text:
    H. L. Sturm, Appellee, v. Central Oil Company, Appellant.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Pleading—when pleas amount to _general issue. A demurrer is properly sustained to several pleas which set up matters competent under the general issue.
    3. Instructions—when party not entitled to have theory of case presented. The rule that a party has a right to have the jury instructed upon his theory of the case does not apply where his theory is contrary to the law applicable to the case.
    4. Instructions—must not invade province of jury. To tell the jury that certain facts would constitute an acceptance of work is to invade the province of the jury.

      Assumpsit. Appeal from the Circuit Court of Montgomery county; the Hon. A. M. Rose, Judge presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    H. J. Cantwell and Lane & Cooper, for appellant.
    Jett & Kinder, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

Appellant entered into a contract with appellee in and by which contract appellee engaged to drill for appellant three wells for oil or gas in Montgomery County. Appellee contracted to bore the wells not less than five hundred feet nor more than one thousand feet, as might be determined by appellant ; the clause of the contract in that regard is as follows:

“The party of the second part hereby agrees to drill three wells for the party of the first part for oil or gas in the neighborhood of Butler, Montgomery County, Illnois, to a depth of not less than five hundred feet and not more than one thousand feet as may be determined by party of the first part for $1.25 per foot and to furnish all necessary drilling machinery, fuel, water and labor for performing same.”

Appellee contracted further to furnish the wells with a hole not less than five and five eighths inches in diameter to the six hundred feet sand and not less than four and one half inches to the one thousand feet sand and to begin the drilling on or before August 20, 1907,,. and to prosecute it with full crews until the three wells were completed.

The contract provided that in event salt water or caving ground was struck below the six hundred feet oil sand, so as to require a smaller casing than five and five eighths inches, the whole could be abandoned by appellee and appellant was to pay for the hole as measured to said depth.

The contract further provided that appellee should furnish appellant with a log of the boring of each day.

There is no controversy over the first two wells bored; the controversy arises over the third well.

Appellee contends that while he was drilling this well and when he had reached a depth of 388 feet, appellant, by its field manager, stopped the drilling. As soon as this was ascertained by appellee he ordered his foreman in charge of the drilling to proceed and to continue without interruption to the depth of 500 feet, the minimum depth at which his contract called for a well, unless oil or gas was found before that depth was reached. 3STo oil or gas was found above that depth and when the depth of 500 feet was reached, appellee informed appellant that the drilling from that point on would be under its direction and that, if he desired it stopped at any time between that and the maximum depth of 1000 feet, should so direct. Appellant directed him to continue drilling, and at the depth of 576 feet, appellant’s field manager was notified that gas had been struck at that depth; the field manager of appellant was not then on the field but notified appellee by telephone to continue the boring until he arrived; the field manager of appellant arrived the next day and at this time the well was at a depth of 632 feet; salt water had been reached and the well was partially filled with salt water and the flow of gas stopped.

Appellee contends that when he reached the depth of 500 feet the contract was then completed upon his part unless appellant directed the well to be bored deeper and that after having reached that depth, whatever further depth was continued was to be under the direction and control of appellant, while appellant contends that the contract required that appellee should drill the well to the depth of 1000 feet unless gas or oil should be found at a depth less than the 1000 feet and that it was the duty of appellee to stop the drilling at any depth less than 1000 feet if oil or gas was found.

The trial court adopted the view of appellee and held that the contract provided that a well should be bored by appellee to a depth of not less than 500 feet nor more than 1,000 feet and that after-the minimum depth was reached without finding oil or gas, thereafter the depth at which the well should be bored was at the discretion of appellant and we agree with the trial court that this is the proper construction of this contract.

The question as to whether or not appellee, after he reached the depth of 500 feet and had found neither oil or gas, continued the boring under the specific direction and management of appellant, was a question of fact to be submitted to the jury to be determined from all the evidence in the case.

There is also a dispute in the evidence as to whether or not appellant was informed by appellee of the striking of gas at the depth of 588 feet and whether appellant was notified by appellee and was specifically ordered by him to continue the drilling until appellant should reach the field; this was also a question of fact to be submitted to the jury on the evidence. The jury by its verdict found both of these contentions against appellant and in favor of appellee. Appellant contends that the finding of the jury upon these questions is not warranted by the evidence. They were purely questions of fact and this court is not disposed to hold that the finding is manifestly against the weight of the evidence, but we are of the opinion the evidence justified the finding of the jury on these questions.

Appellant also assigns as error the admission of certain evidence by the trial court but on a careful examination of the questions raised we do not find error that would require a reversal of the cause or anything that was prejudicial to the interests or rights of appellant upon the admission or rejection of the evidence.

Appellant also assigns as error the rulings of the trial court upon the special pleas filed by appellee. We find no error in the rulings of the trial court in this, as the matters set forth in the special pleas to which demurrers were sustained were admissible under the general igsue and the special plea to which the demurrer was not sustained, and where the evidence is admissible under pleas which are held good, it is not error to sustain a demurrer to other pleas setting up the same facts, and the trial court did not err in sustaining the demurrer to these pleas.

Appellant criticises instructions given to the jury on behalf of appellee and assigns as error the refusal of certain instructions offered on behalf of appellant and the modification of others given on behalf of appellant. Appellant’s brief and argument in this case had quoted and repeated the evidence to such an extent that it is almost impossible to follow out any clear or definite argument for which it is contending and there is no index to the record or abstract by which the court can refer to either the evidence or rulings of the court without going to the record to hunt them up; while there is a pretended index to the abstract it is so inaccurate as to be almost useless. We have, however, gone over the instructions given on behalf of appellee and those refused on behalf of appellant, together with those modified by the, court, and we find no error in the giving or refusing of any of these instructions that would be in any way prejudicial to the interests of appellant.

Appellant specifically complains of the refusal of the ninth instruction asked on its behalf and insists that it was entitled to have the jury instructed upon its theory of the case. This instruction presents a theory that is not in accord with the construction of the contract as held by the trial court, and the rule that a party has' a right to have the jury instructed upon his theory of the case does not apply where his theory is contrary to the law applicable to the case. This instruction was properly refused by the trial court.

Special objection is also made to the fourth instruction given on behalf of appellee. It is insisted that this instruction assumes that the well was accepted by appellant; the instruction is not subject to this criticism; it makes no assumption of the acceptance of the well by appellant, the instruction is based on the evidence and relates wholly to the question as to whether the work which was done upon the well after the depth of 500 feet had been reached, was done at the request and under the direction and management of appellant and whether certain items of expense were required to be paid out by appellee by reason thereof; and this instruction follows the law as adopted hy the trial court and it was properly given.

In regard to the instruction Ho. 16, offered by appellant and refused, this instruction attempts to tell the jury that certain acts or facts, if shown by the evidence, would not constitute an acceptance of the well. This instruction, if given, would have invaded the province of the jury and where a question of fact is involved in the case, it is not proper for the court to direct the jury that certain portions of the evidence do or do not establish that fact, but the question of fact must be submitted to the jury to be determined from the whole evidence in the case.

We find no error in the giving or refusing of these instructions and no reversible error in this record and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Philbrick

license: Public Domain

text:
    William E. Shedd et al., Trustees, Appellees, v. Warren Coons, Appellee, E. C. Simmons, Appellant.

      Corporations—what not obligation of. If the owner of a corporation after making an assignment to a trustee for the benefit of creditors makes an entry upon the books of the corporation of a money obligation claimed to be due to him from such corporation, he does not thereby become a creditor thereof, nor does his assignee, so as to affect the interests of a third party.
    Bill of interpleader. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding.
    Heard in in this court at the November term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Hearick & Meeks, for appellant; Lewis Haslam, of counsel.
    Joseph H. Barnhart, Charles Troup and O. A. McFarland, for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

The Force & Booth Hardware Company was a corporation and prior to the time of the circumstances out of which the controversy in this action arose the stock in said corporation was owned by one Force, Warren Coons and J. McKnight Booth. J. McKnight Booth desired to buy and own all of the stock of this corporation and become the sole owner. With this object in view he entered into a contract with said Force and Warren Coons for the purchase of their stock.

