text:
    Edward A. Nixon, Appellant, v. The Unity Company et al., Appellees.
    Gen. No. 17,455.

      Mortgages—taxes uñé grouné rents. An intervening petition by. the assignee of the purchaser at foreclosure, praying that taxes due on the property during the period of redemption and ground rent due for a portion of that time he paid out of money claimed by the owner of equity of redemption in the hands of receiver from rents and profits after paying the deficiency decree and other items allowed by the court, is properly dismissed for want of equity.
    Appeal from the Circuit Court of Cook county; the Hoist. Adklob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed December 19, 1912.
    Darrow, Masters & Baily, for appellant.
    Rogers & Mahoney and Chilton P. Wilson, for appellee, Unity Company; Elbridge Hanecy, of counsel.
    Wilson, Moore & McIlvaine, for Edward T. Davis et al., appellees.
    Isham, Lincoln & Beale, for appellee, R. Hall McCormick.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On November 26, 1910, the circuit court of Cook county, after a hearing, dismissed for want of equity the intervening petition of Edward A. Nixon, appellant, filed in the case of R. Hall McCormick, trustee, against the Unity Company et al., and appellant seeks by this appeal to reverse that decree. After the transcript of the record had been filed in this court, appellees here made a motion to strike the certificate of evidence from the transcript and the motion was reserved to the hearing. Inasmuch as we have reached the conclusion (treating the certificate of evidence as being properly before us) that the decree of the circuit court should be affirmed, we deem it unnecessary to pass upon appellees’ motion.

The original proceeding in which said intervening petition was filed was a foreclosure suit instituted by the appellee, McCormick, as complainant, against The Unity Company and others to foreclose a trust deed, dated January 1, 1895, given by The Unity Company to secure an issue of its corporate bonds. The property covered by this trust deed "is a 99-year leasehold of the Unity Building, Chicago, and the ground upon which the building stands. The lease provided for a yearly rental of $18,000, payable in quarterly installments of $4,500 each on the last days of July, October, January and April, and that the lessor might enforce a forfeiture of the lease upon six months’ default in the payment of rent. As a result of this proceeding a decree of foreclosure and sale was entered June 3, 1907, and a master’s sale of the premises was had on June 2, 1909, at which sale McCormick purchased the premises and obtained a master’s certificate of sale. This certificate was subsequently and before the expiration of the period of redemption sold and assigned by McCormick to appellant, Edward A. Mixon. The price for which the premises sold was less than the full amount of the debt secured, and on June 14, 1909, a deficiency decree was rendered in favor of McCormick in the sum of about $161,000. After the filing of the bill to foreclose, a receiver was appointed March 16, 1905, and he was authorized to collect the rents and profits of the building, to manage the building, to insure the same, and to pay the water rates, taxes, assessments and ground rent as the same from time to time might mature. As such receiver he paid the ground rent, taxes, etc., due- and payable prior to the date the premises were sold on June 2, 1909. By order of court, entered June 14, 1909, the receivership was continued, and the receiver retained the same powers, etc., as were conferred upon him by the original order appointing him, except that he was directed not to pay any general or special taxes levied or to be levied on the premises unless thereafter ordered by the court so to do. He paid all installments of ground rent that fell due prior to September 2, 1910 (the date of the expiration of the period of redemption), including the quarterly installment due July 31, 1910, and made two partial payments upon the deficiency decree of McCormick, which left a balance still due said McCormick, May 14, 1910, upon such decree of about $18,000. The receiver’s final report showed that on November 15, 1910, he had in his hands over $38,000. No redemption of the premises was made and after the expiration of the period of redemption, Nixon, as the holder of the certificate assigned to him, by McCormick, received a master’s deed of the premises, dated September 3, 1910.

On September 20, 1910, Nixon filed his intervening petition in which he alleged that by said trust deed The Unity Company had covenanted to pay all taxes and assessments levied against the property; that the taxes assessed for the year 1909 and due in April, 1910, amounting to about $12,000, had not been paid; that the ground rent under said lease from August 1, 1910, to September 2, 1910, had not been paid, and that as the annual rental was $18,000 per year there was due for said period one-twelfth of said sum for rent; that the receiver had in his hands more than $30,000; that of this sum McCormick claimed about $18,000 as the amount due him on his deficiency decree; that The Unity Company claimed that the balance of said sum, after paying to McCormick the amount of said deficiency, should be paid to it, and that certain creditors of The Unity Company contended that their claims should be paid by the receiver out of said sum. The petition prayed that the court direct that the following payments be made for petitioner’s benefit out of the moneys in the receiver’s hands, viz.: (1) The taxes upon the premises for the year 1909, payable in 1910, amounting to about $12,000, (2) a proportionate part of the taxes for the year 1910, embraced in the period between April 1, 1910, and September 2, 1910 (date of expiration of period of redemption), and (3) a proportionate part of the ground rent, payable under the lease, represented by the period between August 1, 1910, and September 2, 1910. Answers were filed to the petition and, as before stated, after a hearing the court denied the relief prayed for and entered a decree dismissing the petition for want of equity. This action of the court is assigned as error.

After a careful consideration of the points made by counsel for appellant in their brief and argument we are of the opinion that the court did not err in dismissing the intervening petition. We think that the following cases decided by our supreme court clearly show that appellant was not entitled to the relief sought. Stevens v. Hadfield, 178 Ill. 532; Haigh v. Carroll, 209 Ill. 576; Schaeppi v. Bartholomae, 217 Ill. 105; Standish v. Musgrove, 223 Ill. 500. The decree will therefore be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Mathew Neimes, Appellant, v. Christopher Strassheim, Appellees.
    Gen. No. 17,503.
    1. Appeals and ebbobs—necessity that decree he supported hy facts. A decree granting relief must be supported by a finding of specific facts in the decree itself, or by evidence appearing in the record, but the rule is otherwise as to a decree dismissing a bill.
    2. 'Appeals and ebbobs—when decree dismissing hill will he presumed to he supported hy evidence. A decree dismissing a bill cannot be reversed because the relief was denied, unless complainant shall show by a certificate of evidence, or by a certificate showing that the record as filed is complete, that the evidence was such as to entitle him to the relief asked for, and in the absence of such showing it will be presumed that there was evidence which justified the dismissal of the bill.
    3. Appeals and ebbobs—what record should contain where injunction dissolved and hill dismissed. Where a decree dissolves a temporary injunction and dismisses the bill and a praecipe record contains only the bill, an order of reference to a master, the injunctional order and the order dissolving the injunction and dismissing the bill, and does not show any certificate of evidence, master’s report, answers or affidavits, if any were filed, the decree will not be reversed.
    4. Partnership—when creditor of partner entitled to priority. The owner of a saloon put his son and his son’s partner in charge of the saloon and a bailiff under an execution against the son took possession. The owner obtained a writ of replevin, the fixtures were found to be his property, the title to the liquors was found to be in the partnership and it was agreed that the liquors were worth a certain amount. A judgment in an action on the replevin bond to the use of the creditor was paid by the saloon owner to a bailiff in charge under an execution thereon. Held, on a bill by the son to restrain the bailiff paying the money to the creditor, that the money to the extent of the value of the liquors could not be applied to a payment of the partnership debts, particularly when it was not averred that the partnership was insolvent or unable to pay its debts.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed December 19, 1912.
    Douglas C. Gregg, for appellant.
    Morton G. Smith and Lyman, Lyman & O’Connor, for appellees.
   Mr. Justice Fitch

delivered the opinion of the court.

Appellant,, the complainant in a bill for an injunction and other relief, complains of the action of the circuit court in dissolving a temporary injunction and dismissing his bill of complaint.

The bill, as amended, states that one Martin Neimes owned a saloon and put his son Mathew and one Charles Reiss in charge of the same, under an agreement that the son and Reiss should run the business and buy all their beer from a brewing company, in which the father was interested, for $1.50 a barrel more than the market price, and that when the excess payments thus made should amount to the sum wMch the saloon had cost the father, he would then transfer it to the son and Reiss “in equal parts;” that in pursuance of that agreement complainant and Reiss “went into possession of said premises as the agents of said Martin Neimes” and conducted the business on the basis so agreed upon for a little over two months, when one Henry Q-. Reese obtained a judgment against Reiss in the municipal court for $521, and the bailiff of that court, under an execution upon such judgment, took possession of the saloon; that Reiss then abandoned the business, and complainant “thereupon turned the said business over to the said Martin Neimes, who has conducted the same from thence hitherto;” that the father then brought suit in replevin against the bailiff and on his filing a replevin bond, possession of the saloon and its contents was turned over to him under the writ of replevin; that the father thereafter sold all the stock of wines, liquors and cigars for his own benefit; that upon the trial of the replevin suit the right of property in all the fixtures, tables, chairs, etc., was found to be in the elder Neimes, but the title to the stock of wines, liquors and cigars on hand at the time of the levy thereon by the bailiff was found to be in the son and Charles Reiss, and the court ordered the latter property “which said parties agreed at the said time to be of the value of $350,” to be returned to the bailiff, and later a writ of retorno habendo was issued and an ineffectual demand made thereon; that thereupon suit was brought on the replevin bond by the sheriff for the use of said Reese against said Martin Neimes, resulting in a judgment in favor of the plaintiff for $630 against Neimes, who paid that amount to the bailiff of the municipal court upon an execution issued upon said judgment; that in equity (it is said) $350 of the money so paid upon said execution and held by the bailiff should be applied to the payment of “the partnership debts of Neimes and Reiss,” which debts exceed that amount. The bill prays that the bailiff may be enjoined from paying over the money in his hands to Henry Gr. Reese, but that the same may be applied to the partnership debts of said firm, and for other and further relief.

