text:
    Nora Conover, Appellee, v. Harrisburg & Southern Coal Company, Appellant.
    1. Mines and miners—what evidence competent to show condition of entry. In the absence of evidence showing identity of conditions, testimony as to the condition of an entry several days after the accident is incompetent.
    2. Mines and miners—what evidence competent to show condition of entry. Held, that evidence of the condition of the entry several days prior to the accident was competent.
    3. Mines and miners—what evidence competent, what not, to show knowledge of dangerous conditions. Held, that it was improper to permit a witness to state that the mine manager and examiner had learned of the accumulation of gas, because it was reported in the book kept for that purpose,—such book was the best evidence.
    4. Mines and miners—what evidence competent to show condition of entry and knowledge thereof 6y the operator. Evidence of conditions in the part of the mine where the explosion occurred existing within such time as might tend to show its condition at that time, is admissible.
    5. Mines and miners—when declarations of mine examiner incompetent. The declaration of a mine examiner not made while he was in the discharge of his duties as to the quantity of gas in an entry, is not competent, either as an admission or as part of the res gestae.

    6. Mines and miners—competency of prior explosions. Held, that evidence of another explosion in the same part of the mine two days before the accident in question, was competent in corroboration of other evidence tending to show the presence of gas leaks or feeders and other explosive conditions. Held, further, that the effects of such prior explosions, etc., were not competent.
    7. Mines and miners—what evidence incompetent upon question of damages in connection with loss of means of support. Testimony by the wife that her husband spent most of his time at home with her and the children and that he was the only support she had and that she had no other means of support, is incompetent as tending to impress the jury with the loss of companionship, and there could be no recovery except for pecuniary loss.
    8. Evidence—what competent hy way of impeachment. Written statements signed by a witness containing statements contradictory to his evidence, are competent to be used by way of impeachment, even though the witness had testified that the entire paper was not read over to him before hi signed it.

      Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Denison & Spiller, for appellant; M. S. Whitley, of counsel.
    Ronalds & Dodd, H. Robert Fowler and Choisser, Choisser & Kane, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellee as the widow of Guy Conover brought this action to recover damages for injury to her means of support occasioned by the alleged wilful failure of appellant to comply with certain provisions of the law in relation to mines and miners and which resulted in the death of her husband. The declaration contained five counts, in the first of which it was charged that appellant wilfully failed to provide currents of fresh air throughout the mine and certain entries and rooms, sufficient for the health and safety of deceased, so that all parts of the same would be reasonably free from standing powder smoke and deleterious air; that deceased in the discharge of his duty as shot firer went into one of said entries called the northwest and the rooms leading therefrom to fire shots; that he did light and fire several shots in and near said entry and that on account of said improper ventilation quantities of powder smoke, particles of dust, gas and other inflammable elements were permitted and allowed to accumulate in said entry and room and that upon firing the shots, the said smoke, dust, gas and other inflammable substance became ignited and exploded, thereby killing the deceased. The several breaches of duty charged in the other counts were in the second, that appellant wilfully permitted the deceased to enter the mine before said dangerous conditions had been made safe; in the third that it wilfully failed to spray, sprinkle and clean the entries, rooms and roadways which were dry and dusty, and which dust caused the explosion; and in the fourth that it wilfully failed to close the cross cuts by building the stoppings in a substantial manner of brick or other suitable building material, but did build them in an unsubstantial manner of slate, coal, lumber and other unsuitable material and that they were not built for temporary purposes; that they were so built that there were spaces between the top of the stoppings and the roof of the mine and that the air was thereby permitted to go in various parts of the mine and was not forced to the working places and to the said entries and rooms, whereby gas, powder, smoke, dust and deleterious air accumulated which when deceased fired a shot, were ignited and caused the explosion which resulted in his death. The fifth count alleged the same conditions resulting in the killing of Conover and a wilful failure to have said entries, rooms and galleries examined by the mine examiner and to have marked the places where. such dangerous conditions existed; to report his findings to the manager; to make a record of it; and not allow the deceased to enter the mine to work except under the direction of the mine manager until such conditions had been made safe.

There was a verdict finding the appellant guilty upon which the court rendered judgment.

The dangerous conditions in the mine arising from standing dust, smoke, gas and deleterious air which accumulated by .the alleged wilful failure to comply with the requirements of the statutes, were the breaches of duty charged against appellant. The evidence on behalf of appellee was all directed to this point in an effort to prove the dangerous conditions charged were the proximate cause of the death of Con-over, while appellant introduced evidence to disprove the charge and to show that the explosion and death were not caused by such conditions, but resulted from the excessive use of powder combined with shots so rapidly fired by Conover and his partner that a highly explosive gas called carbon monoxide was thereby generated and exploded by the flame or heat given off by the shots.

Much evidence was introduced by both parties tending strongly to support both theories but as the judgment cannot be affirmed on account of prejudicial error in ruling upon the admissibility of evidence, we forbear comment or discussion of it, or the expression of any opinion of its weight.

The court, over appellant’s objection, admitted testimony to show conditions in the entry where the explosion occurred several days afterward and the witness testified to seeing torn track, an upturned car and rock down. Also that “there seemed to be a considerable lot of dust.” There was no evidence that conditions were the same as at the time of the explosion, and in the absence of such evidence, the testimony was too remote and should have been excluded. The evidence of dust there was especially harmful as it tended to show explosive conditions several days after the accident with no proof that the condition had remained the same.

Evidence was also admitted over appellant’s objection, to show the entry and rooms where the explosion occurred were dusty and dry two or three days prior to the explosion. The evidence was properly admitted. It tended to show conditions as to dust at the time of the explosion and also tended to show notice to appellant of the dusty condition and therefore a conscious violation of the statute as alleged in the declaration. Evidence of the bad condition of the air current two or three days prior to the explosion was admissible for the same reason. It may be said conditions could change in two or three days and such change might be shown, but this is not enough to exclude the evidence as tending to prove material facts.

A witness was permitted to state that the mine manager and examiner had learned of the presence of accumulations of gas because it was reported on the book. If the book contained a report which was the source of their knowledge of the presence of the gas, the book was the best evidence and the testimony of the witness was improper. Objection was made to a witness, a practical miner, testifying that the entry had been giving off gas two or three months and that it could have been detected by a careful examination by the mine examiner or mine manager. There was no error in admitting the evidence. It tended to show a condition of which appellant might have had notice.

A statement of the mine examiner as to the quantity of gas in the entry made when the evidence did not show he was there in the discharge of his duty, was admitted. This was the declaration of an agent when he was not in the discharge of his duties and did not accompany any act he was authorized to do and was not admissible as part of the res gestae. Without discussing this line of testimony further we are of opinion that any competent evidence of the conditions in the part of the mine where the explosion occurred, existing within such time as might tend to show its condition at that time, would be admissible.

Evidence was admitted of another explosion in the same part of the mine two days before. The evidence was admissible in corroboration of other evidence tending to show the presence of gas leaks or feeders and other explosive conditions, but we do not see that the effects of the explosion, nor how it compared with the explosion which resulted in the death of Conover, were material. We are also of opinion the evidence of the condition of the mouths of the rooms and the brattices in the cross-cuts was admissible on the question of whether the air was not forced to the working places as alleged in the fourth count of the declaration but it was immaterial whether the mine examiner had not closed them.

Criticism is made of the testimony of appellee on the subject of damages. She was permitted to testify that her husband spent most of his time at home with her and the children and that he was the only support she had and that she had no other means of support. This testimony tended to impress the jury with loss of companionship when there could be no recovery except for the pecuniary loss, and also tended to show the financial condition of the wife. The testimony should be limited to the earnings of the husband, his age, habits and condition of his health and whether the wife was supported by him. Brennen v. Carterville Coal Co., 241 Ill. 610.