The amount of money required for this purchase was $3,900 and for the purpose of buying this stock Booth borrowed from E. C. Simmons, appellant herein, $3,935, which sum of money he deposited to his own credit in the First national Bank of Danville. Out of this fund he paid Force $1,400 and received the stock Force held in the corporation. At the time of completing his contract of purchase with Coons, Booth paid to Coons $1,200 and Coons delivered to Booth the entire amount of stock which he held in the corporation and for which the consideration price of the transfer to Booth was $2,500.

The finances of the Force & Booth Hardware Company were in such condition that immediate cash was necessary and Booth arranged and agreed with Coons that Coons should take a note for $1,300, the balance of the purchase price, which note was executed by the Force & Booth Hardware Company and J. McKnight Booth, and thereupon Booth used $1,291 of the $1,300 in the business of the Force & Booth Hardware Company, of which Booth was at that time the treasurer and he then transferred the balance of the $1,300, which was in the First Hational Bank in Danville in his own name, to the credit of the Force & Booth Hardware Company. After that time Booth continued to manage, control and operate the said corporation and later changed its name to the Booth Hardware Company and the note given to Coons, signed by the Force & Booth Hardware Company and J. McKnight Booth, was renewed and a new note executed by the Booth Hardware' Company and J. McKnight Booth for the same amount. The corporation became insolvent and an assignment was made to William E. Shedd et al., trustees, appellees herein. This deed of assignment was executed by the Booth Hardware Company to the trustees; the trustees accepted the trust and the deed of assignment being for the purpose of winding up the business of the co^ poration and converting its assets into money and paying the creditors pro rata, the trustees assumed control of the assets. After the assignment was so made to the trustees, J. McKnight Booth credited himself upon the books of the corporation with $1,291, being the amount of the money which was borrowed from Warren Coons and used by him in thef business of the corporation. Up to this time there had been no entry upon the books by which Booth had claimed any credit for this fund; after having made this entry and crediting himself upon the books with this amount, he then 'assigned the claim, which he had thus made, to appellant, E. C. Simmons.

Both Coons and Simmons were notified of the deed to the trustees and assented to the arrangement therein and each filed his claim with the trustees. The trustees proceeded to wind up the business and paid off all the indebtedness, except the indebtedness to Coons and Simmons on their claims, and being unable to determine to which one of them the assets in their hands belonged and believing that only one of them was entitled to it and both claiming it, they filed this bill of interpleader for the purpose of compelling Coons and Simmons to determine in a court of equity their right to the dividends which should be paid on this claim by the trustees.

The cause was referred to the master in chancery and upon his report and findings that the claim of Warren Coons was a valid and subsisting claim against the corporation and that the claim of E. C. Simmons was not a valid claim and that Simmons was not a creditor of the corporation, and reported his conclusions that the fund should be paid to Warren Coons. Exceptions were made to this finding and upon the hearing of the exceptions the chancellor approved the report and finding of the master and entered a decree in accordance therewith and it is from that decree that Simmons appellant prosecutes this appeal.

There is no dispute as to the facts in this case and the evidence is that Booth bought the stock held by both Force and Warren Coons, paid Force in full for his, paid Coons $1,200 on the purchase price of the stock from him and being the treasurer of the corporation and authorized to borrow money for it, borrowed for the corporation from Coons the balance of his purchase price, $1,300, and executed to Coons therefore the note of the corporation and the fact that this money wras at that time in the First -National Bank to the credit of J. McKnight Booth did not change the character of the transaction in the least, and the fact that Booth did not credit himself on the books of the corporation with any part of this fund until after the assignment to the trustees for the benefit of the creditors, shows conclusively that he understood and intended that the loan from Coons was made to the corporation and for the benefit of the corporation and this is further evidenced by the fact that the note was executed by the corporation.

The entering of this transaction upon the hooks and giving himself credit for $1,291 seems to have been an afterthought of Booth, and the entire record impels us to the conclusion that the corporation was the principal debtor in this transaction and that the claim of Warren Coons is a just and valid claim against the corporation and that Booth did not become a creditor simply by entering upon the books, after the assignment to the trustees, a record of the transaction and that an assignment of the pretended claim to appellant, E. C. Simmons, did not make Simmons a creditor of the corporation and that the decree rendered by the chancellor in this cause is correct and the decree so rendered is hereby affirmed.

Affirmed.


text:
    John M. Camp, Appellant, v. Drainage Commissioners of Union Mutual Drainage District, Appellee.

      Drainage—what essential to liability of district. The fact that at the time of the making of an alleged contract (and at the time the work was done thereunder) there was no money in the treasury of the district and no levy or assessment had been made for the purpose of meeting such expense, is conclusive and establishes non-liability on the part of the district.
    Assumpsit. Appeal from the Circuit Court of Piatt county; the Hon. W. G-. Cochran, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    W. Gr. Cloyd, for appellant.
    Heed & Heed, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action in assumpsit, declaration containing the usual number of common counts. Appellant sued appellee to recover for removing dirt from the ditch alleged to belong to appellee. The plea was general issue with notice.

Appellee was organized as a mutual drainage district and existed as such for fifteen or twenty years. In September, 1905, the commissioners of appellee had the ditch surveyed and ascertained that it needed cleaning; at this time there had been no classification of the lands in the district and there had been no tax levied or collected by the commissioners and there was no money in the treasury of the district.; appellant knew these matters. Under an agreement, which is alleged to have been made at the time of the organization of the district, the owners of the land in the district were to clean out and care for that portion of the ditch which was on their respective premises. Appellant was notified by the commissioners to clean out a portion of the ditch through his premises. Appellant proceeded to clean out the ditch through his premises upon notice by the commissioners for him so to do. This work was done by appellant in 1895.

Appellant owned no land in the district at the time of its organization, but purchased his land in the district about 1892 or 3. If any agreement had existed between the landowner and the district in regard to cleaning out the ditch or repairing the same over the land owned by the various landowners, it was made prior to the time of the purchase of the land by appellant and it is not of record in the Drainage District.

A classification of the lands was made in December, 1907, by the commissioners for the purpose of making a special assessment and this was the first official act ever taken by the . commissioners so far as -making a classification of the lands. Appellant objected to the classification made of his lands at that time but the classification was confirmed in 1908. Appellee levied an assessment on the classification as confirmed and in its assessment against appellant’s land gave him no credit for the work which had been done by him in cleaning out the ditch over his land, pursuant to its notice. Appellant claiming the district had utilized his work demanded payment for the work he had done, and upon refusal to pay brought this suit.

Appellee defends upon the ground of the alleged agreement made at the time of the organization of the Mutual Drainage District, also on the ground that even if there had been a contract made between appellant and appellee for the purpose of doing the work performed by appellant, the contract was illegal and void for the reason the district had no money in the treasury at the time of making the alleged contract and no tax had been levied or assessed for the purpose of meeting any such expense.

The district was organized under the Farm Drainage Act relating to mutual drainage districts. The record shows conclusively that at the time of the making of the alleged contract or giving of a notice to appellant to clean out the ditch and at the time of doing the work by him there was no money in the treasury of the district and no levy or assessment had ever been made for the purpose of doing this work and this fact is not even controverted. The fact that at the time of the making of the alleged contract (and at the time the work was done by appellant) there was no money in the treasury of the district and no levy or assessment had been made for the purpose of meeting such expense is conclusive and must determine the right of recovery in this case. The commissioners were without power to enter into a contract for the purpose of doing this work and any agreement they might have made would have been void; therefore, no implied promise can be raised that could he enforced under such condition and no recovery could be had even if the commissioners had made a contract for the doing of this work and agreed to pay for it, and no legal levy or assessment could afterwards he made for the purpose of making the payment. The case of Drainage Commissioners, District No. 2, vs. Kenney, 233 Ill. 67, is decisive of this case and no other judgment could have been rendered on the facts by the trial court. There is no error in the record and the judgment is affirmed.

