text:
    The People of the State of Illinois ex rel., Maclay Hoyne, State’s Attorney, Appellee, v. Michael Hennessey et al., Appellants.
    Gen. No. 20,056.
    1. Quo warranto, § 1

      —nature of remedy. The office of an information in the nature of a quo warranto is not to tender any issue of fact, but simply to call upon the defendant, in general terms, to show by what warrant the office or privilege is held and exercised.
    2. Quo warranto, § 45

      —sufficiency of plea. The respondent, by his plea, must either disclaim or justify. If he seeks to justify he must do so fully and specifically; must show upon the face of his plea such facts as, if true, will vest in him the legal title to the office.
    3. Quo warranto, § 54

      —burden of proof. The burden of proving his title rests on the respondent, and if he fails to establish his title by proof, the State is entitled to judgment against him.
    4. Quo warranto, § 56

      —when People entitled to judgment. In a quo warranto proceeding where respondents attempt to justify by a plea which is traversed by a replication, failure of respondents to offer evidence in support of their plea entitles the People to a judgment against them.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed December 22, 1913.
    Rehearing denied January 5, 1914.
    George E. Brannan, for appellants.
    Samuel K. Markman, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

October 15, 1912, Wayman, State’s Attorney of Cook county, filed in the Circuit Court a petition for leave to file an information in the nature of a quo warranto in the name of the People of the State of Illinois, at the relation of Draper, Welch and Pelsma, trustees of the village of Franklin Park, against Henhessey, Craig and Biier, requiring them to show by what warrant they claimed to hold and execute respectively the office of trustee of the said village. The court granted leave to file the information and it was filed the same day. The information states that the State’s Attorney for the People of the State of Illinois and in their name and by their authority, at the relation of Draper, Welch and Pelsma, gives the court to understand, etc., that Hennessey, Craig and Biier hold and execute, without any warrant, right or lawful authority, the respective offices of village trustee of the village of Franklin Park, and prays that they may be required to answer to the People of the State of Illinois by what warrant they claim to hold and execute said offices, etc. The information was signed by the State’s Attorney and bears also the name of the present attorney for appellee as “of counsel.” January 15, 1913, the respondents filed what is called in the abstract a “plea of justification,” to which was filed January 30 a replication in the name of the People of the State of Illinois. Neither the plea of justification nor the replication follow the form of common law pleading, but we will treat the “plea of justification” as a plea disregarding the technical distinction between a plea and answer, as was done in People ex rel. Burgess v. Percells, 8 Ill. (3 Gil.) 59. February 6 the respondents obtained leave to rejoin in five days and the cause was set for trial March 3. No rejoinder was filed nor was any further action taken in the case until March 25, when Hoyne, then State’s Attorney, entered his appearance in lieu of Wayman, whose term had expired. On the same day a stipulation was filed signed by an assistant State’s Attorney and by the attorney of the respondents, that the cause be continued to April 16, but no order continuing the cause was made by the court. March 25. the respondents moved that the cause be continued and the court postponed the trial until March 31. On that day the respondents again moved to continue the cause and the court denied their motion. Then followed various motions by respondents, including a motion to dismiss, another for leave to withdraw the answer and demur, all of which were denied. The respondents offered no evidence and the court gave judgment ousting the respondents from the office of trustee. The judgment order contains a finding that the relators were at the time of the filing of the information and still were village trustees of the village of Franklin Park, but there was no order or judgment that the relators be installed in or restored to their respective offices as trustee. From the judgment the respondents appealed to the Supreme Court and the cause was by that court transferred to this court.

No evidence was offered tending to show that the proceeding was different from what it purported to be, that is, one begun in good faith by a public officer in the name and on behalf of the People. We find no cause to reverse the judgment because the court refused to further postpone the trial of the cause under the circumstances shown by the record, nor because of the finding in the judgment order that the relators were trustees of the village of Franklin Park, nor because the court refused to dismiss the cause on the ground that the relators were represented by Hr. Harkman, whose name appears on the information as of counsel for the petitioner.

The office of an information in the nature of a quo warranto is not to tender any issue of fact, but simply to call upon the defendant, in general terms, to show by what warrant the office or privilege claimed is held and exercised. The respondent by his plea must either disclaim or justify. If he seeks to justify he must do so fully and specifically; must show upon the face of his plea such facts as, if true, will vest in him the legal title to the office. The burden of proving his title rests on the respondent, and if he fails to establish his title by proof, the State is entitled to a judgment against him. In this case the respondents by their plea attempted, to justify. The replication traversed the plea, the respondents offered no evidence in support of their plea and the People were entitled to a judgment against them. This conclusion makes it unnecessary to consider many of the questions argued in the briefs.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    Frank Pinter, Defendant in Error, v. Bunte Brothers, Plaintiff in Error.
    Gen. No. 18,204.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed December 22, 1913.
    Statement of the Case.
    Action by Frank Pinter, by Frank Majcan his next friend, against Bunte Brothers, a corporation, to recover for personal injuries sustained by plaintiff while employed in a candy factory of defendant by having his thumb caught between the conveyor and sprocket wheel of a starch machine. To reverse a judgment in favor of plaintiff for one thousand dollars, defendant sues out a writ of error.
    John Clark Baker, for plaintiff in error.
    George H. Meyer, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 739 —when question of assumed risk properly left to the jury. In an action by an inexperienced servant for injuries, the question whether the plaintiff in the absence of warning and explanation understood and appreciated the danger which resulted in his injury, held properly left to the jury where there was no contention that the danger was not obvious, but there was a dispute and a conflict in the evidence as to what opportunities of observation and what experience plaintiff had concerning the operation of a similar machine the plaintiff used.

