text:
    I. N. Brown et al., Appellees, v. E. A. Burke et al., Appellants.
    1. Estoppel—application of doctrine in pais. Estoppels in pais are as effective in courts of law as in courts of equity. A party who induced another to act upon his statements or representations will be estopped from denying the truth of such statements where they have led the other party into a line of conduct which would be prejudicial to his interests if the party who made the statements were permitted to deny they were true.
    2. New trials—effect of written motion. Points not assigned in a written motion for new trial are deemed waived.
    Trover. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Rehearing denied March 23, 1910.
    Jambs E. Dunnegan and E. Breese Glass, for appellants.
    Warnock, Williamson & Burroughs, for appellees.'
   Mr. Justice Shirley

delivered the opinion of the court.

Appellees charge appellants in an action of trover with the wrongful conversion of one steam engine, boiler and other machinery connected therewith, the property of appellees, of the value of $750. Upon an issue made by a plea of not guilty, the cause was submitted to a jury and resulted in a verdict in favor of the appellees for the amount claimed.

A motion for a new trial being overruled, there was judgment on the verdict from which appellants prosecute this appeal. 1

On June 14, 1907, appellants residing at Alton and being the owners of the property described, had it located in a building in that city. Sometime prior to this, one Tarwater, a negro, with a view to purchasing, had been shown the machinery by appellant Burke. After it had been shown to him, Tarwater went to appellee I. N. Brown at the place of business of appellees in St. Louis, representing himself the owner of the machinery, and desired to sell it. Appellee Brown went to Alton with Tarwater to examine the machinery and upon arrival Tarwater went alone to appellant Stiritz, procured the key to the building where the machinery was, and taking Brown into the building, showed him the machinery. While thus engaged, appellant Btirke came into the building but had no conversation with Brown. Brown did not at this time agree to buy the machinery. After Tarwater and Brown had been at Alton and examined the machinery, Tarwater on the 14th of June returned to Alton and appellants executed and delivered to him a bill of sale for the machinery. The bill of sale states that Burke and Stiritz bargained and conveyed the machinery to Tarwater and acknowledges the receipt of a consideration therefor and is signed by appellants. The ¿greed price to be paid appellants by Tarwater was $1,000 and for this sum he made a draft drawn by himself on the Bank of Wakenda, Missouri, and payable to the Alton Savings Bank. The draft was taken by the latter bank for collection to be credited when collected to appellants. Tarwater had no funds in the Wakenda Bank. The draft was never paid and his scheme to get appellants ’ machinery was fraudulent and as between himself and appellants no title to the property passed. The hill of sale when given Tarwater by appellants, stated the consideration for the sale to be $1,000

Next day, June 15, 1907, Tarwater appeared at the office of appellees with the bill of sale in which the amount of the consideration had been altered to read $600. The alteration was written in ink of a different color from the body of the bill of sale and it was to be seen there had been an erasure of the amount of the consideration and that $600 had been inserted

Tarwater desired to make a sale of the machinery to the appellees and agreed with Brown on a price of $500, $300 cash, balance in ten days. Brown asked him for some evidence of ownership and Tarwater showed the bill of sale. Before making an agreement to purchase from Tarwater, Brown called appellant Stiritz by telephone and testifies that he told him he was Brown of The Brown Machinery Company of St. Louis; that there was a man in the office of the name of Tarwater who wanted to sell him the machinery in the Alton Boiler Mill Building and asked if Tarwater was the owner of the machinery; also if the machinery was paid for and that if he (Brown) bought it, could he get a good title to it from the owner; to all of which inquiries Brown testifies Stiritz answered yes. And Brown further testifies that he told Stiritz there was nothing in the bill of sale as to the length of time given to get the machinery out of the building and he would like to know that, and Stiritz said he would give a reasonable time, a week or ten days. After some further-conversation about how the machinery could be gotten out of the building, Brown testifies he bought the machinery on the terms above stated, giving Tarwater a check for $300 which he cashed, and took an assignment, of the bill of sale; also a written order from Tarwater to appellants to deliver the machinery to appellees.

When Tarwater’s draft to appellants was returned unpaid, appellants refused to deliver the machinery to appellees.

We have carefully considered the testimony relating-to the telephone conversation above referred to as occurring between Brown and Stiritz and are of the opinion it establishes the truth of Brown’s statements as to what was said and also that Stiritz was the person with whom he talked. The testimony shows that Brown took the precaution before purchasing, of calling Stiritz who assured him that Tarwater had bought and paid for the machinery and that it would be safe for Brown to buy it and acting upon such statement, Brown purchased. The fact that it was apparent the consideration in the bill of sale had been changed, is of no importance in view of the assurance given by Stiritz that Tarwater had the right to sell the machinery and give a good title. Such change at best would only be a circumstance tending to put a purchaser upon inquiry and such inquiry having been made, the circumstance is immaterial.

Nor is there any sufficient evidence of a conspiracy between appellees and Tarwater to defraud appellants.

The theory of the trial court was that this conversation over the telephone operated as an estoppel in pais, and on behalf of appellees by the second and third instructions, instructed the jury in substance that if appellees were about to purchase the machinery of Tar-water and upon inquiry of appellant Stiritz, were informed that appellants had sold it to Tarwater and that Tarwater had a right to sell it, that then appellees had the right to purchase it from Tarwater and if they ■did so they became fully invested with the title and the right to possession. These instructions were based on the evidence introduced by appellees of the conversation with Stiritz over the telephone and it is assigned for error that such conversations were not admissible and that the instructions do not state a correct rule of law.

Estoppels in pais or equitable estoppels are as effective in courts of law as in equity. They are resorted to as a measure to prevent injustice. A party who induces another to act upon his statements or representations will be estopped from denying the truth of such statements, where they have led the other party into a line of conduct which would be prejudicial to his interests if the party who made the statements were permitted to deny they were true. Herman’s Law of Estoppel, 340-341.

It may be conceded that Tarwater as between himself and appellants, did not acquire title to the property from appellants, and they were as against Tar-water the real owners, but the rule is that when the true owner allows another to appear as the owner of the property or as having full power of disposition over it, and innocent third persons are thus led to purchase from such apparent owners, they will be protected.

1 ‘The rights of innocent third persons in such oases-do not depend upon the actual title or authority of the persons with whom they deal but are derived from the act of a real owner which precludes him from disputing as against them the existence of a title or power which through negligence or mistaken confidence he caused or allowed to appear to be vested in the party making the conveyance.” Williams v. Fletcher, 129 Ill. 356; Kinnear v. Mackey, 85 id. 96; Anderson v. Armstead, 69 id. 452.

We think the conversation with Stiritz was competent and there was no error in giving the second and third instructions for appellees. It is urged the first, instruction given on behalf of the appellees was erroneous. It tells the jury that if they believe from the evidence that appellees were the owners of and entitled to the possession of the goods described in the declaration, and that appellants converted them and refused to deliver them after demand made, then appellees, were entitled to recover their fair cash market value. This instruction as a part of the series and read in connection with instructions two and three given for appellees, was not erroneous. Appellants complain in this court of the modification of instructions one and two offered on behalf of appellants. Not having assigned this modification in their written motion for a new trial as reasons therefor, the alleged error is deemed to have been waived. Consolidated Coal Company v. Schaefer, 135 Ill. 210; Brewer & Hoffman Brewing Company v. Boddie, 162 id. 346; I. C. R. R. Co. v. Johnson, 191 id. 594; Tarber v. Chicago & Alton B. B. Co., 235 id. 589.

Error is assigned on the refusal of the court to give refused, instructions numbered' one to nine inclusive. We have examined all of them and find their refusal te be in conformity with the legal principles applicable to the case expressed in this opinion, and it would be a mere repetition to consider the objections urged to each of them. There appearing no error in the rulings of the trial court in giving and refusing instructions or in the rulings upon the admissibility of evidence and the verdict being amply sustained by the evidence, the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Shirley

license: Public Domain

text:
    John M. Eggers et al., Appellees, v. Jacob Hardwick et al., Appellants.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Dbam-shops—what essential to establish liability against owner under section 9 of Act. Section 9 of the Dram-shop Act was not designed to create a liability on the owner of premises simply because of ownership but the burden of proof is upon the plaintiff in an action under this section of the Dram-shop Act to prove the owner had knowledge that intoxicating liquors were to be sold or were in fact sold on the premises, but such proof of knowledge need not be shown by direct evidence but may be established by facts and circumstances.
    3. Dbam-shops—what instruction proper under section 9 of Act. It is proper to instruct the jury that it was not necessary, in an action brought under section 9 of the Dram-shop Act, to make all persons, who were guilty of selling intoxicating liquor to the persons to whom it was sold, parties defendant but that the person injured might sue any one or more of them and recover from him or them when found guilty, it appearing from the evidence that the person to whom the sale was made had visited another saloon during the day in question.
    4. Dbam-shops—what instruction proper in action under section 9 of Act. In an action under section 9 of the Dram-shop Act it is proper to tell the jury that if the person to whom liquor was sold had liquor from other places than the saloon of the defendant, yet if he obtained liquor from such other places, each contributing to his intoxication, etc., it would be no defense that he had obtained liquor elsewhere, it not being necessary that the instruction should state that the liquor obtained elsewhere had contributed to such intoxication in any “appreciable degree.”
    5. Evidence—what establishes ownership. Ownership of real property proven as of a specific day is presumed to continue until some change or alienation is shown.
    6. Trial—when argument of counsel improper. In an action under section 9 of the Dram-shop Act, an argument as follows: “There is no hardship against rendering a verdict against the brewery in this ease. The law makes it liable and fixes the limit, and breweries expect to have to pay damages of,this kind. They figure on it in estimating their profits and the profits of the brewery business are big enough to stand it,”—is improper and is ground for reversal if it appears that it had any effect on the verdict, it being held, however, in this case that it did not appear that it had affected the verdict.
    Action for damages under section 9 of Dram-shop Act. Appeal from the Circuit Court of Randolph county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    B. E. Sprigg and Fred Gilster, for appellants.
    A. E. Crisler, for appellees.
   Mr. Justice Shirley

delivered the opinion of the ■court.

