text:
    Gomer Davis, Appellee, v. Missouri & Illinois Coal Company, Appellant.
    1. Mines and minebaes, § 131

      —when miner’s notice of dangers does not prevent recovery for injuries. In an action by a miner for injuries alleged to have resulted from wilful failure of defendant to have its mine examiner mark the dangerous condition of places in the mine, held that the fact that plaintiff had actual notice of the dangerous condition of the place where he was injured did not prevent him from recovering under the statutory counts in the declaration, but that he was not entitled to recover under a common-law count.
    2. Mines and hiñerais, § 125

      —effect of provisions in statute requiring miner to examine working place. Paragraph 6 of section 23 of Miners’ Act of 1911, J. & A. T 7497, providing that every miner shall sound and thoroughly examine the roof of his working place, etc., held not to relieve the operator of any duty enjoined upon him under the act.
    3. Mines and minerals, § 181

      —when proximate cause of injury question for jury. In an action for injuries sustained in a mine alleged to have resulted from wilful failure of defendant to have its mine examiner mark the dangerous condition of places in the mine, held that under the evidence the court properly submitted the question of the proximate cause of plaintiff’s injury to the jury.
    4. Appeal and error, § 1778

      —effect of failure to exclude evidence under a count not proved. A judgment should not be reversed on account of the failure to exclude evidence under a count in the declaration not proved, where there are other counts in the declaration that are proved.
    Appeal from the Circuit Court of St. Clair county; the Hon. Louis Bbrnreutbr, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Barthed, Farmer & Klingel, for appellant.
    J. R. McMurdo and Schaffer & Kruger, for appellee.

      See Illinois Notes Digest, Vols, XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

The appellee recovered a judgment in the Circuit Court of St. Clair county, Illinois, for one thousand five hundred dollars on account of an injury received by him on October 26,1912, and while engaged at work as a miner in appellant’s coal mine, which judgment appellant seeks by this appeal to reverse.

The declaration in this case consists of three statutory counts and one common-law count. The first count charges that appellant on the day aforesaid, and. for twelve hours preceding the same, wilfully failed to have its mine examiner place a conspicuous mark or sign at the working place of plaintiff as notice to him to keep out and to mark the dangerous condition aforesaid -as required by statute, and then alleges that while plaintiff was in the performance of his duties a large quantity of over-hanging slate, coal, etc., fell from the roof of said room and injured plaintiff’s foot and ankle.

The second count alleges that a dangerous condi-, tion existed in the room of plaintiff’s working place and that said condition could have been discovered by an examination made by a competent mine examiner, and that the mine manager wilfully failed and omitted to withhold plaintiff’s entrance check until he advised plaintiff of the danger in his said working place, and wilfully failed and omitted to advise plaintiff of said danger and instruct him, not to work thereunder until the dangerous condition had been removed.

The third count alleges that the dangerous condition aforesaid existed and that it could have been discovered by an examination duly made, and that on the day aforesaid and for twelve hours preceding, the defendant wilfully failed and omitted to have its mine examiner make an examination of plaintiff’s working place, as required by statute; and concludes substantially the same as the first count.

The fourth count is a common-law count, which alleges the existence of the aforesaid dangerous condition in the roof of appellee’s room, and charges that such dangerous condition was capable of being remedied by propping; that there were certain props in said room but that they were too long; that appellant’s mine manager had directed appellee to ask him for a man to saw off such props whenever he should be in need of props; that on the day of the accident appellee did ask the mine manager for a man for that purpose but that said mine manager negligently failed to send such a man, and that while plaintiff was in the exercise of due care for Ms own safety he was injured by the falling of the slate from the roof as aforesaid.

The evidence in this case is quite conflicting. It appears from the testimony of witnesses for appellee that he had two working places in Ms room, one at the cross cut and the other at the face of the room. That he had been at work for several days in the cross cut, cleaning up and loading the coal therefrom; that he finished the work in the cross cut about noon of October 26th and at about 1:30 o’clock in the afternoon he began work at the face of the room, at from five to seven feet back from the face; that in the roof, the slate was loose and had drawn away from the top rock; that the coal had been shot from under this slate and allowed it to sag down and that it had been in this condition ever since the coal had been shot from it, about eight or ten days. That about ten o’clock of the morning of that day appellee went to the face of the room to examine it and there found, as he states, the roof of the room to be in the condition above described, and that just before he was hurt he sounded the roof with his pick and it sounded drummy and was drawn, and he says: “Just before I was hurt I sounded this room with my pick, and it sounded drummy and I saw it was drawn. I did not see any danger mark on it; there was no danger marks on it and I took it for granted I would be safe to go under there because they employed a mine inspector.” That he loaded coal under this roof until about 3:15 o’clock, when the slate from the place above described fell upon him and injured his foot and ankle very badly, and otherwise hurt him. He also says that there were no marks whatever in that room, either to show that the mine examiner had been in the place or that he had inspected the slate. On cross-examination he says, the roof indicated it was not safe; it was possible to hold up six months when in this condition; that this accident happened four or five feet from the face of the room, which was solid. Appellee further says that on July 27, 1912, the mine closed down and quit work until September 25th, and in the meantime he was engaged at work at other places. That when he resumed work in September he was placed back in the same room that he had at the time he quit work. There were several crossbars in his room but they were too long to be used for props, and that Henry Helfrich, who was pit boss at that time, told appellee to use these crossbars for props and that when he needed to use one to let him know and he would send a man to cut it off the proper length. That when the mine resumed operation in September the pit boss was changed and Mr. Lloyd was then acting as pit boss. That on the morning of the day of the accident appellee sent word to the pit boss to send a man to saw off some of these crossbars. This, however, is denied by the pit boss, and appellee is sustained as to this promise by John Tolen. John Morgan testified that the top or roof of the room was loose on the day before the accident and that he so told appellee; that he saw no marks of any kind in the room; that he told Lloyd that Davis wanted him to send some one to saw off the crossbars and Lloyd said: “They are always wanting something; I will see what I can do for them. ’ ’ This, however, is denied by Lloyd. James Pile, buddy of Davis, says that the roof was loose and drummy on Thursday before Davis was hurt on Saturday. He also testified that, “There were no chalk marks in this place and I never saw any mine examiner’s marks in that room.” On behalf of appellant, Thomas Lloyd, the mine examiner, testified that he was in that room on the morning of the day of the accident and before the men went down to work and examined it and that he put the date of his examination on the rib, or wall; that at that time the roof was solid and sounded all right to him and that he did not mark it dangerous because it was not in a dangerous condition. He also testified that there were several props in this room of proper dimensions and says that as they took Davis out of the mine that Davis' told him he sounded the roof of the room and that it was all right. This, however, is denied by Davis, also by Morgan who claims to have been with Davis at that time. Martin Kirk-wood, the mine manager, says he found twenty-three props in that room and that seven of them were six and a half feet long and were of proper height, and that Davis while at the hospital told him he sounded the roof before he went to work and it sounded all right. Ernest Goring also says that Davis told Kirk-wood the roof was all right. Bush Alexander says that he heard Davis say something to Lloyd about the roof. He also says that on Monday morning he counted the props in this room and there were twenty-three. Julius Pfeiffer, the driver, says he hauled props in that room about one week before Davis was hurt. John Bauth, the superintendent, says that on Monday he found marks on the rib of the room. On rebuttal, File and Davis deny that any props were brought into the room within a week or ten days before Davis was injured. This is substantially the testimony offered by the respective parties on the trial of this cause.

The appellant contends that the court erred in refusing to give a peremptory instruction at the close of the evidence. First: For the reason, as to the statutory counts, that the matters averred and proved were not the proximate cause of appellee’s injury. The argument of counsel is that the purpose of requiring the mine examiner to mark the dangerous places is to give notice to the miner of the danger and that notice obtained from any other source would be just as effective for that purpose, and insists that it follows that as appellee knev of the dangerous character of the roof, and worked under it with that knowledge, and being a practical miner and knowing that it was liable to fall at any time, that he had all the notice necessary; that he knew everything that the mine examiner’s mark or the advice of the mine manager could give concerning the condition of the room. The reasoning of counsel upon this point is very forceful when the notice alone is considered, but the statute goes further and requires a mine examiner, when a dangerous condition exists in a room, to take the miner’s check and deliver it to the mine manager who shall withhold it until all dangerous conditions in the room are made safe and not permit miners to enter into the room except for the purpose of making it safe. But this, however, is not a new question in the courts of this State, as it is said by the Supreme Court in the case of Mertens v. Southern Coal & Mining Co., 235 111. 546: “as it is urged the only object of an examination of the room by the mine examiner, the marking of dangerous places found therein, the indicating of such dangerous conditions in the record required to be kept by the mine examiner, and the reporting of such conditions to the mine manager, is, that the men working in the mine may have notice of such dangerous conditions and by reason of such notice be enabled to protect themselves from injury, and that as it appears that the appellee had actual notice of the dangerous condition of said roof and thereafter went into said room and was injured by the falling of a portion of the roof, the actual notice which he had relieved appellant from complying with the statute in the particulars hereinbefore pointed out. In other words, it is contended that all that was necessary to relieve the appellant from liability for the results of the falling of the roof in said room was that it appeared that the appellee had notice of its dangerous condition when he went into the room, and that actual notice of'such condition was equivalent to, and took the place of, the notice required to be given him by the statute.