2. Master and servant, § 739 —rule as to when assumption of risk becomes a question of laxo. On question when the assumption of risk by plaintiff is for the court as a matter of law and not a question of fact to be left to the jury, rule expressed in Grace & Hyde Co. v. Sanborn, 124 Ill. App. 472, quoted as stating the rule of law in this State.

3. Master and servant, § 695 —when verdict sustained by the evidence. In an action by a servant for injuries sustained because of the failure of defendant to warn plaintiff of the dangers of operating a machine, a verdict for plaintiff held sustained by the evidence.

4. Master and servant, § 802 —instructions as to warning of servants of dangers. Instructions as to duty of employer to instruct servants of immature age as to the dangers of the employment and as to the care required to be exercised by such servant, held proper in connection with other instructions on the subjects of contributory negligence and assumption of risks.

5. Master and servant, § 1491 —when exclusion of evidence offered not reversible error. In an action by a servant for personal injuries, exclusion of evidence offered by the defendant to the effect that plaintiff, though an orphan, had friends rather than was destitute of them, held not reversible error.


text:
    Blondon Fieldstack, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 18,284.
    (Not to fee reported in full.)
    Error to the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed December 22, 1913.

      Abstract of the Decision.
    1. Carriers, § 493

      —when instructions not misleading. In an action for injuries sustained by plaintiff while alighting from a street car, instructions proper on the subject of due care on the part of plaintiff held not objectionable as misleading because they were drawn on the theory that the negligence charged is the negligence of the defendant in the operation of its car.
    2. Carriers, § 482

      —when instruction not reversibly erroneous or misleading. Instruction which begins, “It is not every accident that makes a railway company liable for damages to the person injured by its cars,” held not reversibly erroneous or misleading because it speaks of a person “injured by its cars” when plaintiff was “injured by the car” although the negligence charged was not in its operation.
    3. Carriers, § 493

      —when instruction on care required of plaintiff not erroneous. Instruction requiring the plaintiff to exercise prudence and vigilance for his own safety, held not misleading and reversibly erroneous because it contains the word “vigilance.”
    4. Carriers, § 493

      —when instruction on care required of plaintiff not erroneous. Instruction not directing a verdict but stating an abstract proposition of law defining “ordinary care” and referring the definition “to the situation and position” a person “is about to take,” in which he “finds himself," held not erroneous as not confining the plaintiff’s duty to exercise care to the time and place of the accident.

      Statement of the Case.
    Action by Blondon Fieldstack against Chicago City Railway Company to recover damages for injuries sustained by plaintiff while alighting from one of defendant’s street cars at a street intersection and alleged to have been caused by the slanting and slippery condition of the street leading down to the street ear track. To reverse a judgment of nil capiat and for costs against the plaintiff, plaintiff prosecutes this writ of error.
    Richard J. Finn, for plaintiff in error.
    John E. Kehoe and Watson J. Ferry, for defendant in error; Leonard A. Busby, of counsel

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.

5. Instructions, § 48 —when instruction on weight of testimony not erroneous. Instruction relating to the weight of testimony containing the expression “it is the duty of the jury to receive the testimony of such witness,” held not objectionable because the word “receive” means “admit as true.”

6. Instructions, § 82*—when not improper as mentioning the name of a witness. Fact that plaintiff’s name is introduced in an instruction as to the weight of the testimony, held not objectionable where plaintiff’s name is not mentioned as a witness.


text:
    N. M. Ingham, Defendant in Error, v. Merchants Lithographing Company, Plaintiff in Error.
    Gen. No. 18,309.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed December 22, 1913.
    Statement of the Case.
    Action by N. M. Ingham, trading as N. M. Ingham & Company, against Merchants Lithographing Company for the price of certain paper sold by plaintiff to defendant. To reverse a judgment in favor of plaintiff for $306.13, defendant prosecutes a writ of error.
    Helmer, Moulton & Whitman, for plaintiff in error.
    Louis J. Pierson, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

Abstract of the Decision.

1. Sales, § 401*—when evidence insufficient to show a warranty. In an action for the price of paper sold and delivered to defendant in which the defendant claims a set-off for breach of warranty, a finding against the defendant on the question whether there was any warranty of the character of the paper and a failure of such warranty, held sustained by the evidence.

