text:
    Otis Slater, Appellee, v. W. H. Pomeroy, Appellant.
    1. Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against tbe weight of the evidence unless clearly and manifestly so.
    Action commenced before justice of the peace. Appeal from the City Court of E. St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Alexander Flannigen, for appellant.
    Dan McGlynn, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

In the month of August, 1905, one Sherwin shipped thirty head of horses from Colorado to the National Stock Yards in St. Clair county, Illinois, consigned to appellant, who was engaged in the live stock commission business at that place, for sale on commission. After the arrival of the horses at the stock yards appellant showed them to appellee, a horse buyer, pricing them at $25 a head. Appellee refused to pay this price and later purchased of Sherwin, the owner, at $22.50 a head. Almost immediately after appellee bought the horses, they were sold at public auction by an agent of Campbell & Beed Sales Stables Co. Such a sale of horses at public auction is called “putting them through the ring.” The customary commission for putting horses through the ring at that place was $2 a head. The Sales Stable Co. collected the money for which the horses were sold, some $900, from the purchaser, and accounted for the same, less one-half of the commission, to appellant. Appellant afterwards settled with Sherwin, paying him $22.50 a head for the horses less a commission of $2 a head. After settling with Sherwin there remained in appellant’s hands from the proceeds of the same the sum of $225. "When appellee came for a settlement of the amount due him appellant gave him a check for $165, claiming the right to charge appellee a commission of $2 a head or $60 for selling the horses in the auction ring. Appellee objected to the payment of the commission, insisting that by the terms of his purchase, he was not to pay anything for putting the horses through the ring. There was some controversy over this matter which resulted in appellee’s taking the check and going away. Some two weeks later, appellee again called on appellant and demanded the balance claimed by him to be yet due, amounting to $60, and payment being refused by appellant, appellee brought this suit. There was a trial by jury, resulting in a judgment and verdict in favor of appellee for $60.

It is claimed by appellee that appellant agreed not to charge a commission for putting the horses through the ring if he purchased them from Sherwin, regardless of the price paid. His testimony was that he bought the horses to go through the ring and that appellant agreed to put them through the ring for him, saying, “Of course it don’t matter to me who I sell for, whether I sell for you or Mr. Sherwin. If I sell them for Sherwin there is $2 commission of which I get half; if I sell them for you it is the same. If you can buy the horses from Sherwin go and do that, and I will sell them, the commission is just the same.”

The testimony of appellee upon this subject was corroborated by W. F. McTaggart, who claims to have been present at the conversation between appellant and appellee. Appellant denied the claim of appellee and testified that he agreed to put the horses through the ring for appellee if he purchased them at $25 a head, but that he never proposed to do so if Slater purchased them at $22.50 a head.

Appellant introduced no witness to corroborate his statement concerning the condition under which he was to put the horses through the ring.

Upon the question of the terms upon which appellee took the cheek for $165, given him by appellant, there was also a controversy. Appellee testified that he took the check in part payment of what was due him and that he agreed with appellant to leave the question of whether he should pay appellant a commission of $2 a head for putting the horses through the ring, to Mr. Searcy, the agent of the Sales Stables Co., who sold the horses in the ring. This statement of appellee was also corroborated by the witness Mc-Taggart.

Appellee further testified that when he came back to see appellant two weeks later, appellant had not submitted the matter to Mr. Searcy as agreed upon and said he would not do so, as he would not pay appellee the $60. Appellant on the contrary swore that while appellee found a little fault with the statement and thought he ought not to pay the commission, he finally took the check in full settlement of the transaction.

Upon this question appellant was corroborated to some extent by his bookkeeper, August Weimken. It will be seen that the above questions, which were the only questions of fact involved in the case, were sharply controverted.

Complaint is made by appellant that the court erred in an instruction given for appellee, bearing upon the question of the legal effect of the acceptance of the check in question by appellee. The instruction was not carefully drawn but could not have been prejudicial to appellant under the evidence in this case, especially as appellant himself offered and the court gave for him, an instruction containing substantially the same theory as to the law governing that phase of the case. Martensen v. Arnold, 78 Ill. App. 336.

Upon the whole record we are of opinion there was evidence sufficient to sustain the verdict of the jury and that there was no reversible error committed in the trial of the cause.

The judgment of the court below will therefore be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Higbee

license: Public Domain

text:
    F. W. Fries, et al., Appellants, v. Peter Deichmann, Appellee.
    1. Verdict—when not disturbed as against the evidence. A verdict will not he set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action commenced before justice of the peace. Appeal from the Circuit Court of St. Clair county; the Hon. Chas. T. Moore, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Barthel & Klingel, for appellants.
    ' Charles A. Karch, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

On March 12, 1904, appellee borrowed $1,200 of appellants, who were engaged in the banking business at New Athens, in St. Clair county, under the name of “Bank of New Athens,” and gave them his note secured by real estate for that amount, due one year after date, with interest at the rate of six per cent, per annum from date. Payments were made on the note by appellee, from time to time, and on December 16, 1905, he went to the bank to pay the balance due. The cashier, F. W. Fries, calculated the amount due on the note for principal and interest, and notified appellee of the result. Appellee then paid the amount claimed to be due and appellants surrendered his note and gave him a release deed for the land covered by the mortgage. About a week or ten days later appellants claimed they discovered a mistake had been made in calculating the amount due for the principal of the note, which the cashier figured at $615, when it should in fact have been $715. It is agreed by the parties that the sum of $715 was in fact due upon said note as principal, which amount appellee claims to have paid at the time he took up his note.

The only question presented hy this record is whether appellee paid appellants the sum of $715 on the principal of said note, or only the sum of $615 on December 16, 1905. Three witnesses were sworn on behalf of appellants. F. W. Fries, the cashier, swore he calculated the amount due for principal and found it to be $615; that the mistake occurred by treating an indorsement which read “April 20, 1904, Int. Pd. on $100’ ’ as a payment of $100 on the principal, instead of merely the payment of the interest on $100; that appellee paid him on the principal the sum of $615 and for interest $27.65, and that a memorandum of said payment was entered upon a slip of paper; that at the same time appellee paid off another note due appellants, which witness said was a note for $112; that appellee paid to him that day the sum of $712 for principal and the interest thereon. Miss- Holtz, the assistant cashier, testified she was present at the time appellee made the payment in question and heard the conversation between him and the cashier; that the cashier asked her whether those were the figures she had and she told him “yes,” that she had figured it at $615, the same as he; that the cashier then demanded of appellee $615 on the note and the latter paid him that amount and the interest due on it. On cross-examination she said that she did not count the money herself, which was paid by appellee to the cashier, and did not of her own knowledge know the amount of it. Another witness, Mr. Fullmer, a police magistrate of the village, testified that after appellants claimed a mistake of $100 had been made, appellee came to him for advice and brought the note with him for witness to look over, and told him how much he had paid at the time of the last payment. In answer to the question as to how much appellee said he had paid, witness replied “I cannot remember the exact amount, about $600.” The memorandum above referred to was also introduced in evidence and was as follows:

“Credit L. & Disc. No. 1023. P. W. Deichmann ................................................................ 27.65

Interest.................................................................... 27.65

December 16, 1905.”

On the contrary appellee swore positively that he paid “over $700” and the interest on the note in question at the time of the settlement. He admitted that he had at one time owed appellants a note of $112 but stated that he had paid it off a month or a month and a half before the transaction in question. He denied that he told the witness Fullmer that he paid the cashier some $600. No other witness testified for the defense but appellee offered and the court admitted in evidence the note in question, together with the mortgage given to secure it and the release deed, all of which had been turned over.to him by the cashier. Both the note and the mortgage were marked “Paid Dec. 16, 1905” with a stamp of the “Bank of New Athens, Illinois.”

Appellants brought suit against appellee for the $100 which they claim he still owes them. The ease was tried before a jury which found in favor of appellee and judgment was rendered against appellants for costs.

The only question presented is one of fact. Appellants had surrendered the note and mortgage to appellee and marked them paid and were relying upon the claimed fact that a mistake had been made in calculating the amount due and that appellee had not in fact paid as much as he should have paid. The burden of proof was upon appellants to prove that a mistake was made and that appellee had not paid the sum of $715 on the principal of the note. The only ones who swore positively and knowingly as to the amount paid were the cashier and the appellee, who swore directly contrary to each other. The cashier is to some extent corroborated by the assistant, but she testified that she did not count the money and had no personal knowledge of the amount claimed. The statement claimed by the witness Fullmer to have been made to him, was indefinite and is denied by appellee. Appellee is corroborated by the presumption of payment implied in the possession by him of the note and mortgage, with their marks showing payment, stamped on them by appellants.

