text:
    Joseph D. Adams, Appellee, v. Commissioners of Highways of Town of South Otter, Macoupin County, Appellants.
    1. Roads and bridges—warrants as evidence of debt. Inasmuch as commissioners of highways have general legal authority to draw warrants upon the treasurer, a warrant drawn by them is prima facie evidence of a pre-existing liability according to its terms; and a valid and sufficient consideration therefor may properly be presumed.
    2. Roads and bridges—what not defense to warrant. In an action upon a warrant issued by highway commissioners upon its treasurer various defenses set up by special plea are considered and held insufficient to defeat payment of such warrant, and held, further, that one of the defenses set up that the work was done and the indebtedness contracted for at a time when there was no fund in the hands of the commissioners and no levy made with which to pay for the same.

      Assumpsit. Appeal from the Circuit Court of Macoupin county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1907.
    Reversed and remanded with directions.
    Opinion filed October 25, 1909.
    J. B. Vaughn, for appellants; E. 0. Knotts, of counsel.
    Bell & Burton, for appellee.
   Per Curiam:

This is a suit in assumpsit by appellee against appellants as commissioners of highways of the town of South Otter, by which it is sought to recover the amount due upon an order or warrant issued March 1, 1899, by said commissioners, upon the treasurer of the board, for the sum of $650' “for iron bridge,” payable to appellee or bearer on April 1,1900, out of money in the treasury not otherwise appropriated. To the declaration, which consists of two special counts declaring upon the warrant in question, and the common counts, several special pleas were filed, to which the court sustained demurrers. Appellants elected to abide by the same. After the introduction of the order in evidence, the judge before whom the cause was tried without a jury, rendered judgment against the defendants for $650. No evidence was introduced to sustain the common counts. To reverse such judgment this appeal is prosecuted.

Inasmuch as appellants as commissioners had general legal authority to draw warrants upon the treasurer, the warrant in question was prima fade evidence of a pre-existing liability according to its terms, and a valid and sufficient consideration therefor may properly be presumed. Drain Com. v. Loveless, 67 Ill. App. 405. The burden was thus cast upon appellants to impeach or invalidate the warrant by showing that it was issued without valid consideration or in payment of an indebtedness which the commissioners had no legal power to contract. This the appellants sought to do by their special pleas, to which demurrers were sustained. The introduction of the order in evidence, in the absence of further pleas, manifestly warranted the finding and judgment rendered thereon, and the sole question presented by the record for determination is whether the facts alleged in either such pleas, when tested by the well-known rules that each must be complete itself and cannot be aided by the averments of the other, and that all inferences will be indulged against the pleader by reason of any omissions or any uncertain, equivocal or insufficient averments therein, would have, if established, constituted a legal defense to the prima facie case made by the introduction and admission of the warrant in evidence.

The second amended plea alleges that the defendants are a public corporation; have no authority to borrow money 'or to create indebtedness beyond the revenues of the given year; that the defendants at their September meeting in 1897, made their levy for road and bridge purposes; that the said levy was for the greatest amount they had the lawful authority to levy; that all moneys from all sources were needed and used by them as a public corporation for other road and bridge purposes than the bridge for which the warrant sued upon was issued; that at the time the contract was made, plaintiff had full knowledge that the revenues so levied by these defendants for road and bridge purposes for the ensuing year, would be expended by the defendants for road and bridge purposes other than for the bridge for which the order sued upon was issued; and that with such knowledge the plaintiff entered into the contract for said bridge with the understanding that when the said warrant should be issued, payment of the same should be made out- of the revenues to be derived from a levy to be made by these defendants at their September meeting following the date of the making of said contract, or at some subsequent annual levy to be by these defendants made.

It will be observed that the plea alleges the existence of a contract inferentially only, and does not allege when it was made nor does it allege that the warrant in suit was issued under or in accordance with such contract; nor does it appear how it was material whether appellee had knowledge of the purposes of the levy mentioned.

The fourth amended plea alleges that the plaintiff had notice at the time of making the contract for the bridge for which the warrant in suit was issued, that all funds and moneys on hand and to be derived from any levy made by these defendants at their September meeting in 1897, subject to order for road and bridge purposes for the ensuing year, would be expended by these defendants for other lawful road and bridge purposes ; but notwithstanding such notice, plaintiff at the time and in order to induce the county of Macoupin to join with the defendants in the contract to become liable for one-half of the price of the said bridge, agreed with the defendants that he would accept a warrant of the defendants on their treasurer, payable in one, two or three years from the date of contract, for the other half of said bridge, as the defendants should direct; that the said agreement was so entered into by the plaintiff and the defendants, at the instance of the plaintiff, with the purpose and design on the part of the plaintiff unlawfully to induce the county of Macoupin to become a party to the contract and to become liable to the plaintiff for one-half the price of said bridge; that by the agreement of the said plaintiff to accept the warrant of the defendants for one-half of the contract price of said bridge, payable as above alleged, these defendants and the county of Macoupin were fraudulently induced by the plaintiff to enter into a contract for said bridge; that the said agreement with reference to accepting the warrant of the defendants for one-half the contract price of said bridge, was unlawfully and fraudulently made by the plaintiff, with the design and purpose of inducing, and did induce, the said county of Macoupin to enter into said contract and to become liable for one-half the purchase price of said bridge; that by reason whereof the said contract and warrant were null and void.

While this plea charges that at the time of making the contract for the. erection of said bridge for which the order was issued, appellee had notice that the proceeds of the levy of 1897 would be expended, no connection is alleged between such levy and such knowledge and the order sued on or the contract on account of which the order was issued. The plea alleges a verbal understanding or agreement between appellants and appellee by which the latter was to accept an order payable at a different time than that specified in a written contract, which agreement was entered into prior to the making of such contract for the construction of the bridge, for the purpose of inducing the county of Macoupin to aid in the construction of the same. This is alleged to have been done fraudulently, but the facts alleged do not justify such legal conclusion. By the statute it is provided that upon the presentation of a petition by the commissioners of highways of a township to the board of supervisors of a county, stating certain facts enumerated in the statute, it is the mandatory duty of the board to appropriate from the county treasury an amount equal to one-half of the cost of the bridge, and to appoint a committee of three who shall act with the commissioners as one body. The plea fails to set up any false statement of facts or misrepresentation as to any existing condition, to induce action by the county board, and if the requisite facts existed and were alleged in the petition the action of the county hoard became mandatory and it could neither have granted nor withheld aid by reason of any verbal agreement between appellants and appellee. The agreement set up by the plea was therefore not fraudulent as to any one. Appellants were a quasi corporation powerless to act except as a body, and were required to keep a record of such official action. People v. Madison County, 125 Ill. 334. They therefore could not as individuals make any verbal agreement of any legal effect whatever, nor thereby vary the terms of a written contract to be thereafter jointly made by- them and the county committee, by the terms of which appellee was to be paid at the completion of the work.

The fifth amended plea alleged first that at the time of making the contract, plaintiff had notice there were no funds actually or potentially on hand out of which the said warrant could be lawfully paid; that the dates for the payment of the several sums of money to become due and payable on said contract were fixed in said contract as on January 1, 1900, at the instance of the plaintiff; that at the time of the making of the contract, it was agreed between the plaintiff and these defendants that the said dates in the contract so fixed at the instance of the plaintiff, were not to be regarded as correct, and that payment of the said several sums of money in the contract were to be made in one, two or three years thereafter, as the defendants should direct and out of moneys to be by them in the future levied; that the said dates so above alleged to have been fixed for the payment of the said several sums in and by the terms of the said contract, were so fixed by the plaintiff with the design and purpose of inducing the county of Macoupin to unlawfully join with the defendants in the contract for said bridge and to become liable to the plaintiff for the payment of one-half the contract price therefor; that the said fixing of the said several and respective dates, as the same were fixed by the said contract, for the payment of the said sums of money, were false and fraudulent and well known to the plaintiff at the time of the execution of the said contract to be false and fraudulent; that the said false and fraudulent fixing of the said dates by the plaintiff at times other than when the same were actually to become due and payable, unlawfully induced the defendants and the county of Macoupin to make the said contract for the erection of the said bridge.

The allegation of this plea that at the time of making the contract for the bridge for which the order was issued the plaintiff had notice that there were no funds or moneys in the treasury out of which the order would or could be paid, does not constitute a defense. The allegation might be true and yet appellee be entitled to recover, because at the time of making the contract a levy may have been made and the proceeds not then collected. Furthermore, a levy may have been made and the amount appropriated to the purpose of the contract and the proceeds may have been collected and expended for other purposes and yet appellee be entitled to recover upon this order. The plea further proceeds upon the theory that the contract under which the order was issued was entered into with appellee by the committee of the county board and appellants jointly, and that there was some preliminary contract or understanding with appellants, the character of which whether written, verbal, individual or otherwise, is not definitely disclosed, by which the execution of the joint contract was to be influenced. What has been said in this regard as to a former plea is therefore applicable to this one. The allegations of the foregoing pleas are not sufficient to bar a recovery upon the warrant in suit, and the demurrers thereto were properly sustained.