2. Sales, § 282*—when evidence insufficient to prove an implied warranty. A finding that there is no implied warranty of the adequacy of paper sold for the use designed will not be disturbed where there is nothing to show that the seller or her salesman was better qualified to judge of the particular fitness of the paper than was the buyer, and moreover there were questions of fact whether the seller knew for what purpose the paper was bought, and even whether it was sufficiently proved that it was not reasonably fit for that purpose.


text:
    Francis Peabody, Defendant in Error, v. Daniel Lynch and John Dionne, Plaintiffs in Error.
    Gen. No. 18,316.
    1. Damages, § 49

      —measure of, for injury to automobile. In an action for damage done to an automobile, the reasonable cost of repair is the proper measure of damages, and such cost of repair would be what an automobile repair man would, in accordance with the market and usual rates, charge for the work and materials necessary.
    2. Damages, § 172

      —when evidence of actual cost of repairs admissible. In an action for damage to an automobile, evidence of what was actually paid for repairs is only admissible as showing what the reasonable cost of repairs would be.
    3. Evidence, § 373

      —when opinion of repair man as to cost of repairs admissible. Automobile repair man who supervised the repairs may testify as to what would be the reasonable cost of repairs of automobile.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beieler, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed December 22, 1913.

      Mayer, Meyer, Austrian & Platt, for plaintiffs in error.
    Robert J. Folonie, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.

The defendant in error, the plaintiff below, secured a judgment against the plaintiffs in error, the defendants below, for $225.75 for damage done to his automobile through the negligence of said defendants. This writ of error is brought to reverse this judgment. The only point argued is that thus summed up in the brief of the plaintiffs in error:

“We respectfully submit that the testimony of Mr. Politz should have been excluded; that it was admittedly incompetent except as expert testimony; that no expert evidence was admissible on the question of the cost of repairs, there being better evidence available; that he was not properly qualified and could not properly have testified as an expert even if expert evidence had been' admissible. Excluding his testimony, we submit that there is no evidence of damage and can be no recovery, at least none beyond nominal damages. ’ ’

We do not think these objections are well taken.

For the purposes of our review it is established that the injury to plaintiff’s automobile was caused by plaintiff’s negligence. The reasonable cost of repair of that injury was the proper measure of damages. That reasonable cost of repair was what an automobile repair man would, in accordance with the market and usual rates, charge for the work and material necessary. This was what Politz testified to. We think he was eminently qualified from his proved experience to be a judge of it. In addition he supervised the repairs. What was actually paid would only be admissible in such a case as this as showing what the reasonable cost would be. Travis v. Pierson, 43 Ill. App. 579.

The judgment is affirmed.

Affirmed.


text:
    Wyllys K. Smith, Defendant in Error, v. The Baltimore & Ohio Chicago Terminal Railroad Company, Plaintiff in Error.
    Gen. No. 18,326.
    1. Railroads, § 874

      —when evidence insufficient to negligence in maintaining defective gate at farm crossing. In an action against a railroad company to recover the value of a bull killed on the defendant’s right of way, alleged to have been caused by failure of defendant to maintain a sufficient gate at a farm crossing in compliance with the Act of 1874, J. & A. 8811, the evidence held insufficient to sustain a judgment for plaintiff, where it appeared that the bull escaped to railroad track by lifting the hinge end of the gate so as to sever its connection with post, the evidence also showing that the gate with its fastenings was standard in make.
    2. Railroads, § 292

      —sufficiency of fence. Act of 1874, J. & A. ¶ 8811, requiring railroads to erect and maintain a suitable and sufficient fence, does not require such a fence as will withstand breachy cattle, nor does it require gates at farm crossings to be fastened so that it would be impossible for stock to open them.
    Error to the Municipal Court of Chicago; the Hon. J. J. Cooke, Judge, presiding.
    Heard in this court at the March term, 1912.
    Reversed and judgment here.
    Opinion filed December 22, 1913.
    Jesse B. Barton, for plaintiff in error.
    Wilson & May, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.

The defendant in error in this case (plaintiff below) recovered a judgment for four hundred and fifty dollars against the plaintiff in error (the defendant below) in the Municipal Court of Chicago on January 30, 1912. The amount of the judgment was made up of three hundred and fifty dollars, which was the conceded v^clue of a bull belonging to the, plaintiff, and one hundred dollars attorney’s fees allowed for the prosecution of the case. This case was tried by the court without a jury.

The hull belonged to the plaintiff. It escaped from a farm adjoining the defendant’s right of way and railroad two miles north of the Chicago Heights station in Cook county. It went upon the tracks of the defendant and was killed by a train which struck and ran over it.

The action was brought under the “Act in relation to fencing and operating railroads,” approved March 31, 1874. (J. & A. ¶ 8811.) This act is as follows:

“Every railroad corporation shall within six months after any part of its line is open for use erect and thereafter maintain fences on both sides of its road or so much thereof as is open for use, suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad, except at the crossings of public roads and highways, and within such portion of cities and incorporated towns and villages as are or may be hereafter laid out and platted into lots and blocks, with gates or bars at the farm crossings of such railroads, which farm crossings shall be constructed by such corporation when and where the same may become necessary, for the use of the proprietors of the lands adjoining such railroad; and shall also construct, where the same has not already been done, and thereafter maintain at all road crossings now existing or hereafter established, cattle guards suitable and sufficient to prevent cattle, horses, sheep, hogs and other stock from getting on such railroads ; and when such fences or cattle guards are not kept in good repair such railroad corporations shall be liable for all damages which may be done by the agents, engines or cars of such corporation to such cattle, horses, sheep, hogs, or other stock thereon, and reasonable attorney’s fees in any court wherein suit is brought for such damages or to which the same may be appealed, but where such fences and guards have'been duly made and kept in good repair such railroad corporation shall not be liable for any such damages unless negligently or wilfully done.”