It is also to be noted that while the cashier admits that appellee paid him $712 and interest that day, yet it does not appear clearly what disposition was made of this money. If $615 only was applied on the principal of the note and $27.65 upon the interest making a total of $642.65, there would remain to be disposed of $69.35. It was said by the cashier that appellee at the same time paid off a note for $112, but the amount remaining after the note in question here was paid, was not sufficient to pay off the note for $112, which the cashier said was also paid and surrendered to appellee and nothing appears in the evidence to show that any payments had before that time been paid upon the latter note. The amount of interest claimed by the cashier to have been paid $27.65, did not quite pay the interest due on $615 from March 12, 1905, to which time all interest upon the note in question was paid, and was of course much too little to pay the interest on $715 for the same time. In fact the accounts between the parties appear even from appellants? evidence to be in some confusion and as in addition to this there was a direct conflict in the evidence, it was extremely difficult, if indeed possible to determine the real facts in the case.

Under the circumstances the verdict of a jury should not be disturbed. The judgment of the court below will be affirmed.

Affirmed.


author: Mr. Justice Creighton

text:
    S. C. Kelley, Administrator of the Estate of Orville A. Kelley, deceased, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Railroads—section 2 of act with respect to “safety appliances on railroads’’ construed. A disabled car, while being transported to a repair shop, for the sole purpose of being repaired, and while it remains in such shop for that purpose, is not used “in moving traffic” within the meaning of section 2 of the act of May 12, 1905, with respect to “safety appliances on railroads.”
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed.
    Opinion filed March 18, 1908.
    W. S. Kenyon and W. W. Barr, for appellant; J. M. Dickinson, of counsel.
    Frank F. Foreman and W. F. Bundy, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit in case, in the Circuit Court of Marion county, by appellee against appellant, to recover damages resulting from the death of appellee’s intestate, alleged to have been caused by a violation on the part of appellant of the statute concerning automatic couplers. Trial by jury. Verdict and judgment in favor of appellee for $2,250.

The suit is based upon sections 2 and 9 of the Act of May 12, 1905, with respect to ‘ ‘ safety appliances on railroads.” Section 2 is as follows: “That from and after the passage of this act it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any locomotive, tender, car or similar vehicle used in moving state traffic not equipped with couplers, coupling automatically by impact, and which can be uncoupled without the necessity of men going' between the ends of the cars.” Section 9 relieves an employe who may he injured by any train, locomotive, tender, car or similar vehicle in use contrary to the provisions of the Act, from assumed risk and contributory negligence, because of continuing in the employment of such common carrier or in the performance of his duties as such employe.

Counsel for appellee summarize their declaration, in their statement of the case, as follows: “The declaration charges that the defendant carelessly and negligently failed to equip certain of its cars with automatic couplers, which could be uncoupled without the necessity of men going in between the ends of the cars; that the defendant is a common carrier and engaged in moving traffic between points within this state, and that the said cars were used by the defendant in moving state traffic; that the deceased was a switchman in the yards at the city of Centraba; and that in the performance of Ms duty as such switch-man he was obliged to go in between the ends of certain cars for the purpose of uncoupling the same, and that while so engaged he was instantly killed.”

The controlling question in this case is, whether the cars causing the death of appellee’s intestate were at the time being used in moving traffic on appellant’s line, within the meaning of the statute. Were they at that time being used in moving state traffic?

Counsel for appellee in their statement say: Appellant “has a whole block of ground east of the express office and back of the hotel lying south of and adjacent to Broadway. The roundhouse and repair shops are in tMs block of ground east of the hotel building, leaving qrnte an open space, so far as buildings are concerned, between the roundhouse, repair shops and carpenter shops on the south and Broadway on the north. There are seven or eight repair tracks, numbered from 1 to 8 inclusive, which have stub ends coming up to Broadway and running south, connecting by lead tracks into other tracks and finally reconnecting south of the depot and hotel building with the main track of the road. There is also a track commencing north of Broadway leading off from the east side of the main track, which runs south across Broadway and just immediately east of and alongside of the express office building, which, as it gets a little further down, acts as a lead track for some of these repair tracks, and finally curves around and connects with the main track south of the depot building, and is used as a passing track to take cars off of the repair track and put them into service, and for engines to pass through. The track is called Park track. The next track to the east is called Bast Park track, and leads off of Park track a little south of Broadway and back into it further south. The next one is called No. 1 repair track, and with the six or seven east of it are stub tracks ending at Broadway and leading south ending at the lead track. These repair tracks were used as tracks on which to repair bad order cars. ’ ’

Appellee’s intestate was crushed between a box car and a coal car, while in the act of uncoupling them, on the evening of March 28, 1906. These two cars had long before then both become disabled and been sent into these repair yards to be repaired, the box car on January 28th, with a defective truck, and the coal car on March 18th, with draft timbers and center sills broken and the coupler and a portion of the draft timbers gone.

It was a part of the duty of the switching crew of which appellee’s intestate was a member to go into these repair yards and take out the cars that had been repaired and place them onto the Park track so that they might be put into service, and to place the unrepaired cars on tracks where they could be properly repaired.

Four cars, among them the box car in question, had been repaired and marked O. K. These four cars were coupled together, the box car in question being at one end. Attached to this box car by means of a chain, which would not couple automatically, was the unrepaired coal car in question, with two other unrepaired cars attached, thus making a string of seven cars. The four good order cars were to be placed on the Park track for service, and the three bad order cars to be placed on proper tracks for repairs, or to be moved to some other part of the repair yards, as an incident to their condition and purpose there. The switching crew backed this string of cars south on East Park track until they reached a point where, by means of a switch, they could turn in on Park track and shove the cars north “to a place where they designed to cut off the good order cars and leave them on Park track, thereby putting them into service.” As they neared the place where they designed to cut off the good order cars, appellee’s intestate approached the string of moving cars, went in between the box car and coal car in question for the purpose of uncoupling them, and was crushed and killed.

Giving to appellee the benefit of the most favorable view of what the evidence tends to prove that a disinterested reasonable mind could entertain, appellee failed to make a prima facie case. The trial court erred in refusing to direct the jury to find the defendant not guilty. The cars causing the injury complained of were not being “used in moving traffic” at the time of the injury. A disabled car,' while being-transported to a repair shop or repair yards, for the sole purpose of being repaired, and while it remains in such shop or yards solely for that purpose, and until it has been returned to a point where it may be “used in moving- traffic,” does not come within the meaning- of the statute.

The judgment of the Circuit Court is reversed, and the court finds as ultimate facts, to be incorporated in the judgment, that appellant, the defendant in the Circuit Court, was not guilty of the negligence and violation of the statute charged in the declaration, nor of any part thereof, as in said declaration charged.

Reversed.


text:
    Charles Hilt, Appellee, v. H. R. Heimberger, Administrator of the Estate of Joseph Hilt, deceased, et al., Appellants, and Henry Hilt, Appellee, v. H. R. Heimberger, Administrator of the Estate of Joseph Hilt, deceased, et al., Appellants.
    1. Chancery—when may grant new trial at law. If one, without fault on his part, be led into such misunderstanding as clearly to evidence excusable neglect and is thereby prevented from making a defense to a suit at law, although he has in fact been served with process, a court of equity may grant to him a new trial, upon reasonable terms, where it appears that there is a meritorious defense which he in good faith purposes to make.
    Bills in chancery. Appeal from the Circuit Court of Madison county; the Hon. Chas. T. Moore, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    B. G. Waggoner and E. B. Glass, for appellants.
    Warnock, Williamson & Burroughs, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

The two cases above entitled are exactly alike in every material respect. By agreement of parties, the causes were tried together in the Circuit Court, each party reserving the right to introduce any and all evidence applicable to either of said causes, the same as if tried separately. By a further agreement, the causes are “to be heard together in this court, except that a separate decree may be entered in each ease.”

These were hills in chancery in the Circuit Court of Madison county by appellees, respectively, against appellants, to set aside and vacate certain defaults and judgments at law, entered and rendered against appellees, respectively, at the May term, 1906, of said court, and for leave to plead, and to defend said suits; and for an injunction restraining appellants from levy and sale pending this suit.

Appellees are brothers and sons of Joseph Hilt, deceased, whose estate was being administered by appellant, Heimherger. During his lifetime Joseph Hilt had deeded to appellees and their brother Stephen a farm of 100 acres. This the sons claimed was a gift. After the death of the father, appellant Heimherger as administrator set up the claim that the farm was not a gift to appellees and their brother Stephen, but that they had bought it from their father for the sum of $5,000, to be paid by them in equal parts to his estate after his death, and on the fifth day of May, 1906, filed a bill in chancery in the Circuit Court of Madison county against appellees and Stephen to establish and enforce a vendor’s lien upon said land for said sum as the purchase price. Ten days after the filing of this hill said appellant instituted in the same court a separate suit in assumpsit against each of appellees, and filed with the declaration, which consisted of the common counts, the affidavit of his attorney that the demand of the plaintiff was “for one-third share of the purchase price of the farm land, personal property appropriated or purchased, and for money loaned, * * * and that there is, as affiant is informed and believes, due to the plaintiff, as administrator of Joseph Hilt, deceased, from defendant, after allowing to him all just credits, deductions and set-offs, the sum of fifteen hundred dollars.” On the day the assumpsit suits were commenced the summonses in those cases and in the chancery case were all delivered at once to a deputy sheriff to serve. Appellees had heard of the filing of the bill in the chancery suit and were expecting to be served with summons in that case, hut had no intimation that any suits at law had been or would be instituted against them. The deputy sheriff found both appellees in the Circuit Court room at Edwardsville, where they were in attendance as defendants in a suit there on trial, and while the trial was in progress the deputy went to them separately in court, and in a low voice read the summonses, and handed to each of them a copy of the one in the chancery suit, which each understood to be the only summons that had been served upon him. The deputy sheriff made formal return of due service of all the summonses. Appellees at once employed counsel to defend the chancery suit, but they had no knowledge of the pendency of the suits at law, and, of course, made no defense.