Appellant has filed in this court only a praecipe record. This record contains a transcript only of the following: (1) The bill filed February 5, 1910; (2) an order entered nunc pro tunc as of February 8, 1910, referring to a master a motion of complainant for a preliminary injunction; (3) a supplement to the bill, filed July 12, 1910; (4) an order entered July 18, 1910, denying the motion for a preliminary injunction with leave to amend the bill and renew the motion the next day; (5) an amendment to the bill filed July 19, 1910; (6) an order entered July 19, 1910, enjoining the bailiff until the further order of the court “from paying over to any one $350 of the moneys now in his possession, as set forth in the supplement to the bill of complaint;” (7) an order entered January 16, 1911, on motion of defendant’s solicitors, dissolving the preliminary injunction and dismissing the bill “except as to suggestions of damages and costs of master.” The record thus filed does not show any certificate of evidence, or master’s report, or answer, or affidavits, if any were filed.

In chancery cases the rule is, that a decree granting relief must be supported by a finding of specific facts in the decree itself, or by evidence appearing in the record; but .the rule is otherwise as to a decree dismissing a bill of complaint, since that is the proper decree to be entered in case there is no evidence, or in case the evidence is insufficient to warrant the court in granting the relief prayed for. Such a decree cannot be reversed because the relief was denied, unless complainant shall show that the evidence was such as to entitle him to the relief asked for. Such showing-must be made either by a certificate of evidence, or by a certificate showing that the record as filed is complete. In the absence of such showing, it will be presinned that there was evidence which justified the action of the court in dismissing the bill. First Nat. Bank of Chicago v. Baker, 161 Ill. 281; Hill v. Hill, 166 Ill. 54; McNicholas v. Tinsler, 127 Ill. App. 381. Appellant’s counsel seems to assume that upon the record filed this court must assume the truth of the allegations of the bill of complaint. Such is not the rule for the reasons above stated, but if it could be conceded that the rule is as claimed, it appears from the averments of the bill that the money in the hands of the bailiff is not money realized from the sale of the stock of liquors, wines and cigars, which were in the saloon at the time the same were levied upon on the first execution in favor of Henry Gr. Reese, nor was the money now in his hands paid to the bailiff as the agreed value thereof, under the retorno habendo, but is money paid to him in satisfaction of a second judgment obtained by the sheriff for the use of Henry Gr. Reese in a suit on the replevin bond. No authority has been cited in support of the proposition apparently assumed by appellant’s counsel that the money thus paid to the bailiff upon a judgment in favor of Reese can be applied by a c'ourt of equity to the payment of debts of the complainant and Reiss. Moreover, there is no averment in the bill that the firm of Neimes and Reiss is insolvent or unable to pay the firm debts. Hence, even upon the theory advanced by appellant’s counsel, the bill of complaint does not state a case justifying the interference of a court of equity.

The decree of the circuit court will be affirmed.

Affirmed.


text:
    Louise D. Eggert, Appellee, v. The Inter Ocean Newspaper Company, Appellant.
    Gen. No. 17,516.
    1. Libel and slander—when proof of innocence is inadmissible. In libel against a newspaper for publishing that a woman was named as corespondent in a divorce case, it is error to permit plaintiff to testify that she was not in fact guilty of adultery.
    2. Libel and slander—misleading instruction. Where a newspaper article, the basis of an action for libel, giving the contents of a bill for divorce and narrating certain matrimonial difficulties, states that the wife was divorced from her first husband and that plaintiff was named as corespondent in such case, and makes further statements not based upon the first divorce case, an instruction is misleading which permits recovery if the jury believe that the article contains any statements which, if untrue, are libelous and not fairly based upon the pleadings and certificate of evidence in the wife’s first divorce case, but does not require the jury to believe “from the evidence” nor that the statements refer in any manner to the plaintiff, and no instruction defining the meaning of “libelous” is given.
    Action for libel. Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed December 19, 1912.
    James J. Barbour, for appellant.
    Delbert A. Clithero and James H. Dunne, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment rendered against appellant in a libel suit. The published newspaper article, which forms the basis of the suit, purports to give the contents of a bill for divorce filed by Dr. Louis Hirsch against Mrs. Esther Hirsch, formerly Mrs. Esther Eisendrath, and the substance of an interview with Julius Harris, the father of Mrs. Hirsch, denying certain “sensational charges” contained in said bill for divorce. The article states that Dr. Hirsch is the son of a wealthy manufacturer of Wilkes-barre, Pennsylvania, and met Miss Harris in New York, where they were married in 1909; that Dr. Hirsch “asks divorce on the ground that his wife has been insane since their marriage; that she was insanely hysterical and continually taunted him with tales of numerous other sweethearts. He says that after their marriage his wife claimed that one of her ‘sweethearts’ would give him $10,000 if he would leave her and allow her to get a divorce. Hirsch charges that he was deceived and did not know that his wife had been previously married until he began his own divorce proceedings. He was then told that she had figured in a sensational divorce case, in which she charged Dr. J. L. Eisendrath with having held a pistol to her head, and intimidated her into going to Hammond and marrying him, in August, 1903. No attempt was made to obtain a divorce until a woman appeared in the case. Louise Eggert, matron of the German Hospital, in which Dr. Eisendrath was employed, was named as corespondent, and the divorce was-granted July 31, 1905. Hirsch claims that the Harrises had told him that if he would marry their daughter they would suport him in luxury, and that he might give up his practice in the east. ’ ’ The article then quotes Julius Harris as saying that the suit is a “blackmail plot;” that the charge that Mrs. Hirsch “is insane or that there was to have been a settlement to him at her wedding is preposterous;” that “he knew she had been married before;” that “there was no talk of a settlement;” that “he is too lazy to work and spends most of his time painting his face;” that “it is true that my daughter figured in another unfortunate divorce affair. She married against her will and we were glad of an opportunity to prove infidelity against Eisendrath.” The declaration charges that the portion of said article referring to Louise Eggert was published of and concerning the plaintiff, and was false and libelous.

Upon the trial the court gave to the jury, at the request of the plaintiff, the following instruction:

“The jury are instructed that if you believe that the article published by the defendant in its newspaper under date of May 6, 1909, contains any statements, which, if untrue, are libelous and are not fairly based upon the pleadings and certificate of evidence in the case of Eisendrath v. Eisendrath offered in evidence herein, then in snch case you will find the issues for the plaintiff.”

We think the giving of this instruction was reversible error. It will be noted that the instruction does not require the jury to believe “from the evidence,” nor that the statements contained in said article “which, if untrue, are libelous,” refer in any manner to the plaintiff. There was no other instruction given which defined or attempted to define the meaning of the words “libel” or “libelous.” Jurors are not lawyers, and many jurors entertain the notion that any false statement published in a newspaper, concerning any person, is a libel. It is, therefore, entirely within the bounds of probability that to an ordinary jury the instruction above quoted would mean that if the jury believe that the article of May 6, 1909, contains any false statement concerning any person, not based on the pleadings and evidence in the Eisendrath case, then they must find for the plaintiff. A reference to the article in question shows that but one sentence refers to the plaintiff. All of the remainder of the article refers to others than the plaintiff. The article contains several statements not based upon the pleadings and evidence in the Eisendrath case. But it is far from correct to say that such statements, even if untrue, are so libelous as to support a recovery by the plaintiff in this case. For example, the article states that Harris said that Hirsch is too lazy to work, and spends most of his time painting his face. The article also states that Hirsch claims his wife has been insane since her marriage, and that he was deceived and did not know she had been previously married and divorced. The article also states that Harris said that these charges of Hirsch were preposterous and were the foundation of a blackmail attempt. All these are serious charges not based on the evidence or pleadings in the Eisendrath case, but none of such statements, even if untrue, is libelous, in the sense that such statements would entitle the plaintiff to recover. Under these circumstances, the instruction was very misleading and should not have been given.

As we have reached the conclusion that the case must be tried again, we refrain .from discussing the evidence in detail. It is probable that many of the errors assigned on this record will be avoided upon the second trial. For the guidance of court and counsel, however, it may be well to say here that we think the court should not have permitted the plaintiff to testify that she was not in fact guilty of adultery. There was no charge that she was in fact guilty of that offense. The charge was that she was named as corespondent in the Eisendrath case, and the evidence should have been confined to that issue.

For the reasons indicated, the judgment of the superior court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Guy Robita, by Biagio Robita, his next friend, Appellee, v. Crane Company, Appellant.
    Gen. No. 17,529.

      Highways—when evidence of truck striking boy on sidewalk is not impossible. Where there is evidence that a boy walking close to the street edge of the sidewalk was struck behind his left leg by the end of a .whiffletree on a heavily loaded truck drawn by three horses and was thrown on the sidewalk with his right hand on the walk and left hand extending into the street where the right hand wheel of the truck passed over it, and there is evidence to the contrary that he was trying to pick up a book, and defendant, on attempting to demonstrate mathematically that the accident could not have happened as described, must assume that the right wheels of the truck as loaded and drawn by three horses could not have been nearer than thirteen inches from the curb and that the boy’s body was wholly on the sidewalk, the evidence as to the way the accident happened is not so contrary to common experience and inherently improbable as to require a reversal.