The third amended1 plea alleges that the defendants were a public corporation; that it was their duty to meet to ascertain how much money must be raised on all the taxable property of the town of South Otter for road and bridge purposes for a given year, and to levy a tax on the same not to exceed forty cents on the one hundred dollars; that it was also their duty to appoint one of their members treasurer; that they did appoint one John Caveny such treasurer; that it was his duty to accept and keep safely all funds and moneys for road and bridge purposes; that they did meet as the law directs and did levy for the year 1898 the sum of forty cents on the one hundred dollars; but that notwithstanding the doing and performing of all of the above duties and obligations of the defendants, at the time such warrant or order sued on was issued, there was no money in the hands of the treasurer of the defendants with which the same could be paid, nor was there any levy made from which said order could be paid; that by reason thereof the order sued upon in this case was void. We are of opinion that the facts averred in this plea constituted a legal defense to the cause of action and that the court erred in sustaining the demurrer to the same.

In Brauns v. Town of Peoria, 82 Ill. 11, it is said: "We do not find, in the very many provisions of the statute respecting roads and bridges, any authority conferred upon the highway commissioners to expend money on the roads and bridges, within their respective districts, which is not in their treasury to be expended, and which has not been actually levied, nor is any authority conferred upon them to anticipate revenue and expend it, unless it be actually levied.”

In Commissioners v. Newell, 80 Ill. 593, it is said: "They (the commissioners) therefore, are powerless to borrow money and it would seem to follow that they are equally powerless to incur indebtedness. If they may do so, then they may do what the law never tolerates, indirectly, what they have no power to do directly.”

Commissioners of highways have no power to draw any orders for the payment of indebtedness unless there is a fund for such payment or a tax levy has been made for that purpose. Commissioners v. Jackson, 165 Ill. 17, and cases there cited. Commissioners of highways are powerless to pledge the credit of a township for work and labor upon roads and bridges to be paid for in the future out of revenues to be derived from taxes subsequently levied, and an order given in such case is void. Commissioners of Town of Deer Park v. O’Sullivan, 16 Ill. App. 34.

The first additional plea alleges that the warrant sued on was made and issued to the plaintiff by the defendants pursuant to a certain contract in writing made on June 10, 1898, for the erection of a certain bridge; that at the time the said contract was entered into, all moneys levied, assessed and collected for the fiscal year 1898 had been lawfully expended for other road and bridge purposes for said fiscal year; that before and at the time of the making of the contract, plaintiff had knowledge and actual notice that all of the said funds and moneys so levied, assessed and collected for the fiscal year had been lawfully expended by the defendants; that at the time said contract was made, it was reduced to writing by the plaintiff and by him then and there wrongfully, falsely and fraudulently dated as of the 8th day of October, 1898, so that the same would appear upon its face to be a valid and binding obligation of these defendants to pay the sum of money therein specified out of the funds arising out of their next annual levy; and with the design and purpose of collecting the said sum of money out of funds arising from such levy. That by reason of the above premises the order mentioned in plaintiff’s declaration and the contract upon which the same was issued are null and void, etc.

It is urged by the plaintiff that this plea is bad inasmuch as it does not aver that the contract was treated as a working contract and acted upon by either party in any manner until the date thereof, at which time a levy would have been made to cover the cost of the bridge. If it be true that nothing was actually done under the contract until after a levy was made in September following, and on the faith of such levy the plaintiff proceeded to erect the bridge, we are of opinion that the plaintiff would be entitled to recover upon the order. The presumption is, however, that the contract became effective at the time it is alleged in the plea to have been actually entered into, and the plea is therefore good upon its face. The matters relied upon by the plaintiff to overcome such presumption were in confession and avoidance and would properly be presented by replication to the plea.

The judgment of the Circuit Court will be reversed and the cause remanded with directions to overrule the demurrers to the third amended and the first additional pleas.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    Arthur L. Louthan, Plaintiff in Error, v. Charles Jenne, Defendant in Error.
    This case is controlled by the decision in People ex rel. Slusser v. Johnson, 145 Ill. App. 446.
    Petition for removal of guardian. Error to the County Court of Douglas county; the Hon. E. D. Hutchinson, presiding. Heard in this court at the May term, 1909.
    Writ of error dismissed.
    Opinion filed October 25, 1909.
    E. L. McDuffie and G-. W. Salmaws, for plaintiff in error.
    J. M. Newmah and Johh H. Chadwick, for defendant in error.
   Per Curiam:

This is a writ of error prosecuted by Arthur L. Louthan to reverse an order of the County Court of Douglas county, dismissing his petition, filed in said court, to remove Charles Jenne as guardian of his daughter Vivian, and for the custody, nurture and education of his said daughter. The writ of error must be dismissed for want of jurisdiction in this court to issue or to consider and determine the same. In the case of The People ex rel. Viola Slusser v. Johnson, 145 Ill. App. 446, wherein the County Court of Vermilion county had entered an order appointing a guardian of a minor child1 over the objection of the plaintiff in error, and a writ of error from this court was prosecuted to reverse such order it was held, that this court was without jurisdiction to issue said writ, and we there said: “Section 43 of the Act entitled ‘Guardian and Ward’ (Rev. Stat., p. 1174), provides that appeals shall be allowed to the Circuit Court from any order or judgment made or rendered under this Act, upon the appellant giving bond,” etc. McCallum v. Trust Co., 203 Ill. 142, cited by counsel for plaintiff in error, was a writ of error sued out from the Supreme Court, to the Probate Court of Cook county, to review an order disapproving a guardian’s report of sale of real estate and ordering a resale of the property. The court held that the foregoing section was repealed by implication by the adoption of section 88 of the Practice Act and section 8 of the Appellate Court Act and that the writ of error was properly sued out from the court. We do not think that it was there intended to be held that writs of error or appeals to review other orders in guardianship matters than those pertaining to applications to sell real estate, should issue from or lie to the Appellate or Supreme Courts. This view is borne out by section 11 of the Probate Court Act (Rev. Stat. 1905, p. 628), which provides that “Appeals may be taken from the final orders, judgments and decrees of the Probate Courts to the Circuit Courts of their respective counties in all matters except in proceedings on the application of executors, administrators, guardians and conservators for the sale of real estate upon the appellant giving bond,” etc. It is obvious that proceedings for the appointment of guardians are in no proper sense suits or proceedings at law or in chancery within the meaning of section 8 of the Appellate Court Act but that they are purely statutory. Grier v. Cable, 159 Ill. 29:. This court therefore has no jurisdiction to issue writs of error to review orders, judgments or decrees of the County or Probate Courts in guardianship matters, except those involving applications to sell real estate and where a freehold is not involved. Lynn v. Lynn, 160 Ill. 307. The proper remedy in proceedings of the present character, is through an appeal to the Circuit Court.

We adhere to the views as above expressed, and in conformity therewith the writ of error in this case will be dismissed.

Writ of error dismissed.


author: Mr. Presiding Justice Baume

text:
    State Bank of Clinton, Defendant in Error, v. Lucy J. Barnett, Plaintiff in Error.
    1. Judgments—presumptions indulged where entered by confession, in term time. The same presumptions will be indulged in favor of a judgment by confession entered in term time upon a cognovit, as are indulged in the case of original judgments of courts of general jurisdiction.
    2. Judgments—when motion to set aside, entered by confession properly denied. A motion to set aside a judgment entered by confession is addressed to the equitable discretion of the court and even though irregularities have intervened it may be denied if it appears that the amount represented by the judgment is due and that there is no defense upon the merits.
    Judgment by confession. Error to the Circuit Court of DeWitt county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    A. E. De Mange and Edward J. Sweeney; for plaintiff in error.
    Herrick & Herrick and Lemon & Lemon, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On July 29, 1907, being one of the days of the May term, 1907, of the Circuit Court of De Witt county, judgment was entered by confession in favor of the State Bank of Clinton against Lucy J.. Barnett for $3236.93, upon two promissory notes bearing date December 30, 1902, for the sum of $1000 due six months after date, and $1394.89 due on demand respectively, each of which notes contained a warrant of attorney as follows:

“And to secure the payment of said amount we hereby authorize any attorney of any court of record to appear for us in such court in term time or vacation, at any time hereafter, and waive service of process, and confess judgment in favor of the holder of this note for such amount as may appear to be unpaid thereon; together with costs and $50 (fifty dollars) for attorney’s fees to be included in said judgment. And we hereby jointly and severally waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby waiving all appeal in said cause and all advantage to which we may be entitled by virtue of the exemption laws of this State, or of any State or territory where judgment may be entered by virtue hereof; hereby ratifying and confirming all that said attorney may do by virtue hereof; and we hereby authorize the State Bank of Clinton to charge this note to the account of either of us at maturity, or at any time thereafter, with accrued interest thereon.

“Witness our hands and seals the day and year above written.

“W. A. Barnett, (L. S.)

“Lucy J. Barnett. (L. S.) ”

To the declaration upon said notes a cognovit in the usual form was filed by William Booth as attorney for said defendant. The May term of said court adjourned on August 9,1907.