This court has repeatedly held that contributory negligence on the part of a miner while at work in a mine will not defeat a right of recovery where he is injured by a wilful disregard of the provisions of the Mines and Mining act, either by an act of omission or commission on the part of the owner, operator or manager of the mine; (Spring Valley Coal Co. v. Patting, 210 Ill. 342) ; and to hold as the appellant contends we should hold, would be to defeat the appellee’s right of recovery by reason of his contributory negligence in going into the room knowing it to be in a dangerous and unsafe condition.” The evidence of the witnesses for appellee fairly tended to show that this roof was in a dangerous condition. That a proper examination thereof would have determined it to be such; and we believe that the question as to whether'or not this was the proximate cause of the injury was a question of fact for the jury, and under the conflicting evidence in this case we cannot say that the court erred in refusing to grant a new trial upon the weight of the evidence.

Again, it is said by the Supreme Court in the case of Henrietta Coal Co. v. Martin, 221 Ill. 468: “Appellant urges, however, that even if the examiner did not comply with the statute in this respect, his failure so to do is not the proximate cause of this accident. The evidence shows that if the examiner had properly examined the entry where appellee and Zak worked he would have found the roof to be dangerous, and had he made a record to that effect and placed the conspicuous marks required by the law, it is fair to presume that appellee and Zak would not have been permitted to enter, and would not have entered, (for the purpose of mining), the place where they worked, until after the conditions there had been made safe.” In this case, if the mine examiner had examined the roof of this room and found the dangerous conditions that the evidence tends very strongly to show did exist, and if he had then on arriving at the top taken the check of appellee and delivered it to the mine manager, then the mine manager’s special attention would have been called to this condition and he would in all probability have kept appellee out of the room until the dangerous condition was made safe. Under the evidence produced upon the trial of this case we are of the opinion that the court properly submitted the question of proximate cause of appellee’s injury to the jury.

It is next contended that since the rendition of the decision above referred to and on July 1, 1911, the legislature enacted a new mining law, which provided in paragraph 6 of section 23 (J. & A. ¶ 7497), thereof: “Every miner shall sound and thoroughly examine the roof of his working place before commencing work, and if he finds loose rock or other dangerous conditions, he shall not work in such dangerous place except to make such dangerous condition safe. It shall be the duty of the miner to properly prop and secure his place for his own safety with materials provided therefor,” and that this provision casts the duty upon the miner to examine his own working place. While this section of the statute does provide that the miner shall examine his working place, there is nothing in it, or anywhere in the statute, that relieves the operator under such circumstances from the duty enjoined upon him by this act, which provides in section 29 thereof (J. & A. ¶ 7503): “For any injury to persons or property occasioned by any wilful violation of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby. ’ ’ It will also be observed that by division “A” of the same section, a penalty is provided, in addition to such liability, for any neglect or failure to do any of the things enjoined by this act. Negligence is of two kinds: That arising at common law for failure to do or negligently performing things that a reasonably prudent man should do or omit. Putney v. Keith, 98 Ill. App. 285. Also a failure to perform a duty commanded by statute may be properly denominated negligence per se. Chicago & E. I. R. Co. v. Goyette, 133 Ill. 21. This being a duty enjoined upon the miner by the statute, his failure to perform that duty would, as we believe, be simply negligence. It is true it is statutory, but there is no distinction made between statutory or commoplaw negligence by the decisions of our courts, which hold that under the Miners’ Act contributory negligence by the plaintiff would not defeat a wilful failure of the operator to perform a duty enjoined upon him by the statute. The court did not err in its refusal to exclude the testimony as to these several counts of the declaration, and as the evidence was conflicting, as to the conditions that did exist, it was for the jury to determine where the weight of the evidence rested; and we do not see that the evidence offered by appellant was of such character and weight as to warrant the presiding judge in saying that the verdict of the jury was manifestly against the weight of the evidence, and the court did not err in overruling the motion for a new trial.

It is next contended by counsel for appellant that the court erred in not excluding the evidence and in not directing a verdict for the defendant as to the fourth or common-law count of the declaration. We are of the opinion that this contention is well founded. Under this count it was as necessary for the plaintiff to prove that he was in the exercise of due care and caution for his own safety as to prove defendant’s negligence. It appears from this evidence clearly that the appellee knéw of the dangerous condition of this roof when he was engaged at work thereunder, which was clearly contributory negligence, and being so he was not entitled to recover upon this count of the declaration. We are satisfied, however, from an examination of this case, that the appellee was entitled to recover under the statutory counts, and under the rules as repeatedly laid down by the Supreme and Appellate Courts, that even though there may be a count in the declaration not proved, if there are other counts in the declaration that are proved, the judgment should not be reversed on account of the failure to exclude the evidence under such count, but that judgment may be rendered and sustained under the counts that have been proved.

One of the questions raised in this argument is as to the rig’ht of a plaintiff to recover from defendant on account of a violation of a statutory duty while he, himself, was at the same time acting in violation of a statute. This is a new question and so far as we know, or the attention of the court has been called to it, has never been passed upon by any of the courts of this State, but we believe that the statutory requirement of the miner to sound his roof may be properly held to be an additional precaution provided by the legislature for the safety of the miner, and should not be held to relieve the operator of any duty enjoined upon bim under this statute. This statute and the constitutional amendment upon which it is based are both to be construed liberally for the safety of men employed in the hazardous occupation of mining.

. We find no reversible error in this record, and hold that the judgment of the lower court should be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice McBride

license: Public Domain

text:
    Alton-Germania Building and Loan Association, Appellee, v. Charles Glass et al., trading as The Crandall Lumber & Hardware Company, Andrew Crandall, Appellant.
    1. Mechanics’ liens, § 125

      —when claim, for lien is prior to a mortgage. Where a material man took a promissory note of the owner and to secure the note the owner gave him a quitclaim deed of the property and thereafter the owner mortgaged the premises to another to secure a loan, held that the material man hy taking the note secured by the quitclaim deed did not relinquish his claim for lien upon the premises so as to permit the mortgage to become a prior lien.

      2. Mechanics’ mens, § 188

      —effect of taking additional security as waiving right to lien. Section 1 of the Mechanics’ Lien Law of 1903, J. & A. If 7139, expressly provides that the taking of additional security shall not be a waiver of any right to a lien unless made a waiver by express agreement by the parties.
    Appeal from the Circuit Court of Madison county; the Hon. Wilmam E. Hadley,, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    William P. Boynton, for appellant.
    B. J. O’Neill, for appellee.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Andrew Crandall prosecutes this appeal and seeks to reverse the decree of the Circuit Court giving appellee a material man’s lien upon the premises in question.

It appears from the record in this case that defendant Charles Class was the owner of Lot 6 in Block 9, Pennington’s Addition to Wood Biver, Madison county, Illinois, and that on about the 1st of April, 1911, he contemplated the erection of a dwelling house upon said lots and on that date contracted with the appellant Crandall for the necessary lumber and building material to construct such dwelling house, which was furnished by Crandall from time to time as required, and the last delivery thereof was made on July 19, 1911. . On October 28, 1911, the appellant Crandall filed his claim for a lien on said property in the office of the clerk of the Circuit Court of Madison county, in the amount of $268.21. On February 2, 1911, the defendant Class made to appellant Crandall his promissory note for said .amount, bearing six per cent, interest, and to secure such note executed and delivered to Crandall a quitclaim deed to the property in question. At the time of the execution of this note and mortgage it was expressly stipulated in the note that the giving thereof, ‘ ‘ Shall not operate as a waiver of any lien upon the property improved by the material for which this note is given.” At the same time Crandall executed to Class a contract that if he, the said Class, shall first make the payments and perform the covenants hereafter mentioned on his part to be made and performed, the said Crandall agrees to quitclaim the said property to the said Class. The agreements required to be performed were to pay the said sum of $268.21 within six months with interest at six per cent, per annum, and to pay the taxes, insurance and repairs.