On June 20th a default was entered in each case, and on June 26th judgment was entered for $1,500, with costs, against each. On June 29th, after the May term of court had adjourned, appellant caused executions to issue in each case, and caused levies to be made. This was the first notice or knowledge that either of appellees actually had of the existence or pendency of said suits at law, and they each make a strong showing of the existence of a meritorious defense to the entire demand.

The trial court rendered a decree in each case in accordance with the prayer of the bill, setting aside the default and judgment, and allowing appellees to come in and defend, upon their paying all the costs in each of these eases and all the costs that had accrued in each of the law cases up to the date of rendering’ the decrees in these cases.

We are of opinion that the decrees of the Circuit Court were just and proper decrees to be entered in these cases.

If one without fault on his part be led into such misunderstanding as clearly to evidence excusable neglect and is thereby prevented from making a defense to a suit at law, although he has in fact been served with process, a court of equity may grant to him a new trial, upon reasonable terms, where it appears that there is a meritorious defense which he in good faith purposes to make.

The decree of the Circuit Court in each of the cases is affirmed.

Affirmed.


text:
    John Schmitt, Appellee, v. F. J. Kurrus, Appellant.
    1. Assault and battery—what evidence competent upon question of damages. In an action for assault and battery it is competent, in connection with the right to recover punitive damages, to show the pecuniary circumstances and social relations of the plaintiff.
    2. Evidence—iohen objection properly overruled. An objection to evidence competent in itself but which needs to he supplemented by other evidence is properly overruled. If, however, the supplemental evidence is not introduced, the party who made the objection to the evidence which standing alone would not he competent, should move to exclude.
    Trespass. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyebs, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Keefe & Sullivan, for appellant.
    McHale & Sumner and Wise & McNulty, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in trespass, in the City Court of East St. Louis, by appellee against appellant, to recover damages for an assault and battery inflicted by appellant upon appellee. Trial by jury. Verdict and judgment in favor of appellee for $1,690.10.

Appellee was an employe of a commission company engaged in handling fruits and vegetables. The place of business was kept open during the night for the purpose of receiving consignments and preparing the goods to be placed upon the market early on the following morning. After eleven o’clock at night appellee was in charge of the business.

About midnight of July 6-7, appellant with a number of companions who had been drinking more or less, came in the store where appellee was in charge and broke one melon and started to carry away another ; appellee protested, and one of the party paid for the melon that was broken and the one that was being carried away was returned; appellant then demanded that appellee should pay back the fifty cents which had been paid for the broken melon, and this appellee declined to do; appellant was persistent and appellee went into a telephone booth for the purpose of calling the proprietor or the police and appellant followed after him using angry and profane language and struck at him through the glass part of the booth door, breaking the glass and driving a fragment of it into one of appellee’s eyes, very seriously and probably permanently injuring it. The evidence, we think, discloses that appellant was not only guilty of assault and battery upon appellee as charged in the declaration, but that it was absolutely without either legal justification, or reasonable provocation,—it was wilful and wanton.

After the injury, appellee went to a physician who advised him to go to an eye specialist who sent him to a hospital where a surgical operation was performed upon his eye; he was then placed under care of a specialist who treated his eye for ninety days, resulting in only a partial restoration of sight. He suffered humiliation and pain. He paid out money and incurred liability in and about endeavoring to be cured, to the amount of $168.10, and lost his salary for six weeks time that he was unable to attend to his duties for his employer, amounting to $90. In addition to the foregoing with respect to the damages, we think the evidence clearly warrants exemplary damages.

Counsel for appellant insist that the trial court erred in permitting appellee to prove his pecuniary circumstances and social relations. This was not error. In this state such facts are proper to be proven, in this character of case. In McNamara v. King, 7 Ill. 332, the court says: “In actions of this kind, the condition in life, and circumstances of the parties are peculiarly the proper subjects for consideration of the jury in estimating the damages and their pecuniary circumstances may be inquired into.” “In trespass for assault and battery, evidence of the pecuniary condition of the plaintiff may be given.” Cochran v. Ammon, 16 Ill. 316.

While upon the witness stand testifying in his own behalf, appellee was asked, “"What was I)r. Ball’s bill —what were you to pay?” To this question counsel for appellant objected, saying, “I object because there is nothing to show that the fee charged was the usual and customary fee.” The court overruled the objection, and counsel duly excepted, and here contend that the trial court committed reversible error in overruling the objection and permitting the question to be answered. In this contention we cannot agree with counsel. As one step towards establishing his claim for expenses paid and liability incurred in and about endeavoring to be cured it was proper for him to prove “what he was to pay,” i. e. what amount he had become liable to pay. This alone would not make complete proof of his right to be reimbursed by appellant, but it was one of the proper and necessary steps towards complete proof. If when the evidence was all in, it did not tend to prove that the amount stated was within the “usual and customary fee,” and if appellant was then not willing to concede the fact, it was his duty to move the court to exclude or strike out the witness’ answer to that question, or to have presented an instruction covering that feature of the evidence, and having, done neither he cannot now be heard to complain. As the case stood when the question was asked, it was clearly within the discretion of the court to allow it to be answered. Chicago City Ry. Co. v. Menely, 79 Ill. App. 679 (683); Chicago City Ry. Co. v. Miller, 111 Ill. App. 446 (448).

Counsel for appellant challenge and criticise a number of the instructions given by the court on behalf of appellee. Their challenges raise no question of law upon which we have not expressed our judgment, in the preceding parts of this opinion, and we regard the extended criticisms upon them as quite hypercritical. We are of opinion that the instructions, given on behalf of appellee, individually and as a whole, are substantially correct, and clearly not misleading. Appellee’s case appears to us as meritorious, and we think substantial justice has been done by the verdict and judgment of the trial court.

The judgment of the City Court of East St. Louis is affirmed.

Affirmed.


author: Mb. Justice Creighton

text:
    Daniel Wicker, Appellee, v. City of Alton, Appellant.
    1. Evidence—when question improper as calling for the conclusion of a witness. A question as follows is subject to the objection (hat it calls for the conclusion of a witness and invades the province of the jury: “By walking along in the center of the sidewalk after it was repaired, now was there any danger.”
    2. Appeals and errors—when assignment of error deemed waived. An assignment of error not argued is deemed waived.
    3. Instructions—should not invade province of jury. Held proper to modify the following instructions by striking therefrom the italicized words:
    “The court instructs the jury that if you believe from the evidence that the plaintiff was familiar with the sidewalk in question and knew its condition, and you further believe from the evidence that at the time he claims he was injured, he was not exercising due care and caution for his own safety, such as loohing where he was stepping, then he was guilty of contributory negligence, and the jury will find for the defendant.”
    4. Verdict—when not disturbed as against the evidence. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    5. Execution—when should not be awarded. An execution should not be awarded against a city.
    Action in case for personal injuries. Appeal from the Circuit Court of Madison county; the Hon. B. R. Burroughs, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    John F. McGinnis, for appellant.

      John J. Brenholt. for appellee.
   Mb. Justice Creighton

delivered the opinion of the court.

This was an action in case, by appellee against appellant, in the Circuit Court of Madison county, to recover for a personal injury resulting from a fall upon a dangerous sidewalk, along one of the public streets of appellant. Trial by jury. Verdict and judgment in favor of appellee for $250.

Counsel says, “the errors complained of are: The court allowed improper testimony on the part of appellee; the court refused proper evidence offered on the part of appellant; the court erred in giving appellee’s first instruction, and in refusing appellant’s fifth instruction; the court erred in refusing to direct a verdict in favor of appellant at the close of all the evidence; the court erred in denying appellant’s motion for a new trial, and the court erred in ordering execution to issue against appellant.”

It is no where pointed out in appellant’s brief or argument wherein the court allowed any improper testimony on behalf of appellee, and therefore we must treat this assignment of error as abandoned.

The only ruling of the court as to the admission of evidence offered on behalf of appellant of which complaint is made is with respect to a question asked by counsel for appellant as follows: “By walking along in the center of the sidewalk after it is repaired, now was there any danger.” This question was objected to and the court sustained the objection. In support of his contention that the court’s ruling was erroneous, counsel here says: “This certainly was a proper question to ask—by walking in the center of the sidewalk—he certainly ought to have been permitted to answer whether it was dangerous or not.” The question did not call for any evidentiary fact, but for the mere conclusion of the witness as to a material issue in the case. Whether the sidewalk was dangerous or not was for the jury to determine from all the evidence bearing upon its situation and condition. The subject-matter of inquiry as disclosed in the record, was not one that could be enlightened by opinion evidence as to the ultimate fact.

