements made to the physician when he expects and hopes to receive medical aid; but no such presumption arises when he is examined by an expert for the purpose of giving evidence in a case about to be tried. Shaughnessy v. Holt, supra.

To just what extent the amount of the verdict was affected by the incompetent testimony referred to, it is impossible to determine, and we are unable to say that it was not prejudicial to the defendant. We are therefore impelled to reverse the judgment of the Circuit Court and remand the cause for another trial.

The motion by appellee to tax cost of additional abstract to appellant, is denied.

Reversed and remanded.


text:
    Frank L. Taylor, Trustee, Appellant, v. Mert W. Johnson, Appellee.

      Verdicts—when not disturbed as against the evidence. A verdict will not he set aside on review as against the evidence unless clearly and manifestly against its weight.
    Assumpsit. Appeal from the Circuit Court of Christian county;" the Hon. J. C. McBride, Judge, presiding.
    Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.
    Mills Brothers, for appellant.
    Provine & Provine and Alonzo Hoff, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This appeal is prosecuted to have reviewed a judgment for costs in favor of the defendant, rendered upon the verdict of a jury, in an action in assumpsit. The controversy grows out of the following state of facts: For some time prior to July 27,1905, Abraham Cornick conducted a harness shop in the village of Assumption. Shortly before that day his place of business was destroyed by fire, and he received about $2,000 on account of insurance upon the property, which he deposited in the First National Bank, and then left Assumption. Within a few days thereafter he sent to his son Roland a check upon said bank for the sum of $1,200, to be used by Roland in paying a small judgment against Boland, and for the future support and maintenance of the family. Boland endorsed and delivered the check to appellee, in exchange for checks and currency amounting to about $300 and an agreement by appellee to assume all liability upon a note for $500 executed by Boland to the First National Bank maturing July 15, 1906, upon which'appellee was surety. Payment of the check was refused by the bank several times because of a garnishment proceeding brought by one of Abraham’s creditors, but was finally honored on October 2, 1905. Appellee then paid Boland the balance due on the check. On November 27,1905, Abraham was adjudged a bankrupt by the U. S. District Court. The plaintiff thereafter, as trustee of the bankrupt estate, brought this suit under section 67e of the Bankruptcy Act of 1908, which is in substance as follows:

“All transfers and conveyances made, by a person thereafter adjudged bankrupt, within four months prior to the filing of the petition, are void as to creditors, except as to purchasers in good faith and for a present fair consideration, and except as to exempt property, and it is the duty of the Trustee to recover and reclaim the same.”

The declaration charges that Abraham executed and delivered the check to Boland’ intending to hinder, delay and defraud his creditors or some one or more of them; that such transfer occurred within four months prior to the filing of the petition to have Abraham adjudged a bankrupt; that Boland was not a purchaser in good faith and for a present fair consideration, but knew of the intention of Ms father with relation to such transfer, and that appellee did not become a bona fide holder of said check for value. The facts and circumstances in evidence tend to establish the averments of the declaration as to the transaction between Abraham and Ms son, and an action would doubtless lie against the latter. It was essential, however, in order to recover in the present action, that it should further appear from the evidence that appellee was not a purchaser in good faith for a present fair consideration.

To attempt to set out or discuss the evidence in detail would unduly lengthen this opinion. It will suffice to say that after a careful examination of all the evidence, we are fully satisfied that the jury was warranted in finding that appellee received the check in the regular course of business, in good faith, and that he paid full value therefor. Although the transaction may have been fraudulent as between Abraham and his son, so far as the proof shows appellee had no actual or constructive knowledge thereof and was a stranger thereto.

We find no prejudicial error in the rulings upon the instructions. Those offered by appellant and refused were either abstract in form, argumentative, or pertained to the question of fraud, which question does not arise under the facts in the case.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    The People, ex rel. Charles Payne, Plaintiff in Error, v. Selden M. Payne, Defendant in Error.
    1. Instructions—what considered upon motion for peremptory. Upon motion to direct a verdict evidence cannot be weighed but the evidence in favor of the party against whom the motion is directed must be considered in its most favorable light to him together with all inferences in his favor which can be legitimately drawn therefrom.
    2. Conservators—what evidence competent in proceeding for appointment. In an action for the appointment of a conservator upon the ground of the incapacity of the respondent to care for his estate, evidence as to the disposition of certain money which came into his hands is competent, and if excluded offers ground for reversal.

      3. Evidence—when opinion evidence as to mental capacity properly excluded. Whether a non-expert witness has sufficient knowledge of another to express an opinion as to his mental capacity at a certain particular time or period, is to he determined by the court. Held, in this case, that there was no abuse of discretion by the trial judge in refusing to permit the opinion evidence offered.
    Petition for conservator-. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed June 1, 1911.
    W. W. Whitmore and William R. Bach, for plaintiff in error.
    Stone, Oglevee & Franklin, for defendant in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

The relator, Charles Payne, filed a petition in the County Court asking for the appointment of a conservator for his father, Selden M. Payne. A trial by jury resulted in a verdict finding that the respondent was feeble minded and by reason thereof incapable of managing and caring for his estate. Upon an appeal to the Circuit Court, the cause was again tried by jury, and at the close of the relator’s evidence the trial judge, upon motion of the respondent, directed a verdict in his favor. Judgment was entered in accordance with such verdict and against the relator for costs. He thereupon sued out this writ of error.