      Appeal from the Superior Court of Cook county; the Host. Thomas C. Clark, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed December 19, 1912.
    Rehearing denied January 2, 1913.
    Alder, Latham & Young, for appellant.
    John A. Bloomingston, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

In asking this court to reverse the judgment of the superior court in favor of appellee for $2,500, appellant’s counsel present an argument confined almost entirely to a discussion of the facts. They contend that the evidence of appellee, and his witnesses as to the way the accident happened is “contrary to common experience and inherently improbable,” and is so conflicting and contradictory as “to be of little, if any, probative value;” that “appellant’s evidence shows no negligence on the part of appellant;” and that if the evidence introduced on behalf of appellee is the truth, then he was guilty of contributory negligence.

Briefly stated, the evidence on the part of appellee tends to prove that on October 21,1907, between 2 and 2:30 o’clock in the afternoon, appellee, then a schoolboy, about nine years old, came out of one of the east entrances of the Dante School with a number of his schoolmates; that said school is located on the west side of Desplaines Street, between Ewing and Forquer Streets; that when the boys reached the sidewalk on Desplaines Street, which is a cement sidewalk built next to the curbstone, appellee walked close to the street edge of the walk; that one of appellant’s heavy trucks, drawn by three horses, was at that time going south along the brick pavement on Desplaines Street, close to the curb; that in passing appellee the end of the whiffletree struck his left leg behind the knee joint and he fell foward with outstretched arms; that he fell prone on the sidewalk, with his right hand on the sidewalk and Ms left hand extending out into the street, and that the right front wheel of the truck passed over Ms left hand while in this position, crushing the carpal and metacarpal bones and breaHng both bones of the forearm. The evidence on the part of appellant tends to prove that the truck was at some distance from the edge of the sidewalk; that the boys ran into the street near the truck; that appellee dropped his book, and that in endeavoring to pick it up the rear wheel of the truck passed over Ms hand. Appellee’s story was corroborated by the evidence of three witnesses. Appellant’s theory was supported by the affirmative evidence of two boys and the negative evidence of the driver, who claimed he knew nothing about the accident until he had driven more than a block away, and of a police officer who testified that appellee said several weeks after the accident that his hand was caught under the back wheel wMle he was endeavoring to pick up his book. Appellant also produced witnesses who testified minutely as to many measurements of and concerning the truck, and of the sidewalk, curb and pavement, and most of the argument of appellant’s counsel is devoted to a discussion of the alleged “physical impossibility” of appellee’s theory in the light of the measurements. Starting with certain assumed facts as to the position of appellee when he fell, appellant’s counsel have undertaken to demonstrate mathematically that the accident could not have happened in the way appellee claims it happened. In order to reach this conclusion, however, appellant’s counsel are obliged to assume that the right wheels of the truck could not possibly be nearer the edge of the curbstone than tMrteen inches when the truck was heavily loaded and being drawn by three horses, and to assume that the boy’s body was wholly on the sidewalk and no part of it was above the curbstone. Without entering into any extended explanation of this alleged mathematical deduction, it will suffice to say that we have given careful consideration to the argument thus advanced and do not find it convincing, for the reason that its assumptions are not manifest from the evidence. We see nothing inherently improbable in the story of appellee. The evidence of appellee and his witnesses is entirely consistent with the theory that the upper part of his body and left shoulder projected slightly beyond the edge of the curb into the street, while the trunk of his body and lower limbs were entirely on the sidewalk. After a careful study of the whole record and of the briefs and arguments filed, we do not think the verdict is so clearly and manifestly against the weight of the evidence that we would be justified in disturbing it. The same conclusion holds as to the alleged contributory negligence of appellee. Upon such questions of fact an appellate court is not justified in reversing a judgment, unless the evidence is manifestly contrary to the conclusion reached by the jury.

A point is also raised as to alleged errors of the court in sustaining objections to certain questions of appellant’s counsel. We are unable to see any force in this contention.

The judgment of the superior court will be affirmed.

Affirmed.


text:
    Louisa A. Lyman, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,473.
    1. Damages—instructions. Where it appears in a personal injury case that plaintiff had lost time and that the services of physicians had involved heavy expenses, but there is no competent evidence as to the amount of wages lost and the value of the services, instructions as to such elements of damage are erroneous which state that the jury may take into consideration all the facts and circumstances in evidence, the amount of such doctor’s bills and the amount lost in wages, and that it is unnecessary for any witness to testify to the amount thereof, but the jury may estimate the amount “from the facts and circumstances in evidence and hy considering the business affairs of life.”
    2. Cabbiebs—negligence to start cdr, when. -Where a passenger who has alighted from a street car and when both feet are on the ground discovered that her coat is caught on the platform, is injured by the starting of the car, the company is not relieved from liability by the fact that the conductor, inside the car collecting fares, did not know that the coat was caught.
    Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed December 19, 1912.
    Rehearing denied January 2, 1913.
    Franklin B. Hussey and C. Le Roy Brown, for appellant; Leonard A. Busby, of counsel.
    J. K. McMahon, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This appeal brings up for review a verdict and judgment for $7,000 obtained by appellee for personal injuries. Briefly stated, the facts proved were as follows:

On March 27, 1906, in the forenoon, appellee was riding as a passenger upon a street car belonging to defendant, which was going west on Forty-Seventh Street. The car stopped at Hermitage Avenue to permit appellee and another woman to alight. Appellee stepped down from the rear platform to the street and then discovered that the bottom of her long heavy ulster coat was caught on something on the platform.. She attempted- to disengage it and at that moment the car started forward. Holding on, with both hands, to something hack of or attached to the rear dashboard, she was pulled or dragged along on her feet for a distance of from seven to twenty-five feet, as estimated hy different witnesses. The moment the car started, some of the passengers shouted to the conductor, who was inside the car collecting fares, and he rang the emergency hell and stopped the car. Her coat was then released and she walked to the sidewalk unassisted, but upon reaching the sidewalk she immediately fainted. She was taken to a drug store, and later taken in a carriage to her home. For several years following this accident, she suffered from what one of the physicans termed “traumatic hystero-neurasthenia,’ ’ and was under the constant care of physicians during nearly all of that period. During the same period she claimed she was unable to continue her usual occupation as a school teacher.

We deem it unnecessary to state the facts more in detail, for the reason that after a careful consideration of the whole record we are of the opinion that the trial court erred, to the manifest prejudice of appellant, in at least two of the instructions given to the jury on behalf of appellee. Appellant did not deny the happening of the accident, but claimed there was no connection between the accident and the injuries alleged to have resulted therefrom. A very large part of a most voluminous record consists of the evidence of physicians, and the evidence regarding the alleged relation of the injuries to the accident is in a state of hopeless and irreconcilable conflict. ' It is impossible to read even an abstract of this record without becoming convinced that any ordinary jury would be thoroughly impressed with the idea that the injuries of appellee were of such a character as to require the services of specialists ih the practice of medicine and surgery, and that the services rendered by them in this case in endeavoring to cure her of her ailments had involved the payment of large sums of money for doctors’ hills or the incurring of heavy liabilities for that purpose. While there is much evidence that such services were rendered, there is no competent evidence in the record as to the value of such services. In each count of the declaration is an allegation that the plaintiff “has paid out divers large sums of money for medical and surgical attendance, and for nursing, drugs and medicine, and has become liable to pay out divers large sums of money for surgical attendance and appliances,” etc., etc.

The court gave two instructions on behalf of appellee which were the only instructions given on the measure of damages. In one (instruction No. 19) the court instructed the jury that if they found for the plaintiff, and that she had sustained damages “as charged in the declaration, then to enable the jury to estimate the amount of such damages it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury may themselves make such estimate from the facts and circumstances in evidence, and by considering the business affairs of life.” In the other (instruction No. 20) the court instructed the jury that if they found for the plaintiff they would be required to determine the amount of her damages, and that in determining said amount “the jury have a right to, and they should, take into consideration all of the facts and circumstances as proved by the evidence before them, the nature and extent of plaintiff’s physical injuries, if any, so far as the same are shown by the evidence to be the direct result of the injury, if the evidence so shows; her suffering in body and mind, if any, as the jury may believe from the evidence before them in this case, she has sustained or will sustain by reason of such injuries; her loss of time and inability to work, if any, on account of such injuries; all monies she has necessarily expended or become liable for in doctors’ bills, if any, while being treated for such injuries; and may find for her such sums as in the judgment of the jury, under the preponderance of the evidence and instructions of the court in this case, will be a fair compensation for the injuries she has sustained or will sustain, if any, so far as such damages and injuries, if any, are claimed and alleged in the declaration.”

In Keokuk & H. Bridge Co. v. Wetzel, 228 Ill. 253, the first of these instructions was given, and it was there objected that damages were “charged in the declaration” such as medical attendance, loss of time, etc., to which the rule announced in said instruction was inapplicable. In reply to this contention the court said: “This instruction was given and approved in North Chicago St. R. Co. v. Fitzgibbons, 180 Ill. 466, and while the instruction given should have been limited so as to apply only to the physical injury which was sustained by the appellee, we do not think, in view of the severe character of appellee’s injury and the amount of the verdict, that the jury were misled by this instruction, and are of the opinion that the giving thereof did not constitute reversible error.” The verdict thus referred to was for $1,575 for a serious injury.