No attempt is made by counsel to point out any defect or vice in appellee’s first instruction and this assignment will also be treated as abandoned.

Appellant’s fifth instruction, which the court refused to give as asked was as follows:

“The court instructs the jury that if you believe from the evidence that the plaintiff was familiar with the sidewalk in question and knew its condition, and you further believe from the evidence that at the time he claims he was injured, he was not exercising due care and caution for Ms own safety, such as looking where he was stepping, then he was guilty of contributory negligence, and the jury will find for the defendant. ’ ’

The court modified this instruction by strildng out the words, “such as looking where he toas stepping ” and gave it as modified. In this the court did not err. Whether under the facts of this case, it was appellee’s duty to “look where he ivas stepping” was a question of fact for the jury and not a question of law for the court. It was his legal duty to exercise such care and caution for his own safety as a reasonably prudent and cautious person would exercise under the same or similar circumstances, but what particular acts of care and caution he should have exercised cannot under the facts of this case, be stated as matter of law.

With respect to appellant’s contentions that the court should have directed a verdict in favor of appellant, or at least should have set aside the verdict returned by the jury in favor of appellee and granted a new trial, we deem it sufficient to say that in our judgment the verdict is neither without evidence to support it nor is it manifestly against the weight of the evidence.

The judgment as entered is erroneous in that it awards execution against appellant, hut in as much as no material error preceded the entering of the judgment, that error can and should be corrected here, and it is ordered and adjudged by the court that the judgment rendered and entered in this canse in the Circuit Court of Madison county, from which the appeal herein is prosecuted, be and the same is corrected by striking out the words “and have execution therefor”; and it is ordered that the clerk of the Circuit Court of Madison county so amend the record of said judgment, and that the clerk of this court certify the foregoing order and judgment of this court to the clerk of the Circuit .Court of Madison county.

The judgment of the Circuit Court as above corrected is affirmed.

Affirmed.


text:
    Anna Thielker, Administratrix of the Estate of Henry W. F. Thielker, deceased, Appellant, v. East St. Louis & Suburban Railway Company, Appellee.
    1. Contbibutoey negligbnoe—what is as matter of law. One who voluntarily places himself in a position of danger, without any justification or reasonable excuse therefor, is guilty of contributory negligence as a matter of law.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of St. Clair county; the Hon. Chas. T. Moobe, Judge; presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    W. M. Vandeventee and W. E. Knowles, for appellant.
    Schaefer, Farmer & Kruger, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was an action in case, in the Circuit Court of St. Clair county, by appellant against appellee, to recover for the death of appellant’s intestate, alleged to have been caused by negligence on the part of appellee. Trial by jury. At the close of plaintiff’s evidence the defendant moved the court to exclude all of the evidence and for an instruction directing the jury to return a verdict finding the defendant not guilty. The court granted the motion, the jury returned a verdict in accordance with the court’s direction, and the court rendered judgment on the verdict against the plaintiff in bar of the action and for costs. Plaintiff duly excepted, and brings the case to this court by appeal.

The question presented is whether the record discloses any evidence tending to prove all that is required to warrant a recovery by the plaintiff upon the case stated in her declaration as therein stated. In resolving this question the court is not authorized to weigh the evidence, but only to inspect the record and ascertain whether it contains any evidence tending to establish every requisite fact.

The declaration consists of four counts. Three of them charge, in substance, that Henry W. C. Thielker, appellant’s intestate, was a passenger on one of appellee’s cars, on his way from Bast St. Louis to Schmidt’s Mound, and that appellee negligently maintained one of its trolley poles so close to the track of its road that appellant’s intestate, while in the exercise of due care and caution for his own safety, unavoidably came in contact therewith and was thereby killed. The fourth count charges that appellee negligently failed to give appellant’s intestate due and timely notice that it had a trolley pole so close to its car track as to be dangerous to passengers, and that appellant’s intestate, while in the exercise of due care and caution for his own safety, was unavoidably struck by such pole and so badly injured thereby that he died in consequence thereof.

Appellee was engaged in operating an interurban line of electric railway from some point in the city of East St. Louis across country by way of Collins-ville to the city of Edwardsville, a distance of twenty-five miles. Along so much of its line as was within the limits of the city of East St. Louis it had regular stopping places, and in the country between cities it had regular stations from two to three miles apart. Schmidt’s Mound was one of these country stations. The cars were large and could carry 175 passengers, were equipped with air brakes and had a speed between stations of from thirty to forty miles per hour. The poles supporting the trolley wire stood near the railroad track, pole 213, the one with which appellant’s intestate collided, being but three feet from the track. This left a space of but ten inches between the pole and a passing car.

"When appellant’s intestate entered the car the seats were all occupied, and he stood up in the aisle of the smoking compartment. When within about four or five hundred feet of Schmidt’s station, the conductor announced the station and gave the motorman the station signal and the motorman began to slacken the speed of the car. About this time a fellow-passenger observed appellant’s intestate standing “straight up” on the lower step of the platform, “ahold of two hand holds, facing the car.” This witness did not see him take that position, nor see in what position he was at the immediate time of the injury. One other witness saw him on the step, and saw him immediately before the injury and at the instant of' it. He was then standing on the lower step, facing the car, “had hold of two hand holds, leaning out at full arm’s length,” when his body collided with pole 213." The car had not yet reached the station by 200 feet or more, and was running at a speed of from eight to twelve miles per hour.

One of the material facts requisite to appellant’s right to recover is that her intestate “was in the exercise of due care and caution for his own safety at the time of his injury, ’ ’ and there is in this record no evidence nor any reasonable inference tending to prove that fact. It is apparent to the court that, under the undisputed facts of this case, all disinterested reasonable minds will agree that appellant’s intestate voluntarily placed himself in a. position of danger without any justification or reasonable excuse therefor..

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Urban E. Kennedy, Appellee, v. Swift and Company, Appellant.
    1. Master and servant—effect of joint negligence of former and fellow-servant. A master is liable for his negligence notwithstanding the injury may have been contributed to by the negligence of a fellow-servant.
    2. Master and servant—when doctrine of assumed risk does not apply. A servant injured while carrying out the command of his master is not subject to the application of the doctrine of assumed risk, if in obeying such command he acts with that degree of prudence that ordinarily prudent men would have observed under the same circumstances.
    3. Ordinary care—what competent upon question of. Upon the question of the exercise of ordinary care it is competent to show the lack of experience of the servant.
    . 4. Appeals and errors—when rulings not subject to • review. Rulings to which no exceptions have been preserved will not be considered on review.
    5. Amendments and jeofails—propriety of, after verdict. It is within the discretion of the trial judge to permit the declaration to be amended after verdict in order that it may conform to the proof.
    Action in case for personal injuries. Appeal from the Circuit Court of St. Clair county; the Hon. R. D. W. Holder, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    C. E. Pope, for appellant.
    Keefe & Sullivak, for appellee,
   Mr. Justice Creighton

delivered-the opinion of the court.

This was an action in case, in the Circuit Court of St. Clair county, by appellee against appellant, to recover for a personal injury sustained by appellee while in the service of appellant. Trial by jury. "Verdict in favor of appellee for $3,000. Remittitur, $1,000. Judgment on the verdict for $2,000.

The declaration consists of two counts. The first count is based upon the charge that appellant ordered appellee and other of its servants to perform certain work in an unusual and dangerous manner, whereby appellee was injured, and the second count is based upon the charge that appellant furnished appellee and certain other of its servants with a defective and dangerous appliance with which to perform certain work imposed upon them to be performed, by means whereof appellee was injured.

The evidence tends to prove that appellee had worked in appellant’s plant for several months at one time prior to his employment at the time he was injured ; that during his former employment he worked as an oiler and machinist’s helper in the various parts of the plant where Ms services were required; that he re-entered appellant’s employ on the day he was injured, and on that day was engaged in carrying stock as it was required from appellant’s storehouse to the portion of the plant in which he was injured; that appellant, through its foreman, was on that day engaged in raising and fastening a block and fall, used for lifting heavy weights, to the upper part of that portion of appellant’s plant called the commercial fertilizer, preparatory to installing machinery therein; that this block and fall was made of iron and weighed 175 pounds; that the proper and usual way of raising this appliance to that height was to use a small block and tackle, which at the time of the injury was conveniently at hand; that.instead, however, of using a small block and tackle, the foreman ordered the men to place a plank one foot wide and two inches thick across two sills, twelve feet above the floor, the span between the sills being about eight feet; that appellee and another servant were ordered by the foreman to go upon the board and raise the block and fall with their hands and hold it above their heads, while two other servants whom the foreman had sent upon the roof would fasten it in place by means of a rope; that the block and fall had a hook at the top, which at the time they started to raise the block was hooked over the rope, the ends of which were held by the men on the roof; that as appellee and his companion raised the block and fall, the men on the roof took up the slack in the rope; that the hook that was in use on this block and fall had been strained and partially straightened; that the condition of the hook was not known to appellee, and he had neither time nor occasion to examine it; that as soon as he got upon the board he and his companion began to lift the block between them, and raised it up until they had it as high above their heads as they were able to reach; that the weight was so great that they were unable to support themselves and hold it steady and it swerved or tilted and the defective hook released the rope and the block and fall fell, breaking the board upon which appellee and his companion were standing and throwing appellee upon a hard floor twelve feet below, breaking his right wrist, badly spraining his left wrist and seriously hurting his tongue.