It appears from the testimony of both of said parties to the said quitclaim deed that it was made and delivered by Class to Crandall as security for the said amount, and was intended as a mortgage only. On June 26, 1911, and before the completion of said building, the defendant Class obtained a loan from appellee of $800, payable in monthly payments, and executed to appellee a mortgage securing such loan. The defendant Class failed to make the monthly payments to appellee, as required by said mortgage, and appellee at the January term, 1913, of the Madison county Circuit Court, filed a bill to foreclose its mortgage and made the appellant and others parties to said suit. Answers were filed and the cause referred to the master, and upon a hearing in the Circuit Court it was decreed by the Circuit Court that the appellee had a valid first lien upon said premises to secure its said mortgage, to the rendition of which decree the appellant Crandall duly excepted.

It is claimed by appellant that he did within the statutory period after the delivery of his lumber and building materials, for said house, file in the office of the Circuit Court of Madison county, Illinois, his claim for lien, which is not disputed.

It is, however, contended by appellee that the taking of the quitclaim deed by appellant Crandall from Glass, on February 2nd, merged the lien of appellant Crandall in the quitclaim deed and thereby permitted appellee’s mortgage to become a first lien upon the premises, and cites in support of this contention the case of Shinn v. Fredericks, 56 Ill. 440. This case might be in point if it were not for the fact that it appears from the undisputed evidence herein that the title to the property in question did not vest in the defendant Crandall, as this conveyance was only intended as a mortgage. But even if it were intended as a conveyance of the fee, it is held that, “Where a merger is created by uniting legal and equitable estates in the same person, as, of a mortgage,” that the fee depends upon the intention of the mortgagee. Aetna Life Ins. Co. v. Corn, 89 Ill. 173. We find nothing in this record that warrants us in holding that it was the intention of Crandall to relinquish his claim for a lien upon the premises, but it does appear from the testimony of the witnesses and the conduct of the parties that he was at all times insisting upon preserving his interest in this property.

It is next contended by counsel for appellee that if the taking of this quitclaim deed was additional security, that the mechanic’s lien of appellant Crandall is thereby forfeited, and counsel for appellee, in commenting upon this point, says: “If this note and quitclaim deed are additional security, and we accept Crandall’s statement that they are, then there is no use arguing this case further for this court and the Supreme Court of Illinois has long ago recognized the rule of law that a mechanic or material man taking additional security, either personal or real, would have the effect to discharge the premises from the lien.” Citing Lyon Lumber Co. v. Equitable Loan Co., 174 Ill. 34, and other authorities, which appear to sustain the contention of appellee, and was doubtless the law at the time of the rendition of those decisions, the last of which was rendered on June 18,1898; but on July 1, 1903, there was a revision of the mechanic’s lien law and in that revision it was expressly provided: “Nor shall the taking of additional security by the contractor or sub-contractor be a waiver of any rig’ht of lien which he may have by virtue of this act, unless made a waiver by the express agreement of the parties.” R. S. ch. 82, sec. 15. (J. & A. ¶ 7139.) We are of the opinion that the quitclaim deed executed by Glass to Crandall was only intended as a mortgage to further secure the debt owing by Glass to Crandall, for which he had a lien under the statute, and that there is nothing in this record that will warrant us in saying that Crandall thereby waived his lien or that the lien merged in the fee and permitted appellee’s mortgage to become a first lien.

The decree of the Circuit Court, is, in our opinion, erroneous in holding that appellee had a prior.lien to appellant Crandall upon the premises in question, and the decree is reversed and the cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded.


author: Me. Presidirg Justice McBeide

text:
    Belle Gurley, Appellee, v. The Massac County Mutual Relief Association, Appellant.
    1. Insurance, § 752

      —when statements in application not warranties. Where statements made in an application for membership in a benefit society were not incorporated in and made a part of the certificate, the statements are mere representations and not warranties,

      2. Insurance, § 897

      —when waiver of by-law as to age of applicant question of fact. Whether or not there was a waiver of a by-law of the society limiting the age of applicants to fifty years,j held a question of fact, it appearing that the society had in its, power by its general conduct to waive such by-law as the. statute gave it the right to receive members under sixty years of age. ¡
    3. Insurance, § 897

      —when falsity or materiality of representation in application questions of fact. In an action on a benefit certificate where statements made in the application were representations and not warranties, a defense was interposed that the member falsely stated in his application for membership that he was only forty-nine years of age when in fact he was over fifty-years of age and therefore ineligible to become a member under a by-law of the society limiting the age of applicants to fifty years. Seld that the questions, whether the statement as to age was false or whether, if false, it was material, were questions of fact for the jury and that the verdict of the jury was conclusive.
    4. Insurance, § 908

      —sufficiency of instruction on burden of proof. In an action on a benefit certificate where the defense was that the member falsely stated his age at less than fifty and a bylaw of the society made persons over fifty years of age ineligible to become members, held that an instruction given for plaintiff stat'ing that there was a presumption of law that the applicant was not over fifty years of age did nothing more than announce the principle that the burden was on defendant to show that the applicant was over fifty years of age, though the use of the word “presumption” was inaccurate.
    Appeal from the Circuit Court, of Massac county; the Hon. William N. Butler, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    H. A. Evans, for appellant.
    Fred Smith, for appellee; C. L. V. Mulkey, of counsel.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Me. Presidirg Justice McBeide

delivered the opinion of the court.

It is sought by this appeal to reverse a judgment rendered against appellant by the Circuit Court of Massac county.

It appears from the record in this case that on March 4, 1904, Elisha Bangh and six other persons made application to the Secretary of State for a certificate of incorporation for the Massac County Mutual Belief Association to he conducted for the mutual relief if its members and without profit, and said Belief Association was duly incorporated and certificate issued by the Secretary of State on March 7, 1904, and the seven incorporators were selected as directors and authorized to transact business. A great number of. people at that time became members of this Association and among them were some twelve or fifteen persons, not incorporators, who were over fifty years of age. On June 14, 1909, Willis Gurley made application for membership in this Association and in his application stated that he was in good health and forty-nine years of age. The application when received was referred to a committee for investigation who reported favorably upon the application and Willis Gurley was admitted to membership in the Association, and the following certificate was issued to him: “That Willis Gurley is a member of this Association at Brookport, Massac County, Illinois, and that upon satisfactory proof of his death the Association will pay to Belle Gurley, his wife, five hundred dollars, provided that said member has fully complied with the by-laws and regulations of the Association; and provided further, that should one full assessment amount to less than five hundred dollars then there should be paid only a pro rata of said sum realized from an assessment of one dollar per member.” There were no statements of warranty contained in the application, and it was not in any manner made a part, of the certificate. It is testified by witnesses for appellant that the by-laws were passed by this society on March 4, 1904, providing, among other things: “The object of this Association is to unite fraternally all reputable white persons who are over eighteen years and not over fifty years of age, etc.” The appellant claims that Willis Gurley made a false statement in his application when he stated therein that he was only forty-nine years of age, and that he was in fact of the age of fifty years and about seven months and that for this reason the appellant was not liable upon the certificate. The appellee contends that the statement made was not a warranty, not false and even if it were false is not material. Proof of death was made but appellant refused to pay the benefit.

The declaration consists of a special count declaring upon the certificate above set forth and attaching a copy of such certificate to the declaration. To this the defendant files a plea of general issue with notice that Willis Gurley had stated in his application that he was forty-nine years old, was born November 1, 1859, that such statement was a warranty, was false and untrue and that he was born on the 1st day of November, 1858, and was over the age of fifty years, and ineligible to become a member and never did become a member; that said certificate was void and all payments thereunder forfeited. Upon the issues thus formed a trial was had which resulted in a verdict for appellee in the amount of five hundred dollars.