This suit was instituted by appellees to recover damages alleged to have been caused by the sale of intoxicating liquors to their father, Fred Eggers, which •caused his intoxication, and as a result of which he lost his life in attempting to board a moving train. It was alleged that appellees were his minor children dependent upon him and that by his death they were injured in their means of support;'that the liquor causing such intoxication in whole or in part was sold and given him by appellant Hardwick who was the keeper of a dram-shop in a building owned by the appellant Brewing •Company, which having knowledge that intoxicating liquors were to be sold therein, permitted said appellant Hardwick to occupy the building for that purpose.

Upon a trial there was a verdict and judgment against appellants and the grounds urged for reversal are, that the verdict of the jury was contrary to the evidence; that the court erred in giving improper instructions asked by appellees; and that counsel for appellees in his closing argument to the jury made improper statements.

It is argued that the evidence is not sufficient to support the verdict upon the proposition that deceased was intoxicated at the time of his death, or that appellant Hardwick by himself or servant sold or gave him intoxicating liquor, or that appellant Brewing Company owned the premises at the time of the alleged sale or had any knowledge intoxicating liquors were to be sold in the building or knowingly permitted the sale therein.

The deceased resided at Willisville some three miles-from the village of Percy and was a coal miner by occupation. On the morning of April 16, 1908, he went to Percy where Hardwick’s saloon was located, arriving there about 5:30 A. M. He met an acquaintance named Stewart who testified he had three drinks of whiskey in the saloon of Hardwick and that the bartender and witness had the same number of drinks of whiskey with him. This was early in the day, very soon after the deceased arrived at Percy. A witness named Williams testified he saw the deceased get two-drinks of whiskey from appellant Hardwick in his saloon about ten o ’clock in the forenoon. This testimony was disputed by both Hardwick and his barkeeper.

The evidence further shows that the deceased was at Percy the entire day and was frequently in and out and about Hardwick’s saloon most of the day, as stated by the witness Williams, and that about noon he was in a room over the saloon where there was a so-called free beer drinking going on and where there was a keg of beer being dispensed free, as stated by the witness Bobinson. This witness does not say deceased drank any there but says he was sitting near the door with his head hanging down. Several witnesses who saw him during the afternoon and talked with him, give it as their opinion he was sober, while several others, not so many in number, state he was drunk during the day and at the time of his death. The physician who examined him just after the accident states he had been drinking and that it was manifest from the heart’s action, the mental condition of the patient, and the presence of the odor of alcohol. The undertaker who embalmed the body, testified his face was flushed and that the body had the odor of liquor. The jury heard these statements and opinions from the witnesses themselves and the verdict we think is supported by the evidence upon the question whether the deceased was intoxicatd at the time of his death.

There is a conflict in the evidence whether any liquor was sold or given the deceased in Hardwick’s saloon. The testimony upon this charge is already referred to and it is not necessary to restate it but we think this question was one of fact for the jury and the verdict is not so against the weight of the evidence it should be disturbed for this reason.

Section 9 of the act entitled' “Dram-Shops” for a violation of which this suit was brought, provides that “any person owning, renting, leasing or permitting the occupation of any building or premises and having knowledge that intoxicating liquors are to be sold therein or who having leased the same for other purposes shall knowingly permit therein the sale of intoxicating liquors—shall be liable jointly and severally,” etc.

We agree it was not by this provision intended by the Legislature to create a liability on the owner of premises simply because of ownership, but the burden of proof is upon the plaintiff in an action under this statute, to prove the owner had knowledge intoxicating liquors were to be sold, or were sold in the premises.

It is earnestly contended the proof is not sufficient in this case to support the verdict as against the appellant Brewing Company. The evidence shows that the appellant company had its brewery at Murphysboro where it was engaged in the manufacture and sale of beer during the time appellant Hardwick occupied the premises in which it is charged he sold or gave liquor to the deceased Eggers; that the premises upon which the saloon was located were the northwest corner of lot five, block ten, in the village of Percy, which premises were conveyed to the Brewing Company by deed from one Griffiths and wife, October 18, 1905.

It is said this testimony alone is not sufficient to prove ownership at the time of the occupancy by Hard-wick, but it is admitted in appellants’ statement that the Brewing Company became the owners of said property in 1905.

It is an elementary rule of evidence that where one is proven to be the owner of property such ownership is presumed to continue until some change or alienation is shown.

It is urged that the statute being a penal one the proof of knowledge on the part of the Brewing Company that intoxicating liquors were sold in the premises should be direct, and is not to be inferred. Direct proof is not required to prove any fact, but the main fact necessary to be shown may be shown from other facts and circumstances which tend to prove the main fact in controversy. The main fact of knowledge here was sought to be established by circumstances and it was shown, in addition to the fact that appellant Brewing Company was engaged in the business of manufacturing and selling beer and that Hardwick had occupied its premises as a saloon for the space of a year, that he had handled and sold the beer made by the Brewing Company receiving it in cases and kegs in considerable quantities. We think these circumstances taken together, were sufficient to raise a reasonable inference that the Brewing Company ■ knew what its property occupied by Hardwick was being used for. They all tended to prove knowledge and their weight was a question for the jury.

It is assigned for error that the court improperly gave to the jury for appellees instructions three and four.

Number three advised the jury it was not necessary to make all persons who were guilty of selling intoxicating liquors to deceased parties defendant but the person injured might sue any one or more of them and recover from him or them when found guilty.

The objection is that the instruction is an abstract proposition not based on the evidence.

There was evidence which tended to prove that the deceased had been drinking before going to Hard-wick’s saloon and that he also visited another saloon during the day at Percy. The statute imposes a liability for causing the intoxication in part. Therefore under the evidence the instruction yeas proper and should have been given.

The substance of instruction number four was that if the deceased had liquor from other places than the saloon of the defendant and yet if he obtained liquor from Hardwick which contributed to his intoxication and he was intoxicated and his death resulted therefrom, it would be no defense that he had obtained liquor elsewhere.

The criticism is that the instruction should have said the liquor obtained from Hardwick must have contributed to the intoxication in an “appreciable degree,” citing Morley et al. v. Moulton, 45 Ill. App. 304.

We are of opinion it was not necessary to employ the words “appreciable degree” in this instruction. By the instruction, which is in the language of the statute, the dram-shop keeper by the liquor he furnishes, must contribute to the intoxication,—if so he is liable; otherwise not. The term is a mere refinement calenlated to confuse and had no place in the instruction. But if it were necessary, the' jury was so advised in instruction number two given for appellants, which read with number four states the intoxication must be contributed to in an “appreciable degree.”

Counsel for appellees in his closing argument to the jury said ‘1 There is no hardship in rendering a verdict against the brewery in this case. The law makes it liable and fixes the limit, and breweries expect to have to pay damages of this kind. They figure on it in estimating their profits, and the profits of the brewery business are big enough to stand it,” and this is assigned as error.

The argument was not based upon any evidence in the case. There was no evidence that breweries expect to pay damages of the kind, nor that they calculate it in estimating their profits. Nor was there any evidence their profits were large. The assumption of counsel was wholly outside- of the evidence and unwarranted and if we could see that it had any effect in securing a verdict for excessive damages, we should not hesitate to reverse the judgment. This court will not sanction or approve a verdict secured by unwarranted statements not fairly,based on the evidence, or by appeals to passion or prejudice where it can be seen such-conduct operates to the prejudice of the other party, and the rebuke of the trial court and withdrawal of the remark will not always cure the impropriety. We cannot see that the remarks complained of would have any effect except to enhance the damages, and we must assume the damages were not excessive, as no complaint is made of excessive damages in appellants ’ motion for a new trial.

Believing the record to be substantially free from error and the verdict fully sustained by the evidence, the judgment is affirmed.