Upon motion to direct a verdict evidence cannot be weighed, but the evidence in favor of the party against whom the motion is directed must be considered in its most favorable light to him, together with all inferences in his favor which can be legitimately drawn therefrom. O’Leary v. Ry. Co., 235 Ill. 187; Waschow v. Coal Co., 245 Ill. 516. We therefore shall not weigh the evidence to determine whether or not a contrary verdict would have been justified upon the entire evidence, as would have been our duty had the jury returned such a verdict of their own motion. We are of opinion, however, that the evidence offered by the relator, together with the reasonable inferences therefrom, was sufficient to require the submission of the issue to the jury.

We are also of opinion that the trial court .unduly limited the examination of the respondent as to what disposition he had made of certain money which came into his hands. Such evidence was clearly competent as tending to show his ability to care for his estate. The court did not err in refusing to permit certain non-expert witnesses to give their opinions, based upon facts stated, as to the ability of the respondent to transact ordinary business. While, such evidence is ordinarily competent (Neely v. Shephard, 190 Ill. 637), the opinions of the witnesses in question would have been based upon facts too remote from the time of the inquiry. Whether a non-expert witness has sufficient knowledge of another to express an opinion as to his mental capacity at a certain particular time or period, is to be determined by the court (Graham v. Deuterman, 244 Ill. 124), and there was no abuse of discretion in the present instance. We think the court erred in assessing the costs against the petitioner. We find no statutory authority for so doing.

For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    T. M. Lee, Appellee, v. Samuel T. Moore, Appellant.
    1. Brokers and factors—when real estate agent not entitled to commissions. A real estate agent cannot recover commissions unless he establishes by a preponderance of the evidence that he produced a purchaser ready, willing and able to purchase the property of the defendant upon terms satisfactory to him.
    2. Evidence—what not admission of liability. For a defendant to say that he is not going to appeal but is going to pay a judgment is not to admit liability; and it is error to permit evidence of such statements to be introduced.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Schuyler county; the Hon. Harry Hiqbee, Judge, presiding.
    Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed June 2, 1911.
    Glass & Bottenberg and B. O. Willard, for appellant.
    L. A. Jarman, for appellee.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

This is an action originally brought before a justice of the peace for the recovery of a sum alleged to be due from the defendant to the plaintiff, for services as broker in negotiating a sale of real estate. The plaintiff recovered judgment in the Circuit Court for $175, from which the defendant appealed. The material facts, briefly stated, are the following:

In September, 1908, the defendant employed the plaintiff to sell or find a purchaser for his farm of 175 acres, at $50 an acre, and agreed to pay him a commission of $1 an acre as his compensation. Nothing was said as to the terms or time of payment of the purchase price. On or about March 25, 1909, the plaintiff presented one Harmon to the defendant as a possible purchaser of the farm. The defendant then stated that the price was $50 an acre, $1,000 to be paid in cash and the balance to be secured by mortgage upon the farm, and that possession would be given the following March. Harmon replied that the terms were satisfactory and that he would take the farm, but before closing the deal would like to have his wife look at it. Harmon testified that on the following Saturday, before the arrival of his wife, the defendant in a conversation with Harmon, in a blacksmith shop at Bandolph, told him that the plaintiff was asking too much for the farm and that he would let him have it for $350 less, if he would wait until he, the defendant, got it out of the plaintiff’s hands. This is denied by the defendant. On March 26th, the defendant wrote a letter to Harmon in part as follows: “Be sure to see me before making any bargain for place as there are some things to be considered in trade. Might be to your interest.”

About a week thereafter, the defendant notified the plaintiff that he had concluded to take the farm off the market. On.the following day, Harmon notified the plaintiff that he was ready to close the deal, and at the same time the plaintiff notified the defendant that he expected his commission. On the next day, Harmon again offered to carry out the contract, stating that he would pay the defendant $2,000, and secure the balance by note and mortgage, but the defendant insisted upon having all in cash. A short time thereafter the defendant, by Mourning, his attorney, proposed to Harmon that if he would pay $2,700 in cash, he, Mourning, would furnish him the balance. Negotiations were continued between Harmon and Mourning, but no definite terms were agreed upon which were acceptable to the defendant.. The defendant thereafter declined to negotiate further. Prior to this time, the defendant had entered into a contract with one Vanorder to sell him the farm for $8,600, payable $1,000 the following March, and the balance to be secured by mortgage, but it does not appear that such sale was ever consummated.

We are of opinion that the evidence fails to show that the plaintiff furnished a buyer for the farm under the terms of his contract of employment. In order to recover, it was necessary that he should present to the defendant a customer who was ready, willing and able to purchase the farm at the price of $50 per acre. Nothing having been said as to the time and manner of payment, it must be implied in law that the same was to be made in cash at the time of conveyance, or at such time or times and upon such terms as were satisfactory to the defendant. The evidence, from the most favorable view to the plaintiff, fails to show that up to the time the defendant took the property out of the plaintiff’s hands, Harmon and the defendant had ever reached a final definite agreement as to the terms of payment. The plaintiff, therefore, must recover, if at all, upon the theory that the consummation of a sale to Harmon was prevented by the fraud, bad faith, procurement or fault of the defendant, or that the defendant fraudulently revoked the agency of the plaintiff to prevent him from earning his commissions. In support of such view the plaintiff relies largely, in argument, upon Harmon’s version of the conversation at the blacksmith shop, and the letter, above quoted, from the defendant to Harmon. We think the defendant’s version of the conversation the more reasonable. It seems improbable that in order to avoid the payment of $175 as commissions the defendant should offer the property for $350 less than Harmon was then seemingly willing to pay for it. Neither the alleged suggestion in the conversation, nor the letter, nor the revocation of the plaintiff’s agency, seems to have had the effect of discouraging Harmon in his efforts to secure the property. His failure to do so was apparently due to the inability of the parties to agree upon terms as to deferred payments. As has been said, under the terms of the contract of agency, it was essential that the purchaser produced should be ready, willing and able to purchase upon terms satisfactory to the defendant. The defendant had the unquestioned right to fix the terms, and his refusal to accept those offered by Harmon cannot be said to constitute bad faith on his part. We are not satisfied that the jury was warranted in finding that the preponderance of the evidence showed that the defendant was guilty of either fraud or bad faith.