Affirmed.


text:
    Julia A. Smith, Appellee, v. Augustus M. Smith, Appellant.
    Separate maintenance—what essential to establish. In order for a wife to be entitled to a decree of separate maintenance she must establish that she is living separate and apart from her husband and that she was so living at the time of the filing of her bill. Held, under the evidence in this case, in which it appeared that the parties to the action were living in the same house but occupying different rooms, such essential was not established.
    Separate maintenance. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed May 28, 1910.
    Hogan & Wallace and L. G. Grundy, for appellant.-

      F. P. Drehhah and W. B. Wright, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is ah action brought by appellee against appellant for separate maintenance. Prior to his marriage to appellee and for some time after appellant was a farmer living upon his farm. Appellee came to the farm as appellant’s housekeeper. She brought with her two daughters. She had a son who was not brought with her at the time she went to appellant’s home as a housekeeper. Appellee had been appellant’s housekeeper about two years when they were married. The evidence discloses that prior to her marriage she became so convinced of the good qualities of appellant that she was willing to marry, him and she alleges that a part of the consideration which influenced her in this matter was that appellee was to provide a home for her children.

Soon after the marriage, disagreements began to arise between appellant and appellee concerning the household and the duties and requirements of appellant therein, regarding the furnishing and supplies for the house and necessary funds for appellee and her children, and appellee charges that appellant thereafter cursed and abused her and at one time kicked her out of bed, called her vile and abusive names, accused her of improper conduct and continued such a course of cruel and inhuman treatment during the entire time of their wedded life; that household articles which she- purchased either with her own money or money provided by him for the house were broken, numerous things thrown out of the house and curtains and drapery which appellee hung at the windows were torn down by appellant; that he threw victuals upon the floor and used his knife to scratch the floors which had been painted by appellee and her son.

Appellant contends that the cause of the trouble arose from the fact that he refused to convey to her certain property which she desired and because of his refusal to make a will which would be satisfactory to her.

This condition of affairs continued for a number of years, when just before the filing of this bill it is alleged that appellant left appellee in a fit of passion, growing out of some family dispute they had had at that time, and that appellant left with the determination of never returning. Prior to this time they had moved from the farm into town.

While appellant was away during this fit of passion, which extended for three days, appellee filed her bill for separate maintenance, alleging that she was living separate and apart from appellant, and prays for a decree for separate maintenance ; appellant answered the bill denying the allegations of the bill.

The cause was submitted to a jury and a verdict returned for appellee, a decree' entered against appellant, ordering and directing appellant to pay to appellee $75 per month and to pay a solicitor’s fee of $300, in addition to what had already been paid, prior to that time, as solicitor’s fee upon the prior order of the court, making a total solicitor’s fee of about $500.

Appellant prosecutes this appeal to reverse the decree rendered by the chancellor.

Upon an examination of this record the evidence discloses that appellee has never been living separate and apart from appellant and was not' so living at the time of the filing of this bill, the record disclosing that appellant, in a fit of passion after a quarrel with appellee, left the home and went to the farm and although he may have said that he would not return, the record fully discloses that it was his intention to return and. that he did return at the end of three days and that ever since that time, and at the time of the trial, appellant and appellee were living in the same house, under the same roof, but occupying different rooms therein. This course of conduct could not justify a finding that appellee was living separate and apart from appellant and upon examination of the decree we find there was no finding by the chancellor that appellee was living separate and apart from appellant without her fault. The only finding in the decree so far as the chancellor is concerned is that the equities of the cause are with the complainant and that appellant commenced and continued a course of inhuman treatment towards her. The decree rendered by the chancellor must be reversed and the cause remanded.

Taking the view that we have of the evidence of this case it is unnecessary to pass upon any other questions raised by appellant in this record.

The decree is reversed and the cause remanded with directions to dismiss the bill for want of equity.

Reversed and remanded.


text:
    J. D. Winn, Administrator, Appellee, v. Christian County Coal Company, Appellant.
    1. Evidence—what not part of res gestae. The recital of the maimer of an accident some time after the occurrence thereof is not part of the res gestae.

    2. Evidence—what does not waive error in admission of. To rebut incompetent evidence is not to waive the objection thereto.
    3. Masteb and servant—what within doctrine of assumed risk. A risk is an assumed one whenever a servant is familiar with all the conditions and circumstances connected with his employment and the manner in which the work is done by the master and he is not relieved from the assumption of the risk because there may be a safer method than that adopted by the master, and the master is under no obligation to use reasonable means to remove danger which was open and visible to the servant and known to him and who continues his employment knowing this dangerous condition to have existed, unless the servant has made some complaint and asked for an alteration or removal of the cause.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Christian county; the Hon. A. M. Rose, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed.
    Opinion filed May 28, 1910.
    J. C. & W. B. McBride, for appellant,
    Hogah & Wallace, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought to recover damages on account of the death of D. W. Speakman. On the trial a verdict was recovered for $3,500 and judgment rendered on the verdict from which defendant appeals.

The declaration consists of three counts. The first count charges appellant with owning and operating a certain switch track constructed upon a down grade upon which cars passed at great speed, that deceased was in its employ as a servant, that his employment required him to go between the cars to couple cars loaded with coal, and that while so engaged certain other servants who vrere not fellow servants of deceased negligently started down this switch track a large number of cars loaded with coal without having brakes set, and without anyone being in control; that the cars by their impact against certain other cars caused them to move with great speed, force and violence and strike the car about which deceased was engaged in the line of his duty and injured deceased by reason whereof he died. This count also avers that the servants who started the cars were not fellow servants of deceased and the risk was not one assumed by his employment.

The second count avers the use and occupation of a certain railroad track in the conduct of the business of appellant and that appellant negligently left a large number of cars loaded with coal upon said track in such position they could be easily started; that while deceased wras engaged in his work in coupling the cars upon a side track of appellant certain other cars so left upon said track were by some means unknown to deceased started down the grade of the switch track and by reason of which they struck with great force and violence the end of the car at which deceased was engaged by reason of which he was injured and died, and alleging that the cause of the injury was not a risk assumed by him in his employment and that the other servants in employ of defendant handling the cars were not fellow servants.

The third count avers the construction of the railroad track in a dangerous and unsafe manner; that it was constructed on such a grade that cars run down the same with great force and velocity and while so moving ran and struck against a car, at which deceased was engaged, with such force and violence as to cause his death.

The plea was general issue.

The causes assigned and argued by appellant for reversal of this cause are: First, that deceased was not in the use of due care and caution for his own safety; second, that the risk was one assumed by the deceased in his employment; third, on account of given and refused instructions.

The evidence in this case discloses that appellant was engaged in the business of mining coal. That at its shaft it had a number of side tracks and switches for the purpose of storing coal taken from the mine until the same should be taken away by the railroad company; that there were several side tracks constructed side by side and located a number of feet distant from the mine shaft, and in order to reach these tracks with the cars which were loaded at the mine, tracks were built from the shaft leading down to the side tracks where the cars were so stored. The tracks leading from the shaft to the side of the tracks were built on a steep incline and the cars moved down said incline by their own momentum, after having been started at the mine. The method of starting at the mine was to haul an empty car by team and bump it against the car loaded and thus start the loaded car down the track; sometimes one car was sent down this track, other times numerous cars were sent. Usually cars were sent down this track in charge or under the control of a man upon them for the purpose of operating the brakes and stopping them upon the side tracks when they reached the proper place.

The duties of the deceased required him to handle and take these cars from the shaft down to the side track and see that they were put upon the proper tracks and to couple them together when so put upon said side tracks. Just prior to the accident deceased took a number of cars down this incline and stopped them at the proper place; he got off the cars and started back toward the shaft along the tracks toward the point where other cars were standing ready to be started down this track to the proper side track. Instead of continuing on his way, toward the shaft, to these cars, he stepped between two cars upon one of the side tracks. The evidence does not definitely disclose the purpose for which he went between these cars and the only evidence relating thereto consists of a statement made by the deceased after he had been injured to a relative who went to the place where he. was lying. The deceased stated in this conversation that he went between the cars for the purpose of coupling the cars. The only other evidence offered by appellee on this question was that of the father-in-law of deceased, who was a number of rods away from the point of injury and across several side tracks on which loaded cars were standing and who testified that deceased went between the cars for the purpose of coupling them. From the location of the position from which the father-in-law was it is very doubtful whether or not he could see or ascertain for what purpose the deceased went between the cars and his evidence is more a conjecture than a positive fact.