At the following November term of said court, on November 11, 1907, said defendant filed her motion to vacate and set aside said judgment, on the ground that the same was entered without warrant or authority, and that the court had no jurisdiction to enter the same for the reason that the powers of attorney attached to the notes upon which said judgment was entered were joint and not several nor joint and several, and because, by the death of W. A. Barnett, the other joint maker of said powers of attorney, which occurred in October, 1904, said powers of attorney ceased and determined and became null and void. The affidavit of the defendant averred the death of her husband, W. A. Barnett, on October 13,1904, and that she was duly appointed administratrix of his estate, which estate was still pending for settlement in the County Court of DeWitt county; that on October 25, 1905, the plaintiff filed in said County Court its claim against the estate of the said W. A. Barnett for the full amount due upon the two said notes, and that judgment was entered thereon in said County Court against said estate on October 27, 1906; that the said judgment by confession here involved was rendered upon no other or different powers of attorney than those attached to said notes, and that the cognovit in said cause signed by William Booth was signed and filed therein without any authority from the defendant; that the said Booth was not at said time or a.t any time the attorney of the defendant and had no authority to enter her appearance in said cause or to waive the issuing and serving of process upon her, or to file any plea or pleas in said cause; that she had no notice or knowledge of said judgment until after the adjournment of the May term, 1907, of said Circuit Court. Upon the hearing of the motion to set aside and vacate said judgment the same was denied by the court and the defendant prosecutes this writ of error to reverse such ruling of the court.

In the view we are constrained to take of this case it may be conceded that the warrants of powers of attorney to confess judgment upon the notes in question were joint and not joint and several, and that they did not, therefore, authorize the rendition by the court of a judgment by confession on said notes. The judgment in question was entered not in vacation, but in term time, and it has been held that the same presumption will be indulged in favor of a judgment by confession entered in term time upon a cognovit, as are indulged in the case of original judgments of courts of general jurisdiction. Harwell v. Huston, 151 Ill. 239; Boyles v. Chytraus, 175 Ill. 370. It will be observed that there is an entire absence of any claim on the part of the defendant that she was not in fact indebted to the plaintiff for the full amount of the notes, or that she had any defense to said notes either legal or equitable. While it has been held to be the settled doctrine in this State that the authority to confess a judgment without process, must be clear and explicit, and must be strictly pursued; and that if there is no power to enter the appearance of the debtor and confess the judgment such judgment is a nullity and binds no one, and may be attacked collaterally for want of jurisdiction in the court to render it. Weber v. Powers, 213 Til. 370. In its practical application such doctrine has not been held to justify a court in setting aside and vacating a judgment by confession entered in term time, unless it was made to appear that the defendant had some defense to the merits. And this is so whether such judgment is attacked by a bill in equity or by motion in a court of law. The two remedies stand upon the same footing. In considering the purpose and scope of the remedy by motion in a court of law in Blake v. State Bank, 178 Ill. 182, it was said: “Such an application as this is addressed to the sound' discretion of the court, and calls for the exercise of the equitable power of the court over its own judgments. A court of law being vested with such power, will not send' a defendant against whom judgment has been entered by confession, to a court of equity for redress, but the power, whether exercised by a court of law or of equity, is an equitable one, to be governed by the same principles.”

In Colson v. Leitck, 110 Ill. 508, it was held that a court of equity will not enjoin a judgment at law where there has been no service, unless it is alleged and proved that if the relief be granted a different result will be obtained than that already adjudged by the void judgment. °

In Hier v. Kaufman, 134 Ill. 215, it was held that relief would not be granted upon motion if it appeared that the debtor owed the amount of the judgment and had no defense either legal or equitable to the debt for which the judgment was rendered. In Farwell v. Huston, supra, it was said: ‘1 This court has held, in a number of cases, that a court of law exercises an equitable jurisdiction over a judgment by confession; that if there is an absence of authority to confess, the debtor will not be forced into a court of chancery to obtain relief, but may move to set aside the judgment before the court of law which rendered it; and that such court of law may open the judgment and permit the debtor to present his defense to the claim, if he has any, but will however protect the creditor by permitting the judgment to stand as security. Yet, such relief will not be granted, if it appears that the ■debtor owes the amount of the judgment and has no defense, either legal or equitable, to the debt for which the judgment is rendered.” The same doctrine is an nounced in Packer v. Roberts, 140 Ill. 671; Mumford v. Tolman, 157 Ill. 258; Telford v. Brinkerhoff, 163 Ill. 439, and Reed v. New York Exchange Bank, 230 Ill. 50.

The case of Mayer v. Pick, 192 Ill. 561, mainly relied upon by counsel for defendant as sustaining their contention, holds that the warrant of attorney to confess judgment there under consideration was joint and not joint and several and is an authority in point upon that phase of the case at bar, but it further appeared in that case that the note upon which judgment was confessed did not become due until about seven months after the action was commenced, and it was said: “There is no principle, legal or equitable, by which one may be required to pay money before it becomes due in accordance with his contract. A judicial determination so requiring would be in violation of the contract.”

In Desnoyers Shoe Co. v. First Nat. Bank, 188 Ill. 312, the judgment by confession was entered in vacation. In Thompson v. Patek, 235 Ill. 341, it appeared that one of the judgment debtors had a. complete defense to the merits, and the court expressly refrained from deciding that it was not necessary to show a meritorious defense in order to have a void judgment vacated. This case, therefore, cannot be regarded as overruling the several former cases heretofore cited.

The action of the Circuit Court in denying the motion to set aside and vacate the judgment was proper and will be affirmed.

Affirmed,

Mr. Justice Philbriok took no part.


author: Mb. Presiding Justice Baume

text:
    People ex rel. Bessie Rardin, Appellee, v. Claude Rardin, Appellant.

      Instructions—when error will not reverse. If the verdict and judgment are clearly right an instruction though subject to criticism will be regarded as harmless error and a reversal will not be awarded.
    Bastardy. Appeal from the County Court of Coles county; the Hon. Walton S. Lamon, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    Charles G-. Lee and J. H. Marshall, for appellant.
    Egbert Gr. Hammond and John McNutt, for appellee.
   Mb. Presiding Justice Baume

delivered the opinion of the court.

This is an appeal by the defendant from a judgment of conviction for bastardy. The evidence clearly justifies the finding of the jury, and the only error assigned relates to the action of the court in giving the second instruction tendered by appellee. While the instruction is not a model, it has been considered and held not to he misleading in N. Chicago City Ry. Co. v. Gastka, 27 Ill. App. 518, aErmed in 128 Ill. 613. and also in W. Chicago St. R. R. Co. v. Loftus, 83 Ill. App. 192.

In view of the uncontradicted evidence in the record tending to establish the guilt of the defendant, the instruction could not have operated to his prejudice.

The judgment is aErmed.

Affirmed.


text:
    Petroneli Belskis, Defendant in Error, v. Dering Coal Company, Plaintiff in Error.
    1. Appeals and errors—effect of former decision. If evidence upon one trial has been admitted and an appeal taken and determined in which no question was raised as to the competency of such evidence, the same is competent upon the second trial of the cause as the question of its admissibility is res judicata.

    2. Evidence—when writing offered for purposes of impeachment properly excluded. If a writing containing an alleged contradictory statement is relied upon by way of impeachment, it is competent, if the witness admits its integrity; otherwise the paper must be established by evidence before it becomes competent.
    3. Instructions—when upon right of recovery not erroneous. An instruction is proper which tells the jury that if they believe from the evidence that the plaintiff has proven her case as charged in the declaration or either count thereof by a preponderance of the evidence the verdict should be for the plaintiff.
    4. Instructions—containing abstract proposition of law. An instruction which contains only an abstract proposition of law, though subject to criticism, will not reverse if it could not have misled the jury.

      Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    - O. M. Jones and Charles Troup, for plaintiff in error; Mastín & Sherlock, of counsel.
    Keeslar & Gunn and H. Ernest Hutton, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The plaintiff, Petroneli Belskis, brought this suit in the Circuit Court of Vermilion county against the defendant, Bering Coal Company, to recover damages alleged to have resulted by reason of the wilful failure of defendant to comply with certain provisions of the Mines and Miners Act, whereby her husband, John Belskis, was killed. Upon the trial there was a verdict and judgment against defendant for $1999'. The defendant prosecutes this writ of error to reverse said judgment.

The declaration contains two counts. The first count charges the defendant with having wilfully failed and neglected to have the room in which the deceased was at work in its mine examined by the mine examiner, and to mark therein with chalk the month and day of his visit, whereby a large rock in the roof of said room fell upon the deceased. The second count charges the existence of a dangerous condition in said room, consisting of a large, loose rock in the roof thereof, and that the defendant by the exercise of reasonable care could have learned of such dangerous condition-, that the defendant wilfully failed to inspect said room before permitting the deceased to enter therein to work, and wilfully failed to place a conspicuous mark on said large, loose and dangerous rock as notice to him to keep out, whereby said rock fell upon the deceased and caused his death.