In the case of North Chicago St. R. Co. v. Fitzgibbons, supra, referred to in the above quotation, the court said (p. 470): “Where there are elements of damage such as expenditures capable of pecuniary measurement, the law requires that the amount shall be proved.”

In Harley v. Aurora, E. & C. R. Co., 149 Ill. App. 339, an instruction combining the two given in this case was under consideration by the Appellate Court of the Second District, and that court reversed the case for that reason alone, upon the authority of the statement in the Fitzgibbons case, supra, quoted above.

In Moore v. Aurora, E. & C. R. Co., 150 Ill. App. 484, a similar instruction again came before the same court, and was held to be error under the authority of the Fitzgibbons case, supra, and the Wetzel case, supra; but as the amount of the doctors’ bills was, in fact, proved in that case, and definitely shown by the record, it was held that the error could be cured by a remittitur, and the judgment of the lower court was thereupon affirmed upon the filing by appellee of such a remittitur.

In Smith v. Chicago City Ry. Co., 165 Ill. App. 190, heard on appeal in the Branch Appellate Court of this district, an instruction similar to instruction No. 19, as given in this case, was held to be reversible error, the court saying: “If the instruction had been limited to damages for physical pain and suffering, the rule announced would have been correct, but the declaration also claimed damages as the result of the inability of appellee, by reason of her injuries, to pursue certain business in which she had been engaged, and for obligations incurred for medical services. The instruction was inaccurate and should have been refused, as asked. Keokuk & H. Bridge Co. v. Wetzel, 228 Ill. 253. The evidence relating to the extent of injuries appellee claims to have sustained, by reason of the accident, is so close and conflicting, it cannot be said, as it was in the Wetzel case, that the giving of the instruction was harmless error.”

From the facts shown in this case, we are forced to the same conclusion that was reached in the case last cited. We have no means of knowing, and we may not conjecture, how much, if anything, the jury allowed the plaintiff for doctors’ bills paid or incurred, or for loss of time. It is not the law, as is stated in these instructions, that as to such elements of damage, in the absence of any competent proof of the value thereof, the jury may take into consideration “all the facts and circumstances in evidence” and find therefrom-the amount of such doctors’ bills and the amount lost in wages by loss of time; nor is it the law that as to such items, it is unnecessary for any witness to testify to the amount thereof, or that the jury may themselves estimate the amount from “the facts and circumstances in evidence and by considering the business affairs of life.” For aught that appears to the contrary, a large part, or even the whole, of the amount allowed to appellee as damages may have been allowed by the jury under these instructions, for doctors ’ bills and loss of time. Under the authorities cited above and under the facts of this case, the giving of these instructions was therefore reversible error.

It is urged by appellant’s counsel that in no event could a recovery be permitted upon the facts shown, and that we ought, therefore, to reverse the judgment without remanding. In support of this contention, several cases in other jurisdictions have been cited, which seem to hold, as a matter of law, that no recovery can be had for injuries sustained in an accident of this kind occurring at a street crossing or other stopping place, if it appears that at the time the ear started, the conductor was in a position where he could not see the passenger getting off—as, for example, if he was inside the car collecting fares,—or if it appears that the passenger got both feet on the ground safely, and was in the act of moving away when the car started. Such is not, however, the law in this state. In West Chicago St. R. Co. v. Manning, 170 Ill. 417, the court said (p. 424): “If a car is brought to a stop at or near such crossings, it is not unreasonable to charge the conductor and gripman in control of the car * * * with the duty of exercising a reasonable degree of care, before putting the car again in motion, to see that passengers seeking ingress into or egress from the car are not in such positions as to be endangered by putting the car again in motion.” To the same effect are North Chicago St. R. Co. v. Cook, 145 Ill. 551; Chicago City Ry. Co. v. Crauf, 136 Ill. App. 66, affirmed in 235 Ill. 262; Bloomington & N. Ry. v. Zimmerman, 101 Ill. App. 184; Jurkiewicz v. Illinois Cent. R. Co., 145 Ill. App. 44. In the case last cited, it is said (p. 50): “A carrier of passengers may not relieve itself from liability in cases like this, by proving that its trainmen did not know passengers were alighting.” Nor will it be relieved merely by proof that the passenger in attempting to alight, succeeded in getting both feet on the ground before the car started, if at that time he was not wholly free from the car. In Chicago Union Traction Co. v. Rosenthal, 217 Ill. 458, a carrier was held liable for negligently starting a ear at the moment that a passenger, in attempting to alight therefrom, had one foot on the ground and the other on the step of the car. In Chicago Union Traction Co. v. May, 221 Ill. 530, the same result followed where a passenger attempted to board a car, and the car was negligently started while he had one hand and one foot on the car. In North Chicago St. R. Co. v. Cook, supra, the same conclusion was reached where the passenger only had one hand on the rail of the car. It is obvious that a different result could hardly be reached, as a matter of law, in this case where it was shown without contradiction that though appellee had both feet on the ground, yet she was practically tied by her clothing to the rear platform in such a way that any movement of the car was dangerous.

For the errors indicated, the judgment of the superior court is reversed and the cause remanded.

Reversed, and remanded.


text:
    In the Matter of the Estate of Susan D. Benton, deceased. Alphonso L. Benton and Emma S. Benton, Appellants, v. Clarence A. Tuttle, Executor, Appellee.
    Gen. No. 17,494.
    1. Homestead—extent of estate. The existence of an estate of homestead in property worth less than $1,000 excludes all other interest therein during its continuance.
    2. Homestead—rights where worth more than §1,000. If property is so situated that the homestead estate cannot be set apart, a court of equity has jurisdiction to require the owner of the homestead estate to accept the sum of $1,000 in lieu thereof, if tendered by either a creditor having a lien upon the premises or by an heir, grantee or devisee, and to remove from the premises.
    8. Homestead—evidence of value of property. Where, on a devise of a life estate in and to homestead property, the parties agreed that the rental value of the whole premises was $100 a month, a decree on a bill for the assignment of dower and homestead found that the premises were worth $16,000 subject to a mortgage of $10,000, and the estate of testator was large and the executors had ample funds with which to pay all debts, legacies and charges, the premises are shown to be worth more than $1,000.
    4. Homestead—when widow may be required to move. Where a testator devises a life estate in and to homestead property to his wife and two other persons, and the premises are worth more than $1,000, and are not so situated that the homestead estate can be assigned, the widow is not entitled in equity to the exclusive possession of the whole premises, and if the parties cannot agree to an equitable arrangement the widow may be required tp remove from the premises upon the payment to her of $1,000.
    5. Homestead—consideration of lease. Where a life estate in homestead property which is worth more than $1,000 and not susceptible of division has been devised to the widow and two others, and a son leases the premises from the codevisees in consideration of the surrender of possession to him and the abandonment of the right of the codevisees of his mother to compel her to remove from the premises by making a payment to her in lieu of homestead, the lease and a guaranty of the rent by the widow are on sufficient consideration.
    Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded with directions.
    Opinion filed December 19, 1912.
    W. P. Black, for appellant; Charles D. F. Smith, of counsel.
    Steere, Williams & Steere, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Cook County, by which a claim of appellants for $2,161.46 against the estate of Susan D. Benton, deceased, was disallowed and dismissed.

It appears from the pleadings and proofs that George C. Benton died in Chicago on July 26, 1902, leaving no children, but leaving a widow named Susan D. Benton. Prior to his death Benton owned in fee, and he and his wife resided upon, the premises known as Mo. 3207 Michigan Avenue. Both Benton and Ms wife were invalids, and in June, 1902, he requested his brother, Alphonso L. Benton, and the wife of the latter, Emma S. Benton, both of whom then resided in Pennsylvania, to come to Chicago and take up their residence with him and assist in taking care of him and Ms wife. They complied with this request, came to CMcago, became members of his family, and assisted in the care of the two invalids until the death of said George C. Benton.

On July 25, 1902, George C. Benton made a will in wMch he devised to his wife, Susan D. Benton, and to Ms brother, Alphonso L. Benton, and to Emma S. Benton, the wife of the latter, £ ‘ or the survivor or survivors of them, a life estate in and to the homestead property where I now live * * * known as the house and lot No. 3207 Michigan Avenue, in said Chicago, together with gas fixtures and pier-glass mirrors in said house, the same to be held and enjoyed by the said Susan D. Benton, Alphonso L. Benton and Emma S. Benton, the survivors or survivor of them, for and during the term of their and each of their natural lives. It is my wish that my said brother, Alphonso L. Benton, and Ms wife, take charge of my said wife, Susan D. Benton (who is not in good health) and look after her welfare and personal comfort during the balance of her life.” Subject to said life estate and to the payment of certain specific legacies, the residue of his estate was devised to trustees to manage and control the same, pay taxes, collect rents, make repairs, etc., and out of the net income to apply one hundred and fifty dollars per month toward the personal maintenance and'support of Susan D. Benton during her lifetime, and upon her death to convey the whole estate to his granddaughter ‘‘ excepting, however, that said homestead property shall be subject to said life estate above created in favor of said Alphonso L. Benton and Emma S. Benton, so long as they or either of them survive.”

On October 6, 1902, said will of George C. Benton was proved in the Prohate Court of Cook County. On November 5, 1902, Susan D. Benton filed in said court her renunciation of the provisions of said will in her favor and her election to take her rights under the law.