The evidence of the relative' as to what deceased had said to him a short time after the accident was objected to and was admitted over objection of appellant. The admission of this testimony was error; it was not a part of the res gestee and should not have been admitted. The court having admitted this evidence oyer objection of appellant it was not error for . appellant to offer evidence of the same class for the purpose of meeting the evidence wrongfully admitted upon behalf of appellee and to meet this evidence one of the appellant’s witnesses testified that deceased informed him he stepped between the cars to urinate, and appellee contends that by offering this testimony appellant waived its objection to the evidence offered on this question by appellee. The offering of such evidence by appellant does not estop or bar appellant from afterwards insisting upon the error committed by the court in admitting the evidence objected to. Chicago City Railway Company vs. Uhter, 212 Ill. 174.

It is insisted by appellant that the reason why the plaintiff’s intestate went between cars was for the purpose of attending a call of nature and that the indication of this was apparent at the time when deceased was found to have been injured and for a considerable time thereafter by evidence as shown of a wet spot between the cars where he had been standing and it is insisted that the purpose of plaintiff’s intestate in going between the cars was not in the line of his duty and for which appellant would not be responsible; and that in so going between the said cars that he was not in the exercise of due care and caution.

The evidence discloses further that while appellee was walking towards the shaft of the mine and before he had gone between these cars the man in charge at the shaft started the cars down the incline and that the deceased knew these cars were standing at this point ready to be started and appellant insists it was negligence on his part to go between the cars at such time.

The evidence further discloses that deceased had been in the employ of appellant for a considerable length of time; that he was familiar and conversant with the construction of the incline track and the location of the side tracks and was familiar with the method and manner adopted by appellant in the handling and operation of its said cars and the means adopted by it for the purpose of causing the cars to be passed from the mine shaft to the side tracks where they were stored, and having been employed for the purpose of assisting in the moving of these cars and the caring for them upon the side tracks in this manner, that the cause of the injury was one of the ordinary, assumed risks of the plaintiff’s intestate in his employment.

Of the instructions complained of by appellant the seventh instruction given on behalf of appellee is as follows:

“With reference to the question of assumed risk, the jury are instructed that a servant assumes only such risks as are usually and ordinarily incident to his employment, and which remain so, incident, after the master has taken reasonable care to prevent or remove them, or such extraordinary risks as are so obvious, and which expose him to dangers so imminent, that an ordinarily prudent person, in anticipation of probable injury, would not enter or remain in the employment, and the question of whether the decedent assumed the risk of the injuries sustained by him, as shown by the evidence in this case, is a question of fact for the determination of the jury.”

This instruction is not a correct statement of law and the giving of it was error. It is not a correct statement regarding the assumption of risk.' Upon the question of assumed risk and the relation of the master and servant thereto, the risk is an assumed one whenever the servant is familiar with all the conditions and circumstances connected with his employment and the manner in which the work is done by the master, and he is not relieved from the assumption of the risk because there may be a safer method than that adopted by the master; and the master is under no obligation to use reasonable means to remove the dangers which are open and visible to the employe and known to him and who continues his employment knowing these dangerous conditions to have existed, unless the servant has made some complaint and asked for an alteration or removal of the causes and upon this question the Supreme Court in Cichowicz vs. International Packing Co., 206 Ill. 346, has said: “A servant who knows there are dangerous defects on premises where he works and does not make complaint and ask .for repairs or improvements necessary for his safety, assumes the risks involved "whether he acquired the knowledge before he enters the service or afterward. In either case he cannot continue in the employment and encounter the dangers without complaint or any assurance of safety or promise of repair and remedy the defect, and in case of injury hold the master liable.”

And from a careful consideration of this cause this court has arrived at the conclusion that the deceased had full knowledge and information of the construction of the tracks, the location thereof and the manner in which appellant conducted its business and that by reason thereof he assumed the risk which caused his injury as one of the ordinary risks of his employment, and we have also reached the conclusion from the facts disclosed in this case that plaintiff’s intestate, by going between the cars where he was injured at the time when the other cars were coming down the incline and proceeding with the speed they must necessarily take and of which he knew they would take in proceeding down the incline, he was not in the exercise of due care and caution for his own safety and for these reasons the judgment of the lower court is reversed without remanding the cause, and the clerk is directed to enter in the judgment herein the finding of facts that the cause of the injury to plaintiff’s intestate was one of the ordinary risks assumed by his employment and that he was not in the exercise of due care and caution for his own safety.

Reversed.


text:
    John Dawson, Administrator, Plaintiff in Error, v. John Kitch et al., Defendants in Error.
    1. Judgments—form where plaintiff is defeated. Where a plaintiff is defeated in an action the form of judgment to be entered is one in bar of the action.
    2.. Landlord and tenant—rule as to liability for personal injuries. A landlord is not liable or responsible for a dangerous and unsafe condition of premises where the premises were reasonably safe at the time of the beginning of the tenancy but became dangerous and unsafe under the occupation of the premises by the tenant under the lease, unless the landlord has especially undertaken and agreed to keep the premises in reasonably safe condition and repair or had been notified of the dangerous and unsafe condition and has agreed or contracted to repair the same.
    Action in case. Error to the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Livingston & Bach, for plaintiff in error.
    Babby & Moeeissey, for defendants in error.
   Mr. Justice Philbrick

délivered the opinion of the court.

This action is brought by plaintiff in error to recover for the alleged wrongful death of his wife and upon the t~:al the Circuit Court directed the jury to find the defendants not guilty and rendered judgment on the verdict in bar of action.

Defendants in error were the owners of a piece of property in Ellsworth, McLean county, upon which was erected a building the second story of which was leased to the Modern Woodmen of America and of which they have had possession as tenants of defendants in error for a number of years. In this second story was a stage and on various occasions the tenants, Modern Woodmen, had sublet the premises for public purposes.

The entrance to the upper story was by means of an inside stairway in the front of the building, and this was the only means of entrance to the general public whenever it was used as a place of public entertainment. There was, however, a stairway constructed at the rear end of the building which led to 'the second floor and the door leading from the hall to the stairway was in the rear of the building. This stairway did not connect with any street or public thoroughfare. At the time that the Modern Woodmen of America became the tenants of defendants in error in these premises this back stairway was protected by a railing but during the last year of their occupancy it became out of repair, dilapidated and so useless that the railing had been removed or had fallen down, the record does not disclose which. While in this condition on or about the fourth day of April, 1908, the hall was sublet by the Modern Woodmen of America for the purpose of holding a church fair or festival,therein and during the time of this entertainment the building caught fire and in escaping from the building appellant’s intestate proceeded by the back stairway and in descending the same was crowded or pushed off from the stairway, fell a distance of fifteen feet or more, was injured, from which injuries she died.

Plaintiff in error insists on a reversal of the judgment of the trial court, alleging as reasons therefor, first, that the court erred in directing a verdict for the defendant and rendering a judgment on the verdict; second, that the court erred in rendering a judgment in bar of action; and third, the court erred in rendering a judgment against the administrator for costs in awarding execution. Upon the latter question it is sufficient to say that a supplemental record has been filed which shows that the trial court amended its judgment directing and awarding an execution, and the final judgment is that the costs should be p“aid in the due course of administration.

Upon the question as to the rendition of a judgment in bar of action by the trial court, it was not error to render a judgment in bar of action as that is the proper judgment where the plaintiff is defeated in the action.

