text:
    The People of the State of Illinois, Defendant in Error, v. Marion Ezell, Plaintiff in Error.
    1. Dram-shops—when indictment charging sale• of intoxicating-liquor in anti-saloon territory sufficient. Such an indictment need' not negative the exceptions contained in section 18 of the Dram-shop Act providing that “nothing in this act shall he construed to forbid or prevent the sale within anti-saloon territory by druggists to whom permits or licenses therefor have been duly granted in the manner provided by law,” etc.
    2. Dram-shops—how result of election establishing territory as-anti-saloon may be shown. The record kept by the clerk showing the result of such election is competent and it is not material as to-how well bound the book was in which such record was kept.
    3. Trial—when excusing juror by court not error. There are many reasons which justify a court in excusing a juror of his own motion and if a juror who has been tendered by the people and accepted by the defense is excused by the court such action will not reverse unless the record shows that the juror was so excused for an insufficient or improper reason.
    4. Evidence—what does not affect credibility of witness. In a criminal case the fact that a witness testifying for the people may have testified before the grand jury against another person is incompetent.
    5. Instructions—lohen as to duty of jury to follow, in criminal case, erroneous. In a criminal case it is error to tell the jury that they are bound by the instructions of the court as to the law of the ease; if the jury can say upon their oaths that they know the law better than the court, it is their right to disregard the instructions.
    6. Instructions—when in criminal case exclude proof of guilt beyond reasonable doubt. An instruction abstract in form which concludes by saying to the jury, “and such guilt may be established by proof of facts and circumstances from which it may be reasonably inferred,” is erroneous.
    7. Criminal law—when sentence properly imposed. Held, that the sentence in this case was properly imposed in view of the fact that the defendant was sentenced and fined on each count separately; the court holding that both of the sentences imposed would begin and end on the same day because of the fact that the court did not specify in its order that the second sentence should begin on the day the first sentence ended.
    8. Criminal law—effect of nonarraignment. If the record does-not show that the defendant was arraigned or that a plea of any kind was made by the defendant or entered of record, a motion in arrest will lie. In prosecutions for misdemeanors the practice is to-allow the plea of not guilty to be entered without arraignment, but without such a plea being entered there is nothing to be tried. Held, in this case, that the absence of the plea was not waived by the defendant.
    Prosecution for unlawful sale of intoxicating liquors. Error to the County Court of Franklin county; the Hon. Thomas J. Myebs, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed April 9, 1910.
    Mookeyham & Seeber, for plaintiff in error.
    Q-. A. Hickmah, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

Marion Ezell, plaintiff in error, was tried in the County Court of Franklin county upon an indictment of two counts returned by the grand jury at the November term, 1908, of the Circuit Court of said county, and duly certified by the clerk of said court to the County Court for process and trial.

Said two counts in substance charge that Marion Ezell of said county, on the first day of November, 1908, at and within said county of Franklin, did then and there at the town of Frankfort, unlawfully sell intoxicating liquors, the said place where said liquors were so sold, then and there being anti-saloon territory, 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 Illinois. Upon a jury trial the defendant was found guilty upon both counts of the indictment. Motions for new trial and in arrest of judgment were overruled and judgment and sentence was entered on the verdict, that the defendant pays a fine of one hundred dollars on each of said counts and all costs and that he be confined in the county jail of said county, for the period of thirty days for each count, etc., to all of which exceptions were duly saved.

The plaintiff in error attacks the sufficiency of the indictment in this case on the grounds that it does not negative the exceptions in section 18 of the new Dram-Shop Act, providing that, “Nothing in this act shall be construed to forbid or prevent the sale within anti-saloon territory by druggists to whom permits or licenses therefor have been duly granted in the manner provided by law,” etc. The rule of law on this subject is well stated in the case of Lequat v. The People, 11 Ill. 331, as follows: “If there be any exception in the same clause of the act which creates the offense, the indictment must show affirmatively that the defendant does not come within the exception; but if the exception or proviso be in a subsequent clause or statute, or, if in the same section, and not incorporated with the enacting clause by any words of reference, it is in that case matter of defense, and need not be negatived in the pleading.” Applying the above rule to the present statute under consideration, it is clear that this indictment is good and not subject to the objections made to it. See also Metzker v. The People, 14 Ill. 101. Both counts of the indictment averred that the sales were made in anti-saloon territory, and therefore the objection to the second count is not well taken.

It is also insisted that the court erred in excusing the juror, Wickersham, of its own motion after said juror had been tendered by the People and accepted by the defendant after defendant’s peremptory challenges had been exhausted. The reasons for the court’s action in this regard do not appear in the record, and the examination of the juror, and all the circumstances leading up to the discharging of the juror are omitted from the record. There are many reasons why the court might excuse the juror legally, such as the personal privilege of the juror that he was exempt from jury service, or that he was in ill health and not able to sit as a juror, or that some member of his family was dangerously sick, etc. There is no showing in the record that the action of the court was error, and in the absence of such showing the action of the court must be sustained.

It was not error in the court to refuse to allow the defense to prove that the prosecuting witness, Abe Bay, went before the grand jury and indicted Silas Summers for purchases made, or claimed to have been made, from the defendant. Such evidence would in noway have shed light on the questions before the jury in this case. It is the personal privilege of every one, if not a moral duty, to see that all violators of the law are punished, if that was his mission. But whatever might be his motive in another case, or whatever might have-been his acts, there is no reason shown why they should have, been considered by the jury in passing on the guilt of the defendant in this case.

The court did not commit error in admitting the result of the election as kept by the town clerk on the question of whether or not the township of Frankfort should become anti-saloon territory. Section 7 of the Anti-Saloon Territory Act simply provides that he shall record such result in a well bound book, and that such result may be proved in all courts and in all proceedings by such record. We have not had the book before us; but it is the record made by such clerk that is admissible as evidence, and the question of how well bound the book was in which it was kept is not material here. If it is the one used for such purpose and the record is properly made, as appears in this case, it is admissible in all courts, as evidence of such result.

Instructions Nos. 7 and 8 given for the people were erroneous. No. 7 in substance tells the jury that they are bound by the instructions of the court as to the law of the case,' and that they are to look to said instructions solely for the law. While it may be true that the provision of our law making juries the judges of the-law as well as of the facts ought long ago to have been repealed, and that it has virtually been hedged in by the decisions of our courts so that it has not much significance now; yet, our Supreme Court still upholds it to the extent that the jury are the judges of the law, and that they are not bound by the instructions of the court as to the law, if they can say upon their oaths, that they know the law better than the court. No instruction has ever been upheld that tells them in substance that they are bound to take the instructions of the court as the law of the case. No. 8 is a very harmful instruction and should not have been given. It is an abstract proposition of law, simply, and it concludes by saying to the jury “but such guilt may be established by proof of facts and circumstances from which it may be reasonably inferred.” Now, in criminal cases such guilt cannot be established or inferred unless the facts and circumstances are such as to satisfy the jury beyond a reasonable doubt of the guilt of the defendant. An inference of guilt is not warranted from circumstantial evidence or any other kind of evidence unless it convinces the mind beyond a reasonable ■doubt. A jury should be instructed with reference to the facts proved and not as to what might or could have been proved in the case. There is no objection to circumstantial evidence, nor to convictions on circumstantial evidence when sufficient, and we do not mean to intimate that the circumstances with the other evidence was not sufficient. There is probably no evidence that is stronger or more convincing than circumstantial evidence, but it is not proper to tell a jury in a mere abstract proposition of law that “his guilt may be established by proofs of facts and circumstances,” etc., without further explanation, and without properly applying this law to the case in hand. We find no objection to the other instructions of which complaint is made.

There was no error in the sentence of the court of which defendant could complain. He was sentenced and fined on each count separately. However, both jail sentences would begin and end on the same day unless the judgment of the court should specify in his ■order that the second sentence should begin on the day the first ended. As the case will have to be reversed for the errors herein pointed out we refrain from commenting on the merits of the case further than to say that the evidence was conflicting and in such case the instructions must be accurate.

There is one error in this case that particularly necessitates a reversal of the judgment and sentence of the lower court. The record does not show that the •defendant was arraigned, or that a plea of any kind was made by the defendant or entered of record. In prosecutions for misdemeanors the practice is to allow the plea of not guilty to be entered without arraignment. But without this plea being entered there is nothing to be tried. The plea was not waived by the defendant, and it must be held as error. For want of such a plea the judgment should have been arrested. Johnson v. The People, 22 Ill. 314; Miller v. The People, 47 Ill. App. 472.

For the errors indicated the judgment is reversed and the cause remanded for further proceedings.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Duncan

license: Public Domain

text:
    Dick Townsend, Plaintiff in Error, v. James N. Wilson et al., Defendants in Error.
    1. Mortgages—what appropriate subject of. Rents and profits are proper subjects of mortgage.
    2. Mortgages—when include rents. A clause in a mortgage authorizing the appointment of a receiver to collect rents and profits upon foreclosure, is, in effect, a mortgage of the rents and profits accruing until the redemption period has expired.
    3. Mortgages—when owner of fee not entitled to rents. A grantee of land who takes subject to an existing mortgage is not entitled to the rents of such premises as.against the mortgagee after default upon such mortgage.
    4. Mortgages—duty of mortgagee with respect to application of ■rents 'upon deficiency. A mortgagee owes to the mortgagor a duty to see that rents mortgaged are applied toward the extinguishment of a deficiency established after sale upon foreclosure.