It further appears that after the death of George C. Benton, Alphonso L. Benton and his wife continued to reside with and take care of the widow, Susan D. Benton, upon the premises above mentioned. The latter had a son named Clarence A. Tuttle, and desired to have him and his wife take the place in her family of said Alphonso L. Benton and wife. Tuttle, however, refused to live in the same house with Alphonso Benton. Thereupon, negotiations were begun to bring about this change in the family relations, and as a result of such negotiations, on November 14, 1902, Alphonso L. Benton and his wife entered into an agreement with Tuttle, reciting that George C. Benton died on July 26, 1902, owning said premises, that by his will he gave a life estate therein to Alphonso L. Benton, Emma S. Benton and Susan D. Benton, the- survivors or survivor of them, that Susan D. Benton had relinquished her rights under said will and elected to take her rights as widow, and that “whereas it is the desire of said Susan D. Benton to have her son Clarence A. Tuttle rent from the said Alphonso L. Benton and Emma S. Benton their interest in said property and occupy said premises with the said Susan D. Benton, and whereas, it is agreed between all the parties hereto that the entire rental value of said. building hereinafter described shall be and is hereby fixed at one hundred dollars per month, and that two-thirds of said sum shall be the amount due Alphonso L. Benton and Emma S. Benton, or the survivor of them under the terms of said will for their proportion thereof until the death of the said Susan D. Benton,” thereupon (it was agreed) Alphonso L. Benton and Emma S. Benton “have demised and leased” said premises to Tuttle from November 15, 1902 “until the 30th day of April next after the death of Mrs. Susan D. Benton;” and in consideration thereof, Tuttle agreed to pay them as rent the sum of $66.66 per month. To this agreement Susan D. Benton at the same time attached her written consent and upon the hack thereof executed under seal a formal guarantee of the payment of the rent and the performance by Tuttle of all the covenants contained in the lease. In pursuance of this agreement, Alphonso L. Benton and his wife removed from said premises, and Tuttle and his wife moved into the same and continued to reside with said Susan D. Benton until her death on March 14, 1906. Clarence A. Tuttle paid the stipulated rent during the first year of his occupancy, and then, on advice of counsel, declined to pay anything further. Suits were brought against him by Alphonso L. Benton and wife, which were contested, and appear to have been dismissed. Susan D. Benton left a last will and testament in which she named her son, Clarence A. Tuttle, sole devisee and executor, which was duly admitted to probate in the Probate Court of Cook County. Thereupon, Alphonso L. Benton and Emma S. Benton, filed their claim for the recovery of rent due under said lease, basing their claim upon the guarantee of Susan D. Benton. The probate court allowed the claim. The executor appealed to the circuit court where, after a trial, the claim was disallowed and dismissed, as hereinabove stated.

It appears from the record that the theory upon which this judgment was entered in the circuit court was that Susan D. Benton was entitled to an estate of homestead in the premises in question, that such estate gave her the exclusive right to occupy the whole premises, and that “her occupancy thereof left no right or interest in said premises which claimants could convey or lease during her lifetime; ’ ’ and hence there was no consideration for the lease or for Susan D. Benton’s guarantee thereof.

In support of the theory adopted by the circuit court appellee’s counsel assert that there is no evidence in the record tending to prove the value of the premises in question; and upon the principle that in the absence of such proof, the court must assume that the property was worth less than $1,000 (Mueller v. Conrad, 178 Ill. 276), they have cited a number of cases holding that where such is the fact, the existence of the estate of homestead in such property excludes all other interests therein during its continuance. There is no doubt that such is the law as applied to the facts thus assumed; but the law is otherwise where the value of the property, over and above the incumbrances thereon, exceeds $1,000. In the latter case, if the property is so situated that the homestead cannot be set apart, a court of equity has jurisdiction to require the owner of the homestead estate to accept the sum of $1,000 in lieu thereof, if tendered by either a creditor having a lien upon said premises or by an heir, grantee or devisee, and remove from the premises. Cutler v. Cutler, 188 Ill. 285; Powell v. Powell, 247 Ill. 432, 438; Goddard v. Landes, 250 Ill. 457; Richardson v. Trubey, 250 Ill. 577. In Powell v. Powell, supra, it is said (p. 438):

“In the construction of the Homestead Law, which expressly limits the extent of the homestead estate to $1,000, in connection with other provisions of the statute, this court has held that the surviving husband or widow is not entitled to the exclusive possession of an unassignable homestead which is worth more than $1,000 (Wilson v. Illinois Trust & Savings Bank, 166 Ill. 9), and that a court of equity, under its general chancery powers, independently of the Partition Act, had jurisdiction to enter a decree adjusting the respective rights of the heirs or devisees and the party entitled to the homestead. Mix v. King, 55 Ill. 434; Hotchkiss v. Brooks, 93 Ill. 386; Wilson v. Illinois Trust & Savings Bank, supra. In the Wilson case, above cited, on page 14, this court said: ‘If a court of equity were powerless to prevent a person having a right of occupancy to the extent of $1,000 in value in premises of the value of $36,000 from occupying and using the entire property, while the owner of the balance of the estate, amounting to $35,000, must stand idly by and have no benefit or enjoyment of his property, the court would fail of its purpose. ’ ’ ’

It appears from the record that the premises in question consisted of a single house, and while it was apparently large enough for all the parties, there is no claim that it could be so divided as to apportion any. particular part thereof of the value of $1,000 to the exclusive use and occupancy of Susan D. Benton. It further appears that the parties agreed that the rental value of the whole premises was one hundred dollars a month. This fact alone, is some evidence tending to prove that the value of the property was more than $1,000. In addition to this, however, a bill in equity filed by Susan D. Benton in her lifetime for the assignment of dower and homestead in said premises, to which said Alphonso L. Benton and Emma S. Benton were parties, and the decree entered thereon in March, 1905, were offered in evidence. That decree finds, from the evidence, that the value of said premises was $16,000, and that at the death of said George C. Benton there was a mortgage on the same of $10,-000, a large part of which was paid by the executors and trustees of the last will and testament of said George C. Benton, deceased. In Kilmer v. Garlick, 185 Ill. 406, it is said: “Whether the premises were worth more than $1,000, is to be determined * * * by ascertaining the value at the time of the transfer and deducting the incumbrances, and the homestead estate is to be calculated on the residue. Imhoff v. Lipe, 162 Ill. 282; Brokaw v. Ogle, 170 Ill. 115.” Therefore it appears that at the date of the death of George C. Benton, the value of the property occupied as a homestead, above the incumbrance thereon, was at least $6,000. It further appears from the evidence, without contradiction, that the estate of George O. Benton was a large estate and that the executors had ample funds in their hands with which to pay all the debts, legacies and other charges against the same.

It being thus established by the evidence that the premises in question were worth, over and above all incumbrances thereon, considerably more than $1,000, and also, by fair inference at least, that the premises were not so situated that the homestead estate could be assigned, it follows from the authorities above cited, that Susan D. Benton was not entitled in equity to the exclusive possession of the whole premises; and that if the parties could not agree on an equitable arrangement, Alphonso L. Benton and Emma S. Benton, as owners of the life estate therein, had the right to require the widow to remove from the premises upon the payment to her of $1,000. The testator had expressed the wish in his will that they “take charge of” his invalid wife, “and look after her welfare and personal comfort during the balance of her life.” After his death, the widow desired her son to do this, and so far as the record shows, the only objection to his doing so arose from the attitude of the son himself. When asked whether Alphonso Benton and his wife interposed any objection to his moving into the house, Tuttle testified: “My recollection is, the only objection was more that I wouldn’t come there if they were there. I wouldn’t live in the same house with them at that time. I was coming there to take care of my mother, and they had to get out. It was simply a question of the best way of their getting out. * * * It was either a case of the lease or my starting proceedings to force them out, and the lease was the quickest way to get them out.”

Under these circumstances, the arrangement culminating in the execution of the so-called lease amounted to this: In consideration of the removal from the premises of Alphonso L. Benton and his wife in order to permit Tuttle and his wife to take the place of the former, and in consideration also of the relinquishment during Susan D. Benton’s lifetime, by said Alphonso Benton and wife of their equitable right to tender or pay $1,000 to the widow in lieu of her homestead right, and to require her then to remove from the premises, Tuttle agreed to pay to said Alphonso Benton the stipulated two-thirds of the total rental value of the premises. This was followed by a surrender of possession of the whole premises to Tuttle and the payment by Tuttle for a year of the stipulated rents. Tuttle’s agreement to pay was therefore not without consideration. Whether considered as an agreement for forbearance or as a compromise, the execution of the lease by the Bentons was a good consideration for his promise to pay rent. It follows that the circuit court erred in dismissing the claim.

The judgment of the circuit court will be reversed and the cause remanded to that court with directions to enter a judgment allowing the claim for $2161.46, with interest thereon at the legal rate from the date said claim was allowed in the probate court.