Upon the assignment of error to" the action of the court in directing a verdict, it is contended by plaintiff in error that although the Modern Woodmen were the tenants and were in possession of these premises and had been for a number of years prior to the injury and had so continued to the time of the injury and although their lease was a leasing by the year and although there had been a continual holding under the old lease until a short time prior to the accident, this was in the contemplation of law a new lease at the expiration of each year, and" that the landlord while ordinarily not liable for the condition of premises in the occupation of a tenant and not liable ordinarily to keep the same in repair, that in contemplation of the law there being a new lease at the beginning of each year, the landlord became liable during each successive year for the condition of the premises as they existed at the beginning of that year and that if the premises were in a dangerous condition at the time of the commencement of each successive year then the landlord would be liable for any injury occasioned thereby, notwithstanding the premises were in the possession of a tenant; and it is further contended that a short time before the beginning of the year in which the accident occurred, the Modern Woodmen of America had notified the landlord that they would continue the lease for another year provided the landlord would make repairs upon this rear stairway by adding thereto a railing and improving other conditions, and that the landlord agreed that this should be done, and upon this condition, and the promise of the landlord so to do, the Modern Woodmen of Americá continued in the possession of the premises.

On the other hand it is contended by the defendants in error that the Modern Woodmen of America having had the premises leased for a number of years and continued to occupy them from year to year without any new lease having been executed, that the tenancy became one from year to year and while the premises so remained in the possession of the tenant the landlord was not liable for any condition that arose after the original leasing, and the evidence being that at the time of the original leasing there was a railing upon the stairway and that it had existed up to and during a portion of the last year of the tenancy of the Modern Woodmen, defendants in error are not liable for the conditions which were then -created, and further that the tenancy of the Modern Woodmen of America being a tenancy from year to year under the statute and no notice having been given by the Modern Woodmen of any intention to vacate the property or surrender the lease at the end of the then current year, that the tenants were bound to occupy, and could not surrender, the premises at the end of the then current year, for the reason no notice had been given sixty days prior to the expiration of said year, that the same would be vacated, and that being bound for the occupancy of the premises for the next succeeding year, that any contract or claim to repair which may have been made by the landlord with the Modern Woodmen of America for the succeeding year was without any consideration and void and they were not bound to make repairs' under such agreement even if it had been made; that such a contract, even if proven, was nudum pactum.

From a careful examination of the record in this case we find that the record discloses that defendants in error were the owners of this property, that the same was leased to the Modern Woodmen of America a number of years prior to the time of the accident complained of, that the same was occupied under a lease from year to year, that after the first occupancy no new lease or contract was entered into and the Modern Woodmen of America were tenants from year to year, that the condition of the premises which is complained of and is alleged as negligence on the part of the defendants in error was created during the pendency of the lease and during the occupancy of the Modern Woodmen of America of these premises as tenants of defendants in error, and the rule of law in this state is, the landlord is not liable or responsible for a dangerous and unsafe condition of premises where the premises were reasonably safe at the time of the beginning of the tenancy but became dangerous and unsafe during the occupation of the premises by the tenant under the lease, unless the landlord has specially undertaken and agreed to keep the premises in reasonably safe condition and repair or had been notified of the dangerous and unsafe condition and has agreed or contracted to repair the same.

There being no dispute in this case that the condition here complained of arose during the occupancy of the tenant, the only theory contended for upon which the landlord could be here liable, is by reason of the alleged contract made at the time of the making of the alleged new lease, a short time prior to the expiration of the then current year.

Conceding the landlord did agree that the dangerous condition of this stairway would be remedied before the new lease should commence, the tenant then being liable for holding of the premises for the succeeding year, having given no notice or an intention to surrender within the time required by the statute, and being so liable to the landlord, any contract or agreement made by the landlord in consideration of such continuance of the lease for another year was without any consideration, and this alleged contract having been made at the time of the agreement to lease the premises for another year, and the current year not having expired, any contract made at that time for the renting of the premises for a year to commence in the future not in writing was void and could not have been enforced by the Modern Woodmen of America, and this condition of the premises having arisen during the time when the Modern Woodmen were so occupying the premises as tenants no duty was imposed by the law upon defendants in error to make the repairs to these premises and the owners of the building are not liable for an injury caused by reason of a failure to make the repairs and the trial court having committed no error in giving the peremptory instruction and directing a verdict for the defendants, the judgment of the lower court is affirmed.

Affirmed.


text:
    Samuel Igo, Jr., Appellee, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellant.
    1. Common carriers—when limitation of UabiUty not effective. The rule of law in this state applicable to contracts of shipment applies also to interstate commerce and before a carrier can invoke the aid of a contract containing limitations of liability it must be shown that the shipper assented thereto.
    2. Pleading—upon what recovery may be predicated. No recovery can be predicated upon any theory not supported by the declaration in the case.
    3. Measure oe damages—in action against carrier for delay in transportation. Eeld, in such an action that an expenditure for care of a race horse not growing out of or occasioned by reason of the delay charged, was not a proper element of damage.
    Action in case. Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed May 28, 1910.
    George B. Gillespie, for appellant; Hamlin, Gillespie & Fitzgerald and W. 0. Kelly, of counsel
    Ohafee & Chew, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant to recover for an alleged damage to a shipment of a car-load of horses and mules from Shelhyville, Shelby county, Illinois, to Indianapolis, in the State of Indiana, alleged to have been occasioned by reason of alleged negligence of appellant in delay in taking the car from Shelhyville, and also in the violent and improper handling of the car in such shipment.

The declaration consists of two counts. The first count is based upon an alleged charge of negligence in handling the car in such a violent and rough manner in the switching, starting and backing of the train whereby the said horses and mules were damaged and injured.

The second count alleges a charge of negligence consisting of a delay in taking the cars from Shelhyville after the same had been loaded by appellee and delivered to appellant and averts that the car was loaded at six o’clock in the afternoon and that appellant negligently permitted the same to remain upon its track at Shelhyville until the hour of five o’clock in the morning of the day following and negligently permitted two trains, belonging to appellant and being regular stock trains carrying through stock to the city of Indianapolis, to pass by said city of Shelhyville, without taking said car from Shelhyville to Indianapolis, and that by reason of this delay the stock was damaged.

To this declaration appellant pleaded the general issue, also one special plea.

The special plea set forth that appellant was a railroad company incorporated under the laws of the State of Indiana and Ohio and engaged in interstate traffic and that the hauling and taking of the said stock from the city of Shelbyville to the city of Indianapolis was interstate traffic and governed by the rules and regulations of the Interstate Commerce Act, in that appellant entered into a contract with appellee which, under the Interstate Commerce Act, was a limited liability live stock contract and the rate of shipment was based upon a classification known as Ho. 29 of the Interstate Commerce Commission, then on file in the office of appellant at Shelbyville, Illinois. The contract is set out in full in the plea and appellant avers that under the contract it became and was the duty of appellee to furnish within five days any claim for damages arising by reason of said shipment, verified by affidavit, to appellant at its office in-Indianapolis and that appellee did not so furnish such verified statement and make such claim and that by reason of it being a shipment governed by the Interstate Commerce Act a lower rate was granted to appellee and that by reason of this lower rate appellant had a right to limit its liability.

Appellee obtained leave to reply doubly to this plea and replied:

First: That appellant did not require appellee to make a claim in writing within five days after the alleged injury • verified by affidavit but that appellee did make and deliver on the 24th day of April at the city of Indianapolis and state of Indiana a claim in writing for said injuries and that although said claim was not verified by affidavit appellant received and accepted said claim as a claim for injuries and damages without objection, that the same was unverified by the oath of the plaintiff and that ever since that time has treated said claim as a claim pending for adjustment upon its merit.

The second replication was, that at the time of shipment and the making of the alleged contract the defendant did not notify the plaintiff and the plaintiff did not know the contract limited the liability of appellant or the said shipment was taken at a reduced rate on account of such limited liability and did not notify appellee that by paying a higher rate a greater liability would be undertaken on the part of appellant.

To the second replication appellant interposed a demurrer which was overruled by the trial court and appellant elected to stand by its demurrer and thereupon filed a rejoinder to the first replication.

Trial was had upon the issue thus made and resulted in a. verdict in favor of appellee for $300. Motion for a new trial was overruled, judgment rendered on the verdict and appellant prosecuted its appeal from that judgment and urges for reversal: . . .

First: That there was no evidence in the record tending to prove the negligence alleged in the first count of the declaration and that the court erred in refusing to sustain a motion to withdraw that count from the jury.

Second: That the court erred in overruling the demurrer of appellant to the second replication.