The first contention of counsel for appellant is that the finding of the jury was against the weight of the evidence. It is very clear from this record that the statements made by Willis Gurley in his application were not incorporated in and made a part of this certificate, and that neither by the application or the certificate do they purport to be a warranty of the declarations therein contained. The most that can be said of the statement complained of is that it was false. It is necessary that the certificate should contain an express stipulation that the application is a part of the policy before it can be treated as such. It follows that, “The application not being a part of the contract, any statements contained therein are mere representations, and not warranties. (May on Insurance, see. 158.) As such, they may avoid the policy if found to be false and material, within the legal meaning of these terms.” Spence v. Central Accident Ins. Co., 236 Ill. 449. A representation as to the age |being false and material is a question of fact, and our Supreme Court has said: ‘ ‘ The court erred in holding that the statement in the application that the assured is sixty-two years of age was a warranty. Such statement is merely a representation, the falsity and materiality of which are questions of fact, and should have been disposed of by the trial court as such.” Spence v. Central Accident Ins. Co., supra. The only evidence offered by appellant as to the age of Willis Grurley is his written statement at the time of making the application to become a member of this society, in which he stated he was then forty-nine years of age. Also the statement made upon his mariage license to which if effect is given would make .him fifty years of age at the time of the application; and the statement of the widow after his death, that he was born in November, 1858. The appellant offered the statement of Willis Grurley that he was forty-nine years of age and did not make any limit as to the purpose of making the offer of this evidence, and being offered by the appellant we do not believe that it is a self-serving declaration as claimed by counsel. While the statements made by the widow and the declaration of Grurley at the time he received his marriage license tend to prove that his statement as to being forty-nine years of age when he made the application for membership into this society was untrue, yet there was no evidence or circumstance, that we are able to see from this record, that makes this statement material. We think these were questions of fact to be settled by the jury and are not disposed to disturb its finding in that regard.

The next contention of appellant is that the appellant is not estopped by any of its acts and conduct from denying liability and that there was no waiver. While these two questions are treated separately in the brief we are inclined to treat them together and do not believe that the doctrine of estoppel has any application to the facts in this case. As to the question as to whether or not there was ,a waiver, we think this too was a question of fact, as this society had it in its power by its general conduct to waive the bylaw limiting the age to fifty years, as the statute gave the society the right to receive members under sixty years. It appears from the evidence in this case that some twelve or fifteen of the members of this society, who were over fifty years of age, had been received as members after the adoption of the by-law prescribing the age of fifty. The record shows that the certificate of incorporation was issued on March 7, 1904, to Elisha Baugh and six other persons, and the evidence introduced by appellant shows that the by-laws were adopted on March 4, 1904, which appears to have been before many of these persons over fifty years of age were in fact admitted into the society, and before the certificate had been issued and the society authorized to receive members. It also appears that at least one other person over the age of fifty was received as a member into the society after that and continued a member until after the commencement of this suit when he was dropped because of being over age. There was also some evidence tending to show representations by the solicitor, as he claimed he was, of the society for membership,. that the exact age was not very material. If it be true that the general conduct of this society was such as to induce reasonably prudent persons to believe that this rule of the society was not rigidly enforced, then the jury would be warranted in finding that there was a waiver even if the statement of the age of the applicant was false and material. Home Life Ins. Co. v. Pierce, 75 Ill. 426. The question of the truth or falsity of the facts which would constitute a waiver as well as the materiality were questions of fact for the jury.

Complaint is made to the giving of appellee’s first instruction, in that it states that there was a presumption of law that the applicant was not over fifty years of age. The gist of this instruction is that it cast the burden upon the defendant to show that he was over fifty. By this instruction the certificate created a liability upon the defendant unless overcome by a preponderance of the evidence, and while the use of the word “presumption” is not very accurate, yet we think the instruction does nothing more than announce this principle.

The criticism upon the second instruction is not well taken, as the certificate created a liability which appellant was bound to overcome by a preponderance of the evidence, and if it failed in this it was the duty of the jury to find for the plaintiff.

The objection to the third instruction, that the waiver of the age limit was wholly a question of law, is not well taken. It was the province of the court to say what acts would constitute a waiver, but whether or not such acts transpired was for the jury. We do not understand this instruction attempts to define what is or is not a waiver but simply that if a waiver has accrued plaintiff would not be barred.

As to the criticism upon instruction five, so far as we can see there is nothing in the charter, constitution or by-laws giving charter members any preference, and this is all that this instruction advises the jury; besides it appears that the instruction is warranted by the decision in the case of Park v. Modern Woodmen of America, 181 Ill. 231.

The objections to the modification of several of appellant’s instructions have been disposed of in this opinion and we can see no reversible error in such modification.

The principal involved in appellant’s refused instruction fourteen has also been fully commented upon, and we are unable to say that the court committed error in refusing it.

The certificate issued in this case created a liability. The plea filed set forth a warranty of the statement contained in the application, but no such warranty was proved and we are inclined to think that the jury were warranted, from a consideration of this whole record, in finding that this society was not rigid in its attempt to enforce an age limit or that the age of the deceased was material. There is nothing herein that warrants us in finding that this verdict is unjust or that any such error has been committed as calls upon us to reverse this case, and the judgment of the lower court is affirmed.

Judgment affirmed.


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    John W. Hutton, Appellee, v. States Accident Insurance Company, Appellant.
    IsfsuBAjsrcE, § 415

      —when injury while fighting covered by accident policy. The breaking of the leg of insured while engaged in a fight in which he began the assault is caused by “accidental means,” within the terms of an accident policy insuring against injuries “effected exclusively by external, violent and accidental means” where the injury is an unusual and unexpected result of the fight.
    Appeal from the Circuit Court of Jasper county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Fithian & Kasserman, for appellant; McKenzie Cleland, of counsel.
    Wright Bros. & Denton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

On October 27, 1911, appellant issued to appellee a policy of accident insurance which insured against injuries, “Effected exclusively by external, violent and accidental means.” The facts, about which there is but little controversy, are that appellee and a man by the name of Huddleston, prior to the evening of November 9,1911, had a difficulty or misunderstanding of some character, and that on said night Hutton walked into a restaurant at Newton at about the hour of six o’clock and that Huddleston was then sitting at a lunch counter eating his supper. Without saying a word to anybody, appellee walked up behind Huddleston and struck him a violent blow on the head, intending to disable him. Huddleston immediately got upon his feet and a fight ensued in which appellee fell or was thrown on the floor, and, as some of the witnesses claim, Huddleston fell against him or on him and in some manner, not appearing very clearly from the evidence just how, appellee’s leg was broken. There was evidence showing that appellee also injured his finger in some manner and that immediately after the fight he was using his knife to remove a piece of broken skin. There was some evidence tending to show that during the fight Huddleston’s clothes were cut but appellee says that he took his knife out of his pocket, after he fell, and cut the skin off of his finger, and other witnesses say that appellee did not have or use a knife. There was also some evidence tending to show that appellee was under the influence of liquor but this was not very clearly proved, and denied by appellee. Defendant rested its case upon the proposition that the injury was not caused by “accidental means,” inasmuch as the plaintiff had voluntarily engaged in the fight and also that he was then under the influence of liquor, injuries thus received being excepted in the policy. A plea of general issue and some additional pleas were filed but the case was tried and submitted by the defense upon the two propositions above suggested. The jury returned a verdict for five hundred dollars, upon which judgment was rendered. The appellee sought to recover from the appellant on account of the injuries sustained by him in the breaking of his leg. Appellant insists and argues that this injury was not 11 effected exclusively by external violent and accidental means.” That the appellee deliberately and intentionally assaulted Huddleston, and that said assault, with the consequent fight, were the means through which plaintiff’s injuries were inflicted, that such were therefore not in any sense of the word accidental.

There seems to be much conflict of authority as to what constitutes ‘‘accidental means.” Many courts hold that where the injury results from an act intentionally done by the assured that it does not come within the terms of the policy, and many cases referred to by counsel for appellant have fairly announced this doctrine, but in some of the cases the decision turned upon a limiting clause contained within the policy but no such clause appears in the policy in question in this suit. It is also true that some of the cases referred to have given this construction to the word “accidental means” upon a clause similar to that contained in this policy, but we are inclined to think that the class of cases referred to are not in exact harmony with the decisions of the Supreme Court of Illinois upon some of the principles announced; notably, the case of Westmoreland v. Preferred Acc. Ins. Co., 75 Fed. 244. The death of the insured was caused by the voluntary administration of chloroform, and it was held that the result, while unexpected and in that sense accidental, was not caused by accidental means. In Healey v. Mutual Acc. Ass’n, 133 Ill. 556, the court held that the accidental drinking of poison, where it is not shown to have been done with the attempt to take the life, is within the terms of the policy, and that where death ensued it would be construed to have been received by or through “external,” violent and “accidental means,” within the spirit and meaning of an insurance policy. It is also said in this case that the policy should be construed most favorable for the assured in case of doubt or uncertainty in its terms, and should be construed so as not to defeat, without a plain necessity, his claim to the indemnity which, in making the insurance, it was his object to secure. In the case last above referred to a line of authorities were cited giving a stricter construction to the terms of the policy and holding injuries of that character were not within the terms of the policy, but in commenting upon these authorities our Supreme Court says: “But while we recognize the high ability of the court in which the case was decided, we are not disposed to follow the rule there adopted. ’ ’ Other cases cited by counsel for appellant are Southard v. Railway Passengers’ Assur. Co., 34 Conn. 574, the assured jumped off a car and sustained hernia, for which he claims indemnity, but the court held that while the result was not expected, yet the plaintiff had intended to jump off of the car and therefore the means were not accidental. In McCarthy v. Travelers’ Ins. Co., 8 Biss. 362, the insured while exercising with Indian clubs ruptured a blood vessel, and it was held such injury was not caused by accidental means. Also the case of Carnes v. Iowa Slate Traveling Men’s Ass’n, 106 Iowa 281, the assured intentionally took morphine tablets, not with suicidal intent; death resulted, however, unexpectedly. Held, that the means were not accidental. And in the case of Feder v. Iowa State Traveling Men’s Ass’n 107 Iowa 538, death resulted from rupture of artery from attempting to close window shutter. Held, not due to an accidental cause; and many other cases of like character are cited by counsel for appellant. We are not inclined to adopt the view as set forth in these cases as they do not give the policy a liberal construction in favor of the insured, and, as we view it, are entirely too narrow.