Reversed and remanded with directions.


author: Mb. Justice Fitch

text:
    Thomas F. Judge, Appellant, v. Adolph Bergman et al., Appellees.
    Gen. No. 18,957.
    1. Sanitary district—when system intercepting seioage proper adjunct. Where it is the purpose of a channel of the Sanitary District of Chicago to prevent the contamination of the waters of Lake Michigan and the water supply of cities within the district by sewage and the sewage of a city within the district flows into the lake, a system of conduits, sewers and pumping stations constructed and maintained within the city by the district, which intercepts the sewage and conveys it to the channel after it has been collected through the sewers of the city, is such an “adjunct” and “addition” to the channel as is authorized to he constructed by the Act of 1903, and the construction cannot he enjoined on the ground that such system is a local improvement which must be paid for by the city.
    2. Sanitary districts—construction of channel of sufficient capacity does not exhaust power. That the Sanitary. District of Chicago has constructed a channel of sufficient capacity to carry off the drainage and sewage of cities within the limits of the district as extended by the Act of 1903 does not exhaust its power under such act to construct an intercepting sewerage system in a city as an “adjunct” which will cause the channel to accomplish its purpose.
    3. Municipal corporations—construction of powers. The principle that the powers of municipal corporations must be found in acts granting such powers, and that any fair, reasonable and substantial doubt as to the existence of a power is resolved against the corporation, does not authorize the courts to ignore a whole clause of a statute couched in plain and simple language, unless entirely inconsistent with the objects and purposes of the statute.
    4. Statutes—construction. It is the duty of a court in construing a statute to give effect, if reasonably possible, to every clause, sentence and word in the statute.
    5. Sanitary districts—act authorising construction of adjunct to channel. In construing the Act of 1903 to determine whether an intercepting sewerage system constructed by a sanitary district within a city is an “adjunct” and “addition” to a channel within the meaning of such act, the legislative intent sufficiently appears from the language of the act without the aid of a consideration of suggested consequences if the sanitary district be held not to have the authority to construct such system.
    6. Municipal corporations—power to construct sewers. The powers given cities to construct sewers by the Outlet Sewer Act of 1910 and the Local Improvement Act of 1897 and the procedure prescribed apply only to such local improvements as can be made and paid for by special assessment or special taxation.
    7. Municipal corporations—test whether sewer can he huilt hy special assessment. -Whether a city can, under the Local Improvement Act of 1897 or the Outlet Sewer Act of 1910 construct an outlet sewer of the same nature and purpose as is proposed to be constructed by a sanitary district as an “adjunct” or “addition” to a channel, depends upon the question whether it is in fact such a local improvement as may be constructed by special assessment, and the test is whether the proposed improvement will enhance especially the value of adjacent property over and above the amount of general benefit to the whole municipality therefrom.
    8. Sanitary districts—when power of city is not concurrent. It cannot be contended as an objection to the construction under the Act of 1903 of an intercepting sewerage system in a city by a sanitary district as an “adjunct” and “addition" to a channel, that thereby two municipalities will be vested with the same power over the same subject at the same time and for the same purpose.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthhjo, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed December 19, 1912.
    Statement by the Court. Appellant, as a resident and taxpayer of the Sanitary District of Chicago, filed his bill of complaint in the Circuit Court of Cook County to enjoin the appellees, who constitute the board of trustees of said district, from “constructing, erecting and maintaining” a proposed “system of conduits, sewers and pumping station” in the City of Evanston, and from using or expending any of the corporate funds of said district for the same or for any part of the cost thereof, upon the. alleged ground that the proposed system is neither a “channel, drain, ditch or outlet for carrying off and disposing of the drainage (including the sewage) ” of said district, nor a necessary “adjunct or addition thereto” within the meaning of the statutes under which said district is acting, but “is purely an addition or supplement to the local sewer system of the City of Evanston” and a local improvement “for the handling and disposition of the local sewage” of that city. Appellees filed their joint and several answer to the bill, admitting their purpose to construct and maintain the “system of conduits and pumping station” as described in the bill of complaint, but denying the conclusions charged in the bill, and averring that the main purpose of constructing the main channel and the “North Shore Channel” of the Sanitary District was to furnish an outlet “so that the sewage and drainage of the Sanitary District of Chicago should be carried away from Lake Michigan” intó which the same had previously been discharged, and thereby to prevent the pollution and contamination of the water supply of the cities within the corporate limits of said Sanitary Districts; that the City of Evanston has a complete system of sewers, through which all the sewage and drainage of said city is now discharged directly into Lake Michigan, and that the effect thereof is to contaminate the water supply, not only of said City of Evanston, but also the water supply of the City of Chicago, and of all the villages north of Evanston as far as Glencoe; that the City of Evanston “is without funds or the legal power to secure funds for the construction of such works as may be necessary to carry away the sewage of said city;” that the system of conduits and pumping station described in the bill of complaint “constitute such adjuncts and additions to said north shore channel as are necessary and proper to cause said north shore channel to accomplish the end for which it is designed in a satisfactory manner;” that the sole purpose of their construction is to dispose of the sewage of the whole City of Evanston after it has been collected through the sewers of that city, and thereby to protect the water supply of the whole Sanitary District “against the contaminating and polluting effects of the sewage of said City of Evans-ton;” and that “said works will not provide any sewers, drainage or means for the disposal of sewage from individual lots.” A replication to said answer was filed. The case was heard upon these pleadings and a stipulation of facts, and a decree was entered dismissing the bill for want of equity. The complainant appeals.
    By the stipulation of facts it was agreed in substance as follows: That complainant is a citizen, a voter and a taxpayer of said Sanitary District; that defendants are the trustees thereof; that the “main channel” of the district was completed in 1900, and that its effect was to change the course of the Chicago River so that it now flows away from Lake Michigan and discharges into the Desplaines River at Lockport, affording an outlet in that direction for the drainage and sewage of the City of Chicago, which formerly was discharged into the lake; that by the Act of the General Assembly of May 14,1903, said district was enlarged so as to include the City of Evanston, and the Villages of Wilmette, Gross Point, Kenilworth, Winnetka and Glencoe on the north, and others on the south; that thereafter said district constructed a channel or drainage ditch known as the “North Shore Channel” extending from the north branch of the Chicago River to a point on the shore of Lake Michigan near the boundary line between Evanston and Wilmette, “for the purpose of furnishing an outlet for the drainage and sewage of the City of Evanston, the Village of Wilmette and other villages lying to the north of the City of Chicago,” which channel runs through the northwestern portion of Evanston, and to provide for a sufficient flow of water for said channel, a pumping station has been installed at the lake end of the same; that said channel “is of sufficient capacity to carry off and divert into the north branch of the Chicago River and thence into said main channel all of the drainage and sewage of the Village of-Wilmette, the City of Evans-ton, and all other villages lying north of the City of Chicago, when such drainage and sewage is diverted into said north shore channel;” that the City of Evanston has a shore line of approximately three and one-half miles along Lake Michigan, is from one and a half to two miles in width, with a population 'of over 25,000, and on and prior to May 23, 1912, had and now maintains an extensive system of sewers through which the sewage and drainage of that part of the city which lies south and east of the north shore channel are discharged directly into Lake Michigan; that the effect of this is to pollute and contaminate the water of the lake, and “that at times said contaminative effect extends as far south as to include a part of the water supply of the City of Chicago, and as far north as to include the water supply of some of the municipalities lying north of said City of Evanston;” that Lake Michigan is the source of the water supply of almost all of the people of the Sanitary District; that the total assessed valuation of all taxable property within the limits of the City of Evanston for the year 1911 was $11,021,698, and its total indebtedness, including $146,100 of bonds, is $356,100; that on May 23, 1912, appellees, as trustees of said Sanitary District, passed an order directing the chief engineer of the district to prepare detailed plans and specifications for the construction of a system of intercepting sewers and conduits at an estimated cost of $405,000, and that they are about to construct the same at the sole expense of said Sanitary District; that the plans for said work provide for the construction of a pumping station on the lake front in Evanston for the purpose of pumping sewage coming from the lower parts of the city along the lake front to such an elevation that it can flow into the north shore channel of said district, “it being impossible to divert said sewage into said north shore channel except by pumping the same;” that the “proposed conduits are three feet in diameter at their southern extremities and gradually increase in size until said conduit is ten feet in diameter;” that “the sole function of the works covered by said order of May 23, 1912, and shown in heavy red lines on said complainant’s exhibit 1, is to receive from the sewers built and maintained by the city of Evanston as shown on said exhibit 1, the sewage before it is discharged into the waters of Lake Michigan, and to convey the same into said north shore •channel.” A map attached as “Exhibit 1” shows in small lines and figures what seems to be a practically complete system of sewers covering the whole City of Evanston, the main lines of which run east and discharge into Lake Michigan. Said map also shows in heavy red lines the location and direction of the proposed conduits. Two branch lines are thus shown, beginning in the southern part of the city, one running north along the lake shore and the other further west, intercepting the existing sewers. These branch lines meet near the pumping station, from which a single larger conduit proceeds in a north and westerly direction to the north shore channel.

      Calhoun, Lyford & Sheehan, for appellant.
    John C. Williams, for appellees.
   Mb. Justice Fitch

delivered the opinion of the court.

By section 7 of the Act of 1889, under which the Sanitary District of Chicago was incorporated, it is provided (Hurd’s Stat. 1909, p. 405):

“ The board of trustees of any sanitary district organized under this act shall have power to provide for the drainage of such district by laying out, establishing, constructing and maintaining one or more main channels, drains, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district,, together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed in a satisfactory manner.”

After the organization of said Sanitary District the legislature, in 1903, passed another act extending the corporate limits of such district so as to embrace and include therein additional territory to the north and to the south of the same; and by section 2 of that act (Hurd’s Stat. 1909, p. 411) it was provided:

“The board of trustees of said sanitary district shall have the right to provide for the drainage of the additional territory added to said sanitary district by this act by laying out, establishing, constructing and maintaining one or more channels, drains, ditches and outlets for carrying off and disposing of the drainage (including the sewage) of such district, together with such adjuncts and additions thereto as may be necessary or proper to cause such channels or outlets to accomplish the end for which they are designed in a satisfactory manner.”