In the afternoon of June 3,1907, John Belskis, a coal miner in the employ of the defendant, was killed by the fall of a large rock from the roof of his working place, being room 5 in the third southwest entry in the defendant’s mine. McManaman, the mine examiner, employed by defendant, testified that he examined the entire mine during the night of June 2 and early morning of June 3, including the room in question, and that he then found no loose or dangerous rock in the roof of said room, and that he then inscribed with chalk on the face of the coal in said room the month and day of his visit. The written report of this examination, claimed to have been made by McManaman, contains the statement that there was then loose rock in said room 5 in the third southwest entry, but does not state that he made any conspicuous mark thereat, and there was no evidence that he made any such mark. The only theory on which the report made by Mc-Manaman can be reconciled with his testimony in that regard is that the loose rock mentioned in said report referred to some rock other than the one which fell upon the deceased. There is an irreconcilable conflict in the testimony relating to the precise location of the rock in question which fell. McManaman testified that none of the rock then projected beyond the standing shot while several witnesses called on behalf of the plaintiff testified that the rock extended some distance from the face of the coal. As tending to show that McManaman neglected and failed to examine the room as claimed by defendant, several witnesses called on behalf of the plaintiff testified that they saw no mark and that there was no mark indicating the date of the examiner’s visit, and three witnesses testified that they saw McManaman asleep upon the hay in the stable during the time he claims he was making his examination of the mine. We think the jury were warranted in finding that McManaman wilfully failed and neglected to examine the room in question on the night preceding the death of Belskis, and that such examination would have disclosed a dangerous condition existing there.

Thomas Moses, a witness called on behalf of plaintiff, was permitted, over the objection of defendant, to testify to the substance of a conversation he had with McManaman about two hours after the accident to Belskis, when he met McManaman near the mouth of room 5, as he (Moses) was coming out after having made an examination of the room. He testified that he said to McManaman, “Eddie, did you examine this place last night?” and the latter replied, “I did;” that the witness then said, “Where did you place your mark?” and that McManaman walked to the face of the coal and put his light up and said, “Right there;” that the witness said “It isn’t there now,” and Mc-Manaman replied, “No.” It is urged that this testimony was incompetent as relating to a conversation which was merely the narration of a past event, not a part of the res gestae, and not offered for the purpose of impeachment. Admitting, which we are not disposed to do, that the admission of this testimony was improper for the reasons urged, it is made to appear that the same testimony was introduced upon a former trial of the case where there was a verdict and judgment against the defendant, from which judgment an appeal was allowed to this court and that upon such appeal no error was assigned or argued relating to the action of the trial court in admitting such testimony. The question is now res judicata. In Muren Coal Co. v. Howell, 217 Ill. 190, it was said: “Parties cannot bring their cases to this court in piecemeal, but must raise all questions presented by the record upon the first appeal by a proper assignment of error, which they desire the court to pass upon, or they will be deemed to have waived such questions and cannot be permitted to raise them upon a subsequent appeal. ’ ’

The action of the trial court in permitting the witness Charles Ragudis to answer two questions relating to the proper practice in coal mining, and whether or not it is possible to tell when a large untimbered rock is going to fall, was not of sufficient significance to merit discussion. If error, it was harmless. It is impossible that the jury could have understood thiit it was the duty of the mine examiner to remove a dangerous rock, and the fact that it is impossible to determine the precise. time' when such rock will fall is self evident.

There was no impropriety in permitting the witness McManaman, called on behalf of the defendant, to testify upon cross-examination that the further mining of coal beneath the rock in question would tend to make a dangerous condition.

Two answers of the witness McManaman to questions on his direct examination were excluded by the court and this ruling is urged as error. The answer to the first question was merely the conclusion of the witness, and the answer to the second question was not responsive but was a restatement by the witness of his conclusion in the matter. The witness was fully interrogated with respect to the manner in which he conducted his examination to determine whether there was any unsafe condition in the room in question.

The witness Tony Mazulis who was working as the “buddy” of the deceased when the latter was killed, testified upon his direct examination by counsel for plaintiff, that he had noticed the rock in question about three or four days before it fell and that it sounded loose and appeared to be loose. Upon his cross-examination the witness was asked whether or not when a witness at the coroner’s inquest he had stated that he had examined the rock about thirty minutes before it fell and didn’t think it was dangerous, and the court sustained an objection to the question. The question was proper as laying the foundation for the impeachment of the witness, and he should have been permitted to answer. We do not, however, consider the ruling so prejudicial as to require a reversal of the judgment. It is evident from the record that the trial court misunderstood the purpose of the inquiry. The same witness testified that the signature to a paper shown him was in his handwriting, but there was not as much writing on the paper when he signed it as there was when presented to him at the trial; that he did not testify through an interpreter when he testified at the coroner’s inquest; that he talked partly in Lithuanian and partly in English; that he did his best, trying to say it in some way and did not know whether they understood him or not; that he did not know what they wrote on the paper, but signed it at the direction of a man who was there. Defendant offered no evidence to support the integrity of the paper which was signed by the witness, hut offered in evidence that portion of the paper above the signature of the witness wherein appeared the following:

“I examined this rock about thirty minutes before it fell. I didn’t think it was dangerous.” Upon the objection of counsel for plaintiff the offer was excluded. The rule invoked by counsel for defendant in support of their assignment of error upon the action of the court in excluding such offer is stated thus: “Where the contradictory statements were reduced to writing by the witness, or by another and signed by him, the necessity, of laying a foundation for the reception of impeaching evidence still remains, but for obvious reasons the limitation as to the time and place of making the statements does not apply. It is sufficient to show the witness the paper or read it to him and question him concerning its genuineness. If he admits that it is in his handwriting, or that he has signed it in its present form, it may, at the proper season, be received in evidence.” Chicago City Ry. Co. v. Matthieson, 113 Ill. App. 246. In Momence Stone Co. v. Groves, 197 Ill. 88, the court speaking of a like paper signed by a witness and the admissibility of such paper in evidence said: “Having admitted that he signed the paper and made the statements contained in it, it was then competent to be used for the only purpose which it was admissible, that he had made a different statement out of court from the one made on the trial.” In the case at bar the witness repudiated the paper in the form in which it was presented to him and denied that he had knowledge of its contents, and in the absence of any countervailing evidence with relation to the paper and the circumstances under which it was signed the paper was properly excluded.

The second instruction given at the instance of plaintiff informed the jury, that if they believed from the evidence that the plaintiff had proven her case as charged in her declaration or either count thereof by a preponderance of the evidence, their verdict should be for the plaintiff. Where the several counts of a declaration contain all the averments necessary to a recovery, the giving of such an instruction, although not to be commended, has never been held to constitute reversible error. Dickson v. Swift Co., 238 Ill. 62. The special ground of objection urged to the giving of such instruction in this case is that the first count of the declaration fails to allege that the rock in question was loose or dangerous before or at the time the mine examiner examined the room. While such count of the declaration is good after verdict, it should have contained the allegation above indicated, but the giving of such instruction could not have operated to mislead the jury, because by their answer to the first special interrogatory submitted at the request of the defendant, they found that the rock which afterwards fell and killed John Belskis was loose and dangerous during the night before the day when he was Id! led. The third instruction given at the instance of the plaintiff was abundantly supported by the evidence and properly limited the purpose for which the report of the mine examiner could be considered by the jury. The fifth instruction offered by the plaintiff and given by the court instructed the jury in substance that a mine examiner is a vice principal of the mine operator, and the fact that such mine examiner held a certificate or license from the state mining board did not serve to shift the responsibility from such mine operator, so as to relieve him from liability for a wilful failure on the part of the mine examiner to observe the provisions of the statute relating to Mines and Miners. While the instruction is subject to the criticism that it is abstract in form it states the law accurately and could not have misled the jury.

Defendant’s criticism of the action of the court in refusing certain instructions is fully answered by the holdings in Henrietta Coal Co. v. Martin, 221 Ill. 460; Eldorado Coal Co. v. Swan, 227 Ill. 586; Davis v. Illinois Collieries Co., 232 Ill. 284, and Peebles v. O’Grara Coal Co., 239 Ill. 370. The given instructions offered on behalf of defendant fully advised the jury as to the law of the case bearing upon the defense interposed by it.

There is no reversible error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Joseph H. Dawson, Appellant, v. N. C. Ellis et al., Appellees.
    Landlord and tenant—when purchaser of crops protected; when not. A hona fide purchaser for valuable consideration, of crops grown on rented premises, without notice either actual or constructive that such crops were grown upon rented premises, is not liable in an action by the landlord to recover the value of such crons so purchased.

      Action in case. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Art W. Lux and W. K. Whitfield, for appellant.
    Habbaugh & Thompson, for appellees.
   Mb. Presiding Justice Baume

delivered the opinion of the court.

On or about October .1,1907, William Butts, a tenant of the appellant, Joseph H. Dawson, sold to appellees 3094 pounds of broom corn for the sum of $188.14, which broom corn was raised by Butts on premises leased from appellant and for which he had agreed to pay appellant a cash rent of $433. The purchase price of the broom corn was paid to Butts and thereafter appellant brought his action in case against appellees to recover the same. Upon a trial by jury there was a verdict in favor of appellees and judgment against appellant for costs.

There is serious conflict in the evidence upon the issue as to whether or not any rent was actually due from Butts to appellant, and if that had been the sole issue of fact in the case we should not be disposed to set aside the verdict for any error of law bearing upon such issue, or because the verdict thereon was against the clear preponderance of the evidence.