The trial court permitted Frank Miller, a witness called by the plaintiff, to testify, in substance, that after the trial in the justice court, the defendant, who had there been unsuccessful, stated that he was not going to appeal the case; that he was going to pay the judgment. Such statement, if made, did not tend to impeach the defendant, nor was it an admission of liability. The admission of the same in evidence was improper. We find no error in the other rulings of the court of which complaint is made.

For the reasons stated the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    J. Arthur Roley, Plaintiff in Error, v. Wallace Walker et al., Defendants in Error.

      Assumpsit—when lies. If a note be sold with the representation that it is a valid, subsisting obligation when in fact it is not such, the purchaser thereof may recover the amount paid from the seller in an action of assumpsit.
    Action commenced before justice of the peace. Error to the Circuit Court of Shelby county; the Hon.'Thomas M. Jett, Judge, presiding.
    Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Chafee & Chew, for plaintiff in error.
    Richardson & Whitaker, for defendants in error.
   Mr. Presiding Justice Puterbaugh

delivered the opinion of the court.

On the trial of this cause in the Circuit Court, judgment was rendered on the verdict of the jury in favor of the defendant and against the plaintiff for costs. The litigation grows out of the following facts:

One Whitrock owned a tract of land, worth about. $1,500, upon which there was a mortgage given to secure a note of $750 payable to one Smith, and which was afterward assigned to the plaintiff. Thereafter Whitrock gave his note to C. E. Walker for $167.47, secured by a mortgage on the land in question, and also a chattel mortgage on some personal property. He then sold the land to one Sanders, subject to the two mortgages in question, the payment of which was assumed by Sanders. Sanders placed a third mortgage on the property, to secure a note for $1,200 to one Mautz, which last named note, as well as the first or Smith note, was thereafter purchased by and assigned to the plaintiff. When the note of Whitrock became due, Walker, the holder thereof, notified Whitrock, and he in turn notified Sanders, who satisfied the note by giving Walker other security for the indebtedness represented thereby. Walker then surrendered the note and chattel mortgage to Sanders, but retained the real estate mortgage. Sanders delivered the note and chattel mortgage to Whitrock, who destroyed both instruments. Thereafter, one Chafee, acting for the plaintiff, who did not know that the Whitrock note had been satisfied, and who desired to relieve the property from the lien of the Walker mortgage, bought the Smith or first mortgage. He then called upon Walker, for the purpose of buying the Whitrock note. Walker failed to disclose to him that the note had been surrendered to Sanders, but stated that it had been lost or mislaid. Hpon the promise of Walker to deliver the note to him when found, the plaintiff paid the amount due upon the same, and accepted from Walker in return what purported to be a copy thereof, endórsed by Walker without recourse, together with the original real estate mortgage securing said alleged lost note. The plaintiff then filed a bill to foreclose the Smith mortgage, and upon proof that the property was not worth the amount of the first mortgage, procured a decree of strict foreclosure, and entered into possession of the land. After said bill had been filed the plaintiff learned from Whitrock the foregoing facts, and brought the .present suit before a justice of the peace, from whence it was taken on appeal to the Circuit Court.

By selling the note to the plaintiff, the defendant represented that the same was a valid subsisting obligation. The proof establishes that it was not; that it had been satisfied and surrendered, which fact must have been known to the defendant. The plaintiff thus paid for something which had no existence. In equity and good conscience it seems clear that he is entitled to recover back from the defendant the amount so paid.

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

Reversed and remanded.


author: Mr. Justice Baume

text:
    Andrew J. Fortner, Administrator, Appellee, v. The Wabash Railroad Company, Appellant.
    1. Injuries Act—section 8 construed. Where the wrongful act, neglect or default took place in this state, an action to recover damages for the death occasioned thereby is properly brought in this state notwithstanding that death occurred outside of this state. Crane v. C. & W. I. R. R. Co., 233 Ill. 259, followed.
    2. Negligence—when owner of bridge guilty of. Seld, under the evidence, that the question as to whether the death of the plaintiff’s intestate resulted from the negligence of the owner of a bridge in suddenly and without warning opening the draw thereof, etc., was properly submitted to the jury.
    3. Ordinary care—reliance upon custom. A person crossing a bridge, of which a draw is appurtenant, who knows the manner in which such draw is customarily operated, has a right to rely upon the observance of such custom.
    4. Instructions—when upon maintenance of safety expedients, not erroneous. Seld, that the instruction in question in this case which had reference to the care to be exercised by the owner of a bridge to protect persons passing over the same, did not in effect tell the jury that such owner was obligated to adopt and maintain each and every of the expedients referred to, and that the same was not erroneous.
    Philbrick, J., dissenting.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Pike county; the Hon. Harry Higbee, Judge, presiding. Heard in this court at the May term, 1910.
    Affirmed.
    Opinion filed May 26, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Anderson & Matthews, for appellant.
    W. E. Williams and A. Clay Williams, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Pike county against appellant upon a verdict for $3,500, awarded by a jury as damages for wrongfully causing the death of appellee’s'intestate.