Counsel for appellant contends that the trial court erred in refusing to direct the jury to find for appellant, and says: "The evidence conclusively shows that the injury in this case was caused solely by one of two things. Either the block and fall was raised or the rope lowered sufficiently to let the hook of the chain block fall out of the loop of the rope from which it was suspended. In either event there can be no recovery of damages, as the injury was the result of contributory negligence on the part of appellee or Ms fellow-servants. And wliile the question of contributory negligence is ordinarily -one for the jury, yet when there is no conflict in the evidence and the court can see the injury was the result of contributory negligence of the party injured or his fellow-servant, a verdict should be directed for defendant.”

To our minds the evidence clearly tends to prove, and we think the jury was warranted in finding, that the defendant, through its foreman, was guilty of negligence in ordering appellee and the other servants to do the work in hand in the manner in which he directed them to do it, and that the mode selected was an unusual and unreasonably dangerous mode to adopt under the circumstances, and also that the hook in use on the occasion was defective and dangerous to be used in the manner it was then being used, and that appellee was in the exercise of due care and caution for his own safety. In such case it is not material whether the two fellow-servants on the roof negligently allowed the rope to slack or not, for the law is: “Where a servant is injured through the joint negligence of the master and a fellow-servant, the master cannot escape liability on the ground that a fellow-servant also contributed to the injury.” The Pullman Palace Car Co. v. Laack, 143 Ill. 242; Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145.

Counsel further contends that appellee assumed the risk, and cites the following well-established rule in support of his contention, viz.: “A servant assumes not only the ordinary risks of his employment, but also all dangers which are obvious and apparent, and if he voluntarily enters into or continues in the service; knowing or having means of knowing its dangers, he is deemed to have assumed the risk and to have waived all claims against the master for damages in case of personal injury resulting from such danger.”

The rule relied upon by counsel is not applicable to the facts of this case. The facts of tins case bring it within a principle of law which may be stated as follows: “Where an act is performed by a servant in obedience to a command from the master, or one authorized by the master to command, and the act is attended with a degree of danger, it is not requisite that such servant shall balance the degree of danger and decide with absolute certainty whether he must do the act or refrain from doing it, and his knowledge of the attending danger will not defeat his right of recovery, if, in obeying the command of the master, he acts with that degree of prudence that ordinarily prudent men would have observed under the same circumstances.” Anderson Press Brick Co. v. Sobkowiak, 148 Ill. 574; Illinois Steel Company v. Schymanowski, 162 Ill. 477; Offut v. Columbian Exposition, 175 Ill. 472; Graver Tank Works v. O’Donnell, 191 Ill. 236; Illinois Steel Company v. McFadden, 196 Ill. 344; I. C. R. R. Co. v. Atwell, 198 Ill. 200; I. C. R. R. Co. v. Sporleder, 199 Ill. 184; Pressed Steel Car Company v. Herath, 207 Ill. 580; Springfield Boiler and Mfg. Co. v. Parks, 222 Ill. 358. And, further, the evidence tends to prove that the defect in the appliance, upon which the second count of the declaration is based, was not known to appellee, and was not obvious and apparent. We are of opinion that the trial court did not err in refusing to direct a verdict in favor of appellant.

Counsel complain of a number of rulings of the trial court with respect to the admission of evidence. Appellee was allowed to state, while testifying in his own behalf, that he had “never been employed in doing any work of that character.” This, counsel insist, was material error.

In answer to the preceding question, appellee had stated that during the eight months’ time he had worked for appellant he had no occasion to use a block and fall; and on cross-examination he stated, “I never saw the block and fall during the eight months I worked for Swift & Company (appellant), and I never saw one similar to this one, there.” All this was relevant and proper to be admitted, as tending to prove due care on Ms part.

Appellee and another witness were permitted to testify that appellee’s companion wanted to lift the block and fall with a small block and tackle, and had one there ready for that purpose, and that the foreman told him to put it back there and lift with their hands. TMs, counsel contends, “was manifestly improper.” In tMs same connection there was evidence tending to prove that the usual and customary method of raising the block and fall to such height as it was being raised on tMs occasion was by the use of a small block and tackle, and that this method was a safe method, and the declaration charged that such was the “proper, safe and usual way,’’but that appellee’s foreman negligently refused to allow the work to be done in this proper, safe and usual way, and ordered and directed it to be done in the dangerous manner in wMch it was done, as above stated. We tMnk every feature of tMs evidence was directly relevant, and that it was properly admitted.

It is also contended that the trial court erred in admitting certain parts of the testimony of one of the physicians, Dr. Haggerty. TMs contention we are not called upon to discuss, for the reason that the abstract does not show that any exception was taken to its admission. It is true that counsel objected to it, but the court made no ruling and no exception was taken. To avail, on appeal, of an objection made in the trial court, one must insist upon a ruling and get it, and except to the ruling, or if the. court will not make a ruling, except to the court’s refusal to rule.

We are of opimon the court did not commit material error in the giving and refusing of instructions. The instruction given on behalf of appellee states the law correctly as to the measure of damages, and, we think, is clearly within the evidence. A number of instructions asked by appellant were refused, but the twenty-one that were given fully cover every material feature of the defense, and they include all that is proper in the refused ones.

After verdict and pending the motion for new trial appellee by leave of court amended the first count of the declaration. Counsel for appellant insist that the court should have granted his motion for new trial, to afford him an opportunity to plead to the amended count. The statute authorizes amendments at any time before final judgment, and this amendment was within the evidence, and, further, the amendment was wholly unnecessary to the sustaining of the verdict as to the count amended as it stood before it was amended.

We find no reversible error in this record. The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    E. N. Gillespie, Trustee, etc., Appellant, v. Fulton Oil & Gas Company, S. C. Bowman, T. N. Rogers and Walter Hennig, Appellees.
    1. Injunction—when lies to restrain breach of contract. Whenever a contract is one of that class which will he affirmatively specifically enforced, a court of equity will restrain its breach by injunction, if this is the only practical mode of enforcement which the terms of the contract will permit.
    2. Specific pebfobmance—when awarded. A party cannot, as a matter of absolute right, have a contract specifically enforced in equity, but the exercise of this power rests in the sound discretion of the court in view of the contract and the surrounding circumstances.
    3. Landlord and tenant—when oil and gas lease voidable. An oil and gas lease will be held voidable at the instance of the lessor where it appears that the lessee has not observed his obligations as to development. The rule in regard to the observance of such obligations is strict, and the right to the rescission of such a lease for the non-observance thereof exists independently of the fraud of the lessee, which, however, appeared in this case.
    4. Landlobd and tenant—when oil and gas lease void. An oil and gas lease made with respect to homestead premises is void as to such homestead unless joined in by the wife, the value of the homestead estate being determined as of the date of the execution of the lease.
    Bill in chancery. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    Charles Gibbs Carter, Golden, Scholeield and Scholeield and Parker & Crowley, for appellant.
    George W. Jones, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a proceeding in chancery, in the Circuit Court of Crawford county, by appellant against appellees. The bill is in the nature of a bill for specific performance of the terms of an alleged ‘ ‘ oil and gas lease, ’ ’ and is a bill for "negative specific performance. " The case was heard on bill, answers, and evidence produced in open court. And the court made specific findings in favor of appellees, and rendered a decree dismissing appellant’s bill. Appeal to this court duly prayed, allowed and perfected.

It is alleged in the bill that on the seventeenth day of May, 1905, appellee, S. C. Bowman, executed to one T. E. Pierce an “oil and gas lease,” as follows :

“In consideration of the sum of one dollar, the receipt of which is hereby acknowledged—S. C. Bowman party of the first part, hereby grant and lease unto T. E. Pierce party of the second part, all the oil and gas in and under the following described premises, namely, all that lot of land situated in the township of........, in ............county, State of Illinois, described as follows: to-wit: west side of nw of ne quarter of sec. 11, t 8, r 14 west and ne quarter of the nw quarter of see. 11, t 8, r 14 west, all in Crawford county, Illinois, containing fifty acres more or less, together with the right to enter thereon at all times, for the purpose of drilling and operating for oil and gas, and to erect and maintain all buildings and structures' and lay pipes necessary for the production and transportation of oil and gas. To have and to hold the above described premises for the term of five years from the date hereof, and as much longer as oil or gas is found in paying quantities on said premises on the following conditions

“Second parties shall within twelve months from date hereof drill to completion a test well upon said premises; if gas is found in sufficient quantities to transport, second parties agree to pay first party the sum of one hundred dollars per year for the gas product of each well from which gas is transported, payable annually when a market is found for the gas and first party to have gas free of cost, to heat and light one dwelling house, to be transported at first party’s cost. If oil be found in paying quantities the °first party shall have the one-eighth of all oil produced and saved from said premises to be delivered in the pipe line with which second parties shall connect their wells.