A witness, Charles Barton, testified in chief when introduced by appellee, that on July 2nd, the date of the explosion, he was in the entry ways where the explosion occurred and that the air was bad and foggy and impregnated with dust and the air current was not good and had not been for some time. And that the northwest entry had not been sprinkled from the mouth of room eight to the face of the coal for some time, and that where the entry had been sprinkled, it was in the center leaving it dry at the sides. This was material and important testimony in support of appellee’s theory that the explosion was caused by dust, smoke, gas and deleterious air. On cross examination appellant offered to introduce a written statement of the witness which he admitted having signed, but said: “Think part of the paper was read over to me, don’t think it all was. There is some questions in there I did not hear read over” and thereupon the court excluded the statement from the jury. The statement recited that the witness was in the entry at 3:30 p. m. on the afternoon of the day of the explosion and the air seemed all right, and that two days before he was in the northwest entry within six or eight feet of the face; that there was no accumulation of dust and the entry was in a moist condition as a result of sprinkling. The statement contradicted material testimony of the witness and its exclusion was prejudicial error.

The witness admitted he signed the paper and his denial that he did not hear some of it read was no reason for excluding it. It should have been admitted together with his statement and other evidence of the circumstances attending his signing it and the weight of it left to the jury.

It was also error for the same reason to exclude the written statements of L. E. Boss and Asa Ross offered by appellant to contradict them.

It would be impossible within the limits of an opinion to consider in detail all the criticisms made of the rulings of the court upon the admissibility of evidence, but we have endeavored to consider the material points and to make suggestions that may obviate erroneous rulings upon another trial.

For the errors indicated, the judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Shirley

license: Public Domain

text:
    C. A. Ambrosius et al., Appellants, v. Tony O’Farrell et al., Appellees.

      Costs—when action for recovery of, does not lie. Costs of defending an action cannot be recovered against the plaintiff where the plaintiff after reversal of judgment obtained by him suffers a discontinuance, unless the defendant obtains a judgment in his favor for the costs incurred.
    Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Guy Kneedler and B. H. Canby, for appellants.
    Lane & Cooper, for appellees.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellants-’ declaration averred that at the January term, 1903, of the Madison Circuit Court there was pending an action wherein appellee O’Farrell was plaintiff and appellants were defendants, and appellee in compliance with a rule of court made a bond for costs whereby appellee and his co-appellees entered themselves as security for all costs which might accrue in said cause; that afterwards such proceedings were had in such cause that appellee recovered a judgment against appellants for the sum of $1,500 and costs of suit, from which judgment appellants prosecuted an appeal to this court where the said judgment was reversed and the cause directed to be remanded to the said Circuit Court; that no transcript of the final order of this court reversing and remanding the cause was filed in said Circuit Court within two years from the time said judgment was so reversed and remanded whereby said cause was abandoned and a discontinuance suffered by appellee and that no further action could be had or taken in said cause.

It was further averred that the lawful costs incurred by appellants in the defense of said suit and properly taxed against them by the clerk of the Circuit Court amounted' to the sum of $375.30 which appellants were liable to and did pay whereby an action had accrued to them to demand of appellee, and his sureties, the said sum according to the tenor and effect of said bond which though often requested they had not paid, etc. A copy of the bond which was in statutory form was filed with the declaration.

Appellees interposed a demurrer to the declaration which was sustained and appellants electing to stand by the declaration, the court entered a judgment against appellants in bar of the action and for costs from which judgment this appeal was prosecuted. The errors assigned present for review the sufficiency of the declaration.

By the averments of the declaration, there never was a judgment against appellees for the costs of the suit, nor is it averred appellees ever received any portion of the costs paid by appellants. We are unable to see how under the averments of the declaration there could be a recovery. It is the theory of the law that the parties to a suit pay their own costs as the suit progresses. “Neither has any claim on the other for costs made by himself until the court awards their payment by a judgment of recovery in the proceeding in which they are made. If the party making costs does not pay them when made he is liable for their payment on a fee bill issued against him for their collection.” Camp v. Morgan, 21 Ill. 255.

When a defendant incurs costs in defending a suit and the evidence does not show that he ever recovered a judgment against the plaintiff for such costs, they are not chargeable to the plaintiff. Ibid. To the same effect is Fulton Co. v. Boyer, 116 Ill. App. 388.

“Thé right to costs does not become vested until final judgment has been pronounced nor do they until then become a debt against the party on whom they are imposed.” Ency. P. & P., Vol. 5, p. 121.

It is claimed that appellees in failing to reinstate their suit after it was reversed and remanded suffered a discontinuance and that this should not militate against appellants to recover in this action. Section 8 of the Cost Act does provide that if the plaintiff suffer a discontinuance, the defendant shall have judgment to recover his costs against the plaintiff, but in this case there has been no judgment for costs upon the discontinuance. Where no judgment is rendered against either party but the proceedings are discontinued each party pays his own costs.

The case of Doyle v. Wilkinson, 120 Ill. 430, cited by counsel, was a motion to retax costs and it was there held that the legal' costs taxed by the clerk was a simple money demand and that the person to whom it was due, either the officer or the successful party in the appeal, might maintain debt or assumpsit for the amount legally due him, or the clerk might issue a fee bill and execution. In that case there was a judgment for the costs and the opinion does not conflict with the rule laid down in Camp v. Morgan, supra.

We think the declaration showed no liability upon the bond and the judgment upon the demurrer was correct and is affirmed.

Affirmed.


author: Mb. Presiding Justice Shibley

text:
    James M. Smith, Administrator, Appellee, v. E. W. Hersh, Appellant.
    1. Automobiles—statute requiring stopping to prevent frightening of horses, construed. Held, that the statute In question was intended to apply to eases where motor vehicles met horses in the highway and not where they pass horses going in the same direction.
    2. Instructions—when cannot he complained of. A party cannot complain of instructions given by the opposite party where his own instructions contain the same defects.
    3. Verdicts—when set aside as against the evidence. A verdict will he set aside on review if manifestly against the weight of the evidence.
    Appeal from the Circuit Court of Jasper county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Fithian & Kasserman, for appellant.
    Shamhart & Isley, for appellee.
   Mb. Presiding Justice Shibley

delivered the opinion of the court.

The first two counts of appellee’s amended declaration each charged a breach of statutory duty while the third count charged negligence at common law. There was a verdict generally for appellee for $500 damages upon which the court rendered a judgment.

The statute upon which the first count was based reads as follows: “Whenever it shall appear that any horse driven -or ridden by any person upon any * * * highway is about to become frightened by the approach of any such motor vehicle it shall be the duty of the person driving or conducting such motor vehicle to come to a full stop until such horse or horses shall have passed.” Hurd’s Stat. 1908, sec. 269, chap. 121.

We are of opinion there was no evidence tending to prove a violation of the provision of the statute quoted.

Appellee’s intestate in company with her husband was traveling on the highway in a covered buggy with side curtains, the back curtain was rolled up. The husband was driving two horses about five years old. The horses were not accustomed to the sight of motor vehicles, never having seen one before this occasion. Appellant driving an automobile came up behind the buggy of the intestate traveling in the same direction. The highway at that point was about forty feet wide with ditches on each side making the traveled portion about thirty-five feet wide. As appellant came near the buggy he sounded the horn on the car. He and his companion who testified, both say the horn was sounded about a half quarter of a mile from the buggy and again twice before coming up with it.- When the car came up it attempted to pass around the buggy when the horses took fright and ran, overturning the buggy and throwing both occupants out.

The statute quoted it seems to us was intended to apply to cases where motor vehicles meet horses in the highway and not to cases where they pass horses going in the same direction.

The duty imposed by the statute upon the driver of the motor is to stop “until such horse or horses shall have passedTo say that the motor should stop while the horse passes it going in the same direction would be an absurdity. The legislature did not intend by the use of this language to require the driver of a motor to stop until a horse going in the same direction should pass around him.

The right to pass around horses in the highway either meeting or following them must of course be exercised by that degree of care and prudence in driving the motor, consistent with the safety of others. The right to pass does not mean that he may do so without a reasonable degree of care under all the circumstances of the situation. Automobiles are lawful means of conveyance and their use is being constantly increased everywhere. They have equal rights upon the highway with horses but it is the duty of those using them to take into account the unusual appearance of the machine, its noise, its new use in the vicinity, its tendency to frighten horses and all other pertinent considerations, and to use them with that reasonable degree of care which under all the circumstances ordinary prudence and care for the safety of others suggest. These are duties imposed by the law in the absence of any present statute for their regulation. Christy v. Elliott, 216 Ill. 31; Shinkle v. McCullough, 116 Ky. 960.