In defining “accident” some of the authors of the leading law dictionaries say r “Death by accident means death from any unexpected event which happens as by chance, or which does not take place according to the usual course of things;” Anderson. “An unusual or unexpected event;” Abbott. “An unforeseen danger occurring without the will or design of the person whose mere act causes it; an unexpected, unusual or undesigned occurrence;”. Black. “An event which under the circumstances is unusual and unexpected by the person to whom it happens; ” Bouviere. We think the doctrine laid down in the case of Lovelace v. Travelers’ Protective Ass’n of America, 126 Mo. 104, 30 L. R. A. 209, is the more reasonable, gives a broader construction to the language of the policy and comes more nearly conforming to the intentions of the parties in entering into the contract. In this case it is held that the mere fact that Lovelace engaged in or brought on a fight in the manner described did not of itself indicate that he sought death or had reason to expect it as a consequence of his action; but it is said that the principle laid down here should not control because Lovelace did not know that the man he assailed was armed and therefore could not expect the fight to result in his death. This is probably true, that he did not expect such a result to occur; and we can see no difference in principle whether the unexpected result was the loss of an arm, death or a broken limb, if it was in fact an unusual and unexpected result. The gist is that the result was unusual and unexpected. In this same case the court further says, in quoting from the case of Schneider v. Provident Life Ins. Co., 24 Wis. 28: “There is nothing in the definition of the word ‘accident’ that excludes the negligence of the injured party as one of the elements contributing to produce the result. * * * An accident may happen from an unknown cause; but it is not essential that the cause should be unknown. It may be an unusual result of a known cause, and therefore unexpected by the party. And such was the case here, conceding that the negligence of the deceased was the cause of the accident.” In the case of United States Mut. Acc. Ass’n v. Barry, 131 U. S. 100, three men jumped from the platform of a car, two of them alighted without injury; the other, observing that his comrades had alighted in safety and feeling that he was incurring no risk in doing what the others had done without injury, also jumped and received an injury from which he died. Held, death was by accident. The injury which resulted to him was unforeseen and unexpected and therefore accidental. The trial judge in instructing the jury in this case said: “Of course it is to be presumed that he expected to reach the ground safely and without injury. Now, to simplify the question and apply to its consideration a common-sense rule, did anything, by chance, or not as expected, happen, in the act of jumping or striking the ground, which caused an accident? This, I think, is the test by which you should be governed, in determining whether the alleged injury, if any was sustained, was or was not effected through accidental means.” This instruction was approved by the Supreme Court of the United States. Many other cases might be cited in support of this view of the question under consideration. The Editor, in a very learned note, in the case of Fidelity & Casualty Co. of New York v. Carroll, 5 L. R. A. (N. S.) 657, comments very fully upon the result of an unlawful act where there was an unusual and unexpected result and says: “On the other hand, if the assured’s act was attended with an unexpected and unusual result, —one which could not have been reasonably anticipated, and which he did not intend to produce; that is, was not the natural or probable consequence of his act; and was not the result of design, but was produced unexpectedly and by chance,—the .injury was caused by accidental means within the meaning of policies of accident insurance. See 4 Cooley, Briefs on Ins. pp. 3156-3160; Elliott, Ins., §§ 391, 392; 3 Joyce, Ins., § 2863.” The instruction given upon behalf of the plaintiff, to which appellant excepts, is almost in the exact language of the Editor’s note above referred to. The instruction seems to us to have been proper and that it was a question of fact for the jury to determine, under all the facts and circumstances proved in the case, whether or not the result produced by the assault of appellee was unexpected and unusual.

An insurance policy is the product of the insurer, and where matters arise, like the question in controversy in this case, where there might be some doubt as to the liability, then the insurer in preparing his policy should use such language as would exclude any such doubts. Indeed, it appears from many of the cases referred to that policies have contained clauses protecting the Insurance Company from any liability growing out of a fight or other unlawful act. If the appellant really intended by its policy to relieve itself from any liability from unlawful or negligent acts resulting in unusual or unexpected events, then it should have so stated in its policy, but it did not. The question of intoxication of appellee was also one of fact, and it is not even contended strenuously that the evidence does show intoxication, at least the jury found against appellant also upon this proposition, as the jury were instructed that if he was intoxicated at the time he could not recover.

The objections urged to appellant’s refused instructions and appellee’s given instructions are fully covered by the principles laid down in the foregoing opinion. We are unable to see that the court materially erred in the refusing and giving of the respective instructions of appellant and appellee.

We are of opinion that even though appellee began the assault, yet if thereafter in the progress of the fight an incident occurred which produced an unusual and unexpected result, as the jury found did occur in this case, then under the terms of this policy we believe that the jury were warranted in finding the appellant liable. There does not appear to us to be any reversible error in the trial of this case, and the judgment of the lower court is affirmed.

Judgment affirmed.


text:
    Roger J. Clay, Appellee, v. Aluminum Ore Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Bast St. Louis; the Hon. W. M. Vandeventer, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Action by Roger J. Clay against Aluminum Ore Company to recover for personal injuries sustained by plaintiff while in the employ of defendant. From a judgment in favor of plaintiff for three thousand dollars defendant appeals.
    Kramer, Kramer & Campbell, for appellant.
    D. J. Sullivan, for appellee.
    Abstract of the Decision.
    1. Master and servant, § 696

      —when finding that coemploye was vice-principal sustained 6y the evidence. In an action for personal injuries sustained, by plaintiff while in the employ of defendant and engaged in working with a riveting gang on a building, it appeared that plaintiff was a new man and that the injury resulted from the breaking of a defective board on which he was standing while performing his work. Plaintiff claimed that one of the gang with whom he was working was directing the work and that his failure to provide a proper scaffold was negligence of the defendant, while defendant claimed that such person was a fellow-servant. Held that the question whether such person was a vice-principal and had charge of the work was a question of fact and that a 'finding of the jury in favor of plaintiff was sustained by the evidence.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

2. Witnesses, § 179 —when question does not call for conclusion, In an action by a servant for personal injuries alleged to have resulted from the negligence of his employer, overruling objection to question asked by counsel for plaintiff as to “who had immediate charge of the work, if anybody, of riveting the pieces together” and other questions of like import, held not error under the state of the record, for the reason that the questions call for a conclusion.

3. Master and servant, § 777 —when instruction not misleading. In an action by a servant for personal injuries, where the issue was whether a person working with plaintiff was a vice-principal, the fact that an instruction given for plaintiff did not submit the matter of who gave such person authority or how he received it, Held not misleading.

4. Evidence, § 308 —admissibility of photographs. Admission in evidence of a 'photograph of plaintiff’s injured leg held not error, for the reason that it was not identified by the person making the photograph, where it was identified by the plaintiff in his testimony as the one taken and by the doctor as being a true representation of the leg, and the leg was also presented to jury so that even if the photograph was incorrect the jury would not be misled by it.