Affirmed.


text:
    John Haiek, Appellee, v. American Car and Foundry Company, Appellant.
    1. Appeals and ebbobs—when errors urged not considered. Mere general statements that a ruling is wrong without any attempt to point out wherein the error consists or to advance any reason or argument in support of the simple assertion that error has occurred, discloses nothing to adverse counsel and does not impose upon a court of review the duty of instituting an investigation of the record in order to ascertain if error of some nature or kind may be„found.
    2. Masteb and servant—when doctrine of assumed risTc does not •apply. An inexperienced servant does not assume the risk of an injury resulting from a danger which was not one of the ordinary hazards within the scope of his employment, such danger being incurred by him in obedience to an order of his master and not being so imminent that a man of ordinary prudence would not incur it.
    3. Verdicts—when set aside as against the evidence. A verdict will be set aside as against the evidence if manifestly against the weight thereof.
    Action in case for personal injuries. Appeal from the Circuit •Court of Madison county; the Hon. Charles T. Moobe, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and •remanded.
    Opinion filed April 9, 1910.
    Wise & Keefe, for appellant.
    M. E. Sullivaít and C. H. Burtoh, for appellee.
   Mr. Justice Shirley

delivered the opinion of the ■court.

This case was submitted to a jury upon the second count of the declaration and resulted in a verdict and judgment for appellee for the sum of $1,500, from which judgment appellant appealed.

The declaration averred that appellant was operating a plant for the manufacture of railroad cars and had a certain saw attached to a table and operated by a lever and various appliances driven by steam; that appellee was employed, as a helper to the men operating the saw and that such labor did not require Mm to operate the saw, and did not subject him to the risks and dangers incident to its operation; that appellant ordered him to take a board and saw it in shape to be used as a hoe for raking saw dust from around the machine; that he was inexperienced in that work and that it was more hazardous than the work he was hired to perform and subjected him to extra hazards and risks outside of his employment; and that while-attempting to saw a board as directed, and wMle in the exercise of care, his hand was caught by the saw and Ms fingers and thumb cut off.

It is complained by appellant that among the errors-committed by the trial court, was the refusal of a number of instructions asked by appellant. It is not pointed out in what particular the court erred, or why the instructions should have been given. Counsel simply suggest they think the refused instructions state the law correctly and there was no good reason to refuse them. “Mere general statements that a ruling is, wrong without any attempt to point out wherein the error consists or to advance any reason or argument, m support of the simple, assertion that error has occurred, discloses nothing to adverse counsel,- and does not impose upon a court of review the duty of instituting an investigation of the record in order to ascertain if error of some nature or kind may be found. C. & A. R. R. Co. v. Strawboard Co., 190 Ill. 274.

It is contended in the argument that appellee cannot recover because he assumed the risk at the time he was injured.

The evidence shows appellee who was a shoemaker by trade and unacquainted with the handling and operation of machinery, had been employed in the plant of appellant as a helper for thirteen days prior to his injury. His duties were to carry boards and help around a machine which was operated by a machinist. The-machine was called a swing cut-off saw and was operated by a lever by which it could be stopped and started. The lumber to' be sawed was placed upon a table underneath the saw and when in operation the saw would descend and cut the piece of timber which piece was held and directed by the hands of the machinist operating it.

The evidence further shows it was a dangerous machine to an inexperienced man as appellee was. The. running of the machine was not one of the ordinary hazards within the scope of his employment and as there is evidence which shows it to have been extra hazardous, it cannot be said he assumed the risk provided he was ordered by the master to operate it and the danger was not so imminent that a man of ordinary prudence would not incur it.

It does not appear appellee had any knowledge of the dangers to be incurred from operating the saw except such information as he- might have gained by working around it in the capacity of a helper, and whether he had such knowledge was in this case a question for the jury.

Upon the question of the order by the master to appellee to operate the saw, there is an acute and irreconcilable conflict in the evidence.

It appears from the evidence scrapers were used about the plant to scrape the saw dust accumulating* on the floors. These scrapers are in size about six inches by eight; about one inch thick and beveled on the bottom, with a hole for a handle. Appellee testifies that one Janacheck, appellant’s foreman, ordered him to get the saw dust out from under the machine and he replied he had nothing to do it with; that the foreman said “Go and make the scraper;” that there was a board and that he told him to cut off the edges, sides and corners and make one of the scrapers; that the foreman did not tell him what to cut it with “but showed with his hands to the saw.”

He further testified the foreman said “cut this piece- and this other piece and when I was cutting this piece,, that piece turned and my left hand came under the saw.” The result of his hand coming in contact with the saw was that his thumb and all the fingers of the left hand except the little one were cut off. We find in looking over the testimony no evidence which fairly corroborates the appellee’s statement that he received such order from the foreman.

The testimony shows appellant has an extra man to make scrapers who makes a dozen or two at a time and they are brought to the place where one can be had by anybody who needs it; sometimes scrapers are made in the place by the men who run the machines. It appears that near the saw was another machine called a planer run by a man named Patrick, and that Joseph Hendricks was the machinist who operated the saw. These men both testify when the planer stops, the man at the saw has nothing to do and the saw stops, and that on this occasion the planer and saw had both stopped and Hendricks had walked away from it. Hendricks says he walked away to count some boards and in about fifteen minutes he noticed the saw was running and that appellee had been hurt. Hendricks says he does not know who started the saw but that it could not start without pulling a lever. Patrick says he does not know who started the saw and appellee says he did not start it. Joseph Hendricks and William Hendricks both state they had warned appellee .to keep away from the saw; that it was dangerous.

Prank Janacheck, the foreman, denies the statement of appellee that he ordered appellee to make a scraper, or to get a board, or to use the saw, or that he pointed to the saw with his hands. He testifies that he had no such conversation with him and at the time appellee was hurt he was at the office with Mr. Koenaman and had been there about a half hour. Koenaman says he was in the office when appellee was injured; that he and Janacheck went to the office and were there together about a half hour, when witness says he left the office and walking down by the mill met appellee as he was coming from the machine; that he saw his hand was cut and that he took him to the office, met Janacheck and took appellee to the doctor’s office.

After a careful consideration of all this testimony, weighing it as well as we can without hearing the witnesses and seeing them, we are of opinion the evidence not only does not preponderate in favor of appellee that he was directed hy the foreman to operate the saw, but that the verdict is manifestly against the weight of the evidence and cannot stand. Donelson v. E. St. L. & Sub. Ry. Co., 235 Ill. 625. So far as we can see the witnesses are of equal credit and while we attach much weight to the verdict of a jury upon the question of the credibility of witnesses, the rule that the burden of proof devolves on the plaintiff to make out his case, should not be entirely ignored. The elements of probability that arise from all the circumstances seem to us to weigh much in favor of the testimony of Janacheck, and we think the court should have sustained appellant’s motion for a new trial and that it erred in not doing so.

For the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    The Equitable Powder Manufacturing Company, Appellant, v. Cleveland, Cincinnati, Chicago & St. Louis Railroad Company et al., Appellees.
    1. Evidence—when view of premises properly allowed. Meld, in this case, which was an action to recover damages for the alleged wrongful flooding of the premises of the plaintiff, that it was proper for the court, at the request of all parties, to permit a view of the premises in question.
    2. Appeals and ebbobs—when assignment deemed waived. Questions not raised in the original brief are deemed waived and will not be considered when raised for the first time in the reply brief.

      3. Torts—when joint action against several tort-feasors cannot he-maintained for wrongfully flooding. A joint action cannot be maintained against several tort-feasors for the flooding of the property of the plaintiff where each of such tort-feasors has acted in doing the work in question independently of each other.
    Action in case. Appeal from the Circuit Court of Madison county; the Hon. R. D. W. Holder, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    C. H. Burton, John J. Brenholt and Kinealy & Kinealy, for appellant.
    Wise & Keefe, Sweeney & Walker and Warnock,. Williamson & Burroughs, for appellees.
   Mr. Justice Shirley

delivered the opinion ■ of the court.

This was a suit by appellant against the Cleveland,, Cincinnati, Chicago & St. Louis Railroad Company, hereinafter called C. C. C. & St. L.; Chicago, Burlington and Quincy Railroad Company, hereinafter called C. B. & Q.; Chicago, Burlington and Quincy Railway Company and the Chicago and Alton Railroad Company, hereinafter called the C. & A., appellees, to recover damages for the alleged wrongful flooding of the premises of appellant.

The declaration consisting of several counts charged in various ways in substance, that appellant was the owner and possessed of a tract of land upon which it had buildings and improvements where it was engaged in the manufacture of powder and other goods and wares, a large quantity of which goods were then on hand; that appellees were possessed of certain railroad rights of way along and near the premises of appellant on which were constructed solid embankments composed of dirt, cinders, rock and other like material upon which they had tracks and over which they were operating trains.

It was further averred the railroad of the first. named appellee extended from the southwest to the northeast, south' and east of appellant’s premises crossing the east fork of Wood river near said premises and several times northeast thereof and was also possessed of and operating another railroad embankment across Wood river a short distance west and south of said premises; that the appellees the Chicago, Burlington and Quincy Railroad Company and Railway Company of the same name were possessed of and operating a railroad which crossed Wood river a short distance west and south of said premises, and that the appellee Chicago and Alton Railroad Company was possessed of and operating another railroad across Wood river and the low lands adjoining the same a short distance west of said premises, and that all said railroads intersected and crossed the valley and natural watercourses there, of which Wood river' was the main channel and waterway.