The statement of claim by the plaintiff alleged that the Railroad Company failed to maintain on the side of its right of way “a fence suitable and sufficient to prevent cattle from getting on said railroad” and failed “to maintain gates or bars at a certain farm crossing of such railroad” * * * “suitable and sufficient to prevent cattle from getting on such railroad,” by reason of which failures the bull was run over.

The Railroad Company answered that it did erect and maintain on the side of its right of way adjoining the farm in which the bull was pastured “a good, suitable and sufficient fence as required by the laws of the State of Illinois,” and that “said fence and gate were in good repair at the time the bull in question got upon the right of way of said railroad company. ’ ’

The counsel for defendant in error says that the question before us is purely one of fact. We think it one of mixed law and fact. The Company is made by the law liable for killing of the bull in question if it did not keep, in good repair, such a fence along its right of way as is provided for by the statute, and the bull got to the track in consequence. “Such a fence” is thus described: A fence (with gates or bars at the farm crossings) “suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on such railroad.” Of course if the bull reached the track notwithstanding the Railroad Company had performed its duty in this matter, because some human agency had taken a gate from its-hinges and thrown it on the ground during the night in which the bull was killed and before the Company had notice of that situation, the Company is not liable. Illinois Cent. R. Co. v. Swearingen, 47 Ill. 206; Chicago & A. R. Co. v. Umphenour, 69 Ill. 198; Indianapolis & St. L. R. Co. v. Hall, 88 Ill. 368; Chicago & A. R. Co. v. Saunders, 85 Ill. 288.

The. defendant in this case maintains that the evidence that this was not the fact in the case at bar was not sufficient. The bull was found dead on the track on the early morning of October 28, 1910, and a gate in the fence about one hundred feet away was hanging by the latch end to the fence post, but was twisted, with the hinge end off the hinges and down on the ground. There was space enough for the bull to walk through between the fence post at the hinge end and the end of the unhinged and overthrown gate. The man who found him said: “I examined the gate and from the marks and scratches it looked to me as if the bull had got his horns caught in the gate and had thrown the gate from its hinges and then walked out on the tracks and was killed by some train or engine.”

From the evidence it looked the same way to the court below, and looks so to us, and we may consider this therefore a decision of fact by the court below, approved by us. But this leaves still a question of mixed law and fact to be decided, namely,—Was the fence including the gate “suitable and sufficient to prevent cattle, horses, sheep, hogs or other stock from getting on the railroad?” If “suitable and sufficient” were to be taken according to the strict letter, it might be properly said, as the counsel for the defendant in error does say in his argument, res ipsa loquitur. The fence did not actually prevent the bull from getting on the railroad; therefore in this strict literal sense it was not “sufficient” to do so. Used in that sense “sufficient” means “equal to the end desired.” But to its use in the statute in question and in its predecessors the Supreme Court of Illinois has applied the “rule of reason,” and given to it in connection with its accompanying word “suitable” in the act much the same meaning as this latter word, namely, “fit,” “satisfactory.” Thus Judge Caton, says in Illinois Cent. R. Co. v. Dickerson, 27 Ill. 55, speaking in a case where a fence was up at nightfall and there was a gap in it in the morning through which gap cattle had passed to the tracks during the night: “When up, the proof does not show that the fence at this point was not good and sufficient. It cannot be the duty of the railroad company to keep a patrol all night the whole length of their road to see that the fence is not broken down by breachy cattle, by evil men, or by a whirlwind. If the company use all reasonable diligence to keep up the fence, that is all the law requires, and it is not guilty of negligence in that particular. ’ ’

This language at least implies.that “sufficient” in the statute did not mean sufficient to withstand “breachy” cattle.

The same general doctrine is that applied in Illinois Cent. R. Co. v. Swearingen, 47 Ill. 206; Indianapolis & St. L. R. Co. v. Hall, 88 Ill. 368, and Chicago & A. R. Co. v. Umphenour, 69 Ill. 198; although in this last case the Court indicates that the mere fact that animals had not broken bounds during a considerable time was not proof that the fence was “sufficient,” which was to be determined by the character of the fence.

Judge Higbee in the Appellate Court of the Third District, says of a gate which was lifted by a horse so that a hook was released and the gate opened:

“The company was not required to fasten the gate so that it was impossible for stock to open it under any and all circumstances. It had a right to use the fastenings commonly adopted in the country by persons reasonably prudent and careful, and regarded by them as safe, for the purpose. It is not likely that many gates could be found in city or country, fastened with latch or hook, that it would be impossible to open by the nose or teeth of a horse if dexterously applied for that purpose. To hold that the company must provide against such contingencies, would be to adopt a standard of diligence that would make it an insurer of the sufficiency of its fences under all circumstances. This the law does not require.” Chicago & A. Ry. Co. v. Buck, 14 Ill. App. 394.

This language is as applicable to the horns of a bull as to “the nose or teeth of a horse,” and while not authoritative to us commends itself to our sense of reason and justice. To the same effect is the Ianguage of the Appellate Court of the Second District in Chicago, B. & Q. R. Co. v. Evans, 45 Ill. App. 79.