5. Appeal and error, § 1637 —when defect in instruction cured by other instructions. Failure of an instruction to distinguish between what constitutes a fellow-servant and a vice-principal, held cured by other instructions given which informed the jury when a fellow-servant may become a vice-principal.


text:
    William U. Halbert, Administrator, Appellee, v. Louisville & Nashville Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Bast St. Louis; the Hon. Robert H. Blannigan, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Action by William U. Halbert, administrator of the estate of Jessie Potoma, deceased, against the Louisville and Nashville Railroad Company to recover for the death of deceased, a four-year-old child, alleged to have been caused by the negligence of the defendant in backing its train over a street crossing when the child and its mother atempted to cross the tracks. It appeared the rear of the train was standing partly on the crossing and that the child and its mother on approaching the crossing waited a minute or two and then attempted to cross behind the rear end of the train when the train was backed up and ran over the child. Prom a judgment in favor of plaintiff for three thousand dollars, defendant appeals.
    J. M. Hamill and C. P. Hamill, for appellant.
    D. J. Sullivan, for appellee.
    Abstract of the Decision.
    1. Railroads, § 641

      —when recovery for death of child at street crossing sustained 1>y the evidence. In an action against a railroad company for the death of a child caused by being struck and run over by a train of cars belonging to defendant, a judgment for plaintiff held sustained by the evidence, it appearing that the child and its mother attempted to cross the tracks by passing behind the rear end of the train, which was standing on the crossing.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

2. Railroads, § 607 —care required at street crossings. Where railroad companies cover a public street with a large number of tracks they must observe unusual care and take extra precautions to avoid injuries to persons passing along the street or sidewalk.

3. Death, § 71 —when contributory negligence of mother of child question for jury. In an action against a railroad company for the death of a child when accompanied with its mother, where the child was run over when they attempted to pass behind the rear end of a train standing on a street crossing, held that if the train was standing still at the time the mother attempted to pass over the track the mother was not guilty of negligence as a matter of law but that the question was one of fact for the jury to determine under all the circumstances.

4. Death, § 74 —when requested instruction properly refused. In an action for the wrongful death of a child while in the care of its mother, a requested instruction pointing out certain particular, things the mother would have to do in order to free herself of contributory negligence, held properly refused.

5. Death, § 67 —when verdict for death of child not excessive. A verdict„ of three thousand dollars for death of a four-year-old child sustained as not excessive, where there was no evidence of the child’s health or its promises intellectually or otherwise and no improper evidence or instructions of the court on the question.

6. Death, § 73 —sufficiency of instruction. In an action against a railroad company for the death of a child while in the care of its mother, an instruction given for plaintiff held not subject to the criticism that it might be construed by the jury to include the time before she went upon the tracks, and that the instruction was leveled at the care of the mother for her own safety and not for the safety of the child.


text:
    H. G. Davis et al., Appellees, v. John H. Willmore et al., Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Franklin county; the Hon. William H. Green, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Bill by H. Gr. Davis, W. H. Lampley and Douglas Whittington against John H. Willmore and John Staphen for a mechanic’s lien in favor of plaintiffs for materials furnished by complainants to defendant Willmore, the original contractor, in the construction of a building for defendant Staphen, the owner. From a decree in favor of complainants for $450.79, which was declared a lien upon the premises, defendants appeal.
    D. F. Moore, for appellants.
    Thomas J. Layman and William B. Johnson, for appellees.
    Abstract of the Decision.
    1. Mechanics’ liens, § 62

      —when provision in original contract does not defeat subcontractor’s right to lien. A provision in a contract between the original contractor and owner that the contractor was “to provide at his own expense all the labor and material necessary and erect, build and finish in workmanlike manner a frame dwelling house,” etc., held not to have the effect of waiving any lien of the original contractor and also of defeating a subcontractor’s right to a lien. .

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number,

   Mr. Presiding Justice McBride

delivered the opinion of the court.

2. Mechamos’ liens, § 196 —when evidence does not show that materials were furnished on an open account. On bill to enforce a lien for materials furnished the original contractor, held that the evidence of complainant did not show that the materials were furnished to the contractor from year to year, upon a general open account, where the undisputed testimony of complainant was that he contracted to furnish the building materials for the particular house and that the materials were charged upon his books as an account against the contractor on that particular job.


text:
    John McKissick, Appellee, v. O’Gara Coal Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Action By John McKissick against O’Gara Coal Company to recover for injuries sustained by plaintiff caused by a fall of coal while he was working in defendant’s mine. From a judgment in favor of plaintiff, defendant appeals.
    M. S. Whitley, for appellant.
    S. M. Clark and John L. Thompson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the,court.

Abstract of the Decision.

1. Mines and minerals, § 179 —When recovery for injuries resulting from fall of coal sustained by the evidence. In an action for personal injuries sustained by plaintiff by a quantity of coal falling upon him from the face of the coal he was undercutting, it was alleged that the falling of the coal was on account of the rib on each side of the room being so thin as to allow the coal and pillars to press out from the face of the coal when the coal was undercut. Held that a verdict for plaintiff was sustained by the evidence, it appearing that the plaintiff was not acquainted with the conditions surrounding the room, that he had not observed the width of the pillars and that his attention had not been called to the thinness of the pillars.

2. Mines and minerals, § 152 —when expert testimony admissible. In an action for injury to a miner alleged to have been caused by a “squeeze” in a mine, permitting expert witnesses to testify that the pillars in the room where the injury occurred were not sufficient to support the roof, held not improper where the witnesses were shown to have such knowledge as would justify an opinion as to the required width of a pillar to support the roof and the effect that a thinning of a pillar would have upon the roof.


text:
    Martin Hollo, Appellee, v. Wasson Coal Company, Appellant.
    (Not to be reported in full.)
    Appeal from the City Court of Harrisburg; the Hon. A. E: Somers, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Action by Martin Hollo against Wasson Coal Company to recover for personal injuries sustained by plaintiff while engaged as a helper in operating a ma-' chine for undercutting coal in defendant’s mine. The. injury resulted from the fall of the roof of the mine.. Plaintiff claimed that the roof had been loose and, drumming for several days, that defendant had failed to furnish props and that the mine examiner of defendant had failed to observe the condition of the roof and mark it as required by statute. From a judgment in favor of plaintiff for $2000, defendant appeals.
    M. S. Whitley, for appellant; Mastin & Sherlock, of counsel.
    George E. Dodd and Clark & Hutton, for appellee.
    Abstract of the Decision.
    1. Mines and minerals, § 176

      —when recovery for injury to miner sustained liy the evidence. In an action to recover for personal injuries sustained by a miner where it was alleged that the injury was caused by failure of defendant to furnish props and to have the roof examined and marked as required by statute, held that a verdict for plaintiff was sustained by the evidence.
    2. Mines and minerals, § 188

      —when instructions not misleading. In an action to recover for injuries sustained by a miner alleging a wilful violation of the statute, criticism of instructions given for plaintiff that they were misleading for the reason that they in effect told the jury that the defendant had been guilty of a wilful violation of the statute, held not well founded.
    3. Appeal and error, § 450

      —when admission of testimony cannot 6e complained of. Error in the admission of hearsay testimony cannot be complained of for the first time on appeal.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.


text:
    Lowe C. Duncan et al., Commissioners of Highways of the Town of Montgomery, Appellees, v. Frank Fitch et al., Drainage Commissioners of the Birds Drainage District, Appellants.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Crawford county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed May 1, 1914.
    Statement of the Case.
    Petition by Lowe C. Duncan et al., Commissioners of Highways of the Town of Montgomery against Frank Fitch et ah, Drainage Commissioners of the Birds Drainage District, for mandamus to compel defendants to construct a bridge over a ditch that had been dug by them across a highway in the drainage district controlled by them. It appeared from the petition that the ditch" dug was on the right of way of a railroad company and was of the width of thirty feet and of the depth of ten feet and was not.cut in a natural water course or drain. To the petition two pleas were filed which were demurred to and the demurrers sustained. From the judgment defendants appeal.
    George W. Lackey, for appellants.
    Parker & Eagleton, for appellees.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Abstract of the Decision.

1. Drainage, § 93 —duty of drainage commissioners to build bridges. Where drainage commissioners dig a ditch across a highway, ' not in a water course, they are required under the law to build a bridge sufficient for the convenience of public travel over such ditch and to restore the highway.

2. Drainage, § 94 —when plea in mandamus to compel drainage commissioners to build bridge demurrable. On petition for mandamus by highway commissioners to compel drainage commissioners to build a bridge over a ditch dug by the defendants at a point where such ditch crossed a highway, a plea setting up that a bridge had been constructed by petitioners and that the bridge furnished ample facilities and conveniences for public travel, held such plea, sufficient on demurrer.