At the request of appellee the court gave to the jury instructions based upon the duty of appellant to come to a full stop if it appeared appellee’s horses were about to become frightened. The instructions were erroneous. The statute requiring appellant to come to a full stop having no application, there was no duty to stop. The measure of appellant’s duty was the common law duty to exercise reasonable care under all the circumstances, which may or may not have required him to come to a full stop.

Appellant, however, cannot complain of the instructions since some of his instructions are also based upon the same statute. A party cannot complain of instructions given by the opposite party when his own contain the same defects. Railroad Co. v. Beebe, 174 Ill. 13; Con. Coal Co. v. Haenni, 146 id. 614.

The second count of the declaration charged driving the motor at a greater rate of speed than was reasonable and proper having regard to the traffic and use of the way, so as to endanger life and limb and injure the property of travellers thereon, whereby appellee was injured, and the third count charged negligence in driving at a dangerous speed calculated to frighten horses and thereby causing appellee’s horses to be- - come frightened and run away, whereby she was thrown out and injured.

Upon examination of the instructions based upon these counts, the correctness of which is questioned by the assignment of errors, we find them substantially correct, nor do we find any error in the court’s ruling upon special findings asked by appellant.

While there is some evidence tending to show a liability under the second and third counts of the declaration, we are of opinion the verdict is against the decided weight of the evidence.

The breach averred in the respective counts as a cause of the injury complained of was an unreasonable rate of speed so as to endanger life and limb, and a dangerous rate of speed calculated to frighten horses.

The testimony of the intestate was that she didn’t see the automobile until it was right up close to the buggy. She said it appeared she could touch it; that immediately the horses ran, that she was thrown out striking on the side of her head and when she recovered the appellant was there and put her in his car. She said on cross-examination she had not more than hit the ground until she was going to the car to get in. The husband of appellee’s intestate who was driving says he does not know the rate of speed of the car but that the horses were running at full speed and it kept up with them. On cross-examination he says he didn’t know how far it was behind him and it is apparent from his testimony that the horses started to run when the car came up and undertook to pass around the buggy, and that in his efforts to hold them his attention was not toward the car and he did not know where it was. The other testimony concerning speed introduced on behalf of appellee is of no importance as it furnishes no evidence of the speed of the car at the time of the accident.

Appellant in giving his version of it says when he sounded the horn the last time, the driver of the buggy turned slightly to the left and appellant started to go around, and when the car was far enough alongside the off horse so he could turn his head and see the machine he started to run, when appellant immediately stopped the car and the engine. He says he was familiar with the speed of the car and that it was not running in excess of four miles per hour; that he had on the low speed clutch.

His companion corroborates appellant that he had on the low speed clutch and when the horse became frightened he immediately stopped.

It is manifest we think that considering the opportunity of the witnesses to know the facts of the transaction, the great weight of the evidence is that the car was not going at a high or dangerous rate of speed.

The court erred in denying appellant’s motion for a new trial and the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Mary C. Dodson, Defendant in Error, v. East St. Louis Lumber Company, Plaintiff in Error.

      Instructions—when peremptory instruction for plaintiff proper. A peremptory instruction for the plaintiff is proper if the evidence establishing the plaintiff’s right to recover was clear, uncontradicted and free from conflict.
    Assumpsit. Error to the City Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Wise, Keefe & Wheeler, for appellant.
    Whitnel, Browning & Gillespie, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellee instituted a suit in assumpsit against appellant and in her declaration containing five special counts she declared in the first two for rent due for the use of real estate occupied by appellant and in the other three counts for damage for tearing down and removing buildings and lumber sheds, the property of appellee. She also declared on the common counts. The plea of the general issue being filed, a jury was impaneled and after all the evidence was introduced, the court, by its instruction, directed the jury to return. a verdict finding the issues for the appellee and to assess her damages at the sum of $225, which verdict the jury returned.

This action of the court is assigned for error. If the evidence was clear establishing appellee’s right to recover this sum and there was no conflict in the evidence, no evidence showing or tending to show she was not entitled to recover it, it was proper to direct the verdict. The court could not weigh the evidence and direct a verdict. If the evidence was in anywise con-Aiding, if there was any competent evidence tending to show she had not the right to recover such sum, it was the duty of the court to submit the question to the jury.

There was a controversy between the parties over the ownership of a shed that had stood upon the demised premises and had been removed by appellant claiming it belonged to it, and that it was not a fixture. Appellee had by a count in her declaration, claimed damages for the shed and had introduced evidence in support of that count.

It is claimed by appellee that aside from the controversy about the shed, which it is claimed was found in favor of appellant, that all the evidence without dispute and without any evidence tending to show the contrary, clearly established that appellant owed appellee for three months’ rent at the rate of $75 per month for the months of August, September and October, 1908; that holding over under the terms of the lease, the term did "not expire until November 1, 1908, and there was $75 per month due for said three months; there being no evidence of any surrender. The lease in evidence was made October 29, 1902. It demised the premises for a term of five years from November 1, 1902, and the rent reserved was $75 per month during the term, payable on the first day of each month for the preceding month. If appellant held over under this lease without any further agreement, it became a tenancy from year to year and the first year would have expired. November 1, 1908.

Upon an examination of the evidence in the record, we think the court was not justified in assuming there was no evidence tending to show any other or further agreement. Beis, the manager of appellant, testified he saw appellee about November 1,1907, in relation to the lease and told her appellant wouldn’t renew it; that it had bought a place on State street, and intended eventually to move to it; that if she would reduce the rent it would endeavor to run the yard in addition to the one on State street, that she replied she would consider it and let him know and that later in a conversation with her early in 1908, he told her he would like to arrange for a lease at a price less than they were paying because they couldn’t afford, to pay $75 per month and she replied she was perfectly satisfied to “continue as they had been as a monthly tenant.” This evidence tends to show appellant a tenant from month to month by agreement. In connection with this there was evidence tending to show appellant vacated the premises on August 1,- after notice to appellee’s agent that it intended to vacate. The premises were a lumberyard and there was no key to surrender. We are not concerned with the weight of the evidence but only whether the court was warranted in directing a verdict for three months’ rent upon the assumption there was no evidence tending to show there was not that amount due.

We think the evidence should have been submitted to the jury and the judgment will be reversed and the cause remanded.

Reversed and remmded.


text:
    Martin Gaiser, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    1. Measure oe damages—for injuries arising from the building of structures which result in injuriously affecting other property. In this case the authorities are reviewed by the court and the various measures of damages as decided in such authorities are pointed out.
    2. Nuisances—what may be regarded as permanent. A dam constructed by a railroad company of earth and riprapped for the purpose of holding water in a stream, which results in flooding the lands of another, may, in the absence of any testimony that it was not to be permanent, properly be regarded as a permanent structure and negligently constructed, and the injured party may elect to treat it as permanent and sue for all damages past, present and future.
    Appeal from the Circuit Court of Marion county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    W. F. Bundy and Noleman & Smith, for appellant; J. A. Connell, of counsel.
    Jonas & Haley, L. B. Skipper and Kagy & Vandervort, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellee’s declaration containing three counts alleged in substance he was possessed of tracts of land adjoining on both sides a natural watercourse known as Crooked Creek; that appellant’s right of way extended along immediately west of and adjoining said land; that appellant had built and maintained a dam or embankment across the bed of said creek upon its premises, and below said land without any opening to permit the free passage of water and causing it to remain upon the lands in large quantities; that prior to the erection of the dam the lands had been of great value for agriculture and stock, raising purposes hut that said premises had become by reason of the building of the dam swampy, wet and unfit for such purpose or other valuable purpose; that by reason of raising water in the bed of the creek upon appellee’s lands that portion of the lands lying across said creek from the main part of the farm was inaccessible and the lands lying contiguous to the stream were flooded a large part of the year. There was evidence tending to prove that the erection by appellant of the dam resulted in making the lands affected swampy and less fit for agricultural purposes and in raising th<?. bed of the creek so that much of the time the creek was not fordable, malting seventeen acres of the land lying across the creek from the main farm inaccessible. The evidence showed the dam to have been built across the creek for the purpose of holding the water back so as to form a reservoir for appellant’s use.