Appellant controls and operates a combined railroad, vehicle and foot bridge, 1524 feet in length, across the Mississippi river between East Hannibal, Illinois, and Hannibal, Missouri. The bridge consists of seven steel spans resting upon stone piers. Beginning on the Illinois side of the river going west there are five permanent spans 920 feet in length; then a draw span 358 feet in length the center of which rests upon a stone pier and opens and closes to permit the passage of boats in the main channel on either side of said pier, and then a permanent span 246 feet in length to the Missouri shore. Foot passengers were charged a toll of five cents by appellant for crossing said bridge and the railroad fare between the stations of Hannibal and East Hannibal was forty cents. On the night of Hovember 9, 1907, the deceased accompanied by appellee, his father-in-law, Joseph McEwen, his brother-in-law, and Bud Wasson and John Winfield, boarded appellant’s train at Fall Creek and together with seven other passengers on the same train alighted at East Hannibal for the purpose of walking across the bridge to Hannibal and thus saving the additional cost of carriage by rail. These parties all paid the required bridge toll to appellant’s agent at East Hannibal and immediately proceeded to walk across the bridge. The night was very dark and cold and a strong wind was blowing from the northwest. Shortly after they started, and before they reached the east end of the draw span, the deceased and his companions, manifestly in the first instance for the purpose of hastening their journey across the bridge and avoiding the cold, commenced to run or “trot,” the deceased being slightly in advance of the others. They thus crossed the permanent spans and continued across the draw span to its west end, when the same was suddenly opened and the deceased fell therefrom into the river and was drowned. The declaration alleges that appellant was negligent in failing to maintain reasonable lights on said bridge; in failing to maintain and operate necessary and proper guard rails or other barriers on said bridge; in failing to give warning or notice to foot passengers on said bridge of its intention to open the draw; and in failing to give passengers admitted to the draw a reasonable opportunity to pass off in safety before opening the same.

It is first urged that the trial court erred in refusing to give the peremptory instruction tendered by appellant, because the cause of action, if any, arose in Missouri; because no negligence by appellant as alleged was shown and because ii " " l the evidence that the Counsel for appellant construe section 2 of the Act relating to Injuries, as amended in 1903, to require that the death of appellee’s intestate must be shown to have occurred in this state. In Crane v. C. & W. I. R. R. Co., 233 Ill. 259, it was held in substance, that where the alleged wrongful act, neglect or default took place in this state, an action to recover damages for a death occasioned thereby is properly brought in this state, notwithstanding the death occurred outside of this state. It is conceded that the permanent spans of the bridge east of the draw span were within the territorial limits of Illinois as was also that portion of the draw span located above a line east of the center thread of the channel. The negligence alleged relates to a failure on the part of appellant to perform certain duties owing by it to foot passengers before the east end of the draw span was reached or while such passengers were upon the draw span. The draw span was a movable structure, which was in part within the territorial limits of Missouri, and in part within the territorial limits of Illinois. In so far as the negligence alleged is referable to that portion of the draw span west of the pivot pier, we have no doubt but that the courts of this state have at least concurrent jurisdiction with the courts of Missouri. See Enabling Act of Congress, April 18, 1818. Hurd’s Stat. p. 25; sec. 2, chap. 34, Rev. Stat. deceased his own negligence.

It is uncontroverted that appellant had actual knowledge that passengers upon its trains frequently alighted at East Hannibal and walked across its bridge immediately after the train left that station, and that the deceased and twelve other persons had paid the required bridge toll to walk across upon the occasion in question. A steamboat coming down the river had sounded its whistle as a preliminary signal to the engineer upon the bridge that the draw would be required to be opened, at or about the time the train stopped at the station, which signal was either not heard or was not understood by any of the party. Ho guard rail was placed at the west end of the permanent span to prevent persons from going upon the draw span, nor was there any signal light displayed nor any warning given, as notice to persons crossing the bridge, that the draw was about to open. Ho guard rail .was placed at the west end of the draw span. After the deceased and all except two of the persons accompanying him had entered upon the draw span the steamboat sounded its whistle as a signal for the draw to be opened and the engineer upon the bridge sounded a whistle in response. Following the sounding of the last whistle Wade, a servant of appellant stationed upon the Missouri side, placed a guard rail on the east end of the permanent span on that side and started to cross the draw span for the purpose of placing a guard rail at the west end of the permanent span upon the Illinois side but before he was able to reach the east end of the draw span the draw was opened.

Wade testified that before he crossed the draw span for the purpose of placing a guard rail on the west end of the permanent span on the Illinois side, he placed a red lantern between the rails of the track at the east end of the permanent-span on the Missouri side and a white lantern in a direct line in the same position on the west end of the draw span, and in this respect he is corroborated by appellant’s engineer and by one Pulliam. All of the persons who were then crossing the bridge deny that the said lights were so placed by Wade.