It was averred the premises. of appellant were located near the following natural watercourses: Wood river, the vest and east forks of Wood river and tributaries all of which drained a large territory and carried off in times of storms large quantities of water in the natural course of drainage of the surrounding country which said waters in a state of nature flowed along various watercourses and natural depressions and emptied by way of Wood river into the Mississippi river south and west of the premises of appellant.

It was further averred that said railroad embankments were not constructed so as to provide sufficient waterways across and under them where they crossed said natural watercourses to accommodate the flood waters which in times of heavy rains overflowed Wood river and its forks and tributaries and the low lands near the same and the natural depressions which were watercourses in times of flood; that the bridges of appellees over Wood river, its forks and tributaries, were so negligently constructed by piling and other material placed in and near the channels that the natural flow of the waters was hy such means and by said embankments so obstructed that in times of floods and freshets the waters were held back and prevented from flowing in their natural course towards the Mississippi river by means of which in June, 1902, and again in October, 1905, during certain heavy rainstorms and floods, the ■premises of appellant were overflowed, the buildings thereon flooded, and a large amount of powder and other personal property destroyed and damaged.

Pleas were filed to the several counts of the declaration but the evidence was confined to the issues made by the plea of the general issue. A jury was waived and in addition to hearing the testimony the trial judge viewed the premises and found the appellees not guilty. Judgment was rendered against appellant for costs from which it appealed.

The argument in this court is confined to the alleged errors of the trial court in finding contrary to the law ;and the evidence; in refusing correct propositions of law offered by appellant, and in holding incorrect propositions of law offered by appellees.

The transcript of the evidence embodied in this record contains more than fifteen hundred pages. Substantially all of it has relation to Wood river and its tributaries and water sheds, the history of its floods and the topography of its territory, including that also which is occupied by appellant’s property, and the embankments, bridges and culverts of appellees, and upon this feature of the case there is no dispute.

Wood river is formed by the confluence of two streams called the east and west forks, which meet •about fourteen hundred feet southwest of appellant’s plant and buildings .which are located between the forks. The east fork extends northeast some fourteen miles, and the west fork extends in a northerly direction about the same distance. Each has a drainage area about five miles wide and at times of heavy rainfall both forks are subject to rapid overflow which floods the valleys of both forks and the low grounds

about the head of Wood river. The premises of appellant are located on low ground and in June, 1902, and again in October, 1905, after unusual heavy falls of rain, said by old residents in the vicinity to have been the heaviest they had ever witnessed, the premises of appellant were flooded and the water rose several inches in their buildings. These are the only occasions of flooding of which appellant makes complaint. North and east of appellant’s premises and near by, are high hills. Along the south side of its premises is the track and embankment of the appellee the O. C. O. & St. L. Eailroad which runs in a southwesterly direction. West of appellant’s premises are the tracks and embankments of first the appellee O. B. & Q. and just west of it the O. & A. Both these tracks are near together and the O. B. & Q. intersects the C. O. O. & St. L. tracks about one-fourth of a mile south of appellant’s plant. The testimony shows these several tracks and the hills form a triangle inside of which is appellant’s plant. The O. C. O. & St. L. has a bridge over the east fork of Wood river about seven hundred feet from some of appellant’s buildings and only a short distance from where this fork joins the west fork. The O. B. & Q. and O. & A. have bridges over Wood river about one thousand feet south of where the two forks of the river come together. In addition to the bridge over Wood river, the C. & A. has two other openings in its embankment, one where a highway passes and one where the O. O. O. & St. L. line to Alton passes.

The testimony on behalf of appellant showed facts- and circumstances from which it could be inferred that the embankments complained of caused more water to accumulate upon appellant’s premises than would have accumulated if the embankments had not been there or if there had been more openings to permit the flow of the water; but it is not clear that- the floods complained of would not have resulted in as much damage to appellant if there had been more openings. The-location of appellant’s plant exposes it to the flood waters that come down both forks of Wood river, the channel of which as shown by some of the testimony is not large enough'to accommodate the rapid floods at times of heavy rainfall, coming down from the water sheds and tributaries of the forks. The physical features of the forks and their water sheds show that water falling upon them sheds rapidly and when heavy rains fall, water soon gets- out of the, channels. Both forks being about the same length and fall, the waters from each reach the main stream Wood river about the same time, and at times the water comes in such volume the main stream cannot accommodate it, and it spreads out over the low lands in the vicinity where appellant’s plant is located. The testimony shows the ground to have been overflowed at times before the railroad embankments were there in the condition they are now.

The appellee C. C. C. & St. L. Railroad, of which appellant complains, formerly had considerable trestle work which was taken out and replaced by solid embankments. It is claimed that this holds back the water south of its tracks until the embankment breaks as it did in the floods of 1902 and 1905 and thereby the water is cast upon appellant’s premises so suddenly and in such great volume as materially to increase the -quantity.

The appellee claims that the embankments held the water back from, appellant’s plant until the water reached the top of its embankment and flowed over it and gradually washed it and was more of a protection than otherwise. It is also claimed appellant’s property was covered with water before the water came •over appellee’s embankments, and there is evidence in the record in support of all these claims. There is testimony that the C. B. & Q. bridge over Wood river is of ample size and that its embankments south of the bridge and west of appellant’s plant is low and at the time of the floods complained of, its tracks for several hundred feet were several feet under water.

We have examined the conditions as they appear from the evidence pertaining to the embankment, bridges and openings of the O. & A. cut off and the depth and flow of the water on both sides of its tracks during the floods and what if any damages resulted to appellant from such embankments. At the conclusion of the evidence the trial judge at the request of all parties and in company with the engineers and attorneys for all parties viewed the premises of the appellant, also the embankments, bridges and surrounding territory. It was a case where the evidence was such that the view was important in furnishing the court information it was impossible to get from the oral testimony and the plats, maps and photographs in evidence. While such view was not evidence, it was of peculiar value to see the topography and physical features of the territory and the premises of all the parties, and it would enable the court to much better understand and apply the evidence to the issues involved, ■and this he doubtless did in making up his finding.

After a consideration of all the evidence we are of opinion the finding is not so contrary to the evidence upon the question of the alleged negligent acts of appellees and each of them that it should be disturbed on that ground.

The court held as law for appellees the following proposition:

‘‘The court holds the law to be that under the averments of plaintiff’s declaration and the evidence offered in support thereof the plaintiff is not entitled to recover and judgment should be rendered in favor of the defendants.”

The alleged error in holding this proposition is not argued in appellant’s brief nor in the brief of ■appellees. Appellant first questions the proposition in its reply brief. The rule is that when questions are not raised in the original brief they are deemed to be waived and will not be considered when raised for the first time in a reply brief. Town of Big Grove v. Town of Fox, 89 Ill. App. 87; Inter State Building and Loan-Assn. v. Ayers, 71 Ill. App. 529; Dean v. Plane et al., 96 Ill. App. 428; West Chicago Park Comrs. v. City of Chicago, 170 Ill. 618.

Appellant asked the court to hold the following proposition of law which was refused:

“If the court finds from a preponderance of the evi-dence that the defendants are guilty of the negligence-charged in either count of plaintiff’s declaration, and that the said negligence materially contributed to and was the proximate cause of the damages suffered by plaintiff, then it is the law and the court holds the defendants guilty.”

To have held this proposition would have necessarily held in effect the defendants liable as joint tort-feasors.

It is sometimes a question of much difficulty to determine whether there is a joint liability where injury results from the several acts committed by others, and there is much apparent confusion in the considerable-number of cases to be found where the courts have had' the question to consider, and it may be said many of them seem out of harmony.

It is argued this is a case where “appellant’s loss-flowed not from the combined result of each appellee’s act, but was the result of the combined acts of appellees.” We cannot agree to this conclusion. The evidence shows that each of the appellees in performing the acts complained of acted separately for itself and' independently of the others and without concert of action. There could be no loss result to appellant except as a result, not from the combined acts, but from-the separate and independent acts of appellees which caused the loss claimed by appellant.

We cannot attempt to cite and comment upon the large number of cases which discuss the question of liability of joint tort-feasors but it will be found that in most, if not all the cases where they have been held liable, have been cases where the injury and no part of the injury would have resulted but for the act of the several defendants held to be liable. "While the question of such liability has been considered by the courts of last resort in many cases in this state, we know of no case where the question of the liability of persons whose several independent acts result in the accumulation of water causing an injury has been decided. Such decisions, however, may be found in the courts of other states.

“A joint action cannot be maintained against the owners of two dams for the flowing of lands by the back water therefrom where they were constructed independently of each other and at different times in different channels of the same river.” Lull v. Fox & W. Improvement Co., 19 Wis. 112. To the same effect are the following eases: Ames v. Dorset Marble Co., 64 Vt. 10; Miller v. Highland Ditch Co., 87 Cal. 430; Blaisdell v. Stephens, 14 Nev. 17; Chipman v. Palmer, 77 N. Y. 51; Martinowsky v. Hannibal, 35 Mo. App. 70.

The appellees not being jointly liable, the court was warranted in refusing to hold the proposition of law asked by appellant.