3. Drainage, § 94 —when plea in mandamus proceeding to compel drainage commissioners to build bridge not demurrable. On petition for mandamus by highway commissioners to compel drainage commissioners to build a bridge over a ditch dug by defendants at a point where such ditch crossed a public highway, a plea stating that the commissioners condemned the right of way over and across the lands of a railroad company and that the ditch was constructed along the right of way as condemned against said railroad company and that by virtue of condemnation and payment of the sum found due the railroad company, the railroad was required to maintain necessary crossings for highways, held demurrable for the reason that the fact that the defendants had condemned the right of way as to the railroad company would not excuse the performance of their duty to build the bridge.


text:
    George W. Hill, Appellant, v. G. W. Carr et al., Appellees.
    1. Elections, § 29

      —when count of declaration in suit against election officials for damages resulting from failure to count votes demurrable. In an action against election judges to recover damages for failure to count the whole number of votes cast for plain’tiff at a primary election a count in a declaration averring that hy (reason of the wilful refusal and neglect of defendants to count for ¡plaintiff all the votes cast for him at the election he was deprived of the office for which he was a candidate, held demurrable for 'the reason that the loss of office could not be directly contributable to acts complained of.
    2. Elections, § 29

      —when counts of declaration in suit against election judges for failure to count votes state a cause of action. In an action against election judges to recover damages for their failure to count the votes cast for plaintiff at a primary election, counts in a declaration alleging that the wilful neglect and refusal of defendants to count all the votes cast for plaintiff resulted in depriving plaintiff of a nomination and deprived him of having his name placed on the official ballot and alleging that plaintiff was damaged thereby, held to state a cause of action and not demurrable for the reason that damages could not be proved to the extent of the amount claimed.
    Appeal from the Circuit Court of Hamilton county; the Hon. Enoch E. Newlin, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed May 1, 1914.
    D. J. Underwood and Thompson & Thompson, for appellant.
    C. B. Thomas and H. Anderson, for appellees.

      See Illinois Notes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

Judgment was rendered in this case against appellant for costs upon a demurrer to his declaration. The appellant prosecutes this appeal and assigns as error the sustaining of the demurrer and rendering of judgment against him for costs.

The declaration consists of five counts. The first four counts are in substance the same as the first count of the declaration and allege that appellant was a candidate for representative of the fifty-first Senatorial district, at a primary election held on the 9th day of April, 1912, in said district; that at said election he was seeking the nomination for said office so as to be placed as one of the persons to he voted for said office at an election to be held on November 5, 1912; that the appellees were judges at said primary election, had been regularly selected for the township of Bear Creek in the county of Hamilton, and had charge of said primary election in said township and counted the votes thereat, and made up. the returns for said township; that in said precinct appellant in fact received 117 votes but that said judges knowingly, negligently and wilfully failed and refused to count the full number of 117 votes for appellant but counted and returned for him only 45 votes, and that by reason of the refusal of the appellees aforesaid to properly count and return his vote he was deprived of 72 votes; that the returns from said primary election from all of the counties of said district to the Secretary of State show that one George B. Baker received a total of 10,021% votes, Elwood Barker received a total of 7,205% votes and appellant received 7,189 votes as returned by the several canvassing boards of the several counties in said district, and that by the canvass as made by the Secretary of State, and shown, the said Elwood Barker received only 16% more votes than appellant, and that if his full vote had been counted for him he would have received 32 more votes than the said Elwood Barker, which would have nominated him as a candidate to Tie voted for at said November election. The declaration further avers that if his name had been placed upon the Republican ticket of the official ballot that he would have been elected as a member of the House of Representatives and would have received a certificate for such office with the emoluments and salary attached thereto; and concludes by averring that by reason of the said judges having so wrongfully and wilfully refused to count the said votes for him at said primary election that he was deprived of the office of representative for the said Senatorial district.

The second, third and fourth counts aver substantially the same facts as the first count, some of them giving more of the details bnt all of them alleging in substance that by reason of the wilful refusal and neglect of appellees to count for appellant the whole number of votes received by him in said precinct that he was deprived of the office of representative for said district and the emoluments thereof.

The fifth count of the declaration alleges the same facts in substance as the first count, except that it avers that by reason of the wilful neglect and refusal of appellees to count for appellant the whole number of votes received by him in said district, in the manner aforesaid, that the appellant was deprived of the nomination for the office of representative upon the Republican ticket, and deprived of the right to have his name printed upon the official ballot as the nominee of the Republican party.

To these counts and each of them the appellees filed a demurrer, which the court sustained. In considering the error assigned we will discuss these several counts under two classes. The first four of the counts, all aver that as a result of the failure to count the said votes the appellant was deprived of the office of representative and the privileges and emoluments thereof. In setting forth a cause of action in a declaration, it is necessary that it appear that the injury inflicted resulted directly and proximately from the cause complained of. It is a well-settled principle of law that if any independent agency intervenes between the cause complained of and the injury inflicted, to which the injury might be attributable, then no recovery could be had as it would not be the proximate cause. Under these counts of the declaration it appears that an election was to be held in November following, for which the appellant must be voted for, and at which he must receive a requisite number of votes before he could obtain the office which he alleges he was deprived of, -and if he had failed to receive a plurality of the votes he would have been deprived of the office. It appears to us that the cause alleged ip these four counts is too remote from the acts of wih fulness complained of and that it cannot be said that the loss of this office was directly attributable to the acts of appellees in refusing to count such votes at the primary election, and we believe that the court did not err in sustaining the demurrer to these four counts and each of them.

The fifth count, however, is very different. It alleges that the wilful neglect and refusal of appellees to count said votes resulted in depriving appellant of the nomination upon the Republican ticket for said office, and deprived him of having had his name placed upon the official ballot and says he was thereby greatly damaged, and specifying the manner and extent to which he was damaged. It is said by counsel for appellees that this was only a political right and no damage could result in law from being deprived of a political right. In other words, that if appellant was injured at all that it was damnum absque injuria. It is said that he could not recover the expense and damages complained of. It is probably true that appellant sought, as claimed by this declaration, damages which could not be proven to the extent claimed, but the amount of damages that he is entitled to receive is not the controlling factor in determining his right of action. “"Where the evidence shows the violation of a legal right, the claim to damages accrues, and the fact that the precise nature and extent of the damages is not capable of being exactly ascertained will not serve to divest the right of recovery.” 13 Cyc. 15. It certainly is a legal right that a man is entitled, when a candidate for office under the laws of our State, to have all of the votes received by him counted for him and if any one authorized to count such votes wilfully neglects and refuses to count them it is certainly depriving him of a substantial legal right. It is certainly as much of a legal right to deprive a man of votes cast for him as to deprive one of a right to vote, and it is held by our Supreme Court that damages may be recovered for depriving one entitled to vote of the right. Bernier v. Russell, 89 Ill. 60; 15 Cyc. 314.

The amount of damages that may be recovered is not a matter to be considered upon this demurrer. This will arise upon the trial of the case in the admissibility of evidence, when only such damages as are directly attributable to the wrongful acts complained of can be admitted in evidence. Whether appellant would be able to prove any damages or not, would not deprive him of his right of action, as he would be at least entitled to nominal damages. “Every injury to a legal right imports damage and entitles an injured party to his action and the recovery of nominal damages if none other are proven.” 1 Cyc. 660. While there seems to be but little authority upon this question, yet from principle it seems to us that the right to have proper and legitimate votes counted as they were cast is a substantial right .and privilege of every citizen and that any one who wilfully deprives him of that right should suffer for any legitimate damages that he has sustained thereby; and we think the court erred in sustaining a demurrer to the fifth count of plaintiff’s declaration, and the judgment of the lower court is reversed and the cause remanded with directions to overrule the demurrer to the fifth count of the declaration.

Judgment reversed and cause remanded with, directions.


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    Flora A. Lunger, Plaintiff in Error, v. Nancy J. Sechrest et al., Defendants in Error.
    1. Witnesses, § 149

      —when person claiming heirship incompetent. In a proceeding by an administrator for the distribution of an estate, a person claiming relationship to deceased as sole heir held incompetent to testify, where such relationship had not been established and other parties claimed an interest in the fund.
    2. Evidence, § 238

      —when marriage certificate competent on proof of heirship. In a proceeding for the distribution of an estate, a marriage certificate of a woman claiming heirship held admissible for the purpose of identifying her as being of the same name as deceased before her marriage.
    3. Evidence, § 289

      —when marriage certificate admissible as ancient writings. An instrument dated in 1865 and upon its face purporting regularly to be a marriage certificate, held to be of a class of writings that owing to its antiquity proves itself, and admissible without further proof.
    4. Evidence, § 213

      —when declarations of deceased person as to his kindred admissible. In a proceeding by an administrator for the distribution of an estate where a party claimed to be an heir of the deceased, refusal of court to permit a witness for such person to testify that the deceased had said that the mother of the party claiming heirship was his sister, held error.
    5. Tbial, § 93

      —effect of general objection to admission of documentary evidence. A general objection to the admission in evidence of a written instrument raised only the question of its relevancy.
    Error to the Circuit Court of Jefferson county; the Hon. William H. Green, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed May 1, 1914.
    Robert M. Farthing and Kirby Smith, for plaintiff in error.
    Thompson & Thompson and Joel F. Watson, for defendants in error; Albert Watson, of counsel.