It is not controverted that appellee had notice of the fact that the broom corn purchased by them was grown by Butts upon leased premises for which he was obliged to pay cash rent, but there is some conflict in the evidence as to whether or not appellees knew that appellant was the landlord of Butts or that any rent remained unpaid. A tona -fide purchaser for valuable consideration, of crops' grown on rented premises, without notice either actual or constructive that such crops were grown upon rented premises, is not liable in an action by the landlord to recover the value of such crops so purchased. Finney v. Harding, 136 Ill. 576. Where, however, the purchaser has such notice the action in case for the tort is the appropriate remedy. Watt v. Scofield, 76 Ill. 261. A most comprehensive definition of a tort has been formulated by Sir Frederick Pollock, as follows: “Tort is an act or omission (not being merely the breach of duty arising out of a personal relation or undertaken by contract) which is related to harm suffered by a determinate person in one of the following ways: (a) It may be an act which, without lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of. (b) It may be an act in itself contrary to law, or an omission of specific legal duty, which, causes harm not intended by the person so acting or omitting, (e) It may be an act or omission causing harm which the person so acting or omitting did not intend to cause, but might and should with due diligence have foreseen and prevented, (d) It may, in special cases, consist merely in not avoiding or preventing harm which the party was bound absolutely, or within limits, to avoid or prevent.” In Grindele v. Corrigan, 129 Ill. 582, a tort is defined “to be an injury or wrong committed, with or without force, to the person or property of another, and such injury may arise by either nonfeasance, malfeasance or misfeasance of the wrongdoer.” Actual fraud or intent to inflict the injury occasioned by the wrongful act is not necessary to constitute a tort. The actionable wrong may be purely a legal wrong unmixed with any element of fraud or intent on the part of the wrongdoer. In the case at bar the actionable wrong, if any, would be the purchase by appellees of the broom corn with notice, actual or constructive, that the vendor of such corn was a tenant of appellant obligated to pay cash rent for the premises and that such corn was grown upon such premises.

Several of the instructions given hy the court at the instance of the appellees informed the jury that it was incumbent upon appellant to show by a preponderance of the evidence that appellees had purchased the corn with the fraudulent intent of depriving appellant of his lien thereon for the unpaid rent. In so charging the jury the trial court was in error, and as such error was manifestly prejudicial to appellant the judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Puterbaugh

text:
    Katie Peckham, Appellee, v. Modern Woodmen of America, Appellant.
    1. Appeals and errors—when sufficiency of plea saved for review. Proceeding to trial upon other pleas presenting distinct grounds of defense does not waive the question as to the propriety of the court in .sustaining a demurrer to another plea.
    2. Fraternal benefit societies—what constitutes contract of insurance. Where the application is not only referred to in the certificate but the statements and stipulations imposed therein are expressly and specifically made a part of the certificate, the contract of insurance is represented by the application, by the certificate, the examination of the physician and the constitution and by-laws of the society.
    3. Fraternal benefit societies—what constitute warranties. Statements made in an application which enter into and become a part of the certificate of insurance are warranties and not representations and whether material or otherwise must have been literally true in order that recovery may be had upon such certificate.
    4. Fraternal benefit societies—when defenses not waived. If a letter is written by a fraternal benefit society refusing to pay a claim for insurance upon specified grounds, other grounds justifying such refusal to pay may be urged if such letter did not tend to mislead or prejudicially influence the claimant under the certificate in suit.
    5. Evidence—effect of verdict of coroner’s jury. A verdict by a jury impaneled by a coroner is not conclusive of the facts found, nor does such verdict establish prima facie the fact found, but the same is" merely evidence which tends to show the existence of the fact in question.

      Assumpsit. Appeal from the Circuit Court of Shelby county; the Hon. Truman E. Ames, Judge, presiding. Heard in this court at •the November term, 1908.
    Reversed and remanded.
    Opinion filed August 5, 1909.
    Trumian Plantz, W. H. Eagan and George B. Bhoads, for appellant.
    W. C. Headen, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit for the recovery of the sum claimed to be due to the plaintiff as beneficiary by the terms of a certan benefit certificate for $3000 issued by the defendant society upon the life of George E. Peckham, a son of the plaintiff. A judgment was rendered in the trial court for the face of the certificate. To ^reverse such judgment this appeal is prosecuted by the defendant.

The declaration consists of a special count which sets out the policy in haec verba excepting the application on the back thereof, and the common money counts consolidated. The defendant pleaded the general issue and special pleas charging that the insured had committed suicide thus avoiding the certificate, upon which issue was joined. Certain other pleas were filed numbered 6 to 14 inclusive, which set forth, separately, that the insured in his application warranted certain things to be true, viz: that his father’s health was good; that he had but one sister living, whose age was eight years and her health was good and that he had no sisters dead; and that none of his relatives had been afflicted with insanity; that upon the faith of such warranties the-society issued the certificate, and that as the warranties were, in fact, false and untrue, the certificate was null and void. Certain other pleas set forth the same defenses, omitting, however, the averment that the certificate was issued upon the truth of the statements in the application. A demurrer was sustained to said pleas, whereupon the defendant elected to abide by them, and afterward by leave of court and in conformity to its rulings upon the demurrer, filed additional pleas setting up the falsity of the application touching both father and sister and adding the averment that when the answers in question were made by the insured, he then and there well knew the same to be false. Issue was thereupon joined upon the latter pleas and the trial had upon them and the suicide pleas.

The first ground for reversal urged is that the court erred in. sustaining a demurrer to pleas 6 to 14. Counsel for plaintiff insists that in order to preserve the question for review, the defendant should have gone to trial on the remaining pleas, and that by filing additional pleas the defendant waived its right to raise the question. This would have been true had the defendant amended the pleas to which a demurrer was sustained. The additional pleas although somewhat similar in character presented another and distinct ground of defense and cannot properly be held to have been amendments to the original pleas. The question of the sufficiency of the original pleas is therefore reviewable in this court.

The certificate in suit contains the following clauses:

“This benefit certificate is issued and accepted only upon the following express warranties, conditions, and agreements:

“1. * * # That the application for membership in this Society made by the said member, a copy of which is hereto attached and made a part hereof, together with the report of the medical examiner, which is’ on file in the office of the Head Clerk and is hereby referred to and made a part of this contract, is true in all respects and that the literal truth of such application, and each and every part thereof, shall be held to be a strict warranty and to form the only basis of the liability of this Society to such member, and to Ms beneficiary or beneficiaries, «the same as if fully set forth in this Benefit certificate.
“2. That if said application shall not be .literally true, in each and every part thereof, then this Benefit certificate shall, as to said member, his beneficiary or beneficiaries, be absolutely null and void.
“3. This certificate is issued in consideration of ■ the warranties and agreements made by the person named in this certificate in his application to become a member of this Society, and also in consideration of (payment of assessments).
“5. If the member holding this certificate * * * shall, within three years after becoming a Beneficial member of this Society, die by his own hand, whether sane or insane, * * * or if his application for membership, or any part of it, shall be found in any respect untrue, then this certificate shall be null and void, and of no effect, and all moneys which have been paid, and all rights and benefits which may have accrued on account of this certificate, shall be absolutely forfeited and this certificate becomes null and void. ’ ’

Upon the certificate the following also appears:

“A copy of your application for membership is attached to this certificate. Bead it. If any answer or statement therein is not correct notify the Head Clerk at once.”

The application upon which the certificate was issued contains the following clauses:

“5. I agree * * * that this application and the By-laws of this Society shall form the sole basis of my admission to and membership therein, and of the Benefit certificate to be issued to me by said Modern Woodmen of America; that any untrue statement or answer, or any concealment of fact, intentional or otherwise, in tMs application (including therein the next succeeding page), * * * shall forfeit the rights of myself and that of my beneficiary or beneficiaries to any and all privileges growing out of my membership in said Society.
“6. I am a believer in a Supreme Being. I fully understand the objects, organization, mode of government and By-laws of this Society, and particularly that part of the laws defining the qualifications for and restrictions upon its membership, and that providing for the forfeiture of indemnity for untrue statements or answers in an application for membership. I further understand and agree that the laws of this Society now in force or hereafter enacted, enter into and become a part of every contract of indemnity by and between the members and the Society and govern all rights thereunder. I further understand and agree that this Society does not indemnify against death from suicide, sane or insane, if occurring within three years from date of certificate * * *.
“34. The following are full, true, and correct answers and statements in relation to the following particulars concerning my family history.”