In the case at bar the gate and its fastenings were thus described in the evidence. There was no serious dispute about them. The gate was made of four boards and was about sixteen feet long and four feet high. It was “standard” as to hinges and fastenings, as the carpenter for the Railroad, who built it, testified. It had been considered proper for its purpose for four years before, and had performed that purpose of keeping cattle confined satisfactorily. The bull which came through seems to have been restrained by it for a year or more, certainly all the summer before. On «its hinge end it was attached to a cedar post six feet high by two hinges, each made thus: An iron bolt driven into the post was turned up to make an upright of about two inches and around that upright a loop of strap iron about two inches wide attached to the gate made the connection and allowed the gate to swing when opened at the other end. It is a little difficult to follow with exactness the descriptions and measurements given in the testimony, simple as the construction evidently was. But it is quite plain that the gate and the hinges were of a common type known in farm gates. There is no reason to doubt the Railroad carpenter’s assertion that the gate was “standard.” It remained the same at the time of the trial as it was before the escape of the bull. The gate could not have been thrown down from the hinge end unless it had been lifted a matter of at least two inches. It is a matter of common knowledge that while cattle do not as a rule lift latches and raise gates off their hinges, there is here and there a “hreachy” animal who exercises apparently almost human ingenuity in doing it. It is not for such cattle that the railroad company has to provide. It seems to us evident from the testimony in this case that the bull here in question was for the nonce at any rate a “breachy” animal. He could in all probability have lifted the gate four inches as well as two, if disposed to throw it down and intelligent enough (as he seems to have been) to know how. There was no evidence, we think, of a failure of the Railroad Company to perform its statutory duty, and therefore none to justify the finding and judgment of the trial judge. •

The judgment of the Municipal Court of -Chicago is reversed, and a judgment of nil capiat will be entered here.

Reversed and judgment here.


text:
    Max Gittelson et al., Plaintiffs in Error, v. Fannie Reichman and Samuel Reichman, Defendants in Error.
    Gen. No. 18,329.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed December 22, 1913.
    Statement of the Case.
    Action by Max Gittelson, J. Bloom, I. Breskin and S. Goldberg against Fannie Beichman and Samuel Beichman for brokery commissions on a sale or exchange of real estate. To reverse a judgment of nil capiat and for costs against the plaintiffs, the plaintiffs prosecute a writ of error.
    Harry M. Fisher, for plaintiffs in error.
    Albert Martin, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.

Abstract of the Decision.

Judgment, § 405 —when decree in equity no bar to action for brokers' commissions. In an action to recover commissions for the sale or exchange of real estate wherein the plaintiffs have established a prima facie case, a decree in a cause in equity to which the plaintiffs were not parties, nor by which they were bound because in privity with or represented by the actual parties, held not admissible to bar plaintiffs’ right to recover where there is no evidence connecting the plaintiffs with the decree so as to make it binding on them.


author: Mr. Justice McSurely

text:
    Alfred A. Hallgren, Appellee, v. John E. Cowles et al., Appellants.
    Gen. No. 18,343.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed December 22, 1913.
    Rehearing denied January 5, 1914.
    Statement of the Case.
    Petition for a mechanic’s lien filed by Alfred A. Hallgren against John E. Cowles and George M. Groves, owners of an apartment building, constructed for them by the complainant. Other defendants to the petition were the trustee in a trust deed conveying the property and the unknown owners of notes secured thereby. The cause was referred to a master who, after taking the proofs reported, recommended a lien for four thousand three hundred dollars with costs. From a decree entered in accordance with the recommendations of the master, defendants, who were owners of the premises, appeal.
    Bither, Goff & Francis, for appellants.
    Henry M. Hagen, for appellee.

      Abstract of the Decision.
    1. Mechanics’ liens, § 49

      —when contractor not accountable for delay in completion of building. In a proceeding to enforce a mechanic’s lien contractor held not liable for any damage caused by delay in completing the work, where the evidence shows that the work was stopped by the city authorities on account of the building plans, and that the owner by ordering frequent changes caused much delay, and the decorating was postponed at owner’s request so that the tenants might select their own decorations.
    5. Mechanics’ liens, § 212

      —when abstract of record must set out provisions of contract. On appeal from a decree enforcing a mechanics’ lien, an objection that no architect’s certificate for final payment was ever issued', as required by the contract before final payment would become due, cannot be entertained where such provision in the contract does not appear in the abstract of record.
    3. Building and construction contracts, § 44

      —when owner is entitled to no substantial damages for delay. Where a contract requires an apartment building to be completed on August 1, but building is not completed until September 22, held, to be no substantial loss in the rental value of the building by reason of the delay, where the evidence shows that the ordinary renting seasons commence on May 1 and October 1, and that it is customary in renting flats in August or September to give concessions in the matter of rent to October 1st.
    4. Appeal and error, § 1214

      —when errors affecting parties not appealing, not considered. A decree enforcing a mechanic’s lien will not be reversed for the reason that no default was entered against the defendants described in the bill as unknown holders and owners of notes secured by a trust deed conveying the premises, - or for failure of the trial court to fix the rights of such parties in the decree, where such party defendants are not parties to the appeal.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Justice McSurely.

text:
    Annie Dunne, Appellee, v. Frank Bernardy, Appellant.
    Gen. No. 18,346.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Assault and battery, § 14