It is not claimed by appellant that the red and white lights placed between the rails of the track were so placed as a warning signal to pedestrians upon the bridge that the draw was about to open or was open, but it appears from the evidence that they were so placed to serve as a guide line for the engineer in closing the draw after the same had been opened. Wade further testified that when he was running to the east end of the draw span he met several persons about the center of the span going “pretty fast” in the opposite direction and said to them, “I don’t believe you can make it off,” but the persons then on the draw denied that he made any such statement. In this state of the record the question whether or not the appellant was guilty of negligence as alleged in the declaration was properly submitted to the jury.

As bearing upon the question of due care by the deceased for his own safety counsel for appellee obscure the issue by their reliance upon what they characterize as gross and wilful negligence of the appellant to excuse any want of due care upon the part of the deceased. Meither under the pleadings nor under the proof is the appellant chargeable with such wilful and wanton misconduct as to excuse appellee from alleging and proving that his intestate was in the exercise of due care for his own safety.

The evidence discloses that when the draw was about to be opened it was customary for the watchman stationed upon the Missouri side of the draw to signal to the agent at East Hannibal for a clearance, and upon receiving the signal that all was clear to proceed to place the red lights and guard rails on the ends of the permanent span adjoining the ends of the draw span and to place white lights on the ends of the draw span, and that such clearance signals were exchanged upon the occasion in question.

While the evidence discloses that the deceased had frequently crossed the bridge prior to the time of his death it does not appear that he had ever crossed the bridge at night, or that he was familiar with the signals upon which the draw was operated. But if it be conceded that the deceased had crossed the bridge in the night and was familiar with the manner in which the draw was customarily operated he would have a right to rely upon the observance of such custom.

The evidence tends to show that after the engineer sounded the whistle in response to a signal from a boat for the opening of the draw two or three minutes customarily elapsed before the machinery which operated the draw was put in motion. That such customary time did not elapse upon the occasion in question is evident from the fact that the draw was opened before appellant’s watchman was able to reach the west end of the permanent span on the Illinois side in order to perform his usual duties there. We cannot escape the conclusion that if the draw had not been permaturely opened the deceased would have been able to reach the permanent span on the Missouri side in safety.

As tending to show that the deceased was not in the exercise of due care for his own safety upon the occasion in question appellant places great reliance on the testimony of A. J. Fortner, the father-in-law of the deceased, to the effect, as abstracted, that while the parties were running across the draw span some one said, “We have plenty of time,” and he (Fortner) “thought the draw was going to open in a few minutes,” and further, that the deceased “ran all the time after he started to run and did not stop or look or listen at any time on the draw.” The witness did not say that the deceased used the language testified to, but if the witness had so testified it would only have tended to show knowledge on the part of the deceased of the time which customarily elapsed after the signal was given by the engineer on the bridge before the draw opened, and a reliance by the deceased on the observance of s.uch custom. Fortner, who was familiar with the movements of the draw, then supposed it would not open for a few minutes, which time would have been amply sufficient to enable all parties to reach the permanent span. The statement ascribed to the witness that the deceased did not look and listen as he ran was a mere conclusion on the part of the witness announced by his answer in the negative to a question propounded in the language of his answer as abstracted. The witness was unable to see the deceased because of the darkness and manifestly could not testify of his own knowledge to what the deceased did or did not do in that regard. A review in detail of the testimony of all of the witw nesses called on behalf of appellee, tending to show that the deceased was in the exercise of due care for his own safety would unduly extend this opinion. We have considered the same carefully and are compelled to the conclusion that the trial court did not err in submitting that question to the jury. Witnesses called on behalf of appellant testified by way of impeachment to certain contradictory statements made by appellee’s witnesses, but the credibility of the several witnesses was a question for the jury to determine and we are unable to say that the conclusion arrived at by them and sanctioned by the trial court was wrong.

It is next urged that the second and third instructions given at the instance of appellee were erroneous and prejudicial because they imposed upon appellant the duty to have and maintain each and all of the methods prescribed to prevent injuries and death. These instructions in that respect informed the jury that if they found from a preponderance of the evidence that the maintenance of reasonable lights on said bridge and the maintenance of reasonable guard rails or other barriers and the giving of notice or warning to foot passengers on said bridge and a reasonable time and opportunity to pass over in safety were the most reasonable, obvious and appropriate expedients and provisions for preventing injuries and death, and that in the ordinary use of said bridge and the operation of said draw, injuries and death were likely to happen to foot passengers, then it was the duty of appellant so using and operating said bridge to maintain such lights, etc. While the instructions are not to be commended, the objection urged overlooks the requirement in the instructions that it was incumbent upon appellee to show that appellant had failed to have and maintain each and all of the methods mentioned as reasonable expedients for the prevention of injuries and death before the jury could find for appellee. In this respect the instructions were unfavorable to appellee. But conceding that the instructions were erroneous for the reason urged they could not have operated to the prejudice of appellant, because it appears from a clear preponderance of the evidence that appellant- upon the occasion in question failed to have and maintain any one of the methods indicated to prevent injuries and death. The instructions did not assume to direct a verdict and were not required to contain all the elements necessary to a recovery by appellee.

For reasons heretofore stated the twenty-second instruction offered by appellant was properly refused.

The verdict of the jury and the judgment of the court are not clearly unwarranted and such judgment will be affirmed.

Affirmed.