Third: That the declaration only alleged delay in taking the stock from Shelbyville and did not allege any delay after having so taken the stock and that the court erred in admitting evidence of the delay of the car after the same had left Shelbyville.

Fourth: That the court erred in admitting evidence of alleged damages to a certain race horse which was shipped in said car for the reason that such evidence related to special damages and that no such special damages Was alleged in the declaration.

Fifth: That the court erred in giving and refusing instructions.

Upon the first ground urged that the court should have taken the first count of the declaration from the jury, we find upon examination of the record that there is no evidence whatever as to any violent or rough usage or handling of the car after the same was loaded by appellee and there is no evidence that the train was violently handled or that the cars were kicked in switching and upon this question the record wholly fails to prove any averment of negligence in the first count of the declaration, and the motion of appellant to withdraw said count from the jury should have been sustained.

Upon the question of overruling the demurrer of appellant to the second replication filed by appellee, the special plea to which this replication was filed set forth a special contract which had been signed by appellee and that the contract was made upon the basis of a certain classified schedule on file in the office of appellant giving the various schedules and rates for shipments of this character which were open to the inspection of appellee and which were required to be maintained at the office of appellant by the Interstate Commerce Act, and that appellant was bound by the rates therein made and the same being there for the inspection of appellee and appellee having executed this contract, that he is bound thereby and was bound to know not only the contents of his contract but also the contents and provisions of the schedule so maintained at the offices of appellant under the provision of the Interstate Commerce Act; and that by reason of this schedule a lower rate was given to appellee and under it appellant had the right to limit its liabilities by contract.

Upon this question the Supreme Court in Kirby vs. C. & A. R. R. Co., 242 Ill. 418, has held that the provisions of the Interstate Commerce Act create no different relation between appellant and appellee than the common law under a contract of this character and that appellee was not bound to go into all the intracacies and details of examining the tariff schedules and the contract of shipment before submitting his stock to appellant for shipment and was not bound to know the contents of both the contract and the schedule; that the rule of law in this state applicable to contracts of shipment applies also to interstate commerce and that before appellant can invoke the aid of such a contract it must be shown that the appellee’s attention was called to the provisions of the contract or that he was familiar with the contents thereof, and this replication represented the issue as to whether he had this information or was so notified by appellant; and the court committed no error in overruling the demurrer to this replication. The same question here involved was before this court in the case of Max Warren vs. C. C. C. & St. L. R. R. Co., ante, p. 111, and the same rule is held in the opinion in that case written by Justice Puterbaugh.

Appellant having elected to stand by its demurrer and the classification alleged to be on file in said plea not being set forth in the plea and not having been offered in evidence, no further consideration thereof is necessary.

The charge of negligence in the second count of the declaration that appellant permitted two regular stock trains to pass through Shelbyville after these horses and mules were so loaded without taking the said car from Shelbyville upon either of said trains, is not sustained by any proof in the cause. The evidence does, however, further disclose that had any train taken the stock from Shelbyville prior to the time when it was taken, that the said stock would not have reached Indianapolis any sooner; but if the stock had been taken from Shelbyville upon the two trains which passed Shelby-ville between the time of the loading of the same and when the same was taken by appellant that such trains only proceeded to Mattoon and that appellant had no train out of Mattoon after their arrival at Mattoon by which the stock could have reached Indianapolis sooner than it did, arid the record further discloses that appellee was informed that no train could be had by which to ship the stock sooner than the one which did actually take it and he was directed not to load the said stock, at the time when he so loaded; and there is no evidence in the record to sustain that charge of negligence in the declaration.

Upon the other charge of negligence alleged in this count that appellant permitted the said stock to remain in the city of Shelbyville for an unreasonable length of time after the same had been loaded upon the cars by appellee and after appellant had been notified of such loading presented a question for the determination of the jury.

Upon the third ground urged that the court erred in permitting evidence of the delay of the car after leaving Shelby-ville. The only charge in the declaration in regard to the delay was in taking the same from the city of Shelbyville and there was no allegation in the declaration of any further negligence in that regard; it was error to permit appellee to show any delay in the movement of this car after the same had left the city of Shelbyville, there being no averments of any such delay in the declaration and appellee could recover only upon the charges of negligence alleged in the declaration.

Upon the question of the admission of evidence regarding the measure of damage, it is insisted that the court erred in admitting proof of special damage to the race horse which was shipped in this car. Upon examination of the second count of the declaration, we find that the only damage alleged is that occasioned hy reason of delay and on a general charge of negligence of this character, the only 'proper measure of damages is the natural and consequential damages arising by reason of the delay and the evidence admitted by the court to which objection is made related to the expenditure and care of the race horse not growing out of or caused by reason of the delay and there being no claim for such special damage in the declaration and no allegation that it became or was necessary to give this horse any special treatment, it was error to permit proof of special damages. Adams v. Gardner, 78 Ill. 568; Gumb v. 23rd St. Railway Co., 114 N. Y. 411; Spencer v. St. Paul & S. C. R. R. Co., 21 Minn. 362; Patten v. Libbey, 32 Me 378.

The instructions complained of in this cause and given on behalf of appellee did not limit the right of recovery to the acts of negligence charged and did not confine the recovery to the damages necessarily and reasonably expected and consequential upon the result of negligence, complained of.

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

Reversed and remanded.


text:
    Paul Bonato, Administrator, Appellee, v. Peabody Coal Company, Appellant.
    1. Evidence—upon what expert testimony competent. In an action for personal injuries, held, that it was competent to admit expert testimony as to whether or not ice would be expected to form in an air chamber constructed as was the one in question in this case.
    2. Damages—in action for death caused hy icrongful act. The law presumes where the deceased left a widow and children that there is a pecuniary loss and upon the question of this pecuniary loss to the widow and children it is proper for the jury to take into consideration the ages of the parties sustaining such loss in determining the amount thereof.

      Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Montgomery county; the Hon. Truman E. Ames, Judge, presiding.
    Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Arthur M. Fitzgerald and George B. Gillespie, for appellant; Underwood & Smyser, Lane & Cooper and Hamlin, Gillespie & Fitzgerald, of counsel.
    Early & Williamson, for appellee; T. M. Jett, T. A. Snell and D. B. Kinder, of counsel.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant company for the death of plaintiff’s intestate, ¡Nicola Bonato. The trial below resulted in a judgment against appellant for $2,000; to reverse which judgment this appeal is prosecuted.

The deceased was in the employ of appellant company, which was engaged in sinking a coal shaft near ¡Nbkomis, Montgomery county. The shaft was twenty-seven feet long, ten feet in width and divided into three compartments. Across the west end was constructed an air chamber, extending the fiill width of the shaft and about twenty-two inches wide, the" balance of the shaft was divided into two hoisting compartments, only one being used at a time and the one not in use being covered with boards. These two compartments were about equal size. The air chamber" was partitioned off and constructed of shiplap for the purpose of making the same as near air tight as possible; the inside of this chamber was a smooth surface. This air chamber was connected with a fan located a short distance from the shaft by means of a curved hood or air course through which the air was drawn from the shaft. The fan and air chamber were used for ventilation purposes and the machinery for running the fan was operated by steam and enclosed in the building about thirty feet from the shaft. The boilers furnishing the steam were located in a.building near the fan room but farther from the shaft. The fan was so operated as to draw the air ■ up the air chamber instead of forcing it down and the only way in which the air could move was from the bottom up. The air chamber was not completed to the bottom of the shaft and the partition between the other compartments was finished to within about twenty feet of the bottom of the shaft. This shaft was being constructed under the supervision of one Patterson, superintendent of the mine, and the men were working continuously day and night, divided into three shifts. Work was begun on the shaft December 12, 1906. Plaintiff’s intestate had worked on one of these shifts all of this time.

On the morning of the accident there had been some ice in the hoisting chamber nearest to the air chamber. This was removed before proceeding with the work. During the construction of the shaft some water had been encountered which had run through from the outside and down the inside of the shaft. There was more of this water at the end of the shaft where the air chamber was located than at other places. The evidence is conflicting as to the presence of steam- in the air chamber; formations of ice had been known to exist in the hoisting chambers prior to this time; and only a short time before the accident an inspection was made and ice removed from the bottom of the air chamber.