      —sufficiency of the evidence. In an action against defendant for spitting tobacco juice on the face and clothes of plaintiff, a verdict for plaintiff on conflicting evidence sustained.
    2. Appeal and error, § 1514

      —when inflammatory remarks of counsel not reversible error. Inflammatory remark of plaintiff’s counsel in his speech to the jury though highly improper and would justify a reversal if it was not manifest that their intemperance worked a disadvantage to the plaintiff rather than to the defendant, held not reversible error, it appearing from the amount of ad, damnum in plaintiff’s declaration, five thousand dollars, and the amount of the verdict, one hundred and fifty dollars, that the jury was not influenced to the prejudice of the defendant.
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed December 22, 1913.
    Statement of the Case.
    Action by Annie Dunne against Frank Bernardy to recover damages resulting from defendant spitting tobacco juice on plaintiff’s face and clothes during an altercation between defendant and plaintiff’s husband, in which plaintiff attempted to be peacemaker. From a judgment in favor of plaintiff for one hundred and fifty dollars defendant appeals.
    Frank F. Aring, for appellant.
    John D. Casey and Elmer & Cohen, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice McSurely.

delivered the opinion of the court.


author: Mr. Justice Creightoh

text:
    R. M. Owen & Company, Appellant, v. Walter E. Johnson et al., Appellees.
    1. Corporations, § 755

      —when service upon a sales agent of nonresident corporation is sufficient. In an action against a nonresident corporation engaged in the selling of motor cars in this State, service upon a sales agent appointed by a general agent and recognized by the corporation as such agent, held sufficient under R. S. c. 110, § 8, J. & A. ¶ 8545.
    2. Appeal and error, § 1332

      —conclusiveness of default judgment. On appeal from a decree dismissing a bill to set aside a default judgment and to enjoin its collection, it cannot be urged that there was no legal liability or consideration upon which to base the judgment, where the question was to some extent inquired into when the default was taken and on one of the issues made by the hill and answer the master found the amount of the judgment was due and the court approved the master’s finding.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Rehearing denied October 15, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    John Stapleton and Charles L. Capen, for appellant.
    A. M. Hester and Welty, Sterling & Whitmore, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Creightoh

delivered the opinion of the court.

A brief history of the proceedings had in relation to the litigation in question is, that in the early summer of 1908 the appellees, Walter E. Johnston and William Hurt, partners under the firm name and style of Johnston & Hurt, entered into a contract with O. C. Owen, who represented himself to be the general agent of B. M. Owen & Co., a nonresident corporation, for the sale of Reo motor cars, as sole agents for McLean county, Illinois. The condition upon which they were appointed sole agents was, that each of them should buy a car, and they were to receive as compensation twenty per cent, of the list price of the cars sold by them, including their own cars. Johnston & Hurt bought and paid for and received their two cars as per agreement, and commenced a canvass of the county for the sale of cars, and succeeded in closing sales for two or three of such cars.

Shortly after Johnston & Hurt began work under their contract, and after they had closed deals for two or three cars, one W. G. Bell, who had been instructing them under the direction of O. C. Owen, opened up selling Beo ears on his own account in McLean county, and received from O. C. Owen, who was agent for appellant in Illinois, and sold and delivered such cars to citizens of McLean county.

On October 28, 1908, said Johnston & Hurt commenced suit in the McLean Circuit Court against the appellant to recover commissions upon sales of cars made by them individually and by said Bell, and service of summons was had and the following return made thereon: “Executed this writ the 28th day of October, 1908, by reading and delivering a true copy of the same to W. Gr. Bell, local agent for the within named defendant, B. M. Owen & Co., incorporated, the president, vice-president, treasurer, secretary, superintendent or other officer not found in my county. ’ ’

The cause was continued until the April term, 1909, and, defendant failing to plead, default was entered and judgment rendered in the sum of $1,747.05, and costs of suit, on the 2d day of July, 1909. At the November term, 1910, of the said court, appellants entered a limited appearance and filed a motion to vacate the said judgment, on the ground that W. Gr. Bell was not an agent for appellant at the time of the service upon him and never had been such agent. No question is raised as to the correctness of the demand against them. Again, at the February term, 1911, of the said court, a like motion was made, under a limited appearance, and on the same grounds, and no question was there raised as to the correctness of the demand in this motion. Each of the said motions were denied and exceptions taken as to the denial of the latter motion, and an appeal prayed from the said order of the court,

On April 28, 1911, the bill in chancery before us for consideration was filed by appellants in the McLean Circuit Court, reciting, among other things, the suit by appellees Johnston & Hurt against appellant, the service upon said Bell, who, as they claim was not an agent, the rendition of the judgment against them and that they had no information of the suit until December, 1910; that they do not owe this debt or any part thereof, and pray to have the judgment set aside, vacated and that they be granted a new trial in said cause, and that appellees be restrained and enjoined from proceeding further with a cause pending in Lansing, Michigan, or any other place, or from taking out execution or any other writ on said judgment, and with prayer for general relief.