In answer to questions relative to his family history the applicant stated, in substance, that he was born at Hunton, Illinois, December 21, 1885; that his father was living, aged 5'5, health good; that his mother was living, aged 38, health good; that he had no brothers living and two dead; that he had one sister living, eight years old, health good; that he had no sisters dead; and that his parents, grandparents, brothers, and sisters had none of them been afflicted with insanity. The application then concludes as follows:

“I have verified each of the foregoing answers and statements from 1 to 35 both inclusive, adopt them as my own, whether written by me or not, and declare and warrant that they are full, complete and literally true, and I agree that the exact literal truth of each shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers. I further agree that the foregoing answers and statements, together with the preceding declaration, shall form the basis of the contract between me and Modern Woodmen of America, and are offered by me as a consideration for the contract applied for, and are hereby made a part of any Benefit certificate that may be issued on this application, and shall be deemed and taken as a part of such certificate; that this application may be referred to in said Benefit certificate as the basis thereof, and that they shall be construed together as one entire contract; and I further agree that if any answer or statement in this application is not literally true * * * that my Benefit certificate shall be void. * * *. And I further expressly waive for myself and my beneficiary or beneficiaries the provisions of any law, and the statutes of any State, now in force or that hereafter may be enacted, that would, * * * cau^e it (this agreement) to be construed in any way contrary to its express language.”

It will be observed that the application is not only referred to in the certificate, but that the statements and stipulations embraced therein are expressly and specifically made a part of the certificate, and that a copy of such application is attached to the certificate and thus made a part of the same. Such certificate, together with the examination of the physician and the constitution and by-laws of the society, constituted the contract between the insured and the society. Fullenwider v. Loyal League, 180 Ill. 625. Furthermore, the statements and stipulations contained in the application are declared in the certificate to be the basis upon which the contract is made, and the certificate is declared to be issued upon the faith of such statements and stipulations. There can therefore be no doubt that the statements in the application entered into and became a part of the certificate; that such statements were warranties and not representations or mere inducements, and whether material or otherwise, must have been literally true in order to entitle the plaintiff to recover. Spence v. Central Accident Ins. Co., 236 Ill. 444; Baumgart v. M. W. A., 85 Wis. 546; Finch v. M. W. A., 113 Mich. 646. It follows that the court erred in sustaining the demurrer to special pleas 6 to 14 inclusive.

It is insisted by the defendant that a number of letters written by W. H. Pontius, the clerk of the camp of which insured was a member, to the plaintiff, one of which, “Exhibit I,” stated that her claim was rejected by the society because a coroner’s jury had returned a verdict finding that the insured came to- his death by suicide, were improperly admitted in evidence. The letters in question: were competent as tending to prove the defendant’s reason for refusing to pay the plaintiff’s claim. If it had appeared that the plaintiff was misled or influenced to her injury by the omission or failure of the defendant to set forth other reasons than that mentioned for its failure to pay, the defendant would have been restricted in its defense to the reason assigned. Weston v. Life Assurance Co., 234 Ill. 492.

During the trial it was stipulated by the parties that the verdict of a jury impaneled by the coroner of the county where the insured met his death, together with the venire, record and original testimony taken at the inquest, might be read to the jury. The verdict in question found that the insured “came to his death by his own hand willingly by means of a gunshot wound; suicide.” At the instance of the plaintiff the court instructed the jury that notwithstanding such verdict it was necessary for the defendant to prove by a preponderance of the evidence that the insured committed suicide before the defendant could under its defense of suicide defeat a recovery by the plaintiff. Such instruction stated the law correctly.

The coroner’s verdict while competent to be considered in connection with the other evidence pertaining to the issue was not sufficient to establish prima facie the fact that the insured committed suicide. Defendant’s instruction number 16 was therefore properly refused.

For the error indicated the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.


text:
    Nathaniel P. Daughetee, Appellee, v. The Ohio Oil Company, Appellant.
    1. Landlord and tenant—implied covenant of oil lease. In oil leases of the character in question in this case there is an implied covenant that a lessee will proceed with due diligence to ascertain whether or not the demised premises are underlaid with oil and after ascertaining such fact it is the duty of such lessee to proceed with due diligence fully to develop the premises.
    2. Landlord and tenant—what breach of obligation diligently to develop under oil lease. If it is shown that there was oil under the demised premises and that a market existed therefor, in order to avoid responding in damages for a failure diligently to develop and market such oil, it devolves upon the lessee to show that the premises could not be developed for oil with profit or that some other cause existed which would relieve such defendant from prosecuting the diligent development and marketing of such product; a cause of action existing in favor of the lessor, may be instituted prior to the expiration of the lease.
    Assumpsit. Appeal from the Circuit Court of Clark county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed August 5, 1909.
    Golden & Schoeield, for appellant.
    Frank T. O’Hair and Davison & Bartlett, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is a suit in assumpsit predicated upon what is commonly known as an oil and gas lease, for the recovery of damages alleged to have resulted from the failure of the defendant to develop the lands conveyed for oil and to diligently pump and market oil which it is claimed conld have been obtained from wells sunk under said lease. A trial by jury resulted in a judgment in favor of the plaintiff for the sum of $5000', to reverse which this appeal is prosecuted.

The declaration consists of four counts. The first count alleges in substance that the plaintiff on June 3, 1904, for the consideration of one dollar, the receipt of which was acknowledged, executed to Hoblitzell & Co. an oil and gas lease on certain land therein described, in Clark county, Illinois, containing 250 acres, with right to enter thereon for the purpose of drilling and operating for oil and gas, and to erect and maintain all buildings and structures and lay pipes necessary for the production and transportation of oil and gas for the term of five years from the date thereof, and as much longer as oil and gas should be found in paying quantities; that by the terms of the lease a test well was to be completed within two years from date of lease, and the plaintiff was to receive one-eighth part of the oil, and $100 per year for gas for each well from which gas should be transported; that said lease was properly filed for record in the recorder's office of Clark county, Hlinois; that said Hoblitzell & Co. took possession of the leased premises and drilled a test well and found oil in paying quantities; that it was the duty of Hoblitzell & Co. and their assigns to sink, pump and operate as many wells as were ordinarily and reasonably necessary to secure the oil from said premises and to afford protection to the lines against any well operated on adjoining lands and premises; that Hoblitzell & Co. on November 10, 1905, for a valuable consideration, assigned all their interest in said lease to the defendant, which took possession and sank and drilled five wells producing oil, and thereby became liable to fulfill and carry out the obligations of Hoblitzell & Co. to fairly and fully develop- said premises for oil; that the defendant in disregard of its duty and in violation of its undertakings, had wholly failed and refused, and still continued to fail and refuse to fully develop said leasehold by sinking, drilling and operating wells thereon necessarily and ordinarily required for the production of oil thereon in which said premises abound, and which were necessary for the protection of the lines thereof by wells drilled and operated along the same on adjoining farms and premises, contrary to the full intent and meaning of said lease and the several promises and undertakings of said appellant.

The second count alleges, in a general way, the execution of the lease to Hoblitzell & Co.; the assignment of ihe same to "the defendant; its entry upon the premises and liability under the lease, and refusal to perform thereunder.

The third count, after alleging the execution and assignment of the lease, as in the first count, alleges that Hoblitzell & Co. entered upon and ascertained that said lands were underlaid with oil, and that it was their duty to drill, sink, pump and operate as many wells thereon as would be reasonably necessary to secure oil from said lands and protect the lines, etc., and to at once deliver and market all such oil produced" as aforesaid; that by virtue of the assignment of the lease and the entry of the defendant thereunder, the defendant became bound to carry out the duties, obligations and promises of Hoblitzell & Co. under said lease, but that it had failed and continued to fail to fully develop said premises for oil, etc.

The fourth count alleges that the defendant was engaged' in the business of producing and purchasing oil and gas, was a tenant of the plaintiff and in possession of certain lands belonging to the plaintiff there situate under a certain lease theretofore made by plaintiff to Hoblitzell & Co., and by them assigned to the defendant, for the purpose of producing oil thereon and marketing the same, and that in consideration thereof the defendant promised the plaintiff that it would develop said lands for oil so as to secure as much oil from the lands so demised as might be obtained with profit; and protect the lines thereof from extraction of oil thereunder by wells drilled along the lines thereof on adjacent farms and lands, and according to the customs of the country where said lands are situate, and deliver to the plaintiff in the pipe line with which defendant connects its wells one-eighth of all the oil produced thereon; and that the defendant then continued tenant to plaintiff as aforesaid upon said lands from the 10th day of' November, 1905, hitherto, but failed to perform its said implied agreement in that behalf, to the damage of the plaintiff, etc.