      See Illinois Jiotes Digest, Vols. XI to XV and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McBride

delivered the opinion of the court.

On November 15, 1906, Charles D. Cook, a resident of Mt. Vernon, died intestate, seized of real estate, also personal property, amounting to about $6,628.39. G. Gale Gilbert, public administrator, administered upon his estate and upon the settlement thereof gave notice as required by statute to all persons claiming an interest in the estate, or the distribution thereof, to appear and make their claims in the manner provided by law. It further appears that Flora A. Lung-er appeared and claimed to be a cousin of the decedent, and his only heir at law; that Nancy J. Sechrest for herself and her nieces and nephews also appeared and claimed to be the sole and only heirs of the deceased and asking that the money be paid to them as his next of kin. Flora A. Lunger claimed that the deceased, Charles D. Cook, was a son of Silas Cook of New York State and that he was partly raised by Doctor Jonathan Stewart, an uncle by marriage; that on account of some difficulty he left New York State and went to Chicago and from thence to Onarga and Watseka, Illinois, and in about the year 1861 or 1862 went from Watseka to Centraba and remained there until about the year 1867, from whence he removed to Mt. Vernon and resided there until the time of his death. She claims that Jacob Cook was the father of Daniel B. Cook and the brother of Silas Cook; that Daniel B. Cook was the father of Flora A. Lunger, the claimant, and that Silas Cook was the father of Charles D. Cook, the decedent, and that she was a cousin of the deceased and entitled to the estate. Nancy J. Sechrest, the other petitioner, claims that the deceased’s real name was Charles D. Pickett; that he was born in Virginia, and on account of some difficulty left Virginia and came to Fairfield in about the year 1861 and that after remaining about Fairfield for a while went to Centraba and thence to Mt. Vernon and there remained the balance of his life. She claims that at the time he came to Fairfield he was there to visit his sister, whose name was Frankie Barton, and that she was the mother of the petitioner Nancy J. Sechrest and grandmother of the coclaimants with Mrs. Sechrest; that he visited at the home of his sister, Mrs. Barton, and recognized her as such sister, and that she was the niece and her associates were grandnieces and nephews of the deceased, Charles D. Cook, and as such were the only next of kin and entitled to the estate left by him. The case was heard in the County Court and afterwards appealed to the Circuit Court of Jefferson county, and there heard. In the Circuit Court the administrator and The County of Jefferson appeared and defended against the claims of both sets of petitioners. The Circuit Court, after hearing the evidence of the witnesses, decided that none of the petitioners were of kin to the deceased and determined that they were not entitled to any part of the fund in dispute and ordered that the administrator pay the fund, less taxes, to the county treasurer of Jefferson county. Flora A. Lung-er prosecutes this writ of error, making all the others party defendants and assigns as error: First. The court erred in refusing to permit plaintiff in error Flora A. Lunger to testify in her own behalf. Second. The court erred in excluding evidence and exhibits offered by plaintiff in error. Third. The court erred in not finding in favor of the plaintiff in error. The other claimants, Nancy J. Sechrest et al., assigned cross-errors, among which was that the court erred in excluding competent evidence offered on behalf of Sechrest et al. and admitting improper evidence.

It is contended by plaintiff in error, Flora A. Lunger, that the court erred in refusing to permit her to testify because of her alleged incompetency. We have examined the several authorities referred to by the respective parties upon this question and believe that the court properly held that she was interested in the result; that the'administrator was a party; that Mrs. Sefchrest et al., who were parties, were claiming an interest in this fund; that she had not established her heirship and we believe that she was clearly incompetent as a witness, under the holdings of the Supreme Court in In re Maher’s Estate, 210 Ill. 160 and Laurence v. Laurence, 164 Ill. 367 and other authorities cited therein.

The next error complained of is the refusal of the court to admit her marriage certificate in evidence. This instrument bore date of September 28, 1865, and upon its face purports regularly to be a marriage certificate and was in the possession of Mrs. Lunger who offered to introduce it in evidence; that it was material in identifying her as being of the name of Cook before her marriage to Lunger; that it was of that class of writings that owing to its antiquity proves itself and should have been admitted without further proof. A further reason why it should not have been excluded is that the objection made to its introduction was a general one and raised only the question of its relevancy. It certainly was relevant to the issues, and if it were sought to object to it for any other reason it should have been made specific. In the case of Buntain v. Bailey, 27 Ill. 409, it is said: “This court has so frequently decided that general objections to the instrument of evidence will not be entertained, that it is unnecessary, in this case, to do more than refer to the decisions. To go no further back, the case of Sargeant v. Kellogg et al., 5 Gilm. 281, is understood to hold, that a general objection to the introduction of a certain instrument of evidence simply raises the question of its relevancy.” And again, in the case of Groom v. Parables, 28 Ill. App. 152, in an opinion delivered by Justice Lacey, in regard to the proof of a marriage register, it is said: “The proof of marriage is sufficiently made. A copy of the parish register in London, England, was properly introduced—it is true against the objection of the appellant—but the objection was only general and not special, and only reached to the competency of the evidence. Such general objections do not raise the question as to the secondary character of the evidence, such as being a copy, nor does it raise the question as to its authentication. Buntain v. Bailey, 27 Ill. 409. It need not be shown by the proof in the first instance that the marriage was in accordance with the laws of England, etc.” This marriage certificate was material and at least tended to identify the claimant as one of the Cooks and should have been admitted. It is not necessary for us to now determine the effect such admission would have had as owing to some cross-errors that have been assigned, in addition to the above, the case will have to be reversed and remanded for trial, and we will not undertake in any manner to determine the weight of the evidence or the effect that the admission of any of the matters erroneously excluded would have upon the respective claimants and will not embarrass any of them in any manner in another trial.

The defendants in error, Nancy J. Sechrest et al., have assigned as cross-error the refusal of the court to permit the witness, Martha J. Sims, who was testifying in behalf of Nancy J. Sechrest et al., when asked with reference to any statements that the deceased made as to his relationship to Mrs. Barton, the mother of Mrs. Sechrest, in which she answered, “Yes, sir, he said he was her brother and she called him brother,” and the court sustained the objection both to the question and the answer. The property here sought to be distributed was of the estate of Charles D. Cook, and it was clearly competent to show what he may have said as to who were the proper persons to receive it. In the case of Cuddy v. Brown, 78 Ill. 415, the declarations of the deceased with reference to his kindred were admitted in evidence and approved by the Supreme Court in that case. The testimony offered was at least material, as the witness George Barton testified, giving the names of the brothers and sisters of Frankie Barton Hughes: “My father married the mother of Nancy J. Sechrest. Never met Charles D. Pickett; have heard him talked about within the family, by immediate members of the family. My father and his sisters I suppose. His sister married my father. Heard my step-mother talk about it; about where they came from; as I understood it they came from Virginia and their name was Pickett. Heard my father and step-mother talking, and heard him say she had a brother named Charles Pickett that came from Virginia; that he had changed his name and was going by the name of Cook. She was reciting the story. As I understood it he got in some kind of trouble in Virginia and left there and came to Illinois and changed his name. Came to his sister’s, my step-mother. I understood he was living in the west part of Wayne county and at Mt. Vernon, that he moved to Mt. Vernon. I never saw him myself.” It will be observed that George Barton knew the family history and learned therefrom as he testifies, of Charles D. Pickett coming to Illinois and changing his name and that he was a brother of the mother of Mrs. Sechrest but he never saw Charles D. Cook, hence it was important to identify the deceased as the brother of the mother of Mrs. Sechrest, and the statement offered by the witness that the deceased said that the mother of Mrs. Sechrest was his sister would tend to at least identify her as such sister. We believe that the Circuit Court erred in refusing to hear this testimony offered by Nancy J. Sechrest et al. We are of the opinion that the parties should be permitted to again present their claims and evidence to the Circuit Court, and that too without any suggestions from this court as to the weight of the testimony or the claims of either parties, and the judgment of the lower court is reversed and the cause remanded for a new trial.

Reversed and remanded.