      5. Foreclosure—propriety of judgment for deficiency. In a proceeding to foreclose the complainant should he awarded a judgment for a deficiency established after sale against those who are personally liable for the debt made the basis of the foreclosure.
    6. Foreclosure—oumership of rents after extinguishment of deficiency. After a deficiency established after sale upon foreclosure has been extinguished the rents accruing from the mortgaged premises until the period of redemption expires, belong to the owners of the fee.
    7. Conveyances—implied agreement upon acceptance of deed subject to mortgage. By accepting a conveyance with a proviso that it was subject to a mortgage an implied agreement arises that the land and the rents and profits mortgaged shall stand good for the debt secured as against any right received by virtue of the deed.
    8. Receiverships—when not discretionary. The appointment of a receiver to eolléct rents is not discretionary with the court where such appointment is provided for in a mortgage and is essential to the protection of the rights of the mortgagee.
    Foreclosure. Error to the Circuit Court of Wayne county; the Hon. Jacob R. Creighton, Judge, presiding. Heard in this court at the Octoher term, 1909.
    Reversed and remanded with directions.
    Opinion filed April 9, 1910.
    Statement by the Court. On October 12,1905, plaintiff in error, Dick Townsend, purchased of the defendant in error, James N. Wilson, the premises described in the bill of foreclosure hereinafter referred to; and as a part of the purchase price, executed to said vendor his promissory note for $7,000, and to secure the same, executed a second mortgage to said Wilson upon said premises. April 16, 1906, said Townsend conveyed by warranty deed to the defendants in error, J. E. Mont-rose and Charles McHugh, said premises, subject to-said $7,000 mortgage and subject also to a $10,000 first mortgage held by said Wilson for purchase money. At the October term, 1906, of the Circuit Court of Wayne county, a bill was filed by said Wilson against this plaintiff in error and all of said defendants in error, except said Wilson, to foreclose said second mortgage. The mortgage contained this clause: “And it shall be lawful for the said mortgagee—his attorneys or assigns to enter in and upon the premises hereby granted—and to receive and collect all rents, issues and profits thereof.” This mortgage contained a clause, also, providing for the appointment of a receiver with power to collect the rents, issues and profits after the filing of a bill for foreclosure, and until the expiration of the time for redemption, and that such rents, etc., when collected might be applied toward the payment of the indebtedness, costs, attorneys’ fees, taxes, assessments and other liens. August 21, 1906, upon application of the mortgagee, a receiver was appointed by the court to collect the rents, issues and profits aforesaid. January 22, 1907, a decree in foreclosure by default was entered in favor of said Wilson against said Townsend, Montrose, McHugh and their wives, finding all the material facts above stated and the facts stated in said bill to be true, and ordering the sale of said property to pay debt, cost, etc. April 22, 3907, said premises were sold by the master in chancery to James N. Wilson, mortgagee, for $7,210.35, leaving a deficit in said debt, costs, etc., for which a personal judgment was entered against Townsend and in favor of said Wilson for $624.35. Said decree also found that said real estate was meager security for said debt, and decreed that in case of sale and a deficit, said receiver shall continue in possession and collect all rents, etc., until the expiration of the time for redemption. It also finds that the warranty deed from Townsend to Montrose and McHugh was made subject to said mortgage and that Montrose and McHugh accepted said deed with said condition. June 17, 1907, the receiver having reported a balance of rents in his hands of $490.35, the court ordered said sum paid to said Wilson and credited on said deficit. April 22, 1908, the last day of redemption, Montrose and McHugh, as owners, redeemed said lands from said sale; and at the June term, 1908, of said court, petitioned the court for a rule on the receiver, to compel bim to pay them all rents, issues and profits realized from said premises by him up to the period, of redemption; and, also, to compel said Wilson to pay to them the $490.35 previously paid him out of said rents, claiming that they were legally entitled to said money. At the same term the receiver filed his petition showing that he had as such rents $902.79 after payment of taxes, expenses, etc.; and asked that the court allow him to pay said deficiency judgment out of said funds to Wilson. The court on a hearing, ordered that the receiver be allowed $100 for his compensation, and that the remainder of said proceeds of rents, etc., $802.79, be paid to Montrose and McHugh, which was done, and said cause was ordered stricken from the docket. Nothing was paid on said judgment against Townsend for said deficit, the receiver and Wilson paying all of said rents, etc., to Montrose and McHugh. January 25, 1909, an execution was issued on said deficiency judgment, directed to the Sheriff of Peoria county, and was levied on certain personal property of the plaintiff in error, Townsend. Hence this writ of error has been sued out by plaintiff in error to review the final order of said circuit court in ordering the proceeds of said rents, etc., to be all paid to Montrose and McHugh, instead of having said deficit paid thereout to said Wilson, etc.
    It is insisted here by plaintiff in error that it was error in the court to deny the petition of the receiver; and that in ordering the receiver to pay said rent moneys to Montrose and McHugh, and in ordering Wilson, the mortgagee, to pay the money previously paid him by the receiver to Montrose and McHugh, the court also erred. It is also insisted that the court erred in entering a deficiency judgment against plaintiff in error, and in ordering execution thereon, before the mortgage security had been exhausted.
    Joseph A.' Weil, for plaintiff in error.
    M. M. Sturgeon, for defendants in error.
   Mr. Justice Duncan

delivered the opinion of the court.

There can be no question that rents and profits are the subject of mortgage. “The doctrine is understood to be that everything which may be considered as property, whether in the technical language of the law denominated real or personal property, may be the subject of mortgage, as advowsons, rectories, tithes. * * * Bents, also, and franchises may be made the subject of mortgage.” Supreme Court in Curtis v. Root, 20 Ill. p. 522, citing 1 Powell on Mort., 17, 18.

“Bents and profits are the subject of mortgage. Jones in his work on mortgages (Vol. 1, Sec. 140) says: “A mortgage may be made of rents under a lease, and although a right of entry be given to the mortgagee, the mortgage is a mere security, like any other mortgage of real estate, and the mortgagor remains the real owner until foreclosure and sale.” First Nat’l Bank v. Ill. Steel Co., 174 Ill. p. 148.

There certainly can be no successful claim made that the rents and profits of the lands in question were not mortgaged by Townsend to Wilson. Wilson was given the power and authority by the express terms of the mortgage to enter upon the premises to collect all rents and profits thereof; and, also, to have a receiver appointed pending foreclosure proceedings and until redemption to collect the rents and profits thereof and apply them to the extinguishment of taxes, assessments, attorney fees, debt, costs and expenses, etc. Our courts have held that a clause in a mortgage authorizing the appointment of a receiver to collect rents and profits upon foreclosure, such as in this case, is in effect a mortgage of the rents and profits accruing until redemption period has expired. First Nat’l Bank v. Ill. Steel Co., 72 Ill. App. 640 and 174 Ill. 140; McLester v. Rose, 104 Ill. App. 436; Lancaster v. Prussing, 139 Ill. App. 46; Bagley v. Ill. Tr. and Sav. Bank, 199 Ill. 76.

Under such a clause a receiver will be appointed to collect the rents and profits; and said receiver’s duty, in case of a deficiency upon sale, is to collect rents and profits up to the redemption period to pay such deficiency, and the court appointing such receiver should so order. Montrose and McHugh’s title to this property was subject to the mortgage in question, and their right to the rents and profits, under the mortgage and under their deed, was secondary to that of Wilson. They, had accepted a deed expressly so declaring, that is, that the grantor’s warranty and their right under the deed were subject to said mortgage. Oakford v. Robinson, 48 Ill. App. 270.

It was not discretionary with the court either to appoint the receiver, or to order the funds in his hands as proceeds of rents applied on the deficit after sale. It was a matter of right of both Townsend and Wilson to have this done. First Nat. Bank v. Ill. Steel Co., 174 Ill. 148; Niccolls v. Peninsular Stove Co., 48 Ill. App. 320.

It was not only Wilson’s right to have the rent funds applied to extinguish this deficit, but it was Townsend’s right. It is true that Montrose and McHugh did not expressly agree to pay this mortgage debt so far as this record shows, and that they are not personally liable for the mortgage debt, by reason of their deed being subject to the mortgage. No personal judgment could be entered against them, under the evidence in this record, for the debt of Townsend. But their implied agreement with Townsend, by accepting the deed with that proviso that it was subject to the mortgage, was that the land and the rents and profits mortgaged to Wilson should stand good for that debt and be charged with that debt as against any right they received by virtue of the deed. Their action in this case in claiming these rents simply amounts to a breach of their contract and they have no standing in law or equity in their claim to the rents. It makes no difference whether Wilson is, or is not, complaining in this matter at the action of the court. He, too, owed a duty to Townsend to see that these rents were applied on this deficit by virtue of his relations with Townsend as mortgagee, after full notice that Townsend had conveyed the land subject to the mortgage. "While he might not be forced to litigate this question at his own expense, still, Townsend was entitled to notice, at least, that such an order was about to be, or had been, made by the court so that Townsend could protect himself by appeal or otherwise, before the rents already paid to "Wilson were turned over to Montrose and McHugh.