It was stipulated that the Sanitary District of Chicago constructed its main channel in pursuance of the authority granted by the Act of 1889, and constructed what is known as the “North Shore Channel” in pursuance of the authority granted it by the Act of 1903, above quoted, and that the latter is of sufficient capacity to receive and carry off all the drainage and sewage of the City of Evanston and the villages to the north within the extended limits of the Sanitary District, when the same shall be diverted into said north shore channel.

The sole question raised or discussed in the briefs and arguments of counsel is whether the system of conduits or intercepting sewers and pumping station described in the hill of complaint are “adjuncts” or “additions” to the north shore channel of the Sanitary District of Chicago, within the meaning of those terms as used in the above quoted provisions of the Sanitary District acts.

Counsel on both sides cite and rely on the decision of the supreme court in the case of City of Chicago v. Green, 238 Ill. 258, in support of their respective contentions. That case was a proceeding brought under the Local Improvement Act of 1897 for the purpose of levying a special assessment to pay the cost of constructing a brick sewer in Kedzie Avenue from West Seventy-First Street north to the main channel of the Sanitary District. The appellant, Green, objected to the assessment upon the ground that the proposed sewer was an “adjunct” or “addition” to the main channel of the Sanitary District and that therefore the power to construct the improvement by special assessment was vested in the board of trustees of that district and not in the city council of the City of Chicago. The supreme court, in discussing that question quoted at length from its previous opinions in Wilson v. Board of Trustees, Sanitary Dist., 133 Ill. 443, and People v. Nelson, 133 Ill. 565, and then said (p. 267):

“Considering the opinions in those cases, especially in connection with the dissents filed in both, it is apparent that this court did not then consider that the sanitary district act was intended to turn over to the corporate authorities of the district the control of all of the ordinary sewers and drains necessary to drain the territory within its boundaries, but rather that the law was enacted for the purpose of constructing a main channel or outlet for all the sewers and drains of the various municipalities within the district, and to build such adjuncts and additions and auxiliaries as a part of said main channel as would make it possible to connect all such drains and sewers of the various municipalities with said main channel.”

Then, after reviewing the contemporary circumstances and historical facts which led to the enactment of the Sanitary District Act, the opinion concludes (p. 275):

“The words ‘adjunct’ and ‘addition,’ as used in this act, mean simply auxiliary channels to bring the sewage and drainage from the various sewers and systems■ of sewers of the municipalities in the limits of the sanitary district into the main channel of the sanitary district. It was not intended that the sanitary district should he charged with and have the authority of constructing and maintaining local improvements for the local drainage and sewage of lands and property, such as the one here in question.” (Italics ours.)

In its review of the history of the legislation in question, the court said (p. 270):

“These reports and discussions contain frequently the words ‘main drainage system,’ ‘outlet channel,’ ‘intercepting sewers’ and other terms which indicate clearly that it was an outlet for the sewage, and not the building of ordinary sewers, that was under consideration.”

On page 273, the opinion refers to an act passed in 1899, authorizing cities of 100,000 population and under to construct outlet sewers, and’' says of that act:

“The legislature recognized that Chicago was the only city in the state that had over 100,000 people, and therefore the Act of 1899, in its practical effect, applied to all cities in the state other than Chicago, and was evidently passed to give to the other cities the same power to build outlet sewers that was provided by the sanitary district act for Chicago and the other municipalities within the limits of the sanitary district of Chicago.” (Italics ours.)

It would seem clear from these quotations from the opinion of the court in the Green case, supra, and especially from the language we have italicized, that the supreme court did not hold in that case that the Sanitary District of Chicago has no power to build a sewer of any hind or for any purpose. The proposed sewer there under consideration was purely a local improvement—an ordinary sewer such as has been built by special assessment for years, designed to receive and carry off the sewage and drainage from the houses and lots within the limits of a specified sewer-assessment district comprising only a small fraction of the total area of the City of Chicago, and affording special sewerage facilities and special benefits to the property in the assessed district. Hence the only question directly involved under the facts of that case, so far as the powers of the Sanitary District are concerned, was as to the power of the board of trustees of that district to build that hind of a sewer. It seems apparent that the court, in determining that question, recognized the fact that there was, or might he, a material distinction in this respect between the power to build such a sewer and the right and power under the Sanitary District acts to build, an outlet sewer such as described in the Outlet-Sewer Act of 1899, or an intercepting sewer, designed for the sole purpose of bringing the accumulated drainage and sewage of a completed system of local sewers from the present discharging point thereof to and into one of the main channels of the Sanitary District. It is the right and power to build the latter kind of a sewer that is here involved. It will be noted from the statement of facts preceding this opinion that it was expressly stipulated that “the sole function” of the work proposed “is to receive from the sewers built and maintained by the City of Evanston * # * the sewage before it is discharged into the waters of Lake Michigan, and to convey the same into said north shore channel.” By this stipulation all question as to the character of the sewer in question is removed. Its agreed character is that of an intercepting sewer or conduit and it is so called and treated in the briefs and arguments of counsel.

If the trustees of the Sanitary District had ordered an open channel to be constructed for the same purposes, and along the same route, as the proposed intercepting sewer, the “auxiliary channel” so ordered would have come squarely within the meaning of the words “adjunct” and “addition” as those words were defined in the Green case, supra. If the trustees had the power to construct an open channel as an adjunct or addition to the north shore channel, we are unable to find any good reason for any claim that they have not the power to “accomplish” the same “end” in a more “satisfactory manner” by constructing an underground canal or intercepting sewer for the same purpose. Indeed, on the oral argument made in this court, appellant’s counsel conceded that if an open channel might thus be constructed, the right of the appellees to substitute an underground canal could not reasonably be denied.

It is, however, contended that having constructed a channel, viz.: the north shore channel, of sufficient capacity to carry off all the drainage and sewage of the City of Evanston and of all the villages to the north within the limits of the district as extended by the Act of 1903, the power of the trustees was thereby exhausted and their duty to the public fully performed. If this were true, then that part of the Act of 1903 which gives the trustees power “to provide for the drainage of the additional territory added by this act” by constructing not only “one or more channels,” etc., but also “such adjuncts and additions thereto as may be necessary or proper to canse such channels or outlets to accomplish the end for which they are designed in a satisfactory manner,” is meaningless and of no effect whatever. While it is true that the powers of municipal corporations must be found in the legislative act or acts granting such powers, and that ‘ any fair, reasonable and substantial doubt surrounding the existence of power is resolved by the courts against the corporations, and the power denied” (Dillon on Municipal Corporations (5th Ed.), sec. 237), yet this principle does not authorize the courts to ignore a whole clause of a statute, couched in plain and simple language, unless it is entirely inconsistent with the objects and purposes of the statute. In the construction of statutes, it is the duty of the courts to give effect, if reasonably possible, to “every clause, sentence and word in a statute.” McReynolds v. People, 230 Ill. 623, 633. “Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation.” Chudnovski v. Eckels, 232 Ill. 312, 317. “The statute should be so construed as to give a sensible and intelligent meaning to every part and to avoid absurd and unjust consequences.” People v. Sholem, 238 Ill. 203, 208.

In support of the power claimed by the trustees of the Sanitary District under this Act of 1903, their counsel have also suggested some of the consequences that might flow from the construction contended for by the appellant’s counsel. It is said that one of the important, if not the most important, objects of the Sanitary District acts, was to prevent the pollution of the water supply of the territory included in said district, and that if the trustees have not the power to do the work of connecting the several sewerage systems in the district with the channels of the district, the contaminating discharges of sewage into the lake will necessarily continue until each and every municipality within the district shall acquire the means to pay for such connections or shall be willing, if able, to make and pay for the same. It is pointed out that even if willing to do so, the statutory indebtedness-limit of such municipalities is an insuperable obstacle precluding them from making such connections with funds derived from general taxation; that such connections are in no sense local improvements such as could be built by special assessment; and that until ways and means are found to overcome these and other like difficulties, the expensive north shore channel, designed for the very purpose of receiving the discharges from the existing sewer-systems, would remain a useless ditch, while the pollution of the drinking waters of the lake would continue unabated and practically unabatable. But while consequences such as these are undeniably possible and perhaps are even probable, yet they are important here only as hearing upon the question of legislative intent in enacting the provision giving to the trustees of the Sanitary District the power to build and maintain such adjuncts and additions to its channels as to cause the same to satisfactorily “accomplish the end for which they are designed.” We think the legislative intent sufficiently appears from the language itself of the acts in question without the aid of any consideration of the suggested consequences, though both lead to the same conclusion.

It is urged, however, that in the recent case of City of Berwyn v. Berglund, 255 Ill. 498, the supreme court extended the doctrine of the Green case so as to make it apply not only to an ordinary sewer, but to an outlet sewer of practically the same kind as the one here involved. We think this contention proceeds upon a misapprehension of the facts in that case, or a failure to recognize the well-settled distinction between local improvements, such as may be constructed by special assessment, and general public improvements which cannot be built by special assessment. The proposed improvement in the Berwyn case was in the first class. It is true that it had an outlet extending beyond the city limits to the channel of the Sanitary District, but the power of a city or village to construct that kind of an outlet by special assessment as part of a local sewer-system, was sustained as "far back as 1889, in the case of Shreve v. Town of Cicero, 129 Ill. 226, and definitely settled in 1892 in the case of Maywood Co. v. Village of Maywood, 140 Ill. 216. The principle of these cases was enacted into the statutory law of the state without substantial change by the Outlet-Sewer Act of 1899, and the recent substitute therefor, approved March 8,1910 (Session Laws, 1910, p. 41). The decision in the Berwyn case therefore, merely follows the prior ruling of the Green case “and previous cases,” as the opinion of the court expressly states.