“The party of the first part grants the further privilege to the parties of the second part of the right of way over and across said premises to the place of operating together with the exclusive right to lay pipes to convey oil and gas, the right to remove any machinery or fixtures placed on said premises by their doing the least possible damage to said premises, and the party of the first part reserves the right to use and enjoy said premises for the purpose of tillage and all purposes not inconsistent with the object and purposes of this lease, except such as may be necessary for the purposes above mentioned.

“The second parties to lay all lines deep enough under ground as not to interfere with the cultivation of the land.

“The second party hereby agrees to pay all damage done to growing crops by the laying of pipes.

“In case no well is completed on said premises within twelve months from this date the parties of the second part shall pay to party of the first part a rental at the rate of twenty-five cents per acre per year, to be paid annually, counting from the expiration of said twelve months.

“It is further agreed that in case no paying well is completed on said premises within five years from the date hereof this grant shall be null and void, without further agreement of the parties hereto.

“No well shall be drilled within two hundred feet of any dwelling house or building without a written permit from first party.

“The second parties shall have the right to use sufficient gas and water to run all machinery for operating wells, also the right to remove all its property at any time, but without interference with first party’s water supply.

"Upon abandonment by second party of the premises, or upon expiration of the rights and privileges of the second parties under the provisions hereof, the. second party agrees to execute full release to party of the first part.

“The parties of the second part hereby agree to complete........test well in............, county, Illinois on or before the............, 190 or forfeit all rights under this lease.

“It is understood between the parties to this agreement that all conditions between the parties hereunto shall extend to their heirs, executors, administrators, successors and assigns.

“In witness whereof, the parties hereunto have set their hands and seals this the seventeenth day of- May, 1905.

S. C. Bowman. [Seal.]

T. E. Pierce. [Seal.]”

It is further alleged in the bill that Pierce assigned the lease to appellant; that Pierce and appellant have been willing, able and ready to keep and perform and have kept and performed all the covenants required by the terms of the lease to be kept and performed by them; that subsequent to the execution of the lease to Pierce, Bowman leased the premises to appellee, Rogers, and that Rogers had notice of the prior lease to Pierce and of its assignment to appellant; that Rogers assigned his lease to appellee, Fulton Oil and Gas Company; that an assignment was also made to appellee, Walter Hennig, and that Walter Hennig, either on his own account or on behalf of Fulton Oil & Gas Company, took possession of the premises and bored and completed thereon a producing oil well of great value. And that Bowman refused to permit appellant and his associates to go upon the premises to operate for oil and gas under his lease. The prayer of the bill is as follows: “That the defendants may be required to answer, but not under oath, oath being waived. That a temporary injunction may be granted restraining Walter Hennig, T. N. Rogers and Fulton Oil & Gas Company from trespassing on premises described in bill or from taking oil or gas from or out of said premises and from selling or disposing of any oil and gas already obtained therefrom, and from drilling further wells on said premises and from selling the oil that has or may hereinafter be produced from said premises and that upon a final hearing hereof the injunction may be made final; and that said S. C. Bowman, T. N. Rogers, Walter Hennig and Fulton Oil & Gas Company may be enjoined and restrained from preventing the complainant and his associates and their employees and agents from entering upon said premises and operating same for oil and gas and that said Pierce lease may be decreed to be the only subsisting lease on said premises for oil and gas purposes, and said lease from the said S. C. Bowman to the said T. N. Rogers may be declared null and void and a cloud upon the title of the complainant and his associates and as such may be ordered to be delivered up and canceled.

And that the said T. N. Rogers, Walter Hennig and Fulton Oil & Gas Company be decreed to have no right, title or interest of any kind in and to the oil and gas underlying said premises or that has been produced therefrom or the proceeds thereof and that they may be restrained from claiming any right, title or interest therein or thereto; that the said T. R Rogers, Walter Hennig and Fulton Oil & Gas Company may be required to discover the amount of oil and gas taken from said premises and render an account of all that they or either of them have sold from said premises. * * * ”

The substance of the answers, is as follows: Appellee, Bowman, among other things not deemed by us material, states: that said Pierce applied to him to make a lease, and falsely represented himself to be a practical operator and producer of oil and gas, and promised that if said appellee would make such lease to him that he would proceed without delay to drill and develop said lands; that said appellee relied upon said representations and promises; that neither Pierce nor appellant offered or attempted to commence or complete said well within twelve months, and that he did not prevent either of them from doing so within that period; that this appellee did on the twentieth day of August, 1906, lease the said lands to appellee, Rogers, and that Rogers assigned his lease to appellee Hennig, and that Hennig thereafter went upon said lands and drilled a well thereon for oil; that the said premises were the homestead of appellee Bowman and his family at the time of the making of the pretended lease to Pierce. Appellee, Rogers, states that he went upon said premises with the consent of Bowman and drilled a well. Appellees, the Fulton Oil & Gas Company and Rogers, state: that after February 1, 1907, the date of the filing of appellant’s bill, the oil and gas interests of said premises were owned by the Fulton Oil & Gas Company and Hennig, subject to the royalty reserved to Bowman and wife, and that neither Pierce nor appellant ever performed or offered to perform any of their covenants with respect to boring for or producing oil or gas upon said premises, until after Hennig had completed a valuable oil well thereon. All the answers set up that at the time of the execution of the alleged lease to Pierce, the premises in question was the homestead of appellee Bowman, that he was the head of a family residing with the same, that his wife did not join in the alleged lease to Pierce, and that neither Pierce nor appellant ever went into possession, or entered upon the premises or any part thereof, thereunder.

We are of opinion that the evidence together with a proper interpretation of the character and terms of the alleged lease, establishes the substance of all the material averments in each and all of the answers.

At this point we note again, that this was a proceeding for “negative specific performance.” “An injunction restraining the breach of a contract is a negative specific performance of such contract, and the jurisdiction to grant such injunction is substantially coincident with the jurisdiction to compel a specific performance.” “As a general proposition, whenever the contract is one of a class which will be affirmatively specifically enforced, a court of equity will restrain its breach by injunction, if this is the only practical mode of enforcement which the terms of the contract will permit.” “A party cannot, as matter of absolute right, have a contract specifically enforced in equity, but the exercise of this power rests in the sound discretion of the court, in view of the contract and the surrounding circumstances.” Chicago Municipal Gas Light Co. v. Town of Lake, 130 Ill. 42; East St. Louis Connecting Railway Company v. City of East St. Louis, 81 Ill. App. 109; same case in 182 Ill. 433.

“Although a contract may be legal and enforceable, it must be perfectly fair, equal and just, and such as a court of equity will commend, in order to justify a decree of specific performance.” Canal Com’rs v. Sanitary Dist. of Chicago, 191 Ill. 326.

“No matter what form a transaction may take, however plausible on its face, equity will discover the real intention of the parties and will not permit one party to reap any advantage from a contract not just to others with whom he is dealing.” Hale v. Bryant, 109 Ill. 34.

“A contract will not he specifically enforced, unless it has been made without misrepresentation or misapprehension and with perfect fairness.” Hatch v. Kizer, 140 Ill. 583.

The money considerations mentioned in the lease are purely nominal. The substanti al and moving consideration was the covenants with respect to the development of the property by the drilling to completion of oil and gas wells and the equipping of the same so as to make the premises royalty producing. It is apparent from the evidence that Pierce did not, at the time he procured the lease, intend to perform or to attempt to perform any part of these covenants and neither he nor appellant, his assignee, ever took any steps to that end or made any offer to do so, or any excuse for not doing so, until after much more than the full year had elapsed, and until after Hennig had completed a valuable oil producing well on the premises.

The contract' of lease which Pierce entered into with Bowman was purely a matter of speculation on his part and was not with a purpose to prospect the lands for gas and oil as he led Bowman to believe it was, at the time the lease was executed. The transaction lacked good faith and honest purpose on the part of Pierce as to the whole substance of the valuable and moving consideration for the lease.

As to oil and gas leases the greatest strictness prevails as to time of development. The Circuit Court of Appeals in Huggins v. Dailey, 99 Fed. 606, 48 L. R. A. 320, holds as follows: “By a course of decision in West Virginia which has established a rule of property it is settled that an oil and gas lease, in which the sole compensation to the lessor is a share of the product, is not a grant of property in the oil or in the land until oil is actually produced, but merely the right of possession for the purpose of expiration and development; and there is always an implied, if not an express, covenant for diligent search and operation. A different rule of construction obtained as to oil and gas leases from that applied to ordinary leases or to other mining leases, and, owing to the peculiar nature of the mineral, and the danger of loss to the owner from drainage by surrounding wells, such leases are construed most strongly in favor of the lessor. Where an oil and gas lease, by which the lessor is to be compensated solely by a share of the product, contains a proviso requiring the lessee to make and complete a well on the property within a specified time, such proviso and the time of its performance are of the essence of the contract, and it constitutes a condition precedent to the vesting of any estate in the lessee, without regard to the grammatical construction of the instrument. When the lessee makes no attempt to comply with such provision, and evidences no intention to do so, at the expiration of the term stipulated the lease becomes forfeitable at the option of the lessor, although by its terms it is for a definite term of years; and, being in possession, the exercise .of such option is sufficiently evident by the lessor’s execution of a new lease to another party.”