From all the orders made up to the time of this final order, Townsend would naturally suppose a receiver was appointed to collect rents, not for Montrose and McHugh, but to extinguish the deficit, the real purpose of such receivers. "While parties in court must usually take notice of all the proceedings in a case; yet in this case, the mortgagee should either have defended this question to the end, or have notified Townsend so he ■could do so, and while the funds were in court.

We think that Wilson was entitled to a judgment against Townsend for the amount of the deficit. Wilson had a right to sue at law at the same time he begun his foreclosure suit, and obtain a judgment at law even for the whole debt, and we see no reason why he could not take a judgment for the deficit in the chancery court immediately after the deficit is known after sale. It was Townsend’s right, however, to have the rent proceeds applied to the extinguishment of the deficit, and the remainder of said proceeds, if any, after such deficit was extinguished belonged to Montrose and McHugh after all taxes, expenses, etc., were paid including the receiver’s fee.

For the reasons indicated the order of the chancellor ordering said proceeds of rent, etc., to be paid to Mont-rose and McHugh, and in refusing to allow said deficit to be paid therewith, is reversed, and the cause is remanded with directions to the chancellor, that an order and decree be entered in said cause that the said receiver shall pay to said Wilson, mortgagee, the amount, of said deficit and the costs of said execution; that said Wilson, mortgagee, shall then enter satisfaction in full of said judgment against said Dick Townsend, including the costs of said execution; and that said Montrose and McHugh shall immediately pay back to said receiver sufficient of said proceeds of rents paid them to entirely satisfy and pay said deficit including the costs of said execution. A judgment in this cause for the costs in this court in prosecuting this writ of error, will be entered in favor of plaintiff in error against the defendants in error, Montrose and McHugh.

Reversed and remanded with directions.


text:
    Polar Wave Ice and Fuel Company, Appellant, v. Alton Branch of the Illinois Humane Society, Appellee.
    1. Animáis—what'not within power of humane society. A humane society has,no -power to kill or destroy the horses or animals of another without his consent whether such animals be suffering from disease, starving or otherwise suffering, and this is the case even if the animals are without value and admittedly so.
    2. Touts—what does not justify. One who invades the rights of another and transgresses the law does so at his own peril; he cannot exempt himself from punishment, when he misapprehends the-law, because he believes that he was right.
    3. Damages—when proof not essential. If the defendant has-wrongfully invaded and trespassed upon the plaintiff’s rights without authority, actual or apparent, proof of damages is not necessary to sustain a recovery.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Madison county; the Hon. Benjamin R. Burroughs, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed April 9, 1910.
    Warnook, Williamson & Burroughs, for appellant; B. J. 0 ’Neill and Nagel & Kirby, of counsel.
    J. F. McGinnis, for appellee.
   Mr. Justice Duncan

dehvered the opinion of the court.

This suit was originally brought before a justice of the peace, and resulted in a dismissal thereof at the plaintiff’s costs. It was then appealed to the Circuit Court of Madison county, where upon a jury trial, judgment was entered in favor of defendant in bar of the action and for costs. The Polar Wave Ice and Fuel Company has appealed to this court from the judgment of the Circuit Court.

The appellant had about sixteen horses on its pasture known as Kersch pasture about two or three miles above Alton. One of them, a bay horse, had been foundered and was lame as a result thereof. Another, a black horse, was lame by reason of nails picked up in two of its feet. These horses had been sent there from St. Louis where they had been used in appellant’s business ; and were in said pasture for the purpose of being rested up and treated by a veterinarian. As the horses grew better, they were used on an island in the Mississippi river west of Alton for farming and hauling wood. A Mr. Beeves lived close to the Kersch pasture and was hired to give these horses daily attention, being directed in their treatment by a veterinary surgeon, Dr. J. C. Booker. On July 2,1908, the president of appellee, Mrs. Angie Schw'eppe, and Mrs. Sophia Demuth, both appellee’s agents, accompanied by Henry Tisius,- a police officer of the city of Alton, went to the Kersch pasture and the officer, under the direction of Mrs. Schweppe and Mrs. Demuth, killed the two horses-, above described, the bay and the black horse. No notice of any kind had been given to appellant regarding-the intended action of appellee nor was any hearing of any kind had, nor had the horses been examined by any veterinary surgeon other than Dr. Booker before they were killed. Appellant brought suit "against appellee for their value with the above results. The above statement is substantially the one made in appellant’s brief and is found to be accurate.

Appellant’s counsel insists here (1) that the verdict is contrary to the law and the evidence; (2) that the court erred in giving and refusing instructions; (3) that the court erred in overruling appellant’s motion for a new trial and in entering judgment against appellant.

■ All of the errors assigned must he sustained as it is evident that this cause was tried on a misapprehension of the law.

The second, third, fourth and sixth instructions given by the court for the appellee states clearly the theory of the defense which was sustained by the court, and they are as follows:

“The court instructs the jury that although you may believe from the evidence that the horses in controversy were killed by the defendant’s officers, still, if you further believe from the evidence that said horses were valueless from disease, then you will find for the defendant.
“That before the plaintiff can recover in this case it must prove the value of said horses, and if you believe from the evidence they were useless and without value, you will find for the defendant.
“That the law is, where an animal is suffering from disease and there is no probability of its recovery, the killing of said animal is justifiable in order to put said animal out of misery; and if you believe from the evidence in this case that at the time said horses were killed by order of. the officers of the defendant they were suffering from disease and there was no probability of them recovering and that they were without value, then said defendant was justified in having said horses killed, and you will find the defendant not guilty.
“That if you believe from the evidence that at the time the defendant, through the instructions of Mrs. Schweppe and Mrs. Demuth, officers of said defendant, the plaintiff’s horses were killed; and you further believe from the evidence said horses were in such physical condition from disease that there was no probability of their recovery, and that they were of no value, then it was only a humane act to have them killed, and the jury will find the defendant not guilty.”

In the giving of these instructions we think the learned judge" erred as to the law applicable to the case. , These errors were also emphasized by the modifications of appellant’s first and second instructions by striking out the word “wilfully” and other words stricken therefrom by the court and substituting the words, “without right,” and the other words therein substituted by the court. With the substituted words, “without right,” the jury necessarily were referred to the defendant’s instructions for their information as to when and under what circumstances the defendant would have a right to kill the horses as no information was given by the modified instructions as to when or under what circumstances the defendant would have such right. Instruction No. 1 given for appellee, is erroneous because it is in substance the same as appellee’s "No. 2. Appellee’s instruction No. 5 is, under ordinary circumstances, correct, but might have very properly been refused in this case because there is no evidence on which to base the latter part of it, “if the jury believe from the evidence that the plaintiff has not so proven its case, or that the evidence on the issues involved in this case is evenly balanced.” As the evidence appears in this record, taking the evidence for the defense alone, there is no sort of question of the right of plaintiff to recover in this case. The evidence is all to that effect and there is nothing in the evidence so far as we are able to find looking toward a defense on the merits, except as to the amount of damages sustained by the plaintiff. The police officer who killed the horses, Henry Tisius, testified that these horses belonged to the plaintiff and that he killed them by the instruction of Mrs. Demuth and Mrs. Schweppe. He even goes'to the extent of saying there ought to have been more of plaintiff’s horses shot. Mrs. Schweppe, president of defendant, and Mrs. Demuth, agent of defendant, both testify that they, as such officer and agent, had these animals killed as a humane act, because they were evidently starving, suffering very greatly and because in their judgment they could not get well. They had been positively informed however by the veterinarian, Dr. Booker, that they would get well. They both positively testify that they got no permission or consent from the plaintiff or from any one else to'kill these animals. The owner without any opportunity of being heard or consulted, was invaded in its possession of the pasture, and its horses killed in a wilful act of trespass without a claim of legal right except that they were officers of a humane society. Whatever difference of opinion might justly arise as to the humane way of treating a hungry horse that could not get food, or that was so diseased that he could not recover, in our opinion there can be no question about the law in such cases where they are killed without authority of law and without consent of the owner. There is no authority conferred by statute in this state, or by other law in force in this state, of which we are aware, whereby any humane society or member thereof has any authority or power whatever to kill or destroy the horses or animals of another without his consent, whether such animals be suffering from disease, starving, or otherwise suffering; and this is the case even if the animals are without value and admittedly so.

The appellant’s constitutional right was invaded. “No person shall be deprived of life, liberty or property without due process of law. ’ ’ Bill of Rights, Sec. 2, Art. 2, Const. 1870.

The phrase “due process of law,” which is equivalent to the words “law of the land,” as used in Mágna Charta, means “in the due course of legal proceedings according to those rules and forms which have been established for the protection of private rights.”' Burdick v. The People, 149 Ill. 600; Board of Education v. Bakewell, 122 Ill. 339; Campbell v. Campbell, 63 Ill. 462.