Mr. Justice Philbrick, dissenting.


text:
    Henry F. Carter, Appellee, v. Sangamon Coal Company, Appellant.
    Mines and Miners—when wilful violation not established. If it is clear from the evidence that the accident complained of would not have occurred but for the entanglement of certain mules and that the same was in nowise the result of the width of the passageway in question, a judgment with a finding of facts in favor of the defendant will be entered on appeal.
    Action in case for personal injuries. Appeal from the Circuit Court of Sangamon county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the May term, 1910.
    Reversed with finding of fact.
    Opinion filed May 26, 1911.
    Brown, Wheeler, Browne & Hay, for appellant; Mastin & Sheblock, of counsel.
    Johe F. Armstrong and Robert H. Patton, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment against appellant for $350 as damages for personal injuries alleged to have been sustained by reason of the wilful failure of appellant to comply with a provision of the Mines and Miners Act, as follows: “At the bottom of every shaft' and at every caging' place therein, a safe and commodious passage way must be cut around said landing place to serve as a traveling way by which men or animals may pass from one side of the shaft to the other without passing under or on the cage.”

It is not claimed by appellee that appellant wholly failed to cut a passageway around the landing place in its mine in an effort to comply with the provisions of the statute, but it is claimed that such a passageway was not safe and commodious within the meaning of said statute.

The evidence considered most favorably for appellee discloses that in June, 1908, he.was employed in that portion of appellant’s mine located south of the bottom of the shaft; that upon the occasion on which he was injured he with other employees in that portion of the mine quit work at about four o’clock in the afternoon and proceeded to the bottom of the shaft by the passageway for the purpose of being conveyed by the cage to the top of the mine; that said passageway was of the width of from three and a half to five feet; that at the same time the men employed in the portion of the mine which was located north of the shaft proceeded in like manner to the bottom of the shaft for the same purpose, and that in accordance with an established custom in the mine the cage which held ten men was loaded upon each occasion with five men from each side of the shaft; that at the time of the accident there were about thirty men in the passageway—fifteen from each side of the shaft—all waiting their turn to enter the cage; that while the men were so standing in the passageway and were crowding each other in their efforts to enter the cage a" team of mules hitched tandem, or as a “spiked team,” followed by a single mule, were being driven through said passageway from the north to the south side of the shaft; that while the mules were being thus driven through the passageway the single mule in the rear being urged forward by its driver proceeded abreast of the leading mule of the “spiked team,” and the rear mule of the “spiked team” being struck by its driver lunged forward, and the three mules became so entangled that one of them fell upon appellee causing the' injury complained of; that mules were frequently driven through the passageway while men were traveling or standing therein and that the passageway was of sufficient width to accommodate the passage of men and mules therein in the usual and customary manner in which such passageway was used.

It is manifest that the accident would not have occurred had not the mules become entangled in the manner described, and while the Mines and Miners Act is to be liberally construed, every accident occurring in a mine is not to be necessarily attributed to the wilful failure of a mine operator to comply with some provision of the Act. The evidence discloses that the county mine inspector, whose duty it was to see that the requirements of the statute were complied with, had inspected the passageway as it existed in appellant’s mine and had had no occasion to find or report the same as being unsafe and incommodious. This evidence, while in no sense conclusive, is entitled to more than a mere casual consideration. It may be conceded that whether or not a passageway is safe and commodious within the meaning of the statute is ordinarily a question of fact for the determination of a jury, but such determination is not conclusive and should not be so regarded when it is against the manifest weight of the evidence. To hold the passageway in question was not safe and commodious because an accident occurred therein under the circumstances disclosed in this ease, would necessitate a like holding if the passageway had been of the width of ten feet and a like accident had resulted by reason of five or six mules running abreast and becoming entangled therein.

The judgment of the circuit court will be reversed with a finding of fact to be incorporated in the judgment of this court.

Reversed with finding of fact.

Finding of Fact: We find as an ultimate fact that appellant was not guilty of a wilful failure to comply with the provision of the Mines and Miners Act as alleged in the declaration.


text:
    Richard Snell, Administrator, Appellant, v. Lincoln H. Weldon, Appellee.
    1. Appeals and errors—how appeal from county to circuit court should he heard. Upon appeal from the county to the circuit court the ease should be heard de novo, and the circuit court should retain jurisdiction of the case and enter the appropriate order.
    2. Executors and administrators—when order to turn over assets of estate erroneous. Upon the setting aside of a will it is error for the county court to order the executor to turn over to an administrator appointed all of the property in his possession belonging to the estate without first affording to the executor an opportunity to state his account.
    Appeal from the Circuit Court of De Witt county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Lemon & Lemon, Edward J. Sweeney and Ingham & Ingham, for appellant.
    John Fuller, James S. Ewing, Herrick & Herrick and Barry & Morrissey, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