It was constructed in 1904 of earth and afterwards strengthened by planks and riprapping and was about five feet high.' The banks of the creek were from three to four feet higher than the top of the dam. The dam was a structure illegally and improperly constructed as to owners whose lands were flooded thereby. Railroad companies intersecting watercourses are bound to restore them to such a state as not to unnecessarily impair their usefulness, and appellant had no authority either at common law or by statute to construct the dam whereby the waters of the creek were obstructed. O. & M. Rwy. v. Thillman, 143 Ill. 127; C. B. & Q. Ry. Co. v. The People, 212 id. 103.

The main , errors assigned and urged in the argument are that the court excluded proper evidence and a stipulation offered by appellant, and improperly instructed the jury that the dam was a permanent structure and in case the jury found the issues for the appellee, the measure of damages was the fair cash market value of the land immediately before and after the erection of the dam.

The question of the proper measure of damages arising from the building of structures which .result in injuriously affecting other property has been before the courts of review in this state many times. In some of the cases it is held that the recovery must be for the whole damage of which depreciation in the market value is the measure. This is the rule where there is no complaint of improper construction or operation, and the structure- is of a permanent character. North Shore St. Ry. Co. v. Payne, 192 Ill. 239, and cases cited. An illustration of this rule would be a case where a viaduct, power house, railway or other permanent structure although legally and properly constructed, was built for public use so near the property of another as to damage it. The constitutional right to compensation would arise, and the measure would be all damages past, present and future, because they were all sustained when the structure was established and its operation commenced.

In other cases it is held that each injurious act constitutes a new nuisance giving rise to a new cause of action. This is the rule where the injury is temporary in character and of a transient nature. An example, of this would be a private structure causing a nuisance or tort such as constructing a roof so it would cast water upon the dwelling of another. The law does not regard such nuisance as permanent no matter with what intention it was built and damages can therefore be recovered only to the daté of the action. Schlitz Brewing Co. v. Compton, 142 id. 511, and authorities cited.

In still other cases it is held if a structure is erected by legislative authority and damages result from negligent or improper construction, the party injured is not bound to assume the imperfect structure will be permanent and he may bring successive actions for resulting damages. North Shore St. Rwy. Co. v. Payne, supra, and cases cited.

An example of this would be where a railroad embankment was constructed by a railroad corporation in the lawful construction of its road in such negligent or improper manner that by reason of insufficient openings lands were flooded. The authorities seem to hold also in such case that the injured party may at his election either treat it as permanent and sue for all damages past, present and future or he may treat the negligently constructed structure as temporary and transient, assuming it will be removed and sue and recover for each recurring injury resulting from such negligent construction. Strange v. C. C. C. & St. L. Ry. Co., 245 id. 246; Same, 151 Ill. App. 478.

With these distinctions in mind we are of opinion that a dam constructed by a railroad company of earth and riprapped for the purpose of holding water in a stream which resulted in flooding the lands of another might in the absence of any testimony that it was not to be permanent properly be regarded a permanent structure and negligently constructed, and the injured party might elect to treat it as permanent and sue for all damages, past present and future, and it would be no error in such case to instruct the jury that this would be the measure of damages.

Appellant offered to prove by a witness Nolte, that it was then constructing and had practically completed a reservoir in that vicinity and that it intended within a very short time to abandon the dam in controversy and remove it. The court sustained an objection to the proposed testimony.

While the declaration did not charge the structure was permanent we think the averments describing the dam and its uses were sufficient to admit the evidence which tended to show it was permanent and appellee proceeded on that theory. Any evidence which tended to show it was not permanent was competent in mitigation of damages. The offered testimony of Nolte that appellant was then constructing another reservoir and intended to abandon the dam and remove it, tended at least to show the structure was not permanent and as the damages recovered were large and based upon an instruction that the dam was permanent, it was error to exclude it. Hart v. Wab. Southern Ry. Co., 143 Ill. App. 503; Strange v. C. C. C. & St. L. Ry. Co., supra.

It is not necessary to pass upon the propriety of the court’s ruling in striking from the files a stipulation of appellant’s counsel that the dam would be removed by March 1, 1911, as the judgment must be reversed and the cause remanded for error in excluding the evidence of Nolte.

Reversed and remanded.


author: Mb. Presiding Justice Shirley

text:
    Joshua Collins, Jr., Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Measure op damages—in action where fire originated from railroad right of way. In such a case the true measure of damages is the difference in the value of the land before and after the damage.
    2. Appeals and errors—when admission of erroneous evidence cannot he complained of. Complaint cannot be made.of the admission of erroneous evidence if such evidence was so admitted without objection and like evidence was adduced by the complaining party.
    3. Attorney’s pees—when allowance proper. Allowance of an attorney’s fee shown by the evidence to be reasonable is proper where the evidence established that land was damaged by a fire originating upon the right of way of a railroad company which right of way was not free from dry grass and weeds.
    Action in case. Appeal from the Circuit Court of Williamson county; the Hon. W. B. Scholfield, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    William W. Clemens, for appellant; W. W. Barr, of counsel.
    R. R. Fowler and Denison & Spiller, for appellee.
   Mb. Presiding Justice Shirley

delivered the opinion of the court.

This was a suit to recover damages alleged to have resulted to appellee from a fire originating upon the right of way of appellant which was not free from dry grass and weeds, and thence spreading to the lands of appellee where his fence, rails, meadow, fence posts and fruit trees were burned.

There was a verdict and judgment in favor of appellee for the sum of $156 damages, and the further sum of $50 for attorney’s fees.

The questions raised here on the assignment of errors are, that the verdict is against the weight of the evidence; that the court admitted improper and incompetent evidence upon the measure of damages; and that the damages are excessive. Appellant introduced no evidence as to how and where the fire started.

A witness Odum, introduced by appellee, testified that shortly after one o’clock in the afternoon while a quarter of a mile away, he saw smoke about the railroad track of appellant; that he and one Anderson went to the place and found fire burning on the right of way and off the right of way; that there were dry grass and weeds on the right of way; that he saw a train pass going south about one o’clock; that the direction of the track was southwest and the wind was from the south. He further states that the fire spread out north and east over the farm of Anderson and onto the premises of appellee. This testimony was in a measure corroborated by other witnesses and we cannot say from the circumstances detailed that the fire was not caused by a spark from the locomotive and that it did not ignite the dry grass and weeds upon the right of way and thence spread to the farm of appellee.

The true measure of damages in a case of this sort is the difference in the value of the land before and after the fire. L. E. & St. L. Con. R. R. Co. v. Spencer, 149 Ill. 97; Same, 47 Ill. App. 503; I. C. R. R. Co. v. Almon, 100 Ill. App. 530; C. & A. R. R. v. Davis, 74 Ill. App. 595.

We are aware a different rule obtains in some jurisdictions where it has been held that the measure of damages for negligent destruction of and injury to fruit trees is the value of those destroyed and the difference in value of those injured before and after the injury, and not the difference in the value of the land on which they stood before and after the injury, but this is not the rule in this state.

In reaching the estimate of the difference in the value of the land it is competent to show the kind of trees; their ages; their thrift in bearing; their number and other circumstances tending to describe the character of the land with the trees on it and its value; but it is not competent to show the value of each growing tree nor the amount of fruit it will probably bear in the future.

This rule was violated in admitting evidence in this case of the value of the trees but appellant cannot complain as the evidence was admitted without objection and appellant introduced the same character of testimony.

The evidence is not in harmony upon the extent of appellee’s damage to his land. The witnesses in his behalf testified to the destruction by the fire of some thirteen peach trees that were thrifty and the serious injury by the fire to some fifty other fruit trees of various kinds; four or five acres of meadow and clover were burned over, and about one thousand rails burned. There is a dispute among the witnesses as to the value and number of these things taken separately from the land.

There was competent evidence in the light of these circumstances showing the extent of the fire, that the difference in the value of the land before and after the fire was $300 less. After examining all the testimony introduced upon the subject, we do not think the amount recovered was excessive.

Complaint is made of the allowance of an attorney’s fee of $50 to appellee’s attorney. There was evidence this amount would be reasonable and the evidence was sufficient to show the fire originated on the right of way from appellant’s locomotive. This being so, the allowance of the fee was authorized by statute.

Finding no reversible error, the judgment will be affirmed.