By the lease in question, which is set out in full in the first and third counts of the declaration, the plaintiff in consideration of one dollar, granted to Hoblitzell & Co. all the oil and gas in and under a tract of land therein described, together with the right to enter thereon at all times for the purpose of drilling and operating for gas and oil and erecting and maintaining all buildings and structures and laying all pipes necessary for the production and transportation of oil and gas, for the term of five years from June 3, 1904, and as much longer as gas or oil was found in paying quantities on said premises, the following, among other conditions:

“Second parties shall within two years from date hereof drill to completion a test well upon said premises, if gas is found in sufficient quantities to transport, second parties agree to pay first party the sum of one hundred dollars per year for the gas product of each well from which gas is transported, payable quarterly, when a market is found for the gas; and first party to have gas free of cost to heat and light one dwelling house, to be transported at first party’s cost. If oil be found in paying quantities the first party shall have the one-eighth part of all oil produced and saved from said premises to be delivered in the pipe line with which second parties shall connect their wells.”
“The party of the first part grants the further privilege to parties of the second part of the right of way over and across said premises to the place of operating, together with the exclusive right to lay pipes to convey oil and gas, the right to remove any machinery or fixtures placed on said premises by them.”
“In case no well is completed on said premises within 24 months from this date the parties of the second part shall pay to party of the first part a rental at rate of twenty-five cents per acre per year, to he paid annually at close of the first quarter of each such rental year counting from the expiration of said 24 months.”
“It is further agreed that in case no paying well is completed on said premises within '5 years from the date hereof this grant shall be null and void, without further agreement of the parties hereto.”
“The second parties shall have the right to use sufficient gas and water to run all machinery for operating said well, also the right to remove all its property at any time, but without interference with first party’s water supply.”
“Upon abandonment by second parties of the premises, or upon expiration of the rights and privileges of the second parties, under the provisions hereof, the second parties agree to execute full release to party of first part.”
“The parties of the second part hereby agree to complete one test well in Westfield District No. 1, Clark County, Illinois, on or before the 30th day of September, 1904, or forfeit all rights under this lease.”
“It is understood between the parties to this agreement that all conditions between the parties hereunto shall extend to their heirs, executors, administrators, successors and assigns.”
“The said test well shall be commenced within 60 days from date hereof and completed on the 30th of September, 1904.”

The first contention argued by counsel for the defendant is that the allegations of the declaration and of each count thereof do not state a cause of action, and are insufficient to support the judgment, even when aided by the verdict. It is insisted that it is sought, without warrant in law, to inject into the lease an implied covenant on the part of the lessee to diligently explore and develop the lands therein conveyed; and further, that if any right of action for the breach of such covenant exists it. would not accrue until the expiration of the terms of the lease; and still further, that if oil or gas was found, the question whether the same was or could be produced in paying quantities, was to be determined by the lessee, whose decision was final and conclusive if made in good faith. We are of opinion that the declaration stated a good cause of action, although defectively. In leases of this character there is an implied covenant that the lessee will proceed with due diligence to ascertain whether or not the premises are underlaid with oil, and after ascertaining such fact it is the duty of such lessee to proceed with due diligence to fully develop the premises (Kleppner v. Lemon, 176 Pa. 502; McKnight v. Gas Co., 146 Pa. St. 185; Aye et al. v. The Philadelphia Co., 193 Pa. 451; Iams v. Gas Co., 194 Pa. 72; Koch’s Appeal, 93 Pa. 442; Bay v. Gas Co., 138 Pa. 589; Borer Iron Co. v. Trout, 83 Va. 397), and when it appears that oil can he produced therefrom in paying quantities, the further duty devolves upon such lessee to within a reasonable time diligently develop the premises for its production. McKnight v. Gas Co., supra; McClay v. Gas Co., 201 Pa. 197.

Under the terms of the present lease the question as to whether oil was found in paying quantities was not one for the arbitrary determination of the defendant. If the surrounding conditions were such as would have induced an ordinarily prudent person engaged in like business, to expect a reasonable profit from the sum necessary to he expended in the prosecution of the enterprises, oil may properly he said to have been present in paying quantities. Upon it being shown that there was oil under the leased premises, and that a market existed for the same, in order to avoid responding in damages for a failure to diligently develop and market such oil, it devolved upon the defendant to show that the premises could not be developed for oil with profit to it, or that some other cause existed which should relieve the defendant from prosecuting the diligent development and marketing of such product. Iams v. Gas Co., supra. No cogent reasons are advanced by counsel in support of the suggestion that the plaintiff should be compelled to await the expiration of the lease before asserting his rights thereunder, and we perceive none. If the prescribed conditions were present, it was unquestionably the implied duty of the defendant company to, without unnecessary or unreasonable delay, produce and market the oil underlying the premises, so that the plaintiff might receive the royalties to which he was entitled under the terms of the lease.

The evidence adduced by the plaintiff shows that on June 3, 1904, he executed to Hoblitzell & Co. a lease for the land described in the declaration, for the purpose of having the same explored and developed for oil and gas under the terms and conditions and for the consideration expressed in the lease; that on November 10', 1905, Hoblitzell & Co.- assigned said lease to the defendant; that the defendant thereupon took possession of the premises under the terms of said lease, and continued in such possession until the commencement of the present suit; that while Hoblitzell & Co. were in possession of the premises under said lease, they drilled an oil well thereon known as number one, which was capable of producing about sixty barrels of oil per day, and that they afterward drilled two additional wells, which were abandoned; that after the defendant took possession of the premises it drilled four additional wells; that in January, 1907, a pipe line was established, and oil produced from said premises and marketed, upon which royalties were paid to the plaintiff. There was evidence tending to prove that the premises in question, if properly developed, were capable of yielding at a profit a much larger quantity of oil than was in fact produced. The court properly permitted the plaintiff to show that upon the lands of other persons adjoining the premises in question, there had been drilled a much greater number of wells, proportionately, than had been drilled upon the plaintiff’s land, all of which were producing oil in paying quantities, and that the neighboring territory for a distance of several miles in every direction, had been fully developed; and that large quantities of oil had been produced therein which was readily marketed and sold at a profit. The testimony of witnesses experienced and skilled in the oil business tended to show that the premises described in the lease were underlaid with oil-bearing sand, and that to properly develop such premises, at least one well to each ten acres should have been drilled, and that such wells when properly drilled and operated would have produced an average of ten barrels of oil per day. It further appears from the evidence that after the establishment of the pipe line there was and continued to be a market for all oils produced in the vicinity, at the price of from 64 to 83 cents per barrel. No evidence was introduced on the part of the defendant.

The foregoing evidence established a prima facie right of recovery, and it was not error to refuse to direct a verdict for the defendant. Upon the question as to the measure of damages, the court, in substance, instructed the jury that in arriving at their verdict they should subtract from the quantity of oil which they found should have been produced from the premises during the period from November 10, 1905 (the date of the assignment of the lease), to May 18, 1907 (the time of bringing the suit), the quantity actually produced and saved, and allow to the plaintiff one eighth of the value of the difference at the market prices during the period in question. This instruction correctly stated the rule as to the measure of damages. It was error, however, to authorize a verdict for royalty upon oil which should have been produced from November 10,1905. By the terms of the lease the plaintiff was to have one-eighth of all oil produced and saved to be delivered in pipe line. In assessing the damages the period to be considered was that between the time when the pipe line was installed, or should have been installed under the terms of the lease, and the time of the institution of the suit. The substantial objections to the rulings of the court upon the instructions are, we think, disposed of by the views herein expressed.

For the error indicated the judgment of the circuit court will be reversed and the cause remanded:

Reversed and remanded.


author: Mr. Justice Putekbaugh

text:
    Sarah Wild, Administratrix, Appellee, v. Chicago, Burlington & Quincy Railway Company, Appellant.
    1. Instructions—when upon question of negligence erroneous. An instruction is erroneous which is abstract in form, refers to negligence not charged in the declaration and not supported or warranted by the evidence.
    2. Instructions—when erroneous in ignoring defense. Ajb instruction which directs a verdict in an action for death caused by alleged wrongful act is erroneous which utterly ignores the question as to whether or not the plaintiff’s intestate assumed the risk of injury as an incident to his employment.
    3. Instructions—must he supported hy pleadings. An instruction on the question of negligence is erroneous which is not supported by the allegations of the declaration.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Morgan county; the Hon. Owen P. Thompson, Judge, presiding. Heard in this court at the November term, 1908,
    Reversed and remanded.
    Opinion filed August 5, 1909.
    Kirby & Wilson, for appellant.
    Bellatti & Barnes, for appellee.
   Mr. Justice Putekbaugh

delivered the opinion of the court.

This is an action on the case for the recovery of damages resulting from the death of William Wild, the plaintiff’s intestate, which it is charged was caused by the negligence of the defendant company. The trial resulted in a judgment in favor of the plaintiff for $3500, to reverse which this appeal is prosecuted by the defendant.

The first count of the declaration charges that Wild had been in the employment of the defendant for some thirty days, and was by direction of the agent of the defendant working upon one of its tracks shoveling dirt and grading; that this work required him to be between the rails and to stoop over with his shovel; that while so at work he could not look out for the approach of trains; that a certain engine and train in charge of servants of the defendant was being driven toward the point where Wild was working, and it became the duty of the defendant to warn Wild of the approach of said engine and cars, in order to enable him to get off the track and out of the way; that it neglected this duty, and by its agents and servants so carelessly and negligently drove and managed said engine and cars that by and through its negligence, by its agents and servants, in that behalf, and while the said Wild was working on the track, with due care and diligence for his own safety, said engine and cars ran upon and struck the said Wild, etc. The second count differs from the first in that the negligence therein charged is that the defendant neglected to have a brakeman or some other employe stationed upon the forward end of the cars, which were in front of the engine and being pushed toward said Wild, to give warning of the approach of the train.