So much without any element of fraud or misrepresentation ; but in this case the answers aver and the evidence proves that Pierce falsely and fraudulently represented that he was a practical operator and oil producer and that he would proceed without delay to drill a well and develop said lands, and there was not only a total failure "to make good,” but there was never any bona fide purpose on his part to even try “to make good. ’ ’ A court of equity will not decree a specific performance of such contract, under such circumstances.

Since this case was argued by counsel and taken under advisement, the Supreme Court has handed down an opinion settling the questions involved in the homestead feature of the case, adversely to the contentions of appellant.

The premises in question was the homestead of Bowman and he resided upon it with his family at the time of the making of the Pierce lease. His wife did not join in that lease; it was therefore void, to the extent of the value of the homestead; and this value is to be determined as of the date of the execution of the lease and not at any subsequent time, hot as counsel for appellant contend, as of the time Hennig completed his well and discovered and commenced to produce oil, nor at the time thereafter when appellant’s bill was filed. Bruner v. Hicks, 230 Ill. 536.

Counsel for appellant suggest that even if the lease is void to the extent of the value of the homestead, still, it is good as to the excess over and above $1,000 in value. Neither the bill nor the prayer is framed with a view to that state of case, and the evidence wholly fails to prove that there is any such excess. The evidence does not prove that at the time of making the Pierce lease the premises was worth more than $1,000.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    Charles R. Maxwell, Appellee, v. Chicago and Eastern Illinois Railway Company, Appellant.
    1. Insteuctions—when peremptory should not be given. A peremptory instruction should not be given where the evidence tends to establish all of the averments of the declaration essential to a recovery.
    2. Insteuctions—upon province of jury erroneous. The following instruction does not correctly state the province of the jury, and is therefore improper: “The court instructs the jury that the law applicable to this case is given you in the form of instructions, but that you are the sole judges of all questions of fact in this case.”
    3. Instructions—when refusal of upon credibility of plaintiff

      erroneous. Held, that the refusal of the following instruction was error: “The jury are further instructed that while the law permits the plaintiff in the case to testify in his own behalf, nevertheless the jury have the right, in weighing the evidence, to determine how much credence is to be given to it, and to take into consideration that he is the plaintiff and interested in the result of the suit.”
    Action in ease for personal injuries. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the August term, 1907.
    Reversed and remanded.
    Opinion filed March 18, 1908.
    H. T. Dick and Kagy & Vandervort, for appellant; E. H. Seneff, of counsel.
    W. F. Bundy and Frank F. Foreman, for appellee.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a suit in case, in the Circuit Court of Marion county, by appellee against appellant, to recover for a personal injury sustained by appellee while in the service of appellant as a brakeman on one of its freight trains. Trial by jury. Verdict and judgment in favor of appellee for $7,500.

The declaration charged, in effect, that appellant negligently permitted a ladder attached to its caboose to become detached at the upper end and to be and remain in a defective and dangerous condition; that in the discharge of his duties it became necessary for appellee to use said ladder, and that in attempting to do so, he then being in the exercise of due care and caution for his own safety, the ladder “swung out beneath his weight and he was thrown” upon the track in front of the caboose and both his legs were crushed, the left one being so badly injured that it was necessary to have it amputated above the knee.

The principal questions of fact contested before the jury were: Whether appellant was guilty of the negligence charged against it, and whether appellee was in the exercise of due care and caution for his own safety. The burden rested upon appellee to establish the affirmative of both these propositions by a preponderance of the evidence.

Counsel for appellant contend that the Circuit Court erred in denying their motion to direct a verdict in favor of appellant. We think this contention is not well based. Appellee testified in his own behalf, as he might lawfully do, and his testimony tends to prove a complete prima facie case. “The rule now is that where there is evidence tending to prove all that is required to warrant a recovery, the court should submit the case to the jury, without regard to what the presiding judge may, at the time, think the court would hold as to the weight of the evidence, in case of a motion for new trial. ’ ’ St. Louis National Stock Yards v. Godfrey, 101 Ill. App. 40. Inasmuch as this case must be reversed and remanded for error of law, and may be tried again, we deem it improper to discuss here the question raised as to corroboration and weight of the evidence further than to say that the state of the evidence bearing upon the controlling questions in the case is that of direct conflict and contradiction. The case is a sufficiently “close case” to bring it within the rule requiring that “the jury should be accurately instructed where the evidence is conflicting and the case is close or doubtful.” Rumbold v. Royal League, 206 Ill. 513; Perkins v. Knisley, 204 Ill. 275.

At the instance of appellee the court gave the jury three instructions. Counsel for appellant challenge these instructions individually and as a whole. The first one of this series is as follows: “The court instructs the jury that the law applicable to this case is given you in the form of instructions, but that you are the sole judges of all questions of fact in this case.”

Instructions the same in effect and much the same in form as the one above quoted, have frequently been under consideration by the courts of this state. In the case of Chicago General Ry. Co. v. Novaeck, 94 Ill. App. 178 (181), the court gave at the plaintiff’s request an instruction as follows: “The court instructs the jury that they are the judges of the facts in this case.” This instruction was held to be erroneous, the court, among other things, saying with respect to it: “The jury are judges of the evidence, but when the facts are found by the jury from the evidence, it becomes a question of law on the facts so found * * *; but the court, not the jury,, is the judge of the legal effect of any fact found by the jury. The meaning of the court in giving the instruction probably was that the jury are judges of the evidence, but the instruction does not refer to the evidence, and the jury are not judges of the facts which they find from the evidence * * * .” The court further says that the instruction does not refer to the evidence, and leaves the jury free to find facts not proved by the evidence. The instruction in the case at bar makes the jury “the sole judges of all questions of fact in this case,” without referring them in any way to the evidence for their guidance.

In Chicago North Shore St. Ry. Co. v. Hebson, 93 Ill. App. 98 (101), the instruction contained the following language: * * * “What the facts are is peculiarly a question for the jury. It is the duty of the court to declare the law, and of the jury to determine the facts. ’ ’ The court held this instruction to be erroneous, and in response to counsel’s contention that it was cured by five instructions given on behalf of appellant, say-: “We do not, however, consider the argument sound, as no one can tell but that the jury followed the instruction which allowed them as wide a field of conjecture and speculation as it was possible for words to give them.”

In Chicago Union Traction Co. v. Straud, 114 Ill. App. 479 (483), the instruction was: “The jury are instructed that they are the sole judges of the questions of fact in this case, and the court does not, by any instruction given the jury in this case, intend to instruct the jury how they should find any question of fact.” The court says: “This instruction should not have been given. It has been frequently condemned for its tendency to make the jury feel independent of the court, and find the facts without reference to the proof before them, and without reference to the law of the case. Nor was the vice of the instruction cured by others.”

In West Chicago St. Ry. Co. v. Shannon, 106 Ill. App. 120 (128), the instruction was: “The court instructs the jury that they are the sole judges of the questions of fact in this case, and they should determine the same solely from the evidence which has been admitted as evidence by the court.” It will he observed that this instruction refers to the evidence and tells the jury “they should determine the facts solely from the evidence * * *,” yet the instruction is condemned, the court saying, in substance, while the jury are the sole judges of the evidence, they are not the sole judges of the facts. To the same effect are: C., B. & Q. R. R. Co. v. Greenfield, 53 Ill. App. 424 (429); Chicago City Ry. Co. v. Mauger, 105 Ill. App. 579 (582-3).

Counsel for appellee cite us to the case of North American Restaurant v. McElligott, 227 Ill. 317 (325), as a ease sustaining their instruction, and say the two instructions are identical, so far as they are able to gather from the opinion. The writer of tins opinion has inspected the record of that case and finds that the instruction in full was as follows: “The court instructs the jury that they are the sole judges of the facts in this case, and of the credit, if any, to he given to the respective witnesses who have testified, and if the jury believe from the evidence that any witness or witnesses in this case have knowingly, -wilfully and corruptly testified falsely as to any fact material to the issue in this case, they have the right to entirely disregard the testimony of such witness or witnesses, if any, except in so far as his or their testimony is corroborated by other and credible evidence or by facts and circumstances in evidence.”

In discussing this instruction the court does not sustain the proposition that “the jury are the sole judges of the facts,” but recognizes it as incorrect and excuses it in this particular case, because it was not made very prominent and was only preliminary to a correct statement of the law upon another important subject. The language of the court is: “The statement in the first instruction was only preliminary to a correct statement of the law as to the right of the jury to disregard the testimony of a witness who had knowingly, wilfully and corruptly testified falsely to any fact material to the issue. It gave no prominence to the statement that the jury were sole judges of the facts, and there was nothing in it which would tend to make the jury feel independent of the court or the law. The court should not impress the jury with the idea that they have power to do with the facts as they please, regardless of the law and the legal effect of the facts found.”