Affirmed.


text:
    Minnie R. Kittle, Appellant, v. Edmond Brown, Administrator, Appellee.
    1. Gifts—what essential to validity. Freedom of the will is essential to make a gift valid and it must appear that the donor understood the nature and effect of the transaction.
    2. Gifts—when burden upon donee to establish validity. If the relations of the parties are those of confidence the burden is upon the donee to establish that the gift was the free and voluntary act of the donor made with full knowledge of the facts.
    Exceptions to administrator’s report. Appeal from the Circuit Court of Jasper county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Shamhart & Isley, for appellant.
    Gibson & Walker, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

In the month of December, 1907, Thomas Brown died intestate, leaving surviving him his widow, Priscilla A. Brown, and Edmond Brown, appellee, Groves C. Brown and Minnie B. Kittle, his children and only-heirs at law. Besides real estate, the deceased left personal property which after the payment of all debts and charges, amounted to the sum of $4,070.03 for distribution among the heirs. Appellee, Edmond Brown, became the administrator of the estate. He resided with his mother Priscilla who on October 5, 1909, executed to him a paper under seal which recited that she relinquished to the children all her right, title and interest to one-third of the personal estate. The paper has been destroyed. After the paper had been delivered to the administrator, he prepared and filed a final report reciting the supposed relinquishment and reporting for distribution among the said children the whole of the personal estate including the one-third inherited by the widow. After making the report and giving notice of final settlement, the administrator by leave withdrew it, together with the paper signed by Priscilla, and filed another final report in which he reported having paid Priscilla one-third of the personal estate amounting to the sum of $1,356.68, for which he filed her receipt. The last report reduced the distributive share of the children as shown by the first final report to the extent of the amount paid the widow. To the last report Minnie B. Kittle filed exceptions setting forth the writing executed by Priscilla whereby it was claimed she had relinquished her interest to one-third of the personal estate; that the administrator had without authority of law withdrawn said release and first final report; that it was the duty of the administrator to account for said sum so relinquished by Priscilla and to pay to said exceptor one-third thereof amounting to the sum of $452.23. The Probate Court overruled her exceptions and approved the last report of the administrator. Upon appeal to the Circuit Court the order and judgment of the County Court were affirmed, from which order of the circuit court Minnie B. Kittle has appealed.

The sole question presented here is whether the administrator should be held to account for the sum of $1,356.68 paid the widow and this involves the question whether such payment to her was a lawful distribution.

Upon the death of the intestate, the widow became entitled to one-third of the personal estate after payment of debts and unless she has in some way parted with her right to it, the payment to her by the administrator was proper.

• There is no pretense there was any consideration whatever paid for the alleged relinquishment and if the widow is to he deprived of it, it must be upon the theory it was a gift.

It appears from the evidence that while the widow could read and write, she did not read the paper but it was read to her by the administrator. She had the utmost confidence in her children and had voluntarily conveyed to them by deed lands left by her husband in which she had a dower interest. In the execution of the paper in which there was a voluntary relinquishment by her of a considerable sum inherited from her husband’s estate, she should have had a thorough and complete understanding of the effect of her act. She was dealing with her son the administrator, in whom she had confidence and who stood to her in a relation of trust. She could not use the same precaution to understand the paper she would use with a stranger. She was not accustomed to doing business. There is nothing to show the son was not dealing fairly with her, but we cannot escape the conclusion that she did not understand the purport of the paper when read over to her. She says she did not understand it, and that when she signed it she thought she was conveying land to the children. One of the witnesses to the signature says that when the widow signed it she said she didn’t see any use of signing a paper “for something she had done a good while back.” The next day she inquired of the administrator how much money she was to get out of the estate and when told she would get none, that she had signed it away, she said she knew better and she wanted the paper back; that her understanding was it related to the land.

Freedom of the will is essential to make a gift valid and it must appear the donor understood the nature and effect of the transaction. And the relation of the parties here was such that the burden was upon the appellant to show the gift was the free voluntary act of the donor made with full knowledge of the facts.

Aside from this we think if there was a voluntary relinquishment with a full understanding of the transaction the gift was never executed.

The administrator was not the agent or trustee of the alleged donees to receive the gift and until there was a delivery to them, by the administrator of the fund at the request of the widow, she had the right to revoke it. It was at best a mere promise to give and until fully executed it was revocable.

We are of opinion the order of the Circuit Court was right and it is affirmed.

Affirmed.


text:
    Sophia Grimm, Appellee, v. Donk Bros. Coal & Coke Company, Appellant.
    1. Mines and miners—section 28 of act construed. This section was enacted for the protection of men when the hoisting or lowering of men occurs, and that portion of it which reads “or when the landing at which men take or leave the cage is obscured by steam or otherwise,” relates back to the “hoisting or lowering of men.”
    2. Mines and miners—what wilful violation. If the operator knows that the duties of a miner if performed require that he be given certain protection, a failure to furnish such protection as is required by the act is a wilful violation thereof.
    3. Instructions—when refusal of correct will not reverse. It is not error to refuse to give an instruction containing a correct abstract proposition of law.
    4. Instructions—when upon province of jury will not reverse. The following instruction though not strictly accurate in that it fails to tell the jury that they are the judges of the weight of the evidence, held, not ground for reversal.
    “Under the instructions of the court the jury are the judges of the evidence in the case and the court does not intend by any of the instructions given you in this case to tell the jury how they should find as to any question of evidence in the case.”
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.

      Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Wise, Keefe & Wheeler, for appellant.
    Geers & Geers, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This cause was submitted to the jury upon the second and third counts of the declaration. There was a verdict and judgment for $3,500 in favor of appellee.

The second count of the declaration avers a wilful failure to comply with subsection B of section 28 of the Miners Act which provides that where the hoisting or lowering of men occurs before daylight or after dark or when the landing at which men take or leave the cage is obscured by steam or otherwise, a light should be maintained sufficient to show the landing and surrounding'objects, by reason whereof the deceased,'Herman Grimm, who was in the employment of appellant, being unable to see there was no cage at the landing pushed a car into the shaft and fell therein causing his death.

The third count avers the cause of the death to have been the wilful failure of appellant to have its mine manager- remain at said mine at night until all men employed during the day were hoisted out of the mine and to have a sufficient light maintained at the top landing.

Appellee sued as the mother of the deceased dependent upon him for support.

It is urged by appellant that there was no wilful violation of the statute shown and it was error to refuse appellant’s instruction to direct a verdict finding it not guilty.

At the time of the accident appellant’s mine had two landings from the shaft; the shaft being 150 feet deep. The top landing was the tipple 35 feet above ground. At the ground landing there was an automatic gate so hung that when opened (unless held by artificial means) it would close of its own weight.

On the afternoon about four o’clock before the accident, all the men working in the mine were hoisted to the surface and no more mining was to be done until the following morning. The mining of coal was conducted from 7 a. m. to 3:30 p. m. each day. On the day mentioned water had accumulated in working places in the mine and appellant desired while the mining of coal was not in operation to have the water hauled and emptied into the sump at the bottom of the shaft where it could be pumped to the surface. When the mining operations were over on that day the deceased and a miner named Engelmeier were employed by the mine manager to return at seven o’clock in the evening and to haul the water to the sump and deliver powder and picks to various places in the mine during the night. They returned and went into the mine and hauled the water. About midnight the deceased and a man named Bilyeu ascended to the ground landing to get a box of tools to be lowered into the mine. The tools were at the surface and deceased had been told by one Campion the watchman that the tools would not be sharpened before eleven o’clock p. m. and the testimony shows that midnight was the usual hour at which the tools were taken down. Engelmeier remained at the bottom. When the deceased reached the ground landing the electric lights which lighted the landing had been extinguished by the engineer and the landing and places about it were dark.

The box of tools which was to be lowered upon the same cage which brought the deceased and Bilyeu to the surface was standing thirty feet away from the shaft on the track which leads from the cage and connects with it to the blacksmith shop. The men went immediately from the cage to the box of tools and pushed it to the shaft preparatory to pushing it on the cage. When the men left the cage to get the tools the engineer without any warning hoisted the cage from the ground landing to the top landing. The place being dark the men supposed the cage to be still at the ground landing with the .result that when they pushed it to where they supposed the cage to be, the box or car of tools fell into the shaft. The men fell with the box and both were killed. The men were to- return to the bottom on the cage as soon as the tools were sent down.