To this bill answers were filed on behalf of all appellees, averring that appellants were justly indebted to them for commissions under the contract for the sale of automobiles in McLean county, in the sum of the said judgment referred to in the complainant’s bill; and that W. Gr. Bell was the agent of the appellants and was at work for them in McLean county at the time of the service of the summons; that before the filing of this bill said judgment was assigned by Johnston & Hurt to George H. Marshall, of St. Johns, Michigan, and that he is, and has been since the said assignment, the legal owner of said judgment. Appellees further deny that they are now, or have at any time, been seeking by suit or otherwise, to collect said judgment off of and from the appellants since the date of the said assignment.

Issue being joined, the cause was referred to the master in chancery to take and report the proof, together with his conclusions of both law and fact.

The master reported that he took the testimony of all witnesses presented by the respective parties, attached same to his report, and found that the court had jurisdiction of the subject-matter and that W. G. Bell, the person upon whom service was had in the common law action, was the agent of the appellant; that the amount of the judgment rendered in the common law proceeding was correct.

Objections to the report of the master were duly filed by the appellant, and were overruled, and exceptions entered by appellant to the report of the master were, by the court, overruled and the report approved; and a decree was rendered dismissing the bill for want of equity and dissolving the preliminary injunction; and decreeing further, that the judgment theretofore rendered be of full force and binding effect, and that appellees and their assigns, be entitled to proceed to the collection of the same by process of law and that appellant pay the costs of the proceeding. Exceptions were duly taken and this appeal, perfected, thus bringing the record before us for review.

The first question to be considered in determining this cause is the relation that W. G. Bell sustained to the appellant herein at the time of the service of summons in the common law proceeding, here sought to be set aside and the collection of the judgment entered therein enjoined.

There seems to he no question hut that W. Q-. Bell was appointed, September 23,1908, as the agent for the sale of automobiles, by O. C. Owen, whom it is contended was in charge of the Chicago office of appellant, with power and authority to appoint local agents, define their territory, fix their compensation and supervise their work, and that he, said O. C. Owen, as the agent of appellant, acted under the advice and directions of appellant and its officers, and, from time to time, reported his acts and doings to them, and continued to hold himself out as the general agent of appellant.

If this contention is sustained by the evidence in this case, then the appointment of Mr. Bell, by said O. C. Owen, would constitute Mr. Bell an agent of appellant at the time the said service was had.

The evidence and exhibits in this record are voluminous, and we will not undertake to refer specifically to all or any considerable portion thereof. The record shows that in the spring or early summer of 1908, the said Mr. Bell was working with said O. C. Owen at Chicago, as sales agent and demonstrator of the Beo car, the exclusive sale of which, east of the Bocky mountains, was under the management and control of appellant. The first correspondence between the appellees and appellant relate to the purchase of two cars and the securing of the agency for McLean county, and the following letter was received in reply thereto:

“Dear Sib:—
Ton state you intend to visit Chicago in the near future with a view to examining one of our machines at that place. Kindly call upon Mr. O. C. Owen, who looks after the trade in central and northern Illinois, for us, and who will be glad to go into the matter in detail with you and make you a proposition on the purchase of the car in which you are interested. If, as you intimate, you are in a position to dispose of some machines in your territory, you can, no doubt, arrange with Mr. Owen to purchase them on terms that will be very satisfactory and assure you of good profit on the sales made. Our representatives will be glad to work with you in every way.
Tours very truly,
R. M. Oweh & Co. By H. M. Lee.”

Among other correspondence between O. C. Owen and appellant, we quote the following:

“R. M. Oweh & Co.,
Lansing, Mich.
GrEHTLEMEH:-
We wish to call your attention to the fact R. R. Lash, of Henry, 111., is selling cars in Lostant township, in LaSalle. county. This township belongs to O. T. Watson, of Morris. I realize it is all the same to me who sells the cars, but do not want to have hard feelings between my agents, and I want you to take it up with Mr. Lash at once and tell him to work his own territory.
O. C. Oweh.”

To tliis we find in the record the following reply:

“We have just looked up Lash’s contract. It reads Putnam, Tónica and Lostant, in LaSalle county. You will see from this he has a perfect right to sell in these towns.
Yours very truly,
R. M. Oweh & Co.”

The following letter also appears in this record:

Nov. 13, 1908.
O. C. Oweh,
Chicago, Ill.
“Dear Sir:—
Our records do not show that Hatcher at the present time has, or ever did have, a deposit with us. It may be the books of the New York office, in connection with the Chicago branch, show a balance of $50. Would suggest your writing New York on this subject.
Yours very truly,
R. M. Oweh & Co.”

In addition to this, the form of the letter' head used by O. C. Owen in his correspondence with appellees had the name of R. M. Owen & Co., imprinted thereon, and many had the words: “O. C. Owen, Manager,” also printed on them.

As specifically relating to the agency of W. G. Bell, we quote from a letter upon the letter head of R. M. Owen & Co., dated July 16, 1908, written by O. C. Owen, to appellees, where it is said: “If you think you can work this territory without Mr. Bell we will put Mr. Bell in the territory further south.”

In a letter bearing date September 23, 1908, to R. M. Owen & Co., signed O. C. Owen, it is said: “Kindly mark up McLean county to Mr. W. O. Bell, who is going to take care of that county for me the coming year.”

In a letter addressed to appellant, signed by O. C. Owen, dated October 5, 1908, it is said: “We are enclosing you names and addresses, together with location of the territory, of all the agents that we have closed up to date; ’ ’ and in the list appears the following: “W. G. Bell, McLean county.”