Before the defendant could be justified or relieved from liability for killing the horses or animals of another without consent, it must have such authority conferred by statute that is constitutional, and no act could confer such authority, that did not give the owner a right to be heard in a judicial or other similar proceeding and that did not make provision for just compensation for the value thereof. The defendant in this case had no legal authority whatever to kill these-horses for any reason; and if it had such authority for the reasons it urged, the plaintiff should have had the opportunity to be heard and to show, if it could, that no such reasons existed. “Even the state, in its sovereign capacity, cannot, under the guise of police regulations, arbitrarily invade private property rights. It is only when the property is such as to become a nuisance per se that the legislature has power to provide for its seizure and summary destruction.” Even in such cases of nuisance the owner must have notice and a hearing. Pearson v. Zehr, 138 Ill. 48; McConnell v. McKillip, 71 Neb. 712, 65 L. R. A. 610; Loesch v. Koehler, 144 Ind. 278, 35 L. R. A. 682; Varden v. Mount, 78 Ky. 86, 39 Am. Rep. 208; Miller v. Horton, 152 Mass. 540, 10 L. R. A. 116; King v. Hayes, 80 Me. 206; Lowry v. Rainwater, 70 Mo. 152, 35 Am. Rep. 420; Carter v. Colby, 71 N. H. 230; Rockwell v. Nearing, 35 N. Y. 302. There are only a few well known exceptions to the foregoing rules based on grounds of governmental necessity.

“Neither the suffering or distressed condition of the animal, nor the misconduct or delinquent attention of the owner, will justify the seizure or killing, unless the facts relied on actually exist as prescribed by a lawful statute.” Pearson v. Zehr, 138 Ill. 48; Goodwin v. Toucey, 71 Conn. 262; Brill v. Ohio Humane Society, 4 Ohio C. C. Rep. 358; Sahr v. Scholle, 89 Hun, 42.

“When one man invades the rights of another and transgresses the law, he does so at his peril. He cannot exempt himself from punishment when he misapprehends the law, because he believes that he was right. He is bound to know the law, and if he does not, it is his duty to acquire such knowledge. Action, without it, must be regarded as reckless.” Jasper v. Purnell, 67 Ill. p. 361; Johnson v. Camp, 51 Ill. 219.

Proof of value was not necessary to entitle appellant to judgment. “It is error in such a case, for the court to instruct the jury that, to recover, the plaintiff must prove, by a preponderance of the evidence, that the animal was his property, and was of some pecuniary value.” The law recognizes the right of property in all domestic animals, even in dogs, and if it is destroyed without legal justification, the law implies damages, and a plaintiff in such case is entitled to at least nominal damages, as it does in every case of illegal invasion of the right of property of another. Brent v. Kimball, 60 Ill. 212; Plumleigh v. Dawson, 1 Gilman, 544; McConnel v. Kibbe, 33 Ill. 175; Pfeiffer v. Grossman, 15 Ill. 53; 1 Cooley on Torts., secs. 67-71, 3rd ed.

It will not be profitable to further comment upon the various errors assigned or upon, the facts in the record. We think all the instructions offered by appellant ■stated correctly the law applicable to this case. It follows from what we have said and the authorities above cited that the only question in this case under the facts in the record was as to the amount of damages that ■should have been awarded. The evidence of appellee to the effect that the horses were killed as a humane act was not admissible as a complete bar to the action.

For the errors indicated the judgment of the lower court is reversed and the cause remanded for further proceedings.

Reversed and remanded.


author: Mr. Justice Duncan1

text:
    Effie Britton, Appellee, v. St. Louis Transfer Company, Appellant.
    1. Negligence—when doctrine res ipsa loquitur applies. If a person on a public street is injured by being struck by merchandise falling from a passing wagon, the doctrine res ipsa loquitur applies.
    2. Negligence—when doctrine res ipsa loquitur applies. “There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or of his servants, and the accident is such that in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the-defendant, that the accident arose from waht of care.” The mere proof of an injury under such circumstances entitles the plaintiff to recover, unless the defendant shall rebut the prima facie case by showing that it exercised due care, or that it was not guilty of the negligence charged.
    3. Appeals and errors—when refusal of peremptory instruction not subject to review. If the defendant at the close of the plaintiff’s case moves for a peremptory instruction the right to insist upon the refusal of such motion as error is waived by subsequently introducing evidence.
    4. Variances—when' question cannot be urged on review. In order to avail of a variance between the declaration and the proofs such variance must be .specifically pointed out in the trial court.
    5. Practice—when motion for continuance properly denied. If an amendment is made to a pleading during a trial which it is claimed operates by way of surprise, a motion for a continuance is properly denied if the affidavit filed in support thereof does not show that if the continuance is granted competent evidence will be available to the moving party.
    Action in case for personal injuries. Appeal from the City Court, of East St. Louis; the Hon. W. J. N. Movers, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    Wise & Keefe, for appellant.
    J. M. Bandy and D. J. Sullivan, for appellee.
   Mr. Justice Duncan1

delivered the opinion of the court.

This appeal is by the St. Louis Transfer Company from a judgment of the City Court of Bast St. Louis for the sum of $500 recovered by Effie Britton against appellant in an action on the case for personal injuries 'alleged to have been caused by appellant’s negligence. During the afternoon of September 12, 1908, while walking between Fourth and Broadway on the north side of Washington avenue, a public street of the city of St. Louis, Missouri, on her way to Eads Bridge to take a car to her home in G-ranite City, Illinois, appellee was struck and injured about her arms, side and lower limbs by a crate of oak table-tops that fell from the top of one of appellant’s large stake wagons loaded with furniture and standing at the sidewalk in front of the store of the Hub Furniture Company. Fred •Gruentzinger, a teamster of appellant, had driven this load of furniture up to the sidewalk there and was unloading it by the assistance of two of said furniture ■company’s men. The sidewalk at that place is stone or concrete and is about ten or twelve feet wide; but •on that occasion there was only about five feet of clear space in which to travel between the wagon and the building, owing to the fact that quite a lot of furniture had been piled up against the building opposite the wagon. The declaration charged appellant with negligently loading said wagon with furniture, and so negligently handling and managing the same that a certain crate of table-tops fell from the top of said load upon the plaintiff, thereby knocking her down and injuring her as aforesaid. At the close of all the evidence the ■court denied appellant’s motion for peremptory instructions, and after verdict overruled defendant’s motion for a new trial.

Appellant insists that the court should have directed a, verdict of not guilty. The evidence for the plaintiff discloses that appellee was in the exercise of reasonable care for her safety while passing the wagon in this five foot space between it and said building, and in which she was struck by said crate falling on her from the top of the load which was ten or eleven feet above the sidewalk. The crate was four or five feet square and about twelve inches thick, and it and the wagon from which it fell were entirely in the custody and control of appellant’s teamster. Appellee had nothing to do with the fall of the crate. She had not even touched it, so far as the evidence shows, until she was struck with it. The stakes had been taken out of the wagon by the teamster on the side next to the sidewalk for the purpose of unloading. These stakes were five or six feet long and the furniture was piled up over the tops of the stakes and was loose, that is, untied. The driver was on top of the furniture and started to lift this crate from the wagon when it fell on appellee. It was also proved that appellant was the owner of the wagon and team. The foregoing evidence makes a prima facie case against appellant, as it falls fairly within the maxim res ipsa loquitur, which in plain English means that the occurrence speaks for itself. This doctrine is thoroughly approved by our Supreme and Appellate Courts, and is well stated by an English Judge in Scott v. London, etc., Docks Co., 3 Hurls & Colt, 596, in this language: ££ There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or of his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” The mere proof of an injury under such circumstances entitles the plaintiff to recover, unless the defendant shall rebut the prima facie case by showing that it exercised due care, or that it was not guilty of the negligence charged. The Pittsburgh, etc., Ry. Co. v. Campbell, 116 Ill. App. 356; Union Traction Co. v. Newmiller, 215 Ill. 386; North Chic. St. Ry. Co. v. Cotton, 140 Ill. 494; Elvis v. Lumaghi Coal Co., 140 Ill. App. 112.

Appellant’s explanation of the occurrence there is furnished by its said teamster, who testified in substance that when he started to unload he untied the rope holding the furniture, and took out four stakes and commenced to unload the top first by passing the crates down to two men of the Hub Furniture Co.; that after he had gotten them half off, he started to the other part of the wagon for the table-tops and when he undertook to walk on them two of them went out from under his feet; that they slipped off and that the cause of their slipping off was his walking on them. He also says the load was loaded up pretty high. His testimony rather strengthens the prima facie case of negligence made by plaintiff instead of rebutting it. The real contention of appellant is that the proof did not sustain the allegation of negligence in the original declaration that the appellant “negligently backed one of its wagons against the sidewalk, which was negligently and improperly loaded with furniture, and thereby a piece of furniture was made to fall, ’ ’ etc. It is true that the evidence for the defendant clearly rebuts this charge in the original count, but the declaration was amended after all the evidence for both parties was taken, and the question now is whether or not the proof sustains the amended declaration and we think it does so very clearly. By introducing evidence after plaintiff’s evidence in chief was taken, appellant waived its right to insist on its motion for a peremptory instruction at the close of plaintiff’s evidence. The question now is on the whole record, does the whole of the evidence for both parties sustain the plaintiff’s case? The Chic. City Ry. Co. v. Martensen, 198 Ill. 511; Knights T. Indem. Co. v. Crayton, 209 Ill. 554.