While the jury are the'sole judges of the credibility of the witnesses and of the weight of the evidence, they are not the sole judges of the ultimate facts. They may, when guided by proper instructions from the court as to the law, by means of the evidence, find the ultimate facts. Every ultimate fact has a legal significance and value which in a civil case the court alone must determine, and as determined by the court must be accepted by the jury. We are of opinion the court erred in giving appellee’s first instruction, but we find no material error in his second or third. So far as we are advised, they state the law correctly, and we see nothing in them or either of them that would be likely to prejudice or mislead a jury.

Appellant asked the court to give to the jury the following instruction: “The jury are further instructed that while the law permits the plaintiff in the case to testify in his own behalf, nevertheless the jury have the right, in weighing the evidence, to determine how much credence is to be given to it, and to take into consideration that he is the plaintiff and interested in the result of the suit.” The court refused to give this instruction.

Counsel for appellee concede that this instruction is a correct statement of law applicable in this case, and that “it has been approved in substantially the same form in several cases,” but say that its substance is included in a given instruction and therefore its refusal is not reversible error. It is true that the court did give the ordinary instruction as to weight of the evidence and the credibility of witnesses, at the instance of appellant, and this instruction did authorize the jury, with respect to the various witnesses who had testified in the case, to take into consideration various specified things, among them “the interest, if any, they have in the matter in controversy. ’ ’ Under the state of the evidence disclosed in this record, we cannot say that the court’s refusal to give this most pertinent and proper instruction directing the jury’s attention to the law specially applicable to the testimony of a direct party to the suit, must be held to be a harmless error, because there may be found within the limits of a long general instruction the words “the interest, if any, they have in the matter in controversy. ’ ’

Appellant asked the court to give two instructions, referred to in the record as refused instruction No. 6 and refused instruction No. 13. These instructions define and apply the law of contributory negligence. So far as we are advised, they state the law correctly, are pertinent and important, and their proper purpose is not served by any or all of the given instructions. We are of opinion that these two instructions should have been given.

For the errors above noted, the judgment of the Circuit Court is reversed and the case remanded.

Reversed and remanded.


text:
    Allen Cortelyou and Ella A. Cortelyou, Appellees, v. T. N. Barnsdall, Red Bank Oil Company, W. W. Seybert, W. C. Edwards, J. D. Kervin and W. H. Anchor, Appellants.
    The decision in this case is controlled hy the decision in Gillespie v. Fulton Oil & Gas Company et al., ante, p. 147.
    Bill in chancery. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding.
    Heard in this court at the August term, 1907.
    Affirmed.
    Opinion filed March 18, 1908.
    W. W. Arnold and Eugene Mackey, for appellants; Brownlee & Brown, McCarthy & Arnold and Lee & Mackey, of counsel.
    Parker & Newlin and Callahan, Jones & Lowe, for appellees.
   Mr. Justice Creighton

delivered the opinion of the court.

This was a bill in chancery in the Circuit Court of Crawford county, by appellees against appellants, praying for the forfeiture and cancellation of a certain oil and gas lease and for the removal of the same as a cloud upon the title of appellees. Cause heard upon hill, answers, replications and evidence produced in open court. A decree was rendered specifically finding all the material allegations of the hill, and granting to appellees the relief prayed, in full. Appellants duly prayed and perfected an appeal to this court.

The substance of the hill as abstracted by counsel for appellants in their statement is as follows: The bill as amended recites that on July 8, 1905, the complainants made an oil and gas lease to W. W. Seybert, one of the appellants, which was in writing, signed and acknowledged by both of the appellees and had been recorded on February 13, 1906, in the recorder’s office of Crawford county, Illinois, wherein the lands demised were situate and which lease the appellees charged was a cloud upon their title. This lease in words and figures reads as follows:

“Oil and Gas Lease.

“Agreement of lease, made this 8th day of July, A. D. 1905, between Allen Cortelyou and Ella A., his wife, of Robinson, Ill., lessor, and W. W. Seybert, of McKees Rocks, Pa., lessee, Witnesseth:

‘ ‘ That the lessor hereby grant unto lessee for the term of three (3) years (and so long thereafter as oil or gas is produced from the land leased and royalty and rentals paid by lessee therefor) the exclusive right to mine for and produce petroleum and natural gas from, and the possession of so much of eighty (80) acres of land in Crawford county, State of Illinois, as may be necessary therefor, with the right to use water and gas (if found) for the necessary engines, and to remove all machinery, fixtures, etc., placed by lessee on the premises, said land bounded:

“E. ½ of N. W. ¼ Sec. 30, T. 7, N. R. 12 W.

“No well to be drilled within 300 feet of the buildings without lessor’s consent. The lessee to deliver to lessor in pipe line the one-eighth (%) of all petroleum produced from the premises and to pay one hundred ($100) dollars per annum for each gas well from which the gas is marketed, payable semi-annually from the date and while the same is so utilized and to pay all damages to growing crops. This lease to be null and void and no longer binding on either party, if a well is not commenced on this block of 1,000 acres within 12 months from this date, unless the lessee shall thereafter pay annually to lessor 25 cents per acre per year for each year’s delay in commencing said well. Each payment to extend the time for completion for one year. A deposit to the credit of lessor in Oblong Bank, Oblong, Ill., to be a good payment of any money on this lease. Party of the first part to have free gas for the dwelling thereon by laying their own line and making connections at well. Provided there is a surplus gas and at no time to use gas out of dwelling. The lessee to have use of all casing head gas for drilling and producing purposes and to pipe the same to any well drilled by lessee on these premises.

“Party of the second part to protect all lines. All grants and covenants to extend to the heirs and assigns of the parties hereto. Lessee to bury all pipe lines below plow depth when requested.

“Witness the hands and seals of the parties:

Allbit Cortelyou, [Seal.]

Ella A. Cortelyou, [Seal.] W. W. Seybert. [Seal.]

Witness:

W. C. Cortelyou.”

“State of Illinois, ) County of Crawford, j SS.

“I, W. C. Cortelyou, Notary Public, in and for said County in State aforesaid, do hereby certify that Allen Cortelyou and Ella Cortelyou, his wife, personally known to me to be the same persons, whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act for the uses arid purposes therein set forth,

“Given under my hand and notarial seal this 8th day of July, A. 1"). 1905.

W. C. Cortelyou,

(L. S.) Notary Public.”

The bill charged that the lessee paid no consideration for the lease; that the lessors at the time of making the lease and ever since resided upon the lands demised thereby and occupied the same as their homestead; that the lessee was not bound by the lease to drill or develop the lands described therein or pay the lessors any consideration for their failure to do so; that he made false and fraudulent representations to secure the lease, which they charge is void, without consideration, and taken for speculative purposes; that in March, 1906, they notified the lessee in writing that they revoked the lease and. forbid him entering upon the premises; that he had never developed the premises or incurred any expense under the lease. The prayer of the bill is as follows: “And pray that the said lease or option and the several assignments may be declared null and void, as clouds on complainants’ title, and may be removed and delivered up to be cancelled, and that defendants and each of them, and all persons claiming any interest in said premises by virtue of said lease or option and assignments, be restrained by order and injunction of court from entering upon said premises and drilling any well or wells thereon, or doing anything that will interfere with possession of complainants, and for general relief.”

The evidence and proper interpretation of the terms of the lease, in the light of the evidence, fully establishes the substance of every material allegation of the bill. We are of opinion that the lease is no more than a mere option without any consideration for its execution and was taken by said Seybert solely for speculative purposes, and there not having been any performance on the part of the lessee or his assignees before it was revoked by the lessors, the lessors had lawful right to revoke and withdraw the option. We discussed this question at some length in one part of our opinion in the case of Gillespie, Trustee, v. Fulton Oil and Gas Company, ante, p. 147. The leases and the evidence in the two cases are so nearly the same in substance and effect as to make what is said with respect to that feature of that case applicable to this, and so need not be Repeated here.

Since this case was argued and taken under advisement our Supreme Court has handed down an opinion in the case of Bruner v. Hicks, 230 Ill. 536. The alleged lease in that case was in all its material features the same as the one in this case, and the controlling facts were much the same. The court in that case held the lease to he purely a speculative lease. The case last above cited also discusses the question of homestead, and holds that such lease encroaches upon the homestead estate, and that unless the homestead right is waived or released in accordance with the terms of the statute, the lease is void, to the full extent of the homestead right; and that “the value of the homestead premises, in so far as the question of a release of the homestead is involved, is to be determined as of the date the lease was made.”

It is conceded by counsel for appellants that in the case at bar the homestead right was not waived or released in accordance with the terms of the statute, it was not included in the acknowledgment, and that it has not in any manner been surrendered to appellants.

We are of opinion that the record in this case discloses no reversible error.

The decree of the Circuit Court is affirmed.

Affirmed.