Subsection 28 of the act in relation to mines and miners reads as follows:

“Whenever the hoisting or lowering of men occurs before daylight or after dark or when the landing at which men take or leave the cage is at all obscured by steam or otherwise, there must always be maintained at such landing a sufficient light to show the landing and objects distinctly.”

We agree with counsel for appellant that the statute was enacted for the protection of men when the hoisting or lowering of men occurs and that portion of it which reads “or when the landing at which men take or leave the cage is obscured by steam or otherwise” relates back to the “hoisting or lowering of men.” As we understand the contention of counsel it is that the accident occurred at a time when appellant was not required by the statute to maintain a light sufficient “to show the landing and objects distinctly,” and that such light is only required at the usual time for lowering the men in the morning about 7 o ’clock and in hoisting them in the afternoon about 3:30 and 4 o’clock which are the usual hours for lowering and hoisting men.

We do not feel justified in giving the statute a construction so narrow. The object of requiring a light at the shaft was to protect men whose duties required them to go up and down the shaft so they might be able to see the shaft and cages and avoid danger. And it is immaterial whether one man or many are so engaged.

We are of opinion that at that time appellant was engaged in hoisting and lowering men within the meaning of the statute although it appears that deceased was not to be lowered at the time he fell into the shaft but was to follow down after the box of tools. His duties called him to go up and down and this was sufficient to bring him within the protection of the statute even if he did not intend to descend with the box of tools, but to follow it.

It is next contended the evidence is clear that there was no wilful violation of the statute for the reason it was not consciously violated, and that to constitute such wilful violation, two things were requisite: First, that the engineer knew the deceased was about to be lowered into the mine; second, that he knew there were no lights at the landing.

We are of opinion the evidence is sufficient to show a conscious violation on the part of appellant whether the engineer had or had not the knowledge it is claimed he should have had. The mine manager had employed the deceased to work there during the night. One of his duties was to deliver the box of tools in the mine, to do which it was necessary to be at the landing as already stated. Appellant knew his duties would require his presence there during the night and its duty was to furnish the light as the law required. To fail to furnish the light with such knowledge was a conscious violation of the statute.

Appellant assigns for error the refusal of the court to give the following instructions: “You are instructed that the law did not require the defendant to maintain lights at the ground landing of the mine at all times or under all conditions. The law only required it to maintain such lights whenever the hoisting or lowering of men occurred.”

As an abstract proposition the instruction is correct but being an abstract proposition it was not error to refuse it. Devlin v. The People, 104 Ill. 504. Moreover there was no conflict in the evidence which showed appellant’s duty to have the light and the refusal was harmless.

The court gave the following instruction for appellee: “Under the instructions of the court the jury are the judges of the evidence in the case and the court does not intend by any of the instructions given you in this case to tell the jury how they should find as to any question of evidence in the case.”

It is complained the jnry are not the judges of the evidence but of the weight of the evidence: that the court is the judge of the evidence. The instruction is not strictly accurate. The province of the jury is to determine the facts from the evidence submitted to them. In doing so however they are the judges of the weight of the evidence from which they find the fact's in dispute to which they should apply the law given in the instructions. Instructions telling the jury they are the judges of the facts have been justly condemned as they do not confine the jury to the consideration of the evidence, but leave them free to consider facts not in evidence and making them independent of the rulings of the court on the admissibility of the evidence. This instruction is not subject to this objection. In this instruction they are confined to the evidence under the instruction of the court and they could not have been misled into the consideration of facts outside of the evidence. We do not think giving the instruction was reversible error.

We have examined the evidence of appellee in which statements of hers were admitted upon her examination and cross-examination and find nothing which we think would justify a reversal of the judgment nor do we think the damages excessive.

Taking the whole case as presented by the record no • reversible error appears and the judgment will be affirmed.

Affirmed.


author: Me. Presiding Justice Shirley

text:
    R. O. Mueller, Appellee, v. Henry Knollenberg, Appellant.

      Evidence—what incompetent in action for alienation of affections. Efforts at reconciliation predicated upon conversations between husband and wife, are incompetent in an action for alienation of affections.
    Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 15, 1911.
    Early & Williamson, for appellant.
    B. J. O’Neill and William P. Boynton, for appellee.
   Me. Presiding Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment recovered against appellant for the sum of $2,000 damag’es. The appellant being a non-resident, the suit was begun by an attachment in aid.

The declaration contained two counts; the first charging appellant with alienating the affections of appellee’s wife; the second charging that he debauched her and alienated and destroyed her affections for appellee.

Errors are assigned and urged upon the rulings of the court upon the admissibility of evidence; upon the giving and refusing instructions; and upon the refusal of the court to award a new trial.

There was no testimony offered on behalf of appellant.

It appeared from the evidence introduced on the part of appellee that appellee and his wife were married in 1896, and that they resided in Upper Alton until 1908. Appellee for two years prior to that time was engaged in manufacturing a floor oil at his home and his wife went out and sold it; she then engaged in organizing lodges of a benefit society in which business she did considerable traveling. Appellant who was a widower was employed as a salesman for an oil company at St. Lonis and frequently called upon appellee at Alton to sell him oils, and became acquainted with his family which consisted of his wife and three young children.

Appellee came into possession of some letters written by appellant to his wife, found in a trunk which had been in her possession. Two of the letters were introduced in evidence. In these two letters appellant warmly protests his affection for the wife and one of the children, expresses a hope of marriage and removal to Colorado and paints a rosy picture of future happiness in a home to be established there. It does not very clearly appear from the letters or from other testimony whether the fervid declarations of affection contained in the letters touched a responsive chord. The letters themselves appear to be a mixture of avowals of affection and promises to make her happy, and appeals to her to reciprocate, begging her to “drop him a few lines if the proposal meets her approval.” According to one of the lettérs he enclosed a draft for fifty dollars with a request to “use it as she saw fit.”

There was testimony tending to prove improper relations at the home of appellee during his absence and meetings at places where the wife would be stopping in her travels organizing lodges, but after reviewing all the evidence it leaves the case in some doubt whether her friendly relations with appellant were prompted on her part by affection for him or by a mercenary desire to profit by his gifts, and also whether by the persuasion and procurement of appellant her affections were lost to appellee. In this state of the evidence which was all circumstantial, the rulings of the court on material questions should have been accurate.

Appellee was permitted to testify over objection that he had seen his wife frequently at different places and tried every way to reconcile her and get her to return to him. This evidence tended to prove the material averments in the declaration that her affections were alienated from him.

The husband or wife is not permitted to testify to admissions or conversations with the other whether made by him to her or by her to him or by either to third persons except in suits or causes between such husband and wife. Hurd’s Stat., 1906, sec. 5. chap. 51.

While no words of conversation were detailed by appellee, his efforts at reconciliation when he saw her and her refusal could only be the result of conversations between them and the jury could not have regarded it otherwise. The testimony in effect was that appellee had begged his wife to return to him and she had refused.

The testimony was incompetent and in view of the character of the evidence upon a material point it was harmful. Especially so since it appeared appellee’s wife before the commencement of this suit had procured a decree of divorce on charges of extreme and repeated cruelty, and the damages to he recovered were largely punitive.

Several instructions asked by appellant and refused by the court should have been given. This was true of the second refused instruction which stated a correct rule upon the preponderance of the evidence. Also of the third and fourth directing the jury to consider the instructions as the law applicable to the case. Also the sixth advising them against prejudice and sympathy. Also the fourteenth upon the credibility of witnesses. These instructions all state correct principles and we are of opinion that in the state of the evidence in this case they should have been given. After examining the other refused instructions we think there was no error in refusing them.

In view of the nature of the evidence in this case and the amount of damages, we are of opinion the errors indicated were prejudicial and the court should have granted the motion for a new trial. The judgment will he reversed and the cause remanded.