It is said in the case in 140 Ill. 495, supra: “Even if it be admitted that the presumption is one of negligence generally, and not of any specific negligence, we think it sufficient to throw upon the defendant the burden of rebutting the specific negligence alleged.” In other words the knowledge of the facts being possessed only by the defendant, it must reveal them and show that it is not guilty of the specific negligence charged, or verdict must go against it. Besides in order to avail itself of a variance between the original declaration and the proofs, appellant should have specifically pointed out this variance to the court in its motion for peremptory instructions. City of Springfield v. Bosenmeyer, 52 Ill. App. 301; Union T. Co. v. Newmiller, 215 Ill. 386.

What we have already said is a sufficient- answer to appellant’s contention that the court improperly allowed plaintiff to amend her declaration. Until her counsel learned the real facts from defendant’s evidence, she was compelled to rely on her prima facie case. She was not compelled to make the driver, a supposedly hostile witness, her own witness; and she had a right in the first instance to rely on her prima facie case. “Any time before final judgment in a civil suit amendments may be allowed on such terms as are just and reasonable * * Hurd’s Stat. 1908, chap. 110, sec. 39. This statute contemplates just such instances as. occurred in this case, and the court could not have reasonably refused the request of plaintiff to amend her declaration. No further evidence was introduced by either party after the amendment. The amendment was simply made to conform to the proofs, and no doubt would have been made earlier before appellant’s witnesses were gone, had appellant disclosed to the court the variance now insisted on. Appellant had the right by statute to a continuance for further evidence, if surprised by the amendment, by filing a proper affidavit. The affidavit filed by appellant simply states that the “defendant will be able to produce witnesses to testify that the goods or crates which were handled by the defendant in charge of said wagon were not carelessly-handled by the defendant, and that such fact can be proved by at least two persons of the Hub Furniture Co. whose names are not known to defendant.” This evidence would not have been admissible if offered, as it would have been a mere conclusion of the witnesses, amounting to a finding by such witnesses upon an ultimate fact upon which, the jury had to pass their judgment. This would have been an invasion of the province of the jury. Section 42 of our new practice act allowing continuances and amendments, provides that if the cause of such continuance “is on account of material evidence which the party cannot produce,—stating in such affidavit what particular facts the party expects to prove by such evidence, and that he verily believes that if the case is continued, he will be able to procure the same,” the cause shall not be continued, “if the other party will admit the affidavit in evidence subject to the effect given to affidavits for a continuance in this chapter.” The plaintiff had 'the right to admit that the absent witnesses would swear to the facts defendant desired to prove and prevent a continuance, and as the affidavit contained no statement of facts admissible in evidence, the court properly overruled the application for continuance without requiring plaintiff to admit said affidavit. Besides the driver gave his version of the matter by stating the actual facts, and the mere opinion of these witnesses that he was not negligent, would not have added any legitimate evidence in this regard. Said section 42 also provides “that the court may overrule such application for continuance, if it is satisfied such evidence would not be material on the trial of the cause.”

We cannot agree with appellant’s counsel that the teamster was the servant of the Hub Furniture Co., and not of appellant in the unloading of the furniture. It is true that a general servant may be loaned to a third party for some special service, or become the servant of such third party, and as to that service he will become the servant of such third party, if he is subject to the direction and .control of the latter. But there are no facts in this record that establish the relation of master and servant between said driver and the Hub Furniture Co. The facts that the driver accommodated said company by taking first from the wagon such articles as they were then in need of, and by placing the furniture where they desired it stored, do not establish the relation of master and servant. Neither does the statement of the driver that it was the duty of the Hub Furniture Company to receive the goods establish any such relation. The evidence is far from establishing that said furniture company had the absolute right to direct and control the driver in the matter of the unloading of the furniture, which is the proper test of such a relation. Being clever and accommodating is not necessarily an evidence that the party exhibiting such traits is under the absolute control and direction of the parties to whom such courtesies are shown. Clapp v. Kemp, 122 Mass. 481; Grace & Hyde Co. v. Probst, 208 Ill. 147; Chic. Hy. P. B. Co. v. Campbell, 116 Ill. App. 322; Pioneer Const. Co. v. Hansen, 176 Ill. 108; P. C. C. & St. L. Ry. Co. v. Bovard, 223 Ill. 182.

There was no error in refusing appellant’s instruction on the same question for the reason that the jury were not required to find by that instruction from the evidence the necessary facts to constitute or prove that the teamster was the fellow-servant of the furniture company in unloading the furniture. The negligence complained of was that of the driver of that wagon, and to determine who was .responsible for his negligence, the question for the jury to determine was as to whose servant he then was, and not as to whether or not some one else was receiving the goods as their part of the transaction and assisting him in such unloading. Unloading the wagon was a part of the servant’s business or work on that occasion, and he was only proven to be the servant of appellant.

There appears to be no sufficient reason shown for the reversal of the judgment of the lower court, and it is therefore affirmed.

Affirmed.


text:
    Mary A. Taylor, Administratrix, Appellee v. Centralia Coal Company, Appellant.
    1. Master and servant—effect of imposing obligation of inspection upon servant. Where the duty of inspection is imposed upon the servant and accepted by him and such duty is simple and plain and the servant is clearly competent to perform the same, the master is relieved from any duty to inspect and is not liable in the event of an injury resulting from a failure to inspect.
    2. Master and servant—obligation of latter to inspect. It is the duty of the servant without regard to any rules upon the subject to see that the appliances or machinery with which he works and becomes familiar are in repair and have no open and obvious defects that may be discovered by simply looking at them.
    3. Master and servant—what obligations personal to 'former. A master can in no case relieve himself from liability for failure to use reasonable care to furnish reasonably safe instrumentalities.
    4. Master and servant—duty of former to furnish appliances. It is the duty of the master, which he cannot delegate, to exercise reasonable care to furnish to the servant reasonably safe appliances. The master, however, is not liable if there are hidden defects and dangers which could not be discovered and avoided by a reasonably careful inspection.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Marion county; the Hon. S. L. Dwight, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed April 9, 1910.
    Statement by the Court. Mary A. Taylor, administratrix of the estate of Henry A. Taylor, deceased, recovered a judgment in the Circuit Court of Marion county for the sum of $2,000 against Centralia Coal Company in an action on the case for damages for the death of said Henry A. Taylor, alleged to have been caused by the negligence of said company. The deceased left surviving Mm Mary A. Taylor, his widow, with whom he resided, and no children. Centralia Coal Company prosecutes this appeal.
    The deceased was a coal miner of about five years’ experience, and was employed at the defendant’s coal mine at Centralia, Illinois, as a coal miner and shot-firer. About five o ’clock in the evening of March 10, 1908, while lighting a squib in room 29 bn 13th south entry of appellant’s mine, he was instantly killed by the premature explosion of the shot. James E. Thompkins, another shot-firer who was working with the deceased, was about fifty feet from him, and is the only person who saw what transpired. He saw the deceased go to the face to light the shot, saw him pull the needle, put the squib in the hole, take his light off his cap, and stoop over to light the squib, and then the shot went off immediately. Shots are prepared in this mine by the miners who drill a hole generally at an angle in the face of the coal about two inches in diameter and from six to eight feet long, with a drilling machine. About a quart and a half of blasting powder is then poured into a paper barrel about two inches in diameter which is then rammed into the hole. A copper needle about five or six feet long and about the size of one’s little finger is inserted into the hole and well into the powder in the cartridge, leaving five or six inches of the needle .protruding from the face of the coal so it can be drawn by the shot-firer. The hole is then filled with wet clay and slack and well tamped. The shot-firers later fire these shots by drawing the needle, placing a squib in the hole with the match of the squib and about one-half inch more of the squib protruding from the hole, and then applying the blaze of their lamp to the outer end of the match. The squib used in this mine and by the deceased when killed, is what is known as the Powell squib. It is about six inches long and has two parts all in one piece, the squib proper about four inches long, and the match about two inches long. The squib proper is made of tissue paper tightly glued into a hollow cylinder about the same diameter as a small parlor match and is filled with fine black powder. The match portion of the squib is an extension of the tissue paper, but is simply tightly twisted so as to hold the powder in the squib proper and then dipped into melted sulphur. If the squib and match are all right and properly lighted at the end of the match, it requires from a half minute to-a minute for the match to burn to, and explode, the powder in the squib. If however the blaze is applied to the shoulder of the squib, next to the match, it will explode in from ten to twenty seconds, according to the-evidence in this record. A premature explosion may also occur if the match is defective by reason of having-powder in the match, or by reason of the match being broken or torn off too closely to the squib proper. The time in which the match will burn before exploding the powder in the squib necessarily depends on the length of the match, and the amount of sulphur on it and the point at which it is lighted when it is in proper condi-. tion. The squibs are purchased by the mine owners, from the manufacturers of the squibs; and are distributed to the shot-firers through the checkweighman,. in small sealed paper boxes each containing one hundred squibs, the miners paying the company for the squibs. These squibs are shipped to the coal company in wooden boxes each containing twelve dozen of said paper boxes of squibs, and the company delivers them, in these large original packages to the checkweighman for distribution, and they are not inspected by the com-. pany before they are delivered to the miners. At the-close of all the evidence the court denied appellant’s-motion for peremptory instructions.
    The declaration charges appellant in three counts, with negligence in failing to exercise reasonable care in furnishing the deceased with a reasonably safe squib with a match free from powder or other explosive, so-it would burn time enough to enable the deceased to-reach a place of safety before it exploded the shot;, and in neglecting to inspect the match or squib furnished to ascertain if it contained powder or other explosive in the match and was reasonably safe for use.
    Appellant insists (1) that the trial court erred in refusing to direct a verdict in its favor; (2) that the-court erred in its rulings on the instructions.