The three shifts in which the men were working were each led by what was known as a shift boss. The leader of the shift in which Bonato was working was Hike Riley, who controlled and directed the work.

The declaration contains two counts of common law negligence, the negligence charged being a failure to provide a reasonably safe place in which plaintiff’s intestate might perform his work; also in failing to inspect the air chamber and discover ice which had formed in the air chamber and to remove the same.

The evidence discloses that" Riley was informed by the leader of the shift which quit before the shift in which plaintiff’s intestate went to work on the morning of the accident that there was ice in the air chamber. The manner in which the air chamber was constructed, afforded no means of observation by the workmen and there was no way of ascertaining whether ice was in this chamber except by a special inspection.

On the morning of the accident the shift with which the deceased was at work, went into the shaft, which was then in loose shale, and arranged for some blasting and while there was directed to keep to the east side of the apartment on account of there being some ice formed in it. After the blasts were set the party went to the top of the shaft. After the blasts were fired they again descended into the shaft and went to work trimming up and shaping up the edges of the shaft and cleaning out the loose shale. The deceased was working near the air chamber and while so at work several tons of ice fell from the air chamber and crushed him so that he died within a few minutes after being taken out of the shaft.

The causes assigned for the reversal of this cause by appellant are that the deceased was not in the exercise of due care and caution for his own safety; that the evidence fails to show that appellant had actual knowledge of the formation of the ice in the air chamber; that the intestate’s death was caused by a mere accident without fault on the part of appellant; that the air chamber was constructed in the usual, customary and proper method of constructing an air chamber for the purpose for which this was constructed and there was no negligence therein on the part of appellant; that the accident which caused intestate’s death was one of the ordinary risks of employment assumed by deceased. Also that the court erred in giving on behalf of appellee instruction Mo. 4, and that this instruction ignores the doctrine of assumed risk and the question of due care. Also that the evidence admitted on behalf of appellee wherein the witnesses Linton and Curtis were permitted to give the dimensions of the shaft at another mine and also because the court permitted appellee to show the ages of the minor children.

The witnesses, Linton and Curtis, were used as experts upon the question as to whether or not ice would be expected to form in an air chamber constructed as this was. Upon the contention that the evidence given by Linton and Curtis regarding the dimensions of the shaft at Sawyerville there was no error. These witnesses were used as expert witnesses regarding the question as to whether appellant should have expected or had reasonable grounds to believe that ice was accumulating in the air chamber and their information regarding this matter was derived from their experience and knowledge in connection with various shafts and it was not error to permit them to give in their testimony the dimensions of shafts of which they had had experience and knowledge. The evidence was proper for the purpose of permitting the jury to determine what weight should be given to the testimony of these experts.

Upon the contention that the court erred in permitting proof of the ages of the minor children left by deceased, the law presumes where the deceased left a widow and children that there is a pecuniary loss and upon the question of this pecuniary loss to the widow and the children it is proper for the jury to take into consideration the age of the parties sustaining such loss in determining the amount thereof. This evidence has been held to be proper in Swift Company v. Gaylord, 229 Ill. 330, and Goddard v. Enzler, 222 Ill. 462.

Upon the contention of appellant that the deceased was not in the exercise of due care and caution for his own safety, this was a question of fact for the jury to determine upon a consideration of all the evidence in the ease and by their finding they have found that the deceased was in the exercise of due care and caution for his own safety and upon this question we do not feel justified in disturbing the finding of the jury.

Upon the question as to whether appellant by the exercise of ordinary care might or could have discovered the accumulation of ice in the air chamber and from a knowledge of the condition of affairs as shown by the evidence should by due diligence and caution have expected or had reasonable ground to expect that ice had formed or was forming in the air chamber, was a question of fact for the jury. The ice had formed, and it was known to appellant that accumulations of ice had occurred in the hoisting chambers, and that it had been necessary at various times to warn workmen against it and to have had it removed. From the conditions as disclosed by this record the trial court properly refused to grant the request for a peremptory instruction and submitted the question to the jury and we c'annot say from this record that, upon this question, the finding of the jury is manifestly against the weight of the evidence and are not disposed to disturb the finding of the jury.

On the contention that the deceased assumed the risk of an accident of this character by virtue of his employment, the injury was not caused by reason of anything that was obvious to deceased or that could be readily ascertained by him and was not from any cause which the deceased would be reasonably expected to foresee and it was not one of the assumed risks of his employment and the jury by their verdict so found and we think properly.

Upon the criticism of the appellee’s fourth instruction to the jury it is insisted that it eliminated from the cause the questions of assumed risk and due care on the part of the deceased; the injury not having been caused to plaintiff’s intestate by reason of any circumstance or condition which appellee’s intestate might reasonably have known or by which he could by any reasonable caution have ascertained and not being a reasonable expectation or contingency arising from the work being performed for which appellee’s intestate was employed it may be held as a matter of law that the doctrine of assumed risk was not involved in the cause; and the declaration having alleged and averred due care and caution upon the part of appellee’s intestate for his own safety, this instruction was properly given and in doing so there was no error.

Finding no error in this record prejudicial to appellant, the judgment of the lower court is affirmed.

Affirmed.


text:
    F. H. Wemple, Administrator, Appellant, v. Rebecca J. Allen et al., Appellees.
    . Masters in chancery—when findings set aside. If the findings of the master are contrary to the weight of the evidence exceptions to such findings are properly sustained.
    Bill in chancery. Appeal from the' Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the November term, 1909.
    Affirmed.
    Opinion filed May 28, 1910.
    Layman & Morrissey, for appellant.
    Edward C. Knotts (F. L. Gregory, guardian ad litem), for appellees.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is a hill in chancery brought by appellant to set aside a deed made by William P. Allen in his lifetime to his son, Charles F. Allen, for eighty acres of land; and a deed by the son, Charles F. Allen, to Rebecca J. Allen, widow of William P. Allen.

The deed from William P. Allen to Charles F. Allen, his son, was a warranty deed and conveyed the land in fee simple. The deed from Charles, F. Allen to his mother, Rebecca J. Allen, conveyed a life estate to her, or during her widowhood, with the fee to her children. The consideration expressed in each of these deeds was one dollar and love and affection.

The grounds urged for setting aside the deeds are: that William P. Allen at the time he made his deed was insolvent, that he was indebted to Thomas B. Allen, who was then living, in the sum of $560 for money loaned to him by Thomas B. Allen and for which William P. Allen executed a promissory note to Thomas B. Allen; and that this was nil the property that William P. Allen possessed, and that he left nothing with which to pay the indebtedness to Thomas B. Allen; that in consequence thereof, the conveyance was fraudulent as to his creditors, Thomas B. Allen being the only creditor of the estate of William P. Allen.

The rule of law contended for by appellant that a voluntary conveyance by a debtor of all his property whereby the estate becomes wholly insolvent and unable to pay creditors is fraudulent as against the creditors, and that such a conveyance is a fraud in law, is correct. This rule is so well established that it needs no citation of authority and no further facts need be shown other than that the conveyance was without a valuable consideration and that the debtor retained no property with which to pay his indebtedness, and having established such fact, it then devolves upon the debtor or party claiming under the conveyance to show a justification therefor; and as a justification therefor it is contended by appellees that the conveyance was made by and with the consent, knowledge and approval of Thomas B. Allen at the time of the execution of these deeds.

The master found against appellees upon this contention and that the conveyance was fraudulent and should be set aside. The chancellor, upon the exceptions to the master’s report, sustained the exceptions, overruled the master’s finding and entered a decree dismissing the bill for want of equity.

The evidence in this case discloses that at the time of this conveyance Thomas B. Allen, the father of William P. Allen, was anxious and desired that William P. Allen should make some provision for his family and the question of making a will or a conveyance was discussed between them and by the parties interested.