We are also of opinion that the proposition should have included all the elements necessary to recover. It was a disputed question of fact whether the alleged injury was' attributable to the act of God and also whether the negligence of the appellant contributed to the injury. There was evidence offered to prove and disprove both these elements of the case. The proposition not embracing these elements also warranted its refusal. After a careful examination and consideration of the record we conclude the finding and judgment of the trial court was correct and it is accordingly affirmed.

TÁffirmeds


text:
    Charles Ardison, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Practice—when motion in arrest properly denied. If there was no demurrer to a declaration containing several counts but a plea to the whole declaration, and no request made of the court to instruct the jury to disregard alleged faulty counts, and the verdict is upon all the counts, a motion in arrest for the reason that one count of the declaration states no cause of action, is properly denied.
    2. Instructions—when appropriate as to right of recovery. Instructions which permit a recovery if the plaintiff has “made out his case as set out in any one of the counts of the declaration” is proper notwithstanding one of the counts of such declaration may be defective.
    3. Contributory negligence—alighting from moving train. It is not negligence as a matter of law to get off a moving train when not instructed or directed to do so by some representative of the road; whether it is negligence so to do depends upon all the attendant circumstances.
    4. Passenger and carrier—obligations of latter. A carrier owes ■to a passenger the exercise of the highest degree of care for his safety •consistent with the practical operation of its road, and if lighting Its platform and premises is necessary to the exercise of such degree of care it is the duty of the carrier so to do.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. C. T. Moore, Judge, presiding. 'Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    O. H. Burton, for appellant; John G. Drennan, of counsel.
    Terry & G-ueltig, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This was an action by appellee to recover damages for an injury alleged to have been occasioned by the negligence of the appellant whereby appellee while attempting to alight from a passenger train, was thrown .or fell under the wheels suffering the loss of his leg and two fingers of each hand. There was a verdict for the sum of $3,000 upon which judgment was duly entered.

Appellee’s declaration contained six counts. The first charges appellee was a passenger to be carried to Wilderman station; that it was the duty of appellant to properly light the station platform at Wilderman so passengers might alight with safety; that such duty was disregarded and that while appellee was attempting to alight while the train was moving so slowly that in the absence of light he was led to believe the train had stopped at the platform, he was jerked and thrown between the end of the platform and the train and injured.

The gist of the second count like the first is the alleged negligence of appellant in failing to light the platform on account of which when Wilderman station had been called and the car upon which appellee was, had nearly come to a full stop, he being misled by the absence of light stepped from the ear to the platform at a point so near the end thereof that he was thrown down and under the train and injured. The negligence averred in the third count is in running the train past the platform when dark. The fourth count was dismissed. The fifth count charges a sudden and violent moving of the train without giving appellee a reasonable time to alight whereby he was thrown down, and the sixth count a negligent operation of the train in moving it, whereby in attempting to alight the appellee was thrown, etc.

Among the errors assigned and argued, is the ruling of the court in refusing to sustain appellant’s motion in arrest of judgment for the reason the second count of the declaration stated no cause of action.

There was no demurrer, but a plea to the whole declaration, and no request to instruct the jury to disregard the alleged faulty count and the verdict was upon all the counts. By section 58 of the Practice Act it is provided that “Whenever an entire verdict shall be given on several counts the same shall not be set aside or reversed on the ground of any defective count if one or more of the counts in the declaration be sufficient to sustain the verdict.” There was no error in the court’s ruling on the motion in arrest of judgment.

In this connection it is argued the court erred in giving appellee’s first and third instructions for the reason they permit a recovery-if the appellee “made out his case as set out in any one of the counts of the declaration” or “as alleged in his declaration”, and it is said it cannot be determined whether the verdict is on the second count or some other count.

No objection being urged to the other counts in the declaration, it is assumed they were sufficient, and the first and third instructions being general to the whole declaration, were not inproperly given. Pennsylvania Co. v. Backes, 133 Ill. 255; C. & A. R. R. Co. v. Anderson, 166 Ill. 572; Johnston v. McNiff, 113 Ill. App. 1.

It is also urged the court committed error in refusing the following instruction asked by appellant:

“If you find from the evidence that Charles Ardison, plaintiff, stepped off the train on the platform at Wilderman Station, while the train was in motion and that he knew the train was then moving and had not come to a stop, and that no agent, trainman or representative of the defendant had then and there instructed or directed Ardison to get off the train at said time and place, while the train was moving, then the court instructs the jury that it is the law in this case that plaintiff cannot recover and your verdict must be for the defendant finding it not guilty. ”

This instruction in effect declares it to be negligence per se to get off a moving train when not instructed or directed to do so by some representative of the appellant without regard to the attendant circumstances, and does not state a correct rule. Whether it is negligence to do so or not depends upon all the attendant circumstances. C. & A. R. R. v. Byrum, 153 Ill. 131; Railroad Co. v. Core, 202 id. 188; B. & O. S. W. R. R. Co. v. Mullen, 217 id. 203.

The only remaining question raised is the alleged error of the court in refusing the peremptory instruction asked by appellant to find it not guilty.

In the evening of December 7, 1907, appellee was a passenger on one of appellant’s trains from Freeburg to Wilderman. The train was composed of a mail, express, and baggage car, a smoking car and two first class coaches. Appellee had a basket of groceries and a can of oil he had purchased at Freeburg. When he got on the train he went to the forward end of the smoking car where he remained until the train arrived at Wilderman about four miles distant from Freeburg. At Wilderman there was a station with a platform about one hundred and forty feet long and twelve feet wide. There was no depot building. On the opposite side of the platform from the main track there was a waiting shed and at the north end of the platform (the direction the train was going) was a small block house used as a telegraph office with a window on the south side and two on the east side. There are a few other buildings in the neighborhood but not near enough to furnish light. The only lights about the platform were two coal oil lamps inside the block house which the operator states would illuminate about two feet of •space of the platform.

There was some light from the car window and possibly two or three lanterns but it is apparent from the •evidence the platform was practically without artificial light.

When the train reached Wilderman it was thirty minutes late and was after dark and it ran far enough north, that the north end of the smoker was beyond the ■end of the platform. When the train was approaching the station the station was called and the passengers for that place prepared to get off. Appellee with some of the others went out on the north platform of the smoker. He had his basket and can in one hand. When the train reached the station he with the other "hand holding to the platform railing, descended the car steps and in alighting he was thrown down on the ground north of the platform and under the train. There is no evidence that the train jerked hut appellee testifies that the train was going so slow he thought it had stopped. He further says there was no light on the platform and he could not see. In the cross examination he says the car was moving so slowly he' thought it had about stopped; that when he put his foot down he thought he was putting it on the platform; that it was dark and he could not see. The train had not stopped when appellee stepped off and he says himself when he stepped off he found the train was moving and his foot was jerked back and he didn’t know what his foot came against. No other witness-seems to know just how the accident happened and under this evidence it was a question of fact for the jury to determine whether the absence of sufficient light upon that platform was the proximate cause of appellee’s injury, and whether under the circumstances-he was in the exercise of ordinary care:

The obligation of appellant to the- appellee as a passenger was to use the highest degree of care for his: safety consistent with the practical operation of its road, and if lighting its platform and premises were necessary to the exercise of that degree of care, it was its duty to have the light.

We are of the opinion the evidence supports the verdict under the first count of the declaration and the-court did not err in refusing the instruction to direct a verdict for appellant. The judgment will accordingly be affirmed.

'Affirmed.


author: Mr.. Justice Shirley

text:
    Joseph Voudrie, Appellee, v. Southern Railway Company, Appellant.
    1. Tobts—when act of God does not relieve liability. In an action to recover for wrongfully overflowing the premises of the plaintiff the defendant is not relieved of all liability by showing that such overflow resulted from a rain fall so heavy as to be in effect an act of God if it appears from the evidence that the negligent acts of the defendant increased the volume of the overflow and caused the injury in question.
    2. Instructions—when must not ignore elements of plaintiff’s case. An instruction which directs a verdict for the defendant if the jury find certain facts is properly refused if it ignores an element in the plaintiff’s case which was sustained by evidence.
    3. Instructions—when improper refusal upon question of damages will not reverse. The refusal by the court of a proper instruction upon the question of damages will not reverse if the amount awarded is fully sustained by the evidence.
    4. Instructions—when in action for wrongful overflow improperly refused. An instruction as follows:
    “The court instructs the jury that if you believe from the evidence that the defendant, * * * opened culverts underneath its tracks and that these culverts allowed the water to pass from the end of the watercourse in the higher tract of land to the beginning of the natural watercourse in the lower tract of land, and that said culverts allowed the water to pass under the tracks in its natural flow from the higher to the lower tract of land, and no more, then you should find the issues in favor of the defendant”,— should have been given and its refusal was reversible error.
    Action commenced before justice of the peace. Appeal from the City Court of Bast St. Louis; the Hon. Mortimer Mxlpabd, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed April 9, 1910.
    Kramer, Kramer & Campbell and C. H. Gr. Hei$t~ peldeh, for appellant; Edward P. Humphrey, of coun•sel.
    Alexander Flanhigeh and Jesse M. Fbeels, for ap.pellee.
   Mr.. Justice Shirley

delivered the opinion of the court.