Reversed and remanded.


text:
    Vandalia Railroad Company, Appellant, v. J. W. Nordhaus, Administrator, Appellee.
    1. Accord and satisfaction—effect of covenant not to sue. A covenant not to sue one tort feasor or an agreement to dismiss one tort feasor out of the suit and thereafter not to sue him, is not the equivalent of a release which will discharge another tort feasor, hut the amount paid for such covenant may be shown by such other tort feasor in reduction of damages.
    2. Chancery—when remedy at law precludes resort to. If one tort feasor buys his peace by paying a sum of money in consideration of the giving to him of a covenant not to sue, the other tort feasor knowing of such transaction prior to the overruling of a motion for a new trial and failing to avail of such knowledge to obtain reduction of the damages awarded, by way of remittitur or otherwise, is precluded from resorting to a court of equity.
    Bill in equity. Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Rehearing denied May 16, 1911.
    Fordyce, Holliday & White and Turner and Holder, for appellant.
    James G. McHale and D. J. Sullivan, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

Appellant filed a bill in equity alleging that appellee, as administrator of the estate of Frank Zehak, deceased, had commenced an action at law against appellant and St. Louis National Stock Yards Company to recover damages for the death of Zehak occasioned by the alleged negligence of the defendants; that ap-' pellant, and said Stock Yards Company appeared and pleaded to the declaration; that the cause came on for trial and all the parties to the cause introduced evidence and submitted arguments to the jury and the jury returned a verdict against appellant and said Stock Yards Company for the sum of $1,500 damages; that thereafter on June 4, 1908, at the same term appellant and said Stock Yards Company filed separate motions for a new trial and that appellee dismissed his suit against the said Stock Yards Company on June 25, 1908, and the court afterwards denied appellant’s motion for a new trial and rendered judgment against it for the amount of the verdict.

Appellant’s bill further averred that on June 2,1908, appellee received from the Stock Yards Company or from some one in its behalf on account of said judgment or for the damages caused by the negligence alleged in the declaration $750 and after the payment thereof there was a balance due of $750 with interest on said judgment. It was further alleged that appellant did not learn of said payment until after the judgment against it was affirmed by the' Supreme Court; that it had tendered appellee the said sum of $750 and accrued interest, had paid all the costs and had requested him to satisfy the said judgment of $1,500 but he refused and still refused unless appellant would pay him $1,500 and accrued interest. It was further alleged when said sum of $750 was paid appellee by said Stock Yards Company and received by him, it was in reduction of the damages recovered and a satisfaction of the judgment to that extent. Appellant offered by the bill to pay the remainder of the judgment with interest and prayed that appellee be enjoined from collecting the judgment and the court would order it satisfied.

All the averments of the bill were admitted by the answer except it was denied that $750 was received on account of the judgment or in settlement of the damages caused by the negligence alleged in the declaration, or that the amount offered to be paid by appellant was the amount due, or that any payment was máde in reduction of the damages recovered against appellant or that appellant was entitled to any relief.

The chancellor after a hearing entered a decree denying the prayer for an injunction and dismissing the bill for want of equity.

It appeared from the testimony that appellee had brought an action against appellant and the Stock Yards Company charging them with negligence in causing the death of appellee’s intestate. Each defendant interposed a plea and upon a trial of the issues by jury there was a verdict finding both defendants guilty and assessing the damages at the sum of $1,500. Each defendant moved for a new trial and pending the motion the Stock Yards Company paid appellee the sum of $750. At the time of the payment, an agreement in writing was entered into between appellee and the Stock Yards Company in which after reciting the proceedings in the cause and that a motion for a new trial was pending, the agreement set forth that in consideration of the payment of $750 by the Stock Yards Company appellee covenanted and agreed to dismiss the suit against the said Company and further covenanted and agreed not to sue or cause to be sued the said Company for the recovery of damages against it on account of the death of the intestate, and agreeing no action should be begun against the said Company by reason of any matters existing at that date; also that the agreement should not be held or construed to be a release of any damages, or any right of action arising to appellee as administrator by reason of any matters existing at that date.

Mr. Turner was one of the attorneys for appellant, associated with Mr. Fordyce. Mr. McGlynn represented the Stock Yards Company, and Mr. Sullivan the appellee in the trial of the suit for damages. Mr. Fordyce testified the appellant had no notice of the payment by the Stock Yards Company until after the case had been affirmed by the Supreme Court. Mr. Turner did not testify. Mr. Sullivan testified that while the motion for a new trial was pending he had a conversation with Mr. Turner in which he told him that if he, Turner, insisted on taking up the motion, he, Sullivan, would see McGlynn who represented the Stock Yards Company and if McGlynn would pay him any reasonable amount he would dismiss the suit as to the Stock Yards Company and take a judgment against appellant for the entire amount; that Turner answered “If you do that I will get a new trial.”

McGlynn testified he told Turner that if they could not settle the claim he was going to see what he could do with Sullivan about getting out of it, and if Sullivan would give him a release or an agreement not to sue for $750, he was going to take it.

There is no contribution among joint tort feasors. When there are several tort feasors, an injured party may sue any or all of them and may dismiss as to any of them and there can be no conlplaint by any of them that all guilty of the tort are not made parties.

A release to one of several joint tort feasors is a release to all and an accord and satisfaction with one of them is a bar to an action against the others. City of Chicago v. Babcock, 143 Ill. 358; West Chicago Street R. R. Co. v. Piper, 165 id. 325.

A covenant not to sue one of two or more tort feasors does not operate as a release of any of them and they cannot invoke the covenant as a bar to the action against them. City of Chicago v. Babcock, supra; C. & A. Ry. Co. v. Averill, 224 Ill. 516.

The agreement between appellee and the Stock Yards Company was not a release or an accord and satisfaction but a covenant not to sue, and while if was no bar to the action against the appellant and the Stock Yards Company, we think the payment of the Stock Yards Company might have been shown in reduction of damages. Appellee ought not to be permitted to take from one alleged tort feasor a sum of money for damages and recover the full limit from the ofher.

But it is a maxim that “Equity aids the vigilant” and if appellant had an adequate remedy at law and by a lack of vigilance failed to pursue it, we cannot invoke the aid of a court of equity.

We cannot escape the conclusion from the testimony of Sullivan and McGrlynn of their conversations with Turner which are not denied by him, and the subsequent dismissal of the suit as to the Stock Yards Company, that this was amply sufficient to put a prudent man upon inquiry while the motion for a new trial was pending whether the Stock Yards Company had paid appellee $750 “to get out of it” as McGrlynn had told Turner he intended to do. It is the rule concerning notice that if it appears a party had knowledge or information of facts sufficient to put a prudent man upon inquiry and he wholly neglects to make any inquiry the inference of actual notice is necessary and absolute.

We know of no remedy which could be furnished by a court of equity in a case like this where a party was not charged with notice of the payment, except to open the judgment, grant a new trial and permit the party to show such payment in reduction of damages. This remedy was adequate at law upon the motion for a new trial where the court could have compelled a remittitur or granted a new trial in which the payment of the Stock Yards Company could have been shown to reduce the damages. The evidence of the payment was at hand and obtainable and appellant had sufficient constructive notice to require it to avail itself of the testimony.

Finding no error the decree of the Circuit Court will be affirmed.

Affirmed.


text:
    J. R. Challacombe, Appellee, v. Commissioners of Highways, Central Township, Appellants.
    1. Appeals and errors—effect of defective abstract. In the Fourth District if the abstract contains no exception to the judgment and no assignment of errors, it is discretionary with the court whether it examine the "record for errors and exceptions.
    2. Appeals and errors—powers of commissioners of highways. Commissioners of highways have no powers and can exercise none except those conferred by statute. Their only guide in the performance of their duties is the statute and the only powers they can exercise must be conferred by law.
    3. Roads and bridges—when commissioners not liable in assumpsit for construction of bridge. If the notice required by statute for the letting of the contract was not given, the contract made for the construction of a bridge is void, such omission being more than a mere irregularity, and the fact that the bridge was completed and went into use by the public is immaterial, it appearing that the commissioners had not accepted the same.
    Assumpsit. Appeal from the Circuit Court of Bond county; the Hon. W. E. Hadley, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed April 15, 1911.
    Rehearing denied May 19, 1911.
    J. H. Allio and C. E. Cook, for appellant.
    George T. Turner and Lane & Cooper, for appellee.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

The abstract of the record fails to comply with rule 23 of this court which requires a complete indexed abridgment of the record. There appears in the abstract no exception to the judgment nor assignment of the errors relied on for a reversal, and this court might in its discretion well refuse to examine the record for errors and exceptions. Mayer v. Schneider, 112 Ill. App. 628.