The evidence discloses that Wild was killed while in the employ of the defendant as one of a section gang, who were engaged at work at and about a steam shovel, which was being used by the defendant to load dirt into cars situated upon a track opposite to that upon which the steam shovel was located and connected therewith by a switch. The particular work in which he was engaged at the time he met with his death, was keeping such switch free from dirt. There is evidence tending to show that upon the day in question the foreman of the gang had stood near him directing him in his work, and that as trains approached warned) him to get off the track; that while he was working at the switch, with one foot between and the other outside of the rails, and during the temporary absence of the foreman, he was struck by an engine to which his back was turned, and killed. The evidence further tends to show that he had been working about the steam shovel for about thirty days, and was familiar with the tracks in the vicinity and with the movements of the different -trains upon such tracks.

The negligence chiefly relied upon by the plaintiff in the Circuit Court as a basis of recovery was the alleged neglect of the foreman of the gang to keep a lookout for approaching trains and warn the deceased of the approach of the train which struck him. It is not argued that the members of the crew of the train which ran over him were negligent in any other particular than in failing to give warning by bell or whistle of the approach of the train. It is manifest that the negligence intended to be charged in the first count of the declaration was that of the servants in charge of the train. The allegations cannot by any reasonable interpretation be held to constitute any breach of duty by other servants of the defendant. In this state of the pleadings and proof, the court gave to the jury at the instance of the plaintiff the following instructions:

“1. A railroad company must use reasonable care and caution in the selection and management of its rolling stock, and in the employment of competent persons to manage its business, so that no unnecessary risk shall be incurred by any of its servants in the discharge of their duties, and if the company does not do so, and an injury happens to one of its servants, by reason of such neglect, the company will be liable for the injury thus sustained, provided the person injured is using reasonable care and caution to avoid the injury.
“2. The court further instructs the jury that if you believe from the evidence that the defendant, through the negligence and want of reasonable care of its servants and agents, neglected and failed to give the plaintiff’s intestate warning of the approach of said train, as charged in the declaration, and if you further believe from the evidence that under all the circumstances it was the duty of the defendant to give the plaintiff’s intestate warning of the approach of said train, as charged in the declaration, and if you believe from the evidence that by reason of the failure to give warning of the approach of said train, the plaintiff’s intestate was run upon by said train and killed, while he was in the exercise of ordinary care for his own safety, then you should find the defendant guilty.
“4. The court further instructs the jury that if you believe from the evidence that the defendant had a foreman in charge of the gang of laborers of whom the plaintiff’s intestate was one, and that it was the duty of the defendant through its foreman in charge of said gang to give notice to the laborers of the approach of the train in question, and if you further believe from the evidence that the foreman so in charge of said gang neglected to give the plaintiff’s intestate warning of the approach of said train, and that by reason of his neglect to warn the plaintiff’s intestate of the approach of said train, the plaintiff’s intestate was run upon by said train and killed, while in the exercise of ordinary care and prudence for his own safety, then you should find the defendant guilty.”

The first instruction was clearly misleading; it was not only abstract in form, but it referred to negligence not charged in the declaration and not supported or warranted by the evidence, that is to say, the negligence of the defendant in the selection of its rolling stock or the employment of incompetent servants. The second instruction, while directing a verdict, utterly ignored the question whether or not the deceased assumed the risk of injury as an incident to his employment, which under the evidence was a controverted issue. Where the court directs a particular verdict and if the jury finds certain facts, the instruction must embrace all the facts and conditions essential to such verdict. There are no allegations in the declaration which negative the assumption of risk. The fourth instruction authorizes a verdict of guilty in the event that the foreman in charge of the gang of laborers, of whom deceased was one, neglected to give warning of the approach of the train. There was no allegation in the declaration to support this instruction. As we have said, the averments of the declaration are limited to the negligence of the members of the train crew, and no negligence on the part of the foreman of the section gang is therein charged.

For the reasons indicated the judgment of the Circuit Court is reversed and the cause remanded.

Reversed, and remanded.


text:
    Lizzie Hlavati, Appellee, v. Consolidated Coal Company, Appellant.

      Verdict—when set aside as against the evidence. A verdict clearly and manifestly against the weight of the evidence will he set aside on review.
    Action in case for death caused hy alleged wrongful act. Appeal from the Circuit Court of Macoupin, county; the Hon. Robert B. Shirley, Judge, presiding. Heard in this court at the November term, 1908.
    Reversed with finding of facts.
    Opinion filed August 5, 1909.
    Bell & Burton and Brown, Wheeler, Brown & Hay, for appellant.
    E. C. Knotts, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal from a judgment for $5000 recovered by the surviving widow of Andrew Hlavati, deceased, against the Consolidated Coal Co. of St. Louis. The declaration charges in substance that on June 13, 1907, the defendant was operating a certain coal mine and two certain hauling roads in the main west entry of said mine over which loaded and empty coal cars were drawn by mules; that no rooms at regular intervals not exceeding twenty yards apart had been driven from said entry nor was there a clear space of two and a half feet between said cars while so drawn over the hauling roads, and either rib or side wall of said entry; that the defendant wilfully failed and neglected to have places of refuge cut in the side walls of said entry at least two and a half feet deep, or to have a clear space of two and a half feet between the cars and the ribs of said entry, as required by paragraph “b” section 21 of the statute relative to mines and miners; that Andrew Hlavati was in the employ of the defendant as a loader at said mine; that on the day aforesaid while passing through said entry from his work, he was by reason of such wilful neglect run upon and against by one or more coal cars, and killed.

The evidence discloses that the main entry of the mine ran in a northwesterly and southeasterly direction from what was known as the driver’s seat located at the head of the main entry, to the bottom of the shaft; that it was at least twenty feet wide, and about a half mile long, and contained two tracks over which cars loaded with coal were hauled from the parting to the bottom of the shaft and empty coal cars returned, and that such entry was used by about 100 employes of the defendant as a means of ingress and egress. On the morning of June 13th, Andrew Hlavati, aged 23 years, and in the employ of the defendant as a coal loader, went to his work as usual; at about 10 o’clock in the morning of that day, he suddenly left the room in which he was working, and started to walk toward the bottom of the shaft, which was about a mile distant. Shortly thereafter he was met by one Babbe, a driver, who asked him why he was going home, to which Hlavati replied that he “was not feeling good.” As he passed the head of the mine entry Huhsman, who sat at the driver’s seat, acting as boss driver, asked him why he was going out, to which he replied “Me sick.” After passing Huhsman he started to walk between the full and empty tracks, between which was a space of not less than 43 inches. He was at least six feet from the north rib and thirteen feet from the south rib at the entry. He was thereafter met by Miller, a mule driver, who was returning with empty cars to the bottom, and was then walking on the south side of the empty track, and was still walking between the two tracks, between which at that point was a clear space of forty-three inches, and the space between the south track and the south rib was variously estimated to be from fourteen inches to six feet. Thereafter and at a point about 173 steps from the driver’s seat he was seen by one Moehle who was driving along the north track to the parting with two mules hitched to six empty cars, lying between the two tracks, in a space of about forty-five inches. After all the cars had passed Hlavati, Moehle stopped his trip, and while running back to Hlavati saw him raise his head and heard him moan, but when he reached him he was dead. His head and neck were against the inside rail of the north or “empty” track, and his feet were caught under the fish-plate on the inside rail of the other track. His shirt was torn in such a manner as to indicate that he had been scraped by the passing cars.

The evidence further shows that no cars other than those driven by Miller and Moehle passed Hlavati, and that there were no cars standing upon the full track at any time while he was in the entry. Moehle testified that he thought all of the cars in his trip struck Hlavati. There is a conflict in the evidence as to the position of the various parts of Hlavati’s body when it was found; as to the distance from the cars to the rib, on the north side of the north track; as to the clear space between the south rail of the south track and the gob on the south rib; as to the height of such gob, and as to whether Hlavati was struck by the wheel or the oil cups of the trip of cars driven by Moehle. There were no places of refuge cut in the side wall of the entry as required by the statute, and we do not deem it necessary to determine whether or not in lieu thereof there was a clear space of two and a half feet between the cars and the rib of the entry as required by the statute, nor whether the statute in question applies to entries containing a double track. It was essential to a recovery that the plaintiff prove' by the greater weight of the evidence not only that the defendant was guilty of the negligence charged, but also that such negligence was the proximate cause of the injury received by Hlavati. A consideration of all the facts and circumstances in evidence, with all the reasonable inferences to be drawn therefrom, fails to establish that such was the case. On the contrary it clearly appears from the undisputed facts, that between the place where his head was struck by the oil cups of the cars on the north track, and the north rail of the south track, there was a level space of at least forty-three inches, or between the outside edge of the car which struck him and said north rail of the south track a level space of at least thirty-two inches, and this without regard to the space occupied by the south track nor the space between that track and the south rib. It seems manifest therefore that proof of the absence of places of refuge or the clear space required by the statute was insufficient to establish that such violation, if conceded, was the mediate or immediate cause of the death of the plaintiff’s intestate. The jury were unwarranted in so finding, and it was the duty of the trial court to have directed a verdict in favor of the defendant. The judgment of the Circuit Court must accordingly he reversed, without remanding.

The clerk will incorporate in the judgment of "this court a finding that the allegud violation of the statute hy the defendant as charged in the declaration was not the proximate cause of the injury to and death of the plaintiff’s intestate, Andrew Hlavati.

Reversed with finding of facts.