Appellee recovered a judgment against appellant in the City Court of East St. Louis for the sum of $200, from which this appeal is taken. The suit originated before a justice of the peace.

The complaint of appellee was that by the wrongful diversion of the natural flow of surface water by appellant over the land of which he was in possession as a tenant, his potato crop was overflowed and damaged.

The land upon which the potatoes were growing lies west of and adjoining appellant’s road which at this point runs in a north and south direction. East of the road the ground rises considerably. West of it, the land is lower so that the natural drainage is toward the west. Adjoining appellee’s land on the north is the land of one Pfeiffer which also adjoins appellant’s road.

At the time the railroad was constructed, a considerable embankment was raised along the east side of appellee’s land by the railroad company for its track and culverts placed under it for the passage of water to the west. By the erection of the embankment it was claimed by appellee that surface water from above was wrongfully diverted from its natural course and -collected in larger quantities than would flow naturally, and by the culverts cast upon the land of appellee, and that at the time of a heavy rainfall by means of the alleged wrongful diversion of the water, the land of appellee was overflowed and his crop washed out and damaged.

Appellant urges there can be no recovery for the reason the rainfall was so unprecedented as to be attributable to the act of God. While the evidence shows it to have been unusually heavy rain amounting to more than an ordinary freshet, yet this would not relieve appellant of liability if by its negligent acts it increased the volume of the overflow and caused the injury to the crops and this was a question, depending upon the other question involved, of alleged negligent construction resulting in the wrongful diversion of the water and was one of fact for the jury.

The evidence was conflicting whether appellant had by ditches and an embankment collected surface water falling east of and above its tracks on its right of way and discharged it in undue and unnatural quantities upon the land of appellee. Testimony of witnesses introduced by appellee showed that prior to building appellant’s railroad the water usually ran through a ditch between appellee’s land and the Pfeiffer - land, that appellant by its embankment turned the water from this point and carried it to a point near the center of appellee’s land where it ran through the culverts and spread out over appellee’s land as it had not done before, and that by ditching the appellant had diverted other water to the culverts increasing the flow. This was disputed by witnesses for appellant two of whom were civil engineers. In this state of the evidence we are of opinion the court did not err in refusing the peremptory instruction asked by appellant.

Appellant complains of and assigns for error the refusal of the trial court to give the 10th, 11th, 12th, 14th and 15th instructions asked by appellant.

The 10th refused instruction advised the jury that if the culverts were of such number and so constructed as to take care of all the water which might reasonably be expected to pass through and that by reason of unprecedented rains that could not have been reasonably anticipated, water came upon appellee’s land, he could not recover on that branch of the case. This instruction ignored the element of the wrongful diversion of the water to culverts of which there was some evidence and was properly refused.

By the 11th refused instruction the jury were advised there could be no recovery for damages to the land itself. This instruction was correct and should have been given, the appellee being a tenant and suing for injury to the crop; but as all the evidence upon the measure of damages placed the amount at more than two hundred dollars (the amount recovered), the refusal of the instruction was harmless.

The 12th instruction asked by appellant and refused,, was as follows:

“The court instructs the jury that if you believe from the evidence that the defendant, Southern Railway Company, opened culverts underneath its tracks, and that these culverts allowed the water to pass from the end of the watercourse in the higher tract of land to the beginning of the natural watercourse in the lower tract of land, and that said culverts allowed the water to pass under the tracks in its natural flow from the higher to the lower tract of land, and no more, then you should find the issues in favor of the defendant.”

The evidence on behalf of appellee was that there-was a natural watercourse from the east to the west side of appellant’s tracks and that the culverts were in exact line of such natural watercourse. It is not necessary that there should be.a channel with well-defned banks. If the surface water flows along a fixed and determinate course, there is a watercourse into which the owner of the dominant heritage has the right to discharge surface water which naturally flows in that direction. Lambert v. Alcorn, 144 Ill. 313. But such owner has no right to divert water from its natural course and cast it upon the servient estate. Young v. Com’rs. of Highways, 134 Ill. 569. This instruction-stated a correct rule. It was based upon evidence introduced by appellant, and as it was covered by no other instruction given, it was error to refuse it.

The 13th instruction did not state a correct rule of law as the right given by the instruction to the owner of the higher tract to ditch his land into the natural channel was not limited to the water which would naturally flow there.

The 14th and 15th instructions refused were substantially like the 12th and what we have said of it applies to them.

For the error noted, the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Duncan

text:
    Sparta Gas & Electric Company, Appellee, v. Illinois Southern Railway Company, Appellant.
    1. Definitions—“switching” defined. Switching is defined to he
    the movement of a car to be loaded or unloaded, or the movement of a car between railroads, at a charge for the services rendered within designated switching limits, the road performing the services not participating in the freight rate.
    2. Railboad and Warehouse Commission—what is switeh move-merit of cars as contemplated "by rule 23. The word “switching,” as used in said rule, is synonymous with the word “transferring.” The service contemplated by such rule is the movement of loaded cars to or from the junction of another railroad for distances less than three miles, as' distinguished from the hauling or transporting of them from one station or place to another on the same road.
    3. Railboad and Warehouse Commission—what hot switch movement of cars as defined by rules. Held, under the evidence, that the services rendered by the carrier in this case was not a switch movement of cars as defined by the rules of the Railroad and Warehouse Commission, hut that in the services rendered all of the elements of a regular transportation were found, such as collection of the cars and placing them for loading, the haul after they were loaded, and the loss of use of cars at the end of the haul. A recovery for an alleged excessive tariff charge was reversed.
    Appeal from the Circuit Court of Randolph county; the Hon. Charles T. Moore, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed. •
    Opinion filed April 9, 1910.
    Statement by the Court. This appeal was taken, from a judgment of the Circuit Court of Randolph county in favor of Sparta Gas & Electric Company against The Illinois Southern Railway Company, for $1,248.51. The declaration contains one hundred and thirty-three counts, the first of which charges in substance that by rule 23 of the Railroad and Warehouse Commission made and published prior to January 1, 1900, the reasonable maximum rate for switching loaded cars over said railroad for distances not exceeding three miles, was fixed at two dollars per car; that ■on February 18, 1905, defendant switched from the mine of the Moffat Coal Company near Sparta, Illinois, over defendant’s railroad to plaintiff’s electric plant in Sparta, a distance of less than three miles, one car numbered 4,051 loaded with 60,000 pounds of coal for plaintiff, the switching charge to be paid by plaintiff; that said car in being so switched, did not move between two regularly established stations of the defendant’s road, nor was a regular waybill made for said car; that for switching said car, defendant charged ■and received from plaintiff six dollars, which sum was four dollars in excess of the maximum switching •charge fixed as aforesaid by said Commission; wherefore, by force of the statute, an action has accrued to plaintiff to have and demand of defendant the sum of twelve dollars, three times said excess, and also reasonable attorney’s fee.
    Counts 2 to 133, inclusive, are the same as count 1 •differing only as to date, car number and overcharge claimed, with the exception that counts 84 to 133, inclusive, are based on said tule 23 as amended and published prior to July 1, 1906, by said Commission, in which said reasonable maximum rate for switching cars over said railroad for said distances, was fixed at ten cents per ton with a maximum rate of four dollars per car and a minimum rate of two dollars per car.
    The total overcharge so claimed on all cars so switched was $505.11.
    The necessary facts are as follows: Said mine is located 8,739 feet by rail from appellee’s plant on the •Rosborough branch of the Illinois Southern Railroad, and the place is called-Moffat’s Station by the appellant. This branch also extends farther on to. Shaw’s, another coal mine. When the mines are in operation an average of ten or twelve cars per day are shipped from Moffat’s, and, of six or eight cars per day from Shaw’s, to various points in Illinois, and Missouri. About once a year scrap-iron is also shipped from Moffat’s; and the only freight shipped to Moffat’s, as-a rule, is supplies for the mine. There is no station agent or station house there. No passenger trains-run there. Only an ordinary coal mine is there with the usual switch tracks, screens, chutes and other mine buildings and mine machinery for hoisting, screening and loading the different sizes of coal into the railroad cars for shipment. The out-bound business from Moffat’s, called by appellant a prepay station, is larger than any other of the twenty-three or twenty-four stations on appellant’s road. No trains are run to these, mines when they are not in operation. One or two trains each way are run when the mines are working. The cars are collected at Sparta from the various points on appellant’s road by the local train or by what is known as the “utility crew,” and are then distributed to the mines on this branch road. After the cars are loaded they are collected into a train by the train crew and hauled to Sparta and the various points to which they are billed. The appellee ordered its coal from the Moffat Coal Company, a car at a time. The coal company then made an order on the agent of appellant at Sparta for an empty car for the shipment which came along with the other cars ordered by them for other shipments; and when loaded the coal company directed the agent at Sparta to deliver appellee’s car to it at Sparta, and the train crew so delivered it by direction of said agent. A way-bill was issued by the agent at Sparta for all cars so shipped to appellee, and it was charged a uniform rate of twenty cents per ton for all of said coal so shipped. If appellee ordered its car of coal in the morning it usually got it in the evening of the same day or the next evening. If ordered before one o’clock P. M., and if the coal company diverted a car, that is shipped it a car loaded for some other person, the car would reach appellee’s plant the evening of that day. Appellee had two free days in which to unload the cars so shipped without demurrage charges. About seventy cars per year were so shipped to appellee, and all the cars were the property of the appellant, and the movements were entirely on its own rails. Moffat’s is situated outside •of the switching limits of Sparta.
    Said Eailroad and Warehouse Commission by its schedule of maximum freight rates also fixed the maximum freight rate for hauling soft coal over appellant’s road from January 1, 1900, to July lj 1906, for distances of two miles and under, at slightly over twenty-four cents per ton; and, from and after July 1, 1906, it fixed said rate at a fraction over twenty-five cents per ton.
    W. T. Abbott and E. J. Goddard, for appellant; John G. Drennan. of counsel.
    H. Clay Horner, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