      Noleman & Smith and W. F. Bundy, for appellant.
    Charles H. Holt, Charles F. Dew, A. D. Rodenberg and L. B. Skipper, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

In view of the conclusion reached by the court in this case it will only be necessary to consider the first cause urged by appellant for a reversal. James B. Thompldns the only one present when the deceased was killed testified that he was helping the deceased to fire shots in the mine as shot-firer and that he was about fifty feet from him when the shot exploded that killed the deceased; that he saw him go to the face to light the shot, saw him pull the needle, put the squib in the hole, take his light off his cap and reach over to light the squib and that the shot went off “just that quick” (almost instantly); that he did not see the squib lit because deceased’s body was between him and the squib; that the shot put both their lights out, and that when he again lit his light he ran to the face and called the deceased first, and that when he did find him he was pretty close to where the witness was standing when the shot went off and that he was dead; that so far as he could see the deceased was firing this shot in the usual and proper manner, but that he could not see for the deceased’s body just how the flame was applied to the match; that the deceased had been a miner for about five years and that he was mining when killed and shot-firing too after the day’s mining was done, and that they both had been shot-firing for about ten months when the accident happened; that they got their squibs from the checkweighman at the coal company’s office in the morning when they would go to-work, and that they had an opportunity of seeing the-squibs when they took them out of the pasteboard boxes and that the shot-firers carried them when firing in a tin case; that Mr. Taylor, the deceased, had a like opportunity to see the squibs, and that in case they found a defective squib they threw it away, and that all the shot-firers judged for themselves whether or .not the squib was all right and that no one else inspected them; that the only inspection they made was just simply to look at the squibs and that all good shot-firers determined whether the squibs were good or not by simply looking at them and that that was the only way they could’ determine whether or not the squibs were good; that the Powell squib is as good a squib as he knows of, and that if the company had inspected the squibs all they could have done in that way would simply have been by looking them over; that the squibs cannot be unrolled because glued, and that unrolling the match destroys the squib and that it would not be practicable to unroll them to inspect them. Four other shot-firers testified and all five of them say that it would not be possible to have an instantaneous explosion with those squibs if they were all right by applying the light either to the outer end of the match or to the shoulder of the squib; that it would require from one-half minute to a minute for the match when lit at the end and from ten to twenty seconds to explode the powder when lit at the shoulder, if in proper condition, and that in any case it would explode as soon as it burned through the tissue paper at the shoulder of the squib, that it never occurs that powder is jerked out of the hole with the needle and that the only way to set fire to the powder in the hole is with the powder in the squib; that it would not be practicable to inspect a squib by unrolling it and that the only way to inspect them is by looking over them with the eye. All of them that testify on the subject say that they all in- ■ spected them for themselves and threw away the bad ones, and that they could do this by simply looking them over and that they could readily do this by lamp light in the mine; that if there was powder in the match part of the squib extending through it to the powder in the squib there would be almost an instantaneous explosion, but that such a condition could not be told by simply looking at the squib, but would require unroll- - ing it to ascertain such a condition and that unrolling it would destroy its usefulness. One witness suggested that it might be done by an X-ray machine, but this was a mere supposition of his. The only evidence offered by the defendant was a single Powell squib proven to be like the one used by the deceased, also an original package of these squibs containing one hundred of them, and also a tin box or tube with a lid, about seven inches long and one and one-quarter of an inch in diameter, and proven to be such a box or tube as the miners carry these squibs in when shot-firing, all three of which exhibits have been certified with the record as original evidence.

From the foregoing evidence it is clear that the squibs used at defendant’s mine are very simple instruments. The squibs that have been certified here as original evidence confirm all that is said of them by the witnesses. Anyone of ordinary intelligence that understands the nature of sulphur, black powder, tissue paper and paste, can, in a few minutes of observation, understand them thoroughly and be able to detect any defect in them that appears on the surface of the squibs. If there are any hidden or latent defects in the squibs, by reason of powder being in the match part of the squib, there is no character of inspection that is proven or pointed out in the record that will discover such a defect, without unrolling or going into the squib, and it is proven unquestionably by the evidence that such an inspection would be impracticable because it would destroy or tend to destroy the usefulness of the squib. There is no contest or dispute as to these matters. It is also established by uncontroverted evidence that it was the long established custom and usage at the mine, before and since the “Shot-Firers’ Act,” that the shot-firers do the inspecting of these squibs, and that the original packages of the squibs are not broken until the squibs are delivered to the shot-firers in the small packages of one hundred squibs per box. It is unquestioned that the shot-firers, are as competent,to make this inspection as any one, and that they do make all the inspection practicable by simply looking them over with the eye. The evidenco does fairly prove in this case that the squib used by the deceased when he lost his life was defective. In what, particular it was defective is not proven. Neither does it appear whether or not the blaze was properly applied to the match of the squib. In the view that we take of this case there is no liability against appellant for -the death of the deceased. There is no rule of law under the evidence in this record, so far as we are able to see, whereby an action can be maintained against it. The sad death of this unfortunate man occurred by reason of an accident for which no one is to. blame so far as the evidence discloses. Where the duty of inspection, as in this case, is imposed upon the employe and accepted by him, and the duty of inspection is simple and plain, such as can be performed by him by simply looking at the squibs, and the employe is clearly competent to make the inspection, the employer is clearly relieved from any duty to inspect, and consequently cannot be liable for a failure to make such inspection. C. & A. R. R. Co. v. Merriman, 95 Ill. App. 628; C. & A. R. R. Co. v. Bragonier, 119 Ill. 51; 1 Labatt’s Master and Servant, sec. 416.

The master however can in no case relieve himself from a. liability for failure to use reasonable care to furnish reasonably safe instrumentalities. It is also the duty of the servant under the law without regard to any rules upon the subject, that he shall see that, the appliances or machinery with which he works and becomes familiar is in repair and has no open and obvious defects that may be discovered by simply looking at them. The T., W. and W. Ry. Co. v. Eddy, 72 Ill. 138. Hence there can certainly be no objection under the law to a rule or custom, as in the case at bar, of imposing the duty of inspection upon the employe, so long as it does not extend to hidden or latent defects, such as the master is required to examine for when an examination and reasonable inspection will disclose the hidden dangers.

We are not disposed to hold that the fact that the appellant was receiving pay from the miners for the squibs necessarily puts it on the same footing as the merchant who might sell these appliances direct to the miners. The appellant is furnishing this appliance to the shot-firers,' and the law requires it to use reasonable care in selecting this appliance to the end that they are reasonably safe; and if they were of the character to require inspection by appellant, that is if there were hidden defects and dangers that could be discovered and avoided by a reasonable inspection, that it would be in duty bound to make the inspection. But there can certainly be no negligence imputed to appellant where a defect is not discoverable by a reasonably careful inspection. Sack v. Dolese, 137 Ill. 129.

The evidence fully proves that the make of the squibs in question was as good as any on the market, and no complaint is made on that score. We think therefore that inasmuch as an inspection by appellant would have been impracticable and of practically no value to the shot-firer, as these squibs are of a nature that the more they are handled the more liable they are to become defective, and as the shot-firers would of necessity have had to inspect them again before using them, that appellant’s duty was fully discharged in this case when it purchased as good squibs as the market afforded, and that there is no liability proved against appellant in this record. 1 Labatt’s Master and Servant, sec. 153.

For the reasons indicated in the foregoing, the lower •court erred in denying the motion of appellant to direct a verdict of not guilty. The judgment is therefore reversed without remanding.

Reversed.

Finding of fact to he incorporated in the judgment. We find as an ultimate fact that the appellant was not guilty of the negligence charged in any count of the declaration.


text:
    G. O. Coen et al., Appellants, v. The Denver Township Mutual Fire Insurance Company, Appellee.
    1. Insurance—what need not he alleged in action upon fire policy. It is not necessary for the insured to allege the character of title or interest in the property stated in the policy or application; only an interest in the property to the amount of the plaintiff’s claim need be set up.
    2. Insurance—when allegations as to furnishing of proofs of loss sufficient. If the policy sued on does not specify a time limit for the making of proofs or the character of such proofs, an allegation in the declaration is sufficient which is to the effect that the plaintiffs, at certain specified times, delivered to the company “as particular an account of said loss and damages as the nature of the case would admit.”
    3. Insurance—how question of what is covered hy fire policy determined. Whether what is known as “red top seed” is grain within the meaning of a fire insurance policy, is a question of fact to be determined hy the jury.
    4. Insurance—how policies construed. Policies of insurance are construed most favorably for the insured in cases of doubt or uncertainty.
    5. Insurance—what insured required to allege and prove. In an action upon a fire policy the plaintiff is only required to allege and prove such matters as appear to be conditions precedent in the policy. If the application contains false representations or warranties as to title, or other matters, the company, to avail of such a defense, must plead the same specially.
    6. Statute of limitations—how defense availed of. The statute of limitations, at law, must he raised by special plea and not by demurrer.