It must be borne in mind that both the Outlet-Sewer Act of 1899 and the Local Improvement Act of 1897 are special assessment acts. The powers given, and the procedure prescribed, by those acts apply only to such local improvements as can be made and paid for by special assessment or special taxation. With this fact in mind, the distinction between such improvements as were involved in the Green and Berwyn cases, supra, and the intercepting sewer and pumping station here in question, seems clear and manifest. The improvement here proposed has none of the characteristics of a local improvement, but is a general public improvement, designed not for any purpose of local benefit to property but for the general public benefit of the whole Sanitary District, the protection of the water supply and the preservation of the public health. It is such an “adjunct” or “addition”0to the north shore channel of the Sanitary District as is not only necessary and proper to cause such channel to satisfactorily accomplish its purpose, but is absolutely essential to prevent a total failure of such channel to accomplish its purpose.

"Whether the City of Evanston could build the same kind of an outlet under the Local Improvement Act or the Act of 1910 depends on the question—which is one of fact—whether it is in fact such a local improvement as may be constructed by special assessment. The test in such cases is whether the proposed improvement will enhance, specially, the value of adjacent property, over and above the amount of general benefits to the whole municipality therefrom. Northwestern University v. Village of Wilmette, 230 Ill. 80, 86. While it is alleged in the bill of complaint that the proposed plan is purely a local improvement, that averment is denied by the answer, and we find nothing in the stipulation of facts tending to prove the allegation. So far as the description of the improvement affects that question, it rather tends to refute than to support the averment, and the stipulation above referred to as to the function of the proposed improvement precludes the idea that it will enhance, specially, the value of adjacent property.

The argument that the construction of the Sanitary District acts contended for by appellees is open to the objection that thereby two municipalities would be vested with the same power over the same subject at the same time and for the same purposes, is, we think, fully answered by what has been already said.

The decree of the circuit court will be affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    Mary A. Gubbins and Clayton Cunningham, Appellees, v. Philip O’Mahony, Individually and Executor, et al., Appellants.
    Gen. No. 17,476.
    Appeals and ebrobs—where parties have settled differences. An appeal from a decree ordering an executor to sell certain real estate will be dismissed where it appears that the property was sold subsequent to the decree for a price acceptable to all concerned, the proceeds distributed and the executor discharged.

      Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Appeal dismissed.
    Opinion filed December 19, 1912.
    Rehearing denied January 2, 1913.
    William Ritchie, for appellants.
    No appearance for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

The appellee, Mary A. G-ubbins, was one of a number of beneficiaries named in the will of Timothy O’Mahony, in which Philip O’Mahony was made executor. She filed her bill in chancery seeking a decree ordering Philip O’Mahony to sell real property of the estate and to distribute the proceeds under the terms of the will. Other relief was also prayed for. It was contended by the defendants to the bill that the matter of a sale of real property was, under the will, solely within the discretion of the executor. Upon hearing the chancellor decreed the sale of the real property. From that decree appellants appealed to this court. Appellees did not enter their appearance here. Such in brief outline is the record before us.

It has been brought to the attention of this court by the attorneys in the case that subsequent to the entry of the decree Philip O’Mahony, executor, sold the property in question, for a price which was acceptable to all concerned; that the proceeds of the sale have been distributed to the beneficiaries, under the will, and that the executor has been discharged. The subject-matter of the litigation having been thus terminated to the apparent satisfaction of the parties, there is nothing for this court to pass upon. This court will not pass upon moot questions where parties have settled their differences. Aff v. Hopkins, 57 Ill. App. 529; American Bldg., Loan & Invest. Society v. People, 60 Ill. App. 332; Ebert v. Beedy, 113 Ill. 316. The appeal is therefore dismissed.

Appeal dismissed.


text:
    William Peter, minor, by George Peter, his next friend, Appellee, v. Sam Cohen, Appellant.
    Gen. No. 17,504.
    1. Evidence—objection to hypothetical question. An objection that a hypothetical question includes elements not based on the evidence must point out specifically such facts assumed in the question.
    2. Damages—excessive. A judgment for $1,750 for injuries to a child resulting in what is known as a flat foot will be sustained as not being excessive where the verdict of the jury does not appear manifestly to be against the weight of the evidence.
    Appeal from the Superior Court of Cook county; the How. Habby C. Moban, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed December 19, 1912.
    Joseph F. Grossman, for appellant.
    Vincent D. Wyman and Otto W. Jourgens, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

The appellee, William Peter, hereinafter called plaintiff, in December, 1908, then a child of ten years of age, was walking on the sidewalk when a pile of iron pipe, which had been maintained by the defendant on his premises adjacent to the sidewalk, fell and knocked plaintiff down, several pieces striking his right leg and foot and pinioning him to the ground, with the leg and foot underneath the pipe. Suit was brought and judgment rendered against defendant, who asks that it be reversed, solely on the ground that the amount of damages awarded is excessive.

The case has been tried twice. Upon the first trial the jury fixed the damages at $1,500. A new trial was granted, but upon what grounds does not appear. Upon the second trial the jury returned a verdict for $2,500 damages, from which plaintiff remitted $750, and judgment was entered for $1,750; but defendant claims that it is still too large.

Various objections are made to the rulings of the trial court upon the admissibility ’ of certain questions and answers, but we find no reversible error in this regard. The objection that a certain hypothetical question included elements not based upon the evidence, is met by the rule that objections upon that ground must point out specifically such facts assumed in the question. The rule is stated clearly and fully in Riverton Coal Co. v. Shepherd, 207 Ill. 395, and City of Aledo v. Honeyman, 208 Ill. 415.

Most of the argument of both counsel, in well-ordered briefs, concerns the evidence touching the extent of plaintiff’s injuries. That his right foot was injured is not denied, but how seriously is the question submitted to this court to determine. The record shows that the pipe which fell upon plaintiff was three and one-half inches in diameter, weighing four or five pounds to the foot, and about ten feet in length, and that several pieces fell upon the boy; that a passerby coming to his assistance tried to lift the pipe off the boy, but owing to their great weight was unable to do so. Using another piece as a lever, he raised the pipe sufficient to enable the boy to withdraw his foot. Plaintiff hopped home, a part of a block away, on his left foot, screaming with pain. He was unable to go upstairs into his house; his mother helped him up and tried to take his shoe off. She says: “He screamed so terrible I just opened his laces and had to stop again. It was twenty minutes before I got his shoe off. The foot was all swollen up; the ankle all the way up to the knee;” that he cried all night with pain. The family doctor was called next morning. He says that the entire two-thirds of the lower leg was badly swollen and bruised; that the patient had a temperature, was very nervous and apparently suffering greatly; that he prescribed remedies and attended plaintiff daily for six weeks; that after four weeks he endeavored to have him stand alone hut there was pain when he made the attempt, and it was at least six weeks before he could stand alone. The doctor testified that the injury has resulted in the breaking down of the arch of the foot, producing what is known as a flat foot, which causes the boy to limp and drag, the foot after him when he walks or runs, and that this is a permanent injury; that to support the arch of the foot plaintiff wears an iron brace inside the shoe.

There is considerable conflict in the testimony as to the length of time plaintiff was confined in the house. One witness for the defendant, a school teacher, testified that her records showed that he attended school a few days more than a month after the accident and continued to attend thereafter quite regularly; but on cross-examination it appeared that if a child’s seat was occupied-he was marked present, and that the custom was, with surplus children in the room, to seat them in unoccupied seats, and it is fairly argued that plaintiff may have received credit in the record for being present simply because his seat was occupied by some other pupil. Opposed to the statement of the teacher is the testimony of the plaintiff himself, that it was about three months before he went back to school. To the same effect is the testimony of his father and mother and of several playmates.

The defendant introduced evidence of a physician tending to show that the flat foot condition of plaintiff was congenital and not produced by the injury, and the same witness testified that both feet were flat. Tests were made by these witnesses in the presence of the jury, and prints of the sole of each foot appear in the record before us. An inspection of these prints inclines us to believe that the jury was warranted in believing that the condition of the right or injured foot was quite different from the left foot. A physician who knew the plaintiff since birth and treated him frequently, and the father and the mother, all testified that the hoy’s foot before the accident was perfectly normal; that he had never limped or dragged his foot before that time. Another physician testified that there is now an entire absence of the arch of the injured foot and that it is flat to the floor, and that this condition is the direct result, of the injury sustained. All the witnesses testified that since the injury when plaintiff walks or runs he limps with the right foot and drags the foot or leg. It seems to be conceded by all the physicians testifying that flat foot is a permanent condition.

From this brief statement of a portion of the. evidence it is apparent that the controversy as to the extent of plaintiff’s injuries must be left to the jury and the trial court, and their conclusion should not be disturbed unless it should appear manifestly to be against the weight of the evidence. One jury assessed the damages at $1,500, the second jury at $2,500. The trial court apparently thought $1,750 was a proper amount. We can discern no reasonable ground for holding the amount of the judgment to be unjustified by the evidence, and, therefore, it will be affirmed.

Judgment affirmed.