By his last will and testament and codicils thereto duly admitted to prohate in the county court of DeWitt county, the testator, Thomas Snell, nominated and appointed the appellee, Lincoln H. Weldon, as his executor and trustee. On July 26, 1907, appellee was by said county court appointed such executor and duly qualified as such. At the same time appellee tendered his resignation as trustee under said will. Thereafter, Richard Snell, a son of the testator, filed his bill in equity in the circuit court of DeWitt county to set aside said will and codicils thereto, and proceedings were there had resulting in a decree setting aside said will and codicils, which decree was affirmed by the Supreme Court. Snell v. Weldon, 243 Ill. 496. On April 1, 1910, Richard Snell filed his petition in said county court for the revocation by said court of the letters testamentary theretofore issued to appellee, and for the appointment of the petitioner as administrator of the estate of said Thomas Snell, and upon the same day the county court entered an order revoking the said letters testamentary so issued to appellee and ordered that letters of administration upon the estate of Thomas Snell be issued to Richard Snell upon his filing bond in the penal sum of $130,000, and further ordered that appellee within ten days after notification to him of the qualification of Richard Snell as administrator, turn over, transfer and deliver to Richard Snell as such administrator, all monies, papers, certificates of stock, deeds, mortgages, notes, leases, property and other assets then in his hands, or then under his control belonging to'said estate. On April 5, 1910, appellee filed in said county court a report of all his acts and doings as executor of the last will and testament of Thomas Snell, and of all monies received and disbursed by him as such executor during a period of nearly three years, which said report also contained a statement by appellee to the effect that after the will of his testator was admitted to probate suit was instituted to set the same aside; that he was made a party defendant to said suit as executor, and in that capacity employed attorneys to defend the same; that said suit was tried in January and February, 1908, upon which trial the jury disagreed; that it was again tried at the Hay term, 1908, of the circuit court of DeWitt county, when a decree was entered setting aside said will, which decree on his appeal to the Supreme Court was reversed ; that said suit was again tried at the Hay term, 1909,' of the said circuit court, where a decree was entered setting aside said will, which decree on his appeal to the Supreme Court was affirmed; that by reason of said litigation he had incurred a liability to the attorneys employed by him, for their services in defending said suit, and that said attorneys had presented to him their bill for $75,000 therefor, which amount appellee prayed that he be authorized to pay'to said attorneys out of the assets of the estate. Appellee then also filed his motion in said county court to set aside and vacate the order entered by said court on April 1, 1910, requiring him to turn, over the property of said estate to appellant as administrator, which motion was denied by the county court. Appellee then also entered his motion in said county court for a rule on appellant as administrator to file objections to his report as executor and for a hearing on said report. Appellant then entered his cross motion to strike the report of appellee as executor from the files. The county court denied appellee’s motion for a rule on appellant as administrator to file objections to his report and for a hearing on said report and granted appellant’s motion to strike said report from the files. A separate appeal was taken by appellee to the circuit court from each of three several orders and judgments of the county court above recited, viz: First, the order entered April 1, 1909, requiring appellee to turn over all the property in his hands to appellant as administrator; second, the judgment refusing to set aside and vacate the order entered April 1, 1910; third, the order striking appellee’s report as executor from the files.

On the hearing in the circuit court upon the matters involved on the appeal from the order in the county court requiring appellee to turn over the property in his hands to appellant, after appellant’s motion to dismiss said appeal had been overruled, the circuit court found that in due course of law the county court should have required appellee as ex-. ecutor to report within a specified time what property he had in his hands and then have required him to turn over the same, and it was ordered by the circuit court that the order of the county court requiring appellee to turn over the property be reversed and the cause remanded to the county court, and that the county court determine what property, if any, appellee had in his hands as executor and order him to deliver the same when ascertained to appellant as administrator. The costs of the proceeding were taxed against appellant to be paid in due course of administration. This appeal is prosecuted to reverse such order and judgment of the circuit court, and appellee has assigned cross errors upon the action of the circuit court in refusing to try the case de novo and in remanding the same to the county court.

The county court erroneously required appellee to turn over all the property in his possession as executor to appellant as administrator without giving appellee an opportunity to state his account as such executor, and the finding of the circuit court that the county court erred in that particular was right. While section 29 of the act entitled Administration of Estates provides that in all cases where a will, testament or codicil shall have been proved and letters granted thereon, and such will shall thereafter be set aside by due course of law, the letters granted thereon shall be revoked, nevertheless the general rule as announced in Smith v. Smith, 168 Ill. 488, is that the acts of an executor after probate are valid notwithstanding the consequent setting aside of the probate. The order of the county court operated as a final judgment against appellee and an appeal therefrom was properly taken to the circuit court. Randolph v. The People, 130 Ill. 533.

The cross-errors assigned by appellee are well assigned. The statute provides that upon appeal from the county court to the circuit court a case shall be tried de novo. Rev. Stat. 1909, 692, par. 212; Richardson v. Emberson, 96 Ill. App. 403. The circuit court should have retained jurisdiction of the case and entered such order therein directing appellee, within a reasonable time fixed by the court, to file in said court a report of his acts and doings as executor of the last will and testament of Thomas Snell, deceased.

Upon the cross-errors assigned the order and judgment of the circuit court is reversed and the cause remanded for further proceedings in accordance with the views here expressed.

Reversed and remanded.


author: Per Curiam:

text:
    Richard Snell, Administrator, Appellant, v. Lincoln H. Weldon, Appellee.
    Appeals and errors—what order final and appealable. An order improperly striking from the flies the report and account of an executor denying to such executor any right to report or account, is final and appealable.