It is stated by counsel for appellee in his brief that, “Appellee based its case on Eule 23 which defines a switch movement and prescribes a maximum rate, which rate is prima facie correct.” It is evident that unless the services rendered by appellant for which it is alleged the extortionate charges were made, can be properly classified as switching services within the meaning of said rule, that appellee cannot maintain its suit under said declaration. The declaration charges in every count that the services rendered were for switching loaded cars; that the extortionate charges for which damages are claimed are switching charges in excess of those permitted by said rule; and that the charges fixed by said rule are prima facie, and, in fact, correct and reasonable. Appellee does not undertake to challenge the rates fixed by said Commission in said rule or in any of its schedules of reasonable rates as being unreasonably high. It bases its claims on the assumption that the rates fixed by the said Commission are reasonable and legal and that the appellant must be governed by them. Appellant insists that said rule has no application to the character of services rendered by it to appellee and that the uncontroverted •evidence in this record so proves.

The two rules of the Railroad and Warehouse Commission referred to in said pleadings and relied on as the basis of recovery in this cause are worded alike, •except as to the amount fixed as such reasonable charge, and read as follows:

“The reasonable maximum rate for switching loaded cars for distances not exceeding three miles shall be two dollars per car [ten (10) cents per ton, with a maximum rate of four dollars per car and a minimum rate of two dollars per ear.] Switching includes the hauling of loaded cars from the station yards, sidetracks, elevators or warehouses to the junctions of other railroads when not billed from stations on its own road to said junctions, and from junctions of other railroads to the stations, sidetracks, elevators and warehouses situated on the tracks owned or controlled by the railroad company doing said switching; it is that transfer charge ordinarily made for moving loaded cars for short distances for which no regular waybill is made and which do not move between two regularly established stations on the same road.”

Rule 23 in force July 1, 1900, is as above noted with the brackets and the words and figures within the brackets omitted. Said rule as amended and in force July 1,1906, is worded as above quoted with the brackets and the words preceding the first bracket “two dollars per car,” omitted.

It is very clear that the two definitions furnished by said rules for switching, that follow the first sentence in said rules and down to the semicolon, are not applicable to, and do not include, such services in question in this case. The services in question in this case were all performed on appellant’s rails, with its own cars, and the deliveries of the cars were on its own tracks to appellee at its plant. No other railroad figured in the haul or in the delivery of the cars. Appellee concedes this, but claims that the language following the semicolon in said rules, defines switching and that the services in question by said language must he denominated, and charged for, as a switching service. A close examination of the language in question seems to show that it is simply a definition or further explanation of the term “rate,” found in the first sentence of these rules. By the first sentence we are positively informed that the “rate” spoken of is “for switching loaded cars for distances not exceeding three miles.” The last clause informs us that this “rate” is a “transfer charge ordinarily made for moving loaded cars,” etc. The word “transfer,” as is said by appellant’s counsel, is the “key” to the correct interpretation of said rules. The “rate” dealt with in these rules is a transfer or switching charge as distinguished from a short haul or transportation charge, and the service-contemplated and defined in said rules is transfer serv-. ice as distinguished from transportation service. The-word “switching” as ordinarily used when spoken with reference to the movements of cars has reference to the movement of cars from one rail or track to another rail or track, or the moving or changing cars from one-railroad to another railroad. When this service is performed by a railroad on its own tracks with its own cars and engines as the beginning or ending of a haul' on its road, for which a freight rate is to be charged, or has been charged, by it per hundred weight or per ton, no charge is usually made or contemplated for the-switch movement. The switching in such case is usually for making up a train, or for the delivery of the-car at its destination. But the word “switching” as-used in said rules is synonymous with the word “transferring” and has reference to the movement of loaded cars from one railroad to another for distances less than three miles as distinguished from the hauling of them on the same road from one station or place to another with no intention to take it to or from the junction of another road. The services rendered in question are not switching services as defined by said rule, but were for transportation services for which under the regulations of said Commission the rate per ton for soft coal for two miles and under as fixed by said Commission might be charged. The difference in the process of shipping a car of coal from Moffat’s to Sparta and from Moffat’s to Chester is in the distance the car would travel. It makes no difference whether Moffat’s is on a spur-track or a regular branch road, so far as we can see, or whether Moffat’s is or is not a regular station, in determining whether or not appellant” may charge the regular transportation rate per ton for the services in question. Without undertaking to decide what were the powers or limitations of the Commission in defining the term “switching” and in fixing rates therefor, we simply say that it seems clear to us that the said rules have no application to the services in question and that appellant was clearly authorized by said Commission to charge and receive a rate of twenty cents per ton for the coal so transported to appellee and therefore- it has not violated said rule or the law and is not liable to appellee in this case in any sum. All of the elements of a. regular transportation service are found in the service rendered, such as the collection of the cars and placing them for loading, the haul after they were loaded, and the loss of two days’ use of the cars at the end of the haul. The service contemplated by the rules is.simply moving loaded cars to or from the junction of another railroad, the cars so moved usually belonging to another road, or if belonging to the road doing the switching it is usually paid a per diem for the use of its cars by the junction road, but does not share in the transportation charge of the junction road.

The Supreme Court of Iowa in defining the words, “transfer of freight, passengers or express matter,” in ease of The City of Council Bluffs v. K. C. St. J. & C. B. R. Co., 45 Iowa, p. 346, said: “It expresses the act of removing freight, passengers and express matter, and in the connection in which it occurs in the Statute implies the removal of these subjects of transportation from the custody of one common carrier to that of another—from one railroad to another—for the purpose of completing their transportation to the place of destination.”

In State v. C. M. & St. P. Ry. Co., 88 Iowa, 445, it is said: “The Commissioners do not, nor do we, think that such a service is bounded always by yard limits, for there may be outside trackage on which such a service, under proper regulations, would be rendered, but we hold, as we think the Commissioners have, that a service upon a main line, outside of yard limits and under orders, as in cases of regular or special trains, is not a switching service.”

‘ ‘ The test of distinction between transportation service relating to loaded freight cars for which a railway company can lawfully charge tonnage rates, and switching or transfer service for which it is restricted to a fixed charge per car, is not whether the movement of the cars involves the use of a portion of the company’s main line, or that of another; for there may be a transportation service over one or more spur tracks of the same company, if the contract of affreightment requires no movement over other tracks or lines of railway; whereas a switching or transfer service is one which precedes or follows a transportation, and applies only to a shipment on which legal freight charges have already been earned, or are to be earned.” 8 Words and Phrases, 7070, citing Dixon v. Central of Ga. Ry. Co., 110 Ga. 173.

Switching is defined to be, ‘ The movement of a car to be loaded or unloaded, or the movement of a car between railroads, at a charge for the services rendered within, designated switching limits; the road performing the service not participating in the freight rate.” Proceedings of Am. Ry. Ass’n, Vol. 4, p. 390.

“The hauling of a loaded car from any factory or mine on the main line of a railroad, for any distance, whether it be one mile or ten, to a regular station on the line of the same railroad, there to be delivered to the consignee, does not come within the meaning of switching, as defined by Buie 23, especially when the station to which it is hauled is the end of the haul and final delivery of the commodity in the car.” Miller v. C., C., C. & St. L. Ry. Co., Decision of Railroad W. Commission, Oct. 23, 1899.

We agree with the learned counsel for appellee that in considering the reasonableness of the charge, the whole income of the appellant should be considered; but we must decide that said rule 23 is not applicable to the facts of this case, and that for the reasons indicated appellant’s motion to direct a verdict for the appellant should have been given by the lower court. The judgment of the lower court is therefore reversed without remanding.

Reversed.