      Assumpsit. Appeal from the Circuit Court of Richland county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded with directions.
    Opinion filed April 9, 1910.
    Statement by the Court. On August 7, 1908, the appellants began this suit in assumpsit against the appellee, on an insurance policy for $500, dated October 5, 1905, insuring certain property therein named for five years from said date, against all loss and damage that might happen to the same by fire or lightning, not exceeding the sum insured, etc. The declaration sets out the policy in haec verba, and the said insurance was distributed in said policy among the insured items as follows: “$250 - on 1 story, shingle roof, frame building while occupied by-as dwelling”; -$150 — on barn, No. 1”, etc.; “$100-on grain while contained in crib, granary, barn or stack”;$-on hay in barn or stack”; etc.
    The following averment in the declaration is the one over which the main contention herein arises, to wit: “On August 8, 1907, plaintiff owned one rick of four tons of unthreshed red-top cut for its. seed, consisting of sixty bushels of unthreshed red-top seed in stack on S. E. Qr., Sec. 36, T. 5 N., E. 9 E., in Eichland County, Illinois, and that said red-top was raised and cut for its seed and that said seed was of the value of $54, and that on said date said property was struck by lightning and so consumed and destroyed as a result thereof, whereby the plaintiffs then and there sustained loss and damage to the amount of the sum last aforesaid,” etc. This property so lost is the base of the plaintiffs ’ claim for damages in this suit. All the property insured is described as being located on said tract of land. Other parts of the policy and declaration that are material herein will be referred to in the opinion of the court. To this declaration the defendant demurred in the usual form, assigning four special grounds of demurrer, and are all the causes relied on by appellee for the sustaining of this demurrer, to wit: (1) Said declaration does not aver what interest .plaintiffs had in the property destroyed, or that their interest was as stated in the application made a part of the policy; (2) that plaintiffs do not aver that proofs of loss to defendant were made as provided in the policy; (3) that the suit is barred by limitations contained in the policy; (4) that the policy sued on.shows the property alleged to have been destroyed was not insured by defendant. The lower court sustained the demurrer; and the plaintiffs electing to stand by their declaration, the court dismissed the suit and gave judgment in favor of defendant against the plaintiffs for costs of suit. Plaintiffs excepted, and ask a reversal of the judgment, assigning as error the said rulings and judgment of the court.
    Homer C. Coen, for appellants.
    John A. MacNeil, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

First. It was only necessary for the plaintiffs to aver they had an interest in the property to the amount of their claim. New Eng. F. and M. Ins. Co. v. Wetmore, 32 Ill. 241. It was not necessary to allege that the plaintiffs had the character of title or interest in the property stated in the policy or application. The plaintiff is only required to allege and prove such matters as appear to be conditions precedent in the policy. If the application contains false representations or warranties as to title or other matters, the defendant, to avail of such a defense, must plead the same specially. Phenix Ins. Co. v. Stocks, 149 Ill. 325.

Second. There is a sufficient averment in the declaration that proofs of loss were made. The only requirements in the policy for proofs of loss are the following: “In case of loss under this policy, proofs shall be made by the assured.” No limit as to time is fixed for the making of proofs, and the character of proofs required or desired is not specified. Any kind of proofs sent to the defendant, particularly if not specifically objected to by it, would be good under this policy if sent to it before suit was brought. The special cause of demurrer is that plaintiffs do not aver proofs of loss “as provided in the policy.” The allegations in the declaration on this subject are that the plaintiffs “at said times (August 16 and September 17, 1907) delivered to the defendant as particular an account of said loss and damage as the nature of the case would admit.” And again at the conclusion of the declaration is this averment, “the plaintiffs have kept and performed all things in said policy mentioned on their part to be kept and performed.” We think these allegations are entirely sufficient, taking into consideration the fact that the policy is set out in haec verba.

Third. The third ground assigned for demurrer is not well taken, for the reason that the defense of the statute of limitations at law must be raised by a special plea. The defense must be specially pleaded at law even though the declaration should show on its face that the statute had run. Thomas v. Morgan, 96 Ill. App. 629. The declaration in this case does not show on its face that the statute has run. It was filed August 7, 1908, the last day of the year after the fire, and the summons was issued the same day. The limitation in the policy is one year after loss accrued, and the suit was begun within that time. Schroeder v. The Merchants and M. Ins. Co., 104 Ill. 71; Schmidt v. Balling, 91 Ill. App. 388.

Fourth. We are furnished with a great many definitions by both counsel, taken from lexicographers and law writers, some of which will serve to show the difficulty in settling as a matter of law whether red-top seed, unthreshed or otherwise, in stack or elsewhere, is in fact “grain”, within the meaning of said policy. Some of those supposed to shed light on this question are as follows: “G-rain—1. A single, small seed; a kernel, especially of those plants, like wheat, whose seed are used for food. 2. The fruit of certain grasses which furnish the chief food of man or beast.” “Bed-top—a well known species of bent grass—also called English grass and Herd’s grass.” “Hay—grass cut and dried for fodder; grass prepared for preservation.” Now “grain in stack” is insured under this, policy. “Hay in stack” or elsewhere is not insured under the policy. Counsel for appellants contend that “unthreshed red-top in stack,” is grain and not hay. Counsel for appellee contend that it is hay and not grain. We have no decisions in this State or elsewhere, exactly in point, as a guide.

From what is already said, it is evident to us that-independent of the policy in question, whether or not red-top seed is, or is not, grain, is properly a question for the jury. The meaning or definition of the word, grain, must necessarily be a question of law, unless by local or provincial usage it should have a meaning different from the general and ordinary meaning. It is true, as said by appellee’s counsel, that hay is not grain. So is it equally true that red-top seed is not hay, and that wheat is not straw. When threshed the wheat and the straw are entirely different articles, and so would be the red-top seed and the hay when it is threshed. But when the wheat and the red-top, ‘1 cut for seed”, are in the stack they are properly designated respectively as grain and seed in stack. Barley, rye, oats, broom-corn, millet hay, peas, flax and sugar cane, before the seeds were separated from the straw, hay or stalk, have all been held by courts of this country to be included in the term grain. Hewitt v. The Watertown F. Ins. Co., 55 Iowa, 324; Reavis v. Farmers’ Mut. F. Ins. Co., 78 Mo. App. 14; Norris v. id., 65 Mo. App. 632; State v. Cowdery, 79 Minn. 94; The State v. Williams, 2 Strobhart (S. C.) 474; Holland v. The State, 34 Ga.. 455; Smith v. Clayton, 29 N. J. (5 Dutcher) 362; 4 Words and Phrases, 3145; 20 Cyc., 1288; 14 Am. and Eng. Ency., 1110.

The decision of this case cannot be satisfactorily settled by reference to the definition of words merely. The real intention to be ascertained in this case is, what is the contract and liability of the appellee in this case? This must be determined by the averments in the declaration. Turning to this instrument we see by its averments that the said red-top was raised and cut for its seed, and by the policy we see that their crops were insured as “grain while contained in crib, granary, barn or in stack.” The declaration avers a liability against the defendant by reason of the loss of this unthreshed red-top. By the provisions of this policy and the averments in the declaration, the parties to said contract considered this red-top as a crop of seed in the stack, not as hay in the stack; and it was insured as “grain in stack.” ' We would be better satisfied if there had been a positive averment in the declaration either that it was designated and insured under this policy as “grain in stack”, or that unthreshed red-top seed cut and stacked for seed is “grain in stack”, within the meaning of said policy. We think, however, that the declaration is sufficient. What is said by the Supreme Court of Iowa in the case above cited, which decision was also as to the sufficiency of a declaration on an insurance policy, is in point here, to wit: “But if it be conceded flax seed is not grain, strictly speaking, or is not so regarded in commercial transactions, this cannot be regarded as decisive of the question before us. For the rule is that this contract, ‘like other contracts, must receive the construction which is most probable and natural under the circumstances, so as to attain the object which the parties to it had in contemplation in making it.’ It was accordingly held in Decatur Bank v. St. Louis Bank, 21 Wall., 294, the term cattle included hogs, and in The State v. Williams, 2 Strobhart, 474, that the legislative intent in making it larceny to take cotton, rice, ‘corn or other grain’ from a field, was to include peas, or in other words, that ‘other grain’ included peas. * * * The intent of the plaintiff undoubtedly was to insure his crop raised on the farm and put into stacks or into a granary, and the Company must, we think, have so understood and executed the policy with the intent of insuring the property in question.” The language construed in the Iowa policy was, “grain in stacks and granary on farm,” and the loss sued for was “one hundred and fifty bushels of unthreshed flax seed in stack on the farm. ’ ’

Policies of insurance are usually construed most favorably for the insured in case of doubt or uncertainty in its terms. Healey v. The Mut. Ac. Ass’n, 133 Ill. 556; The Niagara F. Ins. Co. v. Heenan & Co., 181 Ill. 575.