On turning to the transcript of the record, however, we find the exception to the judgment preserved and among the alleged errors well assigned is the one that the court erred in rendering judgment for any amount against the appellants. The action brought by the appellee was in assumpsit and upon the trial a jury was waived and the court- found the issues for the appellee and assessed his damages at the sum of $597.93 and costs and gave him a judgment.

The material and undisputed facts appearing were, that appellee on March 9, 1908, entered into a written contract with the Commissioners of Highways of Central Township to construct a bridge on a public highway of the township for which the Commissioners agreed to pay him the sum of $530 cash on completion, or add seven per cent. Appellee proceeded under his agreement to construct the bridge and did complete it according to the agreement after which it was and has continued to be traveled by the public although the Commissioners have not formally accepted it.

No notice of the letting of the contract was given, of which fact the appellee at the.time of the letting had notice.

Section 25, Chapter 121, Revised Statutes, provides: “The Commissioners are hereby authorized to contract for the construction and repairing of roads and bridges but when such contracts are for a sum exceeding seventy-five dollars, they shall give at least ten days’ notice of the time and place of letting such contract, by posting notices in at least ten public places, in and contiguous to the town, describing the work and time of completion. Provided, in case where bridges have been suddenly destroyed on any important highway then such Commissioners may privately contract for replacing such bridge to an amount not exceeding one hundred and fifty dollars.”

It is elementary that highway officers have in general only such powers as are conferred by statute. Am. & Eng. Ency., Yol. 15, p. 410.

“It is a plain proposition that the highway commissioners have no powers except those conferred by the statute and that they can perform no acts or impose no burdens except those plainly authorized by the statute, and when they undertake to perform any act which the statute does not say they may do, that act will be void.” O. & M. Ry. Co. v. The People ex rel., 123 Ill. 648, 650.

The Commissioners have no powers and can exercise none except those conferred by statute. Their only guide in the performance of their duties is the statute and the only powers they can exercise must be conferred by law. Brauns v. Town of Peoria, 82 Ill. 13.

“Contract obligations can be imposed by them on the municipality only so far as they are expressly authorized to incur such obligations or as such power is necessarily incident to the grant of other powers * * * and if the statute provides that a contract for work shall be made in a particular manner as by letting it to the .highest bidder a failure to comply therewith renders the contract void.” Am. & Eng. Ency., Vol. 15, 411.

“Where the charter or incorporating act requires the officers of the city to award contracts to the loiuest bidder a contract made in violation of its requirements is illegal and in an action brought on such contract for the work the city may plead its illegality in defense.” Dillon Mun. Corp., Vol. 1, Par. 466.

It is argued the failure to advertise for bidders as required by the statute is an irregularity, and that the public having used and enjoyed the bridge the town should pay for what it would have had to pay had it been gotten in the right way; that after receiving the benefit it should be estopped from denying the validity of the contract.

The Commissioners of Highways have no power to contract for the building of bridges except the power conferred by the statute, and they have no power to contract in any manner other than is provided by the statute.

This is not a case where the Commissioners have power to do the particular thing but do it in a way it is not authorized to be done as was the case in E. St. Louis v. E. St. L. G. L. & C. Co., 98 Ill. 415, cited by counsel, where no power was given by the charter of a city to contract for gas for a period of thirty years yet it had power to contract for gas, and the contract was not in violation of any provision of its charter nor of any statute prohibiting it. There was no element of illegality in the contract but simply a defect of power (to contract for thirty years) and it was held the City should pay for the gas it used. To the same effect is the case of I. C. R. R. Co. v. Road Dist. No. 1, 119 Ill. App. 251.

Badger et al. v. Inlet Drainage Dist., 141 Ill. 540, holds in effect that where the Commissioners make a void contract for the removal of a dam the fact that they may after the work is completed avail of the removal and enjoy the benefit will not estop them from denying the validity of the contract.

That the contract in this case having been entered into without giving the notice required by the statute was void seems clear. To hold otherwise would be to ignore the requirements which for many reasons that might be suggested should be strictly obeyed. The contract being void there was no estoppel arising from the use of the bridge.

The finding and judgment of the Circuit Court was erroneous and will be reversed.

Reversed.

Finding of facts. We find that at the time the contract was entered into the highway commissioners had given no notice of the time and place of letting such contract by posting any notices whatever, of which fact appellee had notice, and that said contract was void.


text:
    Kate Conway, Appellant, v. Clarence E. Pope et al., Appellees.
    1. Injunctions—when granted to prevent trespass. The granting of injunctions against the commission of a trespass is sparingly exercised and is confined to cases where from the peculiar nature of the property affected by the trespass, or from its frequent repetition, the injury cannot be remedied by an action for damages, and where it may therefore be properly termed irreparable.
    2. Injunctions—when suggestion of damages properly stricken. If suggestion of damages is not filed until after the suit is finally disposed of, it is properly stricken from the files.
    Bill in equity. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding.
    Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed April 15, 1911.
    Rehearing denied May 19, 1911.
    Maurice V. Joyce and A. B. Garrett, for appellant.
    B. H. Flannigen and B. H. Canby, for appellees.
   Mr. Presiding Justice Shirley

delivered the opinion of the court.

This is an appeal from a decree dismissing a bill in equity filed by appellant for an injunction. A temporary writ of injunction, issued upon the application of appellant, was at the same time dissolved.

The wrongs complained of were the alleged interference of appellees with the erection of a division fence on a line dividing the property of the parties. Passing over the question of the sufficiency of the averments of the bill to authorize an injunction writ (the bill having been answered) we find from the testimony that appellant and appellee, Clarence E. Pope, were the owners of adjoining lots in the city of East St. Louis upon which were dwelling houses occupied by the parties respectively. On the division line between the lots a board fence had been erected some years ago extending from a point abont the middle of the lots to the rear. The fence had been falling into decay and had occasionally been repaired by first one party and then the other by nailing on boards when they would become loose.

Appellant concluding to reconstruct the fence herself, employed a carpenter for that purpose. Under the direction of appellant the carpenter tore away the old fence and started to rebuild it on substantially the same division line using some of the old boards. Prior to this time the smooth side of the fence faced appellee Pope’s lot. In rebuilding the fence the testimony shows Pope had no objection until it appeared to him that it would be unsightly, when he objected to having it rebuilt in that style. He ordered the carpenter to stop the work and when the latter refused he threatened him with a revolver. The work was then stopped, and Pope had the fence torn down and the boards thrown onto appellant’s premises. After-wards and after the injunction writ was issued appellant rebuilt a fence several inches within the division line on her ground which would seem to mark the end of the controversy.

There was no evidence of any threats on the part of Pope that he would interfere with building another fence or that he would molest it if it was constructed, and none that either of the appellees is insolvent and unable to respond in damages.

The granting of injunctions against the commission of trespass is sparingly exercised, and is confined to cases where from the peculiar nature of the property affected by the trespass, or from its frequent repetition, the injury cannot be remedied by an action for damages, and where it may therefore be properly termed irreparable. High on Injunctions, Vol. 1, Par. 697. The same author in the same paragraph, says: “The foundation of the jurisdiction rests in the probability of irreparable injury, the inadequacy of pecuniary compensation, and the prevention of a multiplicity of suits, and where facts are not shown to bring the case within these conditions the relief will be refused.” To the same effect are Owens v. Crossett, 105 Ill. 354; Payer v. Village of Des Plaines, 123 id. Ill; Com’rs of Highways v. Green, 156 id. 504; Edwards v. Haeger, 180 id. 99; Cragg v. Levinson, 238 id. 69.

Under the evidence in this case it is apparent the appellant had a complete remedy at law and that she has not shown such a state of facts under the authorities cited as would bring her case within the jurisdiction of a court of equity.

There is no error in dismissing the bill and dissolving the injunction.

Appellees filed their suggestions for the assessment of damages upon the dissolution of the injunction which was stricken from the files. This court is asked to reverse and remand the cause as to this action with directions to the court below to permit appellees to introduce evidence as to the amount of damages and to assess damages in accordance with the evidence. It appearing from the' record that no suggestion of damages was filed until after the suit was finally disposed of there was no error in striking the suggestion of damages from the files. Eev. Stat., sec. 12, chap. 69.

Finding no error the decree of the City Court will be affirmed.

Affirmed.