      Appeal from the Circuit Court of DeWitt county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed and remanded.
    Opinion filed May 26, 1911.
    Lemon & Lemon, Edward J. Sweeney and Ingham & Ingham, for appellant.
    John Fuller, James S. Ewing, Herrick & Herrick and Barry & Morrissey, for appellee.
   Per Curiam:

The proceedings had in the county court of DeWitt county relative to the matters involved on this appeal, prior to the hearing on the appeal to the circuit court of said county from the order of the county court striking from the files the report of appellee to said court of his acts and doings as executor of the last will and testament of Thomas Snell, deceased, are fully set forth in the opinion this day filed in Richard Snell, A’mr., etc., appellant, v. Lincoln H. Weldon, appellee, ante page 11.

On the hearing in the circuit court of the appeal from said judgment and order of the said county court, after a motion to dismiss said appeal had been overruled, appellee moved the court for a rule on appellant to file objections to appellee’s said report as executor, which motion was also overruled by the court. The circuit court then found that said report was properly filed by appellee in the county court and that the county court erred in striking said report from the files; that the county court should have required appellant as administrator to file objections, if any he had, to said report of appellee as executor, and should have passed on the same upon the merits; and ordered and adjudged that the order and judgment of the county court be reversed and the cause remanded to said county court with directions to rule appellant as administrator to file his objections, if any he had, to said report of appellee, and to proceed to a hearing on the said report and the objections thereto, if any, upon the merits. This appeal is prosecuted to reverse the said order and judgment of the circuit court, and appellee has assigned cross-errors upon the action of the circuit court in refusing to try the case de navo, in. remanding the case to the county court, in overruling appellee’s motion for a rule on appellant to file objections, if any he had, to said report, and in refusing to hear the case upon its merits de novo.

It is first urged by appellant that the order entered by the county court was not a final or appealable order and that the circuit court erred in refusing to dismiss the appeal to that court, and appellant relies upon the case of VanSellar v. James, 113 Ill. App. 206, in support of his position. In the case at bar the right of appellee to file any report whatever was denied by the county court and the report filed by him was stricken from the files without further order. In the case cited VanSellar had acted both as conservator of one James, and as executor of his last will and testament, and the report filed by him incorporated a statement of all of his acts and doings in both capacities. Upon objections filed to said report the circuit court refused to pass upon-the merits of the several items constituting the account, but found that the account as presented was not a proper account, and refused to approve the same as filed, and ordered VanSellar to file separate and distinct accounts of his acts and doings in each of said capacities. Manifestly, in that case the right of VanSellar to file reports as conservator and as executor was not denied, and the order of the court from which an appeal was attempted to be taken was merely interlocutory and not final. The circuit court did not err in refusing to dismiss the appeal.

Appellee was entitled to file a report of his acts and doings as executor, and to have his account as executor passed upon and adjudicated, before being required to turn over the property in his possession as executor to appellant as administrator and the circuit court properly so held.

Upon appeal to the circuit .court the case should have been there tried de novo and the circuit court erred in refusing to enter a rule on appellant to file objections, if any he had, to said report, within a reasonable time to be fixed by the court, and in refusing to retain jurisdiction of the case for the purpose of hearing and determining the merits of the controversy upon said report and the objections thereto, if any.

The order and judgment of the circuit court will be reversed upon the cross-errors assigned by appellee, and the cause remanded to said court for further proceedings not inconsistent herewith.

Reversed and remanded.


text:
    Richard Snell, Administrator, Appellant, v. Lincoln H. Weldon, Appellee.

      Judgments—when cannot he set aside. A final order entered by the county court is a judgment which neither that court nor the circuit court on an appeal can set aside at a term subsequent to that of the entry in the absence of a showing of fraud.
    Appeal from the Circuit Court of DeWitt county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the November term, 1910.
    Reversed.
    Opinion filed May 26, 1911.
    Lemon & Lemon, Edward J. Sweeney and Ingham & Ingham, for appellant.
    John Fuller, James S. Ewing, Herrick & Herrick, and Barry & Morrissey, for appellee.
   Per Curiam:

The proceedings preliminary to this appeal are fully set forth in the opinion this day filed in Snell, Admr., etc., v. Weldon, ante, page 11. On the hearing of appellee’s appeal in the circuit court from the judgment of the county court refusing to set aside and vacate the order there entered April 1, 1910, requiring appellee as executor of the last will and testament of Thomas Snell, deceased, to turn over all the property in his possession as such executor, to appellant as administrator, the circuit court, after overruling appellant’s motion to dismiss said appeal, found that the county court erred in overruling appellee’s motion to vacate and set aside that portion of its order of April 1, 1910, requiring appellee as executor to turn over certain property to appellant as administrator, and ordered and adjudged that the said order of the county court be vacated and set aside, and that said cause be remanded to said county court with directions to proceed according to law to consider appellee’s report as executor, etc. This appeal is prosecuted to reverse such order and judgment of the said court.

The record discloses that the order of the county court of DeWitt county requiring appellee to turn over the property in his possession as executor to appellant as administrator, was entered on Ajiril 1, 1910, being one of the days of the March term of said court, and that the motion to vácate and set aside said order was entered April 9, 1910, being one of the days of the April term of said court.

It is well settled that in the absence of fraud intervening a court has no discretion or authority after the expiration of the term at which a final judgment or order, even if erroneous, is entered, to vacate or set aside such order or judgment. Barnes v. Henshaw, 226 Ill. 605. As the county court was without authority to vacate and set aside the order in question at a term subsequent to that at which said order was entered, it was not within the province of the circuit court on appeal to set aside and vacate said order. The order was merely erroneous, not void.

The judgment of the circuit court in this case will be reversed, but the cause will not be remanded.

Reversed.