Whether or not there is in fact a liability in this case against appellee cannot be determined until the evidence is heard. We hold, however, that the declaration states a cause of action. The judgment of the lower court is therefore reversed, and the cause remanded with directions to overrule the demurrer, and to allow the defendant to plead to the declaration, etc.

Reversed and remanded with directions.


text:
    Frank S. Cary et al., Appellants, v. William Niblo et al., Appellees.
    1. Set-off—what appropriate t>y way of recoupment. Unliquidated damages growing out of the plaintiff’s claim are proper subjects of recoupment in any case but it must be averred and proved that they arose out of the plaintiff’s cause of action alleged.
    2. Set-off—what not appropriate. Unliquidated damages arising out of the breach of a contract other than the one sued on are not a proper subject-matter of set-off or recoupment.
    3. Set-off—what appropriate. Money paid under a mistake of fact may be set-off against a debt sought to be recovered by the plaintiff in an action in which the common counts are filed.
    4. Set-off—what proper subject of. Money paid under a mistake of fact may be set-off by a defendant in assumpsit against the debt claimed to be due the plaintiff.
    5. Set-off—lohat proper subject of. Any obligation to pay money upon a promise express or implied is a proper subject of set-off.
    6. Set-off—question of parties. The law looks to the real and not to the nominal parties in determining the right to a set-off.
    7. Evidence—incompetency of collateral issues. Held, that it was not proper to prove that other reliable wholesale dealers would not guarantee any granite to be free of stain, as tending to show that no contract of guaranty was entered into.
    8. Instructions—repetition of phrase “preponderance of the evidence.” It is not necessary to repeat the words “by the preponderance of the evidence” in every instruction.
    9. ■ Instructions—when error will not reverse. An erroneous instruction which has not resulted in prejudice will not reverse.
    Assumpsit. Appeal from the Circuit Court of Richland county; the Hon. J. R. Creighton, Judge, presidng. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed April 9, 1910.
    John O. Bitter, for appellants.
    John A. MacNeil and H. C. Ferriman, for appellees.
   Mr. Justice Duncan

delivered the opinion of the court.

Appellants sued appellees in assumpsit in the lower court to recover $763 alleged to he due on account for marbles, granite, tombstones, monuments, etc., sold and delivered to appellees by appellants from September 22, 1906, to December 19, 1906. Appellees filed the general issue with notice of a set-off by reason of $560 paid by appellees to appellants in October 1903, on what is known in the record as the “Hinkley monument” which appellants sold appellees by sample, and represented that it was Barre granite and free from sap or iron. It is also stated in the notice that said material in the monument was not Barre granite free from sap or iron, and was not like the sample as represented, but was worthless, by reason whereof appellees were' damaged and lost all their work, labor and expense in putting up the same and in removing same from the cemetery, amounting in all to $1,200, etc. After trial a verdict and judgment was entered in favor of the plaintiff and against the defendants below in the sum of $145.53 as damages. Appellants appeal to this court and the points relied on for a reversal of the judgment are (1) that none of the matters specified in appellees’ notice are proper matters of set-off or of recoupment in this cause; (2) the court erred in its rulings on the evidence; (3) the court erred in the matter of giving and refusing instructions.

First. The law is in this State that unliquidated damages arising out of the breach of a contract other than the one sued on, are not a proper matter of set-off or recoupment to the defendant. Hence there can be no recovery in the case at bar by appellees for any damages arising by reason of the breach of the contract for the Hinkley monument, such as for work and labor and money expended on the monument in preparing and putting up the same or in replacing it with another monument. Unliquidated damages growing out of the plaintiff’s claim are proper subjects of recoupment in any case, but it must be averred and proved that they arose out of the plaintiff’s cause of action alleged. Horn v. Noble, 95 Ill. App. 99; Higbie v. Rust, 211 Ill. 333; Keegan v. Kinnare, 123 Ill. 280.

In the trial of this case the lower court ruled that the defendants were entitled to a set-off for the amount paid by them to the plaintiffs for the Hinkley monument, provided the monument was not of the material guaranteed, or according to the sample by which it was sold; and provided further that the monument delivered was wholly worthless. The 'court in substance so instructed the jury by the defendants’ sixth instruction. In this holding we think the court was right. There is a right of set-off in every case where there are mutual debts or obligations, express or implied, "between the real parties in interest. Wherever an action can be maintained in assumpsit for money had and received, on the common counts, such a demand ■ought to be a subject set-off. Money paid under a mistake of fact, as was proved to have been done in this case by the appellants, may be set-off by a defendant in assumpsit against the debt claimed to be due the plaintiff. Commercial Union Ass’n v. Scammon, 133 Ill. 628; Hurd’s Rev. Stat. 1908, sec. 47, chap. 110. When one person obtains the money of another, which it is inequitable or unjust for him to hold, the person entitled to it may maintain an action for money had and received for its recovery. It is not necessary that there should be an express promise, as the law implies a promise. It certainly is intended by the statute that any promise to pay money, express or implied, is a proper set-off. Allen v. Stenger, 74 Ill. 119; Laflin v. Howe, 112 Ill. 253; Scammon v. City of Chicago, 25 Ill. 361; Raney v. Boyce, 39 Ill. 24; Devine v. Edwards, 101 Ill. 140. In the last case cited the defendant had been buying milk from plaintiff and was to pay him so much per gallon. The milk was shipped in eight gallon cans that were proven to be short in measure. A set-off was claimed by the defendant for all shortage in previous sales, and the Supreme Court said on page 141 of that opinion: “If, in truth and in fact, by the mistake of the appellant and of appellee, the amount of milk was short, and appellee received more money on that account than he was entitled to, he must account for the same, even though the mistake resulted from negligence on the part of appellant as well as on part of appellee. The real question is as to the fact of the alleged shortage. If that existed, the appellant is entitled to have the wrong corrected, by way of set-off.” In the case before us the consideration for the Hinkley monument has wholly failed, under the evidence; and, th.at being the case, the plaintiffs received $553 in money for nothing, and the law raises an implied promise on the part of appellants to return it. The set-off in this case is a cross suit on that implied promise, and as to the consideration paid is not for unliquidated damages. The evidence also showed that these appellants were the same identical parties who ordered the Hinkley monument. Their firm name now is Niblo and Shepard; in 1903, Niblo and Son. The law looks to the real and not to the nominal parties in determining the right to a set-off. Engs v. Matson, 11 Ill. App. 639; Rothschild v. Bruscke, 131 Ill. 265.

Second. It follows from what we have already said that the court properly admitted the evidence on the question of set-off, which tended to show that the defendants were entitled to a return of the money paid by them for the Hinkley monument. It was not proper for the plaintiffs to prove that other reliable wholesale dealers would not guarantee any granite to be free of stain as tending to prove that there was no. contract of guaranty by appellants. The excluded evidence shed no light on that proposition and the court properly excluded it. The evidence is all one way that the implied warranty of the appellants was broken,, and that there was a total failure of the consideration, and the jury properly allowed. the set-off for the. amount paid by appellants on the Hinkley monument.

Third. All the objections raised by the appellants, to the instructions given or refused by the court have been answered, except as to appellees’ fifth and sixth instructions read to the jury, as all of the refused instructions of appellants stated in substance that nothing by way of set-off should be allowed on account of the Hinkley monument. The objection made to appellees ’ fifth instruction is that it does not require the defendants to sustain their claim of set-off by a preponderance of the evidence. It does state to the jury,, however, that only such sum must be deducted as set-off as they believe from the evidence has been proved. The instruction states the law correctly in that regard. The jury were already informed in other instructions that the defendants’ set-off must be proved by a preponderance of the evidence before they could allow it. It was not necessary to repeat the words “by the preponderance of the evidence ’ ’ in every instruction.

The sixth instruction was inaccurate in telling the jury that the defendants were entitled to the amount paid plaintiffs for the Hinkley monument, “provided the goods delivered to defendants may have been shown by them to be wholly worthless to defendants.” The last two words, “to defendants,” should have been stricken out of the instruction as it was not a question of the value to them alone, but whether or not it had any value to any one. The evidence, however, is all to the effect that it was wholly worthless. Hence, the appellant could not have been prejudiced thereby.

As there is no error assigned that the damages are inadequate, there is no further question that can arise in the record. McGuire v. Campbell, 58 Ill. App. 188; Horan v. The People, 10 Ill. App. 21; Pennsylvania Co. v. Conlan, 101 Ill. 96. It is also proven, however, that the defendants never received the first item of the account charged at $50, and that the defendants were entitled to other items of set-off. The verdict seems to be entirely supported by the evidence.

Finding no reversible error in this record, the judgment of the lower court is affirmed.

Affirmed.