Finding of facts to be incorporated in the judgment: We find as ultimate facts in this case that the services in question rendered by appellant for the appellee, were not switching or transfer services within the meaning of said rule 23, and that the defendant is not guilty of charging extortionate freight or switching rates as charged in the declaration.


text:
    The People of the State of Illinois, Defendant in Error, v. Felix Viskniskki, Plaintiff in Error.
    1. Gambling—when information sufficient. If the state’s attorney has entered a nolle prosequi as to all of the counts of an information except the fourth, which count is preceded by the words: “And the state’s attorney in the name and by the authority aforesaid' further informs the court,” etc., it sufficiently appears that the prosecution is in the rune and by the authority of the people, if the first count of such information so specifically recites.
    2. Gambling—what competent in prosecution for Keeping common gaming house. Evidence of gambling in the premises in question prior to the time fixed in the indictment, is competent upon the question of guilty knowledge.
    3. Gambling—what instruction erroneous in prosecution for Keeping gaming house. In such a prosecution an instruction is erroneous which authorizes a conviction for any other than the precise offense charged.
    4. County Courts—jurisdiction of misdemeanors. The jurisdiction of the County Court in misdemeanors does not depend upon the' amount of fine that may be imposed and the fact that an information contains five counts has nothing whatever to do with determining 'the jurisdiction of the County Court.
    5. Evidence—when objections insufficient. An objection to the whole testimony of a witness is unavailing to save any specific point if any of the evidence of such witness is competent. The particular evidence claimed to he objectionable must be pointed out to the court.
    6. Evidence—propriety of showing defendant’s occupations past and present in criminal cases. The occupations past and present of a defendant in a criminal case are always competent.
    7. Criminal law—when failure to furnish defendant with copy of information waived. Failure to furnish a defendant in a criminal case with a copy of the information with the names of the witnesses endorsed thereon is waived if not demanded before trial and exceptions preserved in the record.
    Error to the County Court of White county; the Hon. John A. Lopp, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed April 9, 1910.
    I. T. Sperce and Claude O. Ellis, for plaintiff in error.
    James E. Williams and William L. Mártir, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the ■court.

Plaintiff in error, Felix Viskniskki, was tried in the County Court of "White county upon an information of the state’s attorney, charging in the fourth count thereof, that the said Felix Viskniskki, on or about the 15th day of December, in the year A. D. 1908, at and within the county and state aforesaid, did unlawfully then and there knowingly rent to one Mark Huff certain rooms in the rear of .the second story of the brick building owned by him, the said Felix Viskniskki, and situate on lot No. 96 in the town (now city) of Carmi, in said county and state, for the purpose, then and there, of keeping a common gaming house, contrary to the form of the Statute in such case made and provided, and.against the peace and dignity of the same People of the State of Hlinois. The defendant was found guilty upon said count by the jury. Motion for a new trial was overruled and judgment entered on the verdict, that the defendant pay a fine of $150 and costs, and exceptions were preserved.

It is insisted by the plaintiff in error that the information is not sufficient to sustain the judgment of conviction in this case. We are unable to see any valid objection to it. The only one raised by the defendant is that it does not “run in the name and by the authority of the People,” because the state’s attorney had entered a nolle prosequi as to all five counts of the information except the fourth count. The fourth count is in the language above set forth except that the charge above set forth is preceded by these words: “And the State’s Attorney in the name and by the ■authority aforesaid, further informs the court,” etc.. It refers by the term “aforesaid,” with sufficient certainty to the same “People” named in the first count, and the nolle prosequi as to the first count in no way affected the fourth count, as the venue laid in the first count and all other words thereof except the charging part of the count remained in the information for the purposes of the fourth count. This is elementary and needs no argument or authorities cited therefor.

The trial court had jurisdiction of the subject-matter of this suit. The jurisdiction of the County Court in misdemeanors does not depend upon the amount of fine that may be imposed, and the fact that the information contained five counts had nothing to do with determining the jurisdiction of the court. 1 ‘ County Courts shall have concurrent jurisdiction with the Circuit Courts * * * in all criminal offenses and misdemeanors where the punishment is not imprisonment in the penitentiary.” Const. 1870 sec. 18 art. 6; Hurd’s Rev. Stat. 1908 par. 95 chap. 37; Hurd Stat. 1908 par. 127 chap. 38. The information in this case is for a first offense so far as appears from the pleading itself.

Plaintiff in error is not in a position to complain of the court’s rulings on the evidence. The same objection is made to every witness for the People just after the cross examination in these words: “The evidence of- (Name of witness) objected to by defendant, overruled and evidence permitted to go to jury. Defendant excepts.” Then after all the evidence for the People the defendant moved to exclude all the evidence from the jury of all the people’s witnesses on all matters occurring more than eighteen months prior to the filing of the information. It will be seen that the objections and the motion to exclude applies to the whole evidence of the witnesses. For the court to sustain any objection, the whole of the witness’ evidence,, proper and improper evidence, would be taken from the jury. So on the motion to exclude, if the motion was sustained, the testimony of all of the witnesses relevant and irrelevant would be taken from the jury. No specific objections to the evidence appear. Parts of all the evidence complained of were unquestionably admissible. To entitle the plaintiff in error to a consideration upon objections to evidence, the particular evidence claimed to be objectionable must be pointed out to the court. The trial court cannot be expected to cull out all the improper evidence in the record upon objections or motions made after the witnesses have testified, unless the objectionable evidence, if any, is specifically pointed out with the reasons for such objections. However, a great deal of the evidence to which specific objections are here directed by plaintiff in error was admissible for the purpose of showing guilty knowledge of the defendant as to the character of the business carried on in defendant’s premises, although the transactions were more than eighteen months prior to the filing of this information. Evidence as to the previous gambling in the premises of Mark Huff and those associated with him when he had the same premises rented some three years before the second lease, as well as the doings of the other lessees between the times of. the two leases by Huff, were proper, together with whatever opportunities for information the defendant had of those things, if any, to show guilty knowledge tif the defendant. The facts that these parties gambled there at those times and had no other occupation apparently, and that defendant knew it or had the opportunity of knowing it, if they were facts, are all proper evidence in this case. But such evidence should not have extended farther back than the time of Huff’s first lease. Evidence of similar previous offenses is often admissible to prove guilty knowledge. Jackson v. People, 18 Ill. App. 509; Thomas v. People, 59 Ill. 160; Scott v. People, 141 Ill. 195 ; Fox v. People, 95 Ill. 75.

The occupation, past and present, of the defendant is always admissible evidence in any case. In this case it was particularly proper, inasmuch as there was evidence to the effect that the defendant sold the poker table with the “rake-off hole” in the center of it, and the poker chips to Mark Huff at about the same time defendant leased the premises to Huff, and the defendant denied that he knew what the table was made or used for and also denied knowing for what purposes the poker chips were used. His occupation might have considerable to do with explaining to the jury the extraordinary circumstance that he was unacquainted with these articles thus found in his possession.

Inasmuch as the judgment of the lower court will have to be reversed and the cause remanded for another trial we will refrain from further discussion of the evidence and from expressing any opinion on the merits of the case. We have already called attention to the fact that the charge in the fourth and only count of the information that went to the jury for their consideration, is that the defendant unlawfully and knowingly rented said premises to Mark Huff for the purpose of keeping a common gaming house. Instruction No. five for the People told the jury, “that if you believe from the evidence in this case beyond a reasonable doubt that the defendant * * * did knowingly rent to Mark Huff certain rooms * * * for the purpose then and there of keeping a common gaming house, or after renting such rooms to said Huff learned that he was keeping a common gaming house, and then suffered and permitted the said Huff to continue keeping such a gaming house- after receiving such knowledge, then you should find the defendant guilty.” Instructions one and two given for the People were to the same effect, and there was no other instruction given by the court that stated the law to be otherwise than as expressed in these instructions. These instructions are erroneous and the giving of them is reversible error. It is elementary that before a defendant can be convicted he must be proven guilty beyond a reasonable doubt of the precise crime charged, and that it is fatal error to instruct a jury that proof of another and different offense beyond a reasonable doubt will suffice to convict the defendant of the crime charged. If a man really arid in good faith rents to another a room for one month for a lodging room or any other legitimate purpose, and during that month he keeps it as a common gaming house, knowledge of the lessor of the fact that he was keeping a gaming house after it was rented and the suffering pr permitting him to continue the keeping of such gaming house for the remainder of the month after such knowledge, would not make the lessor guilty" of knowingly leasing the room for a gaming house. To constitute the offense charged in said fourth count it must be proved beyond a reasonable doubt that the house or room was knowingly leased for the purpose of keeping a gaming house. In other words permitting or suffering one to keep a gaming house, and renting to one for a gaming house, are entirely different acts. Permitting or suffering a tenant, after renting to him, to keep a gaming house, may be strong evidence sometimes that the premises were rented to him for that purpose. If the renting is from month to month it may be conclusive evidence that the latest months of the renting were renting for keeping a gaming house, if the evidence should show that at the beginning of each month after the first that the landlord continued to permit the keeping of the gaming house and, notwithstanding this knowledge, continued to rent to such tenant. The proving force of such evidence in this case was a question for the jury, and these instructions mis-stated the law and invaded the province of the jury.

All the other errors insisted on by plaintiff in error are untenable and cannot arise again in this case with one exception, as the other four counts are forever disposed of by their dismissal after the evidence was taken. The matter of the defendant not being furnished with a copy of the information with the names of the witnesses endorsed thereon, was waived because not demanded before trial and exceptions preserved in the record. Kelly v. People, 132 Ill. 363; McDonald v. People, 49 Ill. App. 357.

For the errors indicated herein, the judgment of the lower court is reversed and the cause remanded for a new trial.

Reversed and remanded. ■.