The evidence of A. 0. Moffett, who was an entirely disinterested person in connection with this matter and whose evidence is uncontradicted in this record, was the cashier of the First ¡National Bank at Waverly; he testifies that the deed from William P. Allen to Charles F. Allen was written at the bank; that the acknowledgment to the same was taken at the home of William P. Allen about a half a mile south of Waverly; that Thomas B. Allen, the father and of whose estate the appellant here is representative, was present and' that when Moffett advised the making of a will instead of the deed, that Thomas B. Allen, the father, informed him they had talked the matter over and had decided to make the deed rather than a will and he testifies that Thomas B. Allen was made acquainted with the purpose of these deeds. This evidence 'is corroborated by Edward Barrack, and that in the conversations concerning the talk about the execution of this deed that Thomas B. Allen knew and was familiar with the property which William Allen had and the question of the indebtedness to him was discussed and that the convey-anee was made with the entire knowledge, consent and at the solicitation and desire of Thomas B. Allen, and this being the uncontradicted evidence in this case, no other conclusion could be arrived at than that Thomas B. Allen approved and assented to the making of this deed and that- his personal representative cannot now complain of its having-been executed; and we find that the exceptions to the master’s report were properly sustained, that the decree rendered by the chancellor in this case is correct and that decree is affirmed.

Affirmed.


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    George E. Dobson, Appellee, v. Judson Harmon, Receiver, Appellant.

      Verdicts—when set aside. A verdict will be set aside on review where the same is clearly and manifestly against the weight of the evidence.
    Action in case. Appeal from the Circuit Court of Piatt county; the Hon. W. Gr. Cochran, Judge, presiding.
    Heard in this court at the May term, 1909.
    Reversed.
    Opinion filed May 28, 1910.
    O. E. Mansfield, for appellant; E. M. Shonkwiler, of counsel.
    McMillen & McMillen, for appellee.
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant to recover for loss by fire alleged to have been started by an engine of the C. H. & D. Railway Co. in the field upon the farm occupied by appellee. The property destroyed was clover seed, stubble and growing clover.

The first count of the declaration in this case charged negligently permitting dry grass, etc., and weeds to remain upon the right of way. The second count charged that the locomotives and engines of the defendant passing along the farm of appellee were not equipped with the best and most approved appliances to prevent the escape of fire and that sparks and fire brands escaped therefrom and were thrown upon the farm and started fire upon the close of plaintiff.

The trial of the cause in the lower court resulted in judgment against appellant for $290 from which he prosecutes this appeal.

The fact is disclosed by this record are that on the day of the fire, which occurred about two o’clock in the afternoon, appellee was at work around his barn-yard building a corn crib; working with him was his farm hand Sutton and a carpenter by the name of Shanklin.

The farm upon which appellee lived belonged to his father and consisted of 160 acres; the right of way of the O. H. & D. Railroad passed over this 160 acres along the south side.

The fire started in the southeast corner of the farm; the house near which appellee was at the time he noticed the fire was upon the west eighty. When the fire was first noticed by appellee it had burned over one forty and when he noticed it there was a great cloud of smoke and the fire burning quite fiercely; after he noticed the fire appellee says he then noticed that a train had just passed the farm but that he did not notice it until after he had discovered the fire. He called the attention of the carpenter and his foreman Sutton to the fire and they started to the field to put it out. Ueither Sutton, his foreman, nor Shanklin, the carpenter, had noticed any train passing and did not notice one at that time.

The record does not disclose that any fire was thrown from the engine or trains of appellant which passed along this farm; it does not show that any of the engines were out of repair; in fact there is no evidence upon this point to support the allegation of the second count of his declaration. The evidence does not disclose that the fire started upon the right of way of appellant company, and the only .reasonable inference to be drawn from the testimony is that it did not originate on the right of way. The evidence of appellee is that when he discovered the fire it had burned nearly across the first forty. The evidence of other witnesses is that it did not burn on the right of way until after appellee and others had gone there to put it out.

The only evidence to support the verdict in this case is that appellant owns a right of way across the farm upon which appellee lived and that a short time after appellee discovered the fire, he noticed the train passing. There is no evidence in the record of any fire escaping from the engine of appellant, and the testimony of the defendant’s witnesses, the engineer and fireman, is that the fire was burning in this field when they first approached the field; and while it is not necessary that positive proof of the escape of fire from the engine would be necessary before a recovery might be had, the proof in this case does not show the existence of such circumstances as would have warranted the jury in finding that the fire was started in the manner claimed by appellee.

The finding of the jury in this case is not warranted by the evidence and it must be set aside. The judgment of the lower court is reversed and the clerk will incorporate in the judgment the finding of ' fact that the defendant is not guilty of the negligence charged in the declaration.

Reversed,


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    Thomas W. Hyatt, Appellee, v. William Alexander, Appellant.
    1. Accord and satisfaction—when established. If an offer is made in full settlement and it is accepted, the acceptance will satisfy the demand, although the creditor protests at the time that the amount received is not all that is due or that he does not accept it in full satisfaction' of his claim.
    2. Appeals and errors—when presumption indulged that evidence supports verdict. If the bill of exceptions does not contain a certification that it contains all the evidence heard in the cause, the presumption will be indulged that the evidence actually heard was sufficient to support the verdict. A certification made by a reporter is not a substitute for the judge’s certification.
    Assumpsit. Appeal from the Circuit Court of Piatt county; the Hon. W. G. Cochran, Judge, presiding.
    Heard in this court at the November term, 1908.
    Affirmed.
    Opinion filed May 28, 1910.
    Hicks & Doss, for appellant.
    ■Reed & Reed, for appellee."
   Mr. Justice Philbrick

delivered the opinion of the court.

This is an action brought by appellee against appellant to recover the sum of $600 alleged to be due upon a contract of sale of certain personal property in connection with the rental of his farm by appellant to appellee. The contract price for the sale of the personal property it is agreed was $3,044.74. It is also agreed that this amount was paid in cash except the sum of $600, being the balance sued for. The cause was tried by the court without a jury, finding for appellee, judgment against appellant for $600 and costs.

Appellant refused to pay this balance, claiming that it was a part of the contract that appellee was to take the interest of appellant in some horses which were owned jointly by appellant and some of his neighbors.

At the time of the sale of this personal property and the lease of the premises, appellant gave to appellee an envelope, which upon opening, when he arrived at his home, appellee discovered to contain two certificates of appellant’s interest in the partnership horses; these certificates appellee promptly returned to appellant by mail; appellant mailed them back to appellee and they were retained in his possession until the time of trial when they were tendered bafik to appellant. One of the certificates given appellee was in the name of one John Heath. This certificate to Heath had never been assigned to appellant. While appellee had possession of these certificates appellant gave him a check for the amount appellant insisted was then due, being for the balance of the contract sum less $600, and which recited on its face that it was in full settlement; appellee protested against this being the full amount due but took the check and cashed it; and appellant insists the recital “in full” is conclusive upon appellee, and by taking and cashing the check he accepted the condition that it was a full settlement.

On this proposition the trial judge found against appellant.

While the rule of law contended for by appellant is correct and is sustained by the ruling in Canton Coal Co. v. Parlin Co., 215 Ill. 244, wherein the court uses this language: “If the offer is made in such a manner, and it is accepted, the acceptance will satisfy the demand, although the creditor protests at the time that the amount received is not all that is due or that he does not accept it in full satisfaction of his claim. The creditor has no alternative except to accept what is offered with the condition upon which it is offered, or to refuse it; and if he accepts, the acceptance includes the condition, notwithstanding any protest he may make to the contrary.” nevertheless we cannot disturb the finding and judgment of the trial court for the reason there is no certificate of the trial judge that the evidence contained in the bill of exceptions was all the evidence heard in this cause. There is such a certificate in the record by the reporter who transcribed the evidence, but the certificate by the reporter is not sufficient upon this question. It is the duty of-the trial judge, as a judicial act, to make this certificate and it cannot be delegated to the court reporter. Where the record does not contain a certificate by the judge that the bill of exceptions contains all the evidence, the presumption is that the finding of the court below was based on sufficient evidence. Culliner v. Nash, 76 Ill. 515; Keating v. Stebbins, 22 Ill. App. 567.

We must therefore presume in the present case that there was sufficient evidence before the court to sustain its finding that the giving and acceptance of this check did not constitute an accord and satisfaction.

Affirmed.