In a letter signed by appellant, addressed to O. C. Owen, dated December 20,1908, it is said: ‘ The package he mentions we sent him on the strength of advice received from Bell that he had been appointed as agent in his territory.”

The following letter also appears of record:

Dec. 31, 1908.
“Mr. Otto C. Owen,
Chicago, Ill.
“Dear Sir:—
We made a deal at St. Louis that requires a little assistance, and I would like to have you write me at once if you could let Bell go down for three or four days when the sample machines get there, which will be about next Tuesday, and help them demonstrate and teach their men so they can operate the cars. If I remember correctly Bell is located at Bloomington, and it will not cost us much to have him g’o down, etc.
R. M. Owmsr & Co.”

The following extract from a letter from R. M. Owen & Co. to O. C. Owen appears in the record: “We are having printed 60,000 catalogues and will be careful how many we supply the agents with on their first order.” In a letter from O. C. Owen to appellant, we find the following: “I wish to say that I consider these agents yours as much as mine. ’ ’ And in another letter from O. C. Owen to appellant we find this language: “Just as soon as I return from Decatur I will let you know the result of my visit, which I hope will be satisfactory to us both.”

The following appears in a letter from O. C. Owen to appellant: “In regard to sending a man to Mt. Sterling, will be very glad to do so. We have the man now working for us whom you spoke about. Hope the letter to Danville will wake up our agent. ” •

In a letter of May 13, 1908, O. C. Owen wrote to appellant asking appellant’s advice as to the employment of a certain man to be sales agent in certain territory, to which appellant, in a letter dated May 14, gave advice as to the employment of the salesman and the method or manner of building up trade in the territory.

Under the date of June 16, 1908, O. C. Owen addressed a letter to appellant, in which he said: “I have got to have some cars or you will not have an agent in Illinois. I have closed up with C. B. Johnston & Co., of Arrowsmith, for McLean county.”

In a letter from appellant to O. C. Owen, dated August 15, 1908, the following appears: “We have had nothing but complaints from our agents, and when it comes from one of the family it does not help matters.” In a letter from appellant to O. C. Owen, of October 10, 1908, we find the following: “We received a list of agents you have closed to date. We will send them supplies of such literature as we have.”

A letter bearing date December 11, 1908, from appellant to O. C. Owen, contains the following language: “I have always figured the Chicago end as being a part of E. M. Owen & Co.”

This record discloses that appellant kept a list of all subagents, their post office address and distributed literature to them, in some instances, and in other instances through the Chicago agency; that the agency in Chicago kept an office in which, it is insisted by appellees, appellant’s name was painted on the front; that in many letters not herein referred to the same language, or similar language, pertaining to the business, was used as in these we quote from. In many of the letters written to the appellee the letter heads used by O. C. Owen contained the name of E. M. Owen & Co., with the words, “O. C. Owen, Manager.” In all payments for cars, as disclosed by this record, the checks were made payable directly to appellant and with appellant’s name indorsed on the back by “O. C. Owen, Mgr.” All orders for cars were taken on blanks of E. M. Owen & Co., and many of the orders contained the name of W. Gr. Bell, as salesman.

Under all of the circumstances appearing from this record, would it not be reasonably inferred by persons dealing with O. C. Owen or W. Gr. Bell, that he or they were acting as the agent or agents of appellant?

Section 8 of chapter 110, R. S. (J. & A. ¶ 8545), entitled “Practice,” provides that any “incorporated company may be served with process by leaving a copy thereof with its president” or certain other enumerated officers, “or any agent found in the county.”

In Meacham on Agency, par. 728, we find the following rule announced: “If the sub-agent be one whom the agent was expressly or impliedly authorized to appoint, he is to be deemed to be the agent of the principal, and notice to such sub-agent would be notice to the principal as in the case of other agents.”

In the case of Board of Trade of City of Chicago v. Hammond Elevator Co., 198 U. S. 424, which was one where service was obtained upon an alleged agent, in discussing the subject of agency, the Court said: “The question turns upon the character of the agent, whether he is such that the law will imply the power and impute the authority to him, and if he be that kind of an agent, the implication will be made, notwithstanding a denial of authority on the part of the officers of the corporation.”

In Italian-Swiss Agric. Colony v. Pease, 194 Ill. 98, in discussing the same subject, our Supreme Court said: “If a corporation knowingly and voluntarily permits a person to hold himself out to the world as its agent, said corporation will be bound as principal to those dealing with such person to act upon the faith that such agency exists; and this is true irrespective of whether or not an agency in fact exists.”

In the case of Cadillac Auto. Co. v. Boynton, 142 Ill. App. 381, the Court reviewed the above authorities and announced the same doctrine.

In Crowley, Cook & Co. v. Sumner, 97 Ill. App. 301, the Court used the following language: “The language of the statute (section 8) is broad, and considering the fact that the commercial, manufacturing and transportation business of the country is to-day mainly carried on by corporations that act through agents, it should be liberally construed to affect what was clearly the intention of the legislature to secure. Corporations doing business over wide areas of territory, are practically beyond the jurisdiction of local courts in such territory where the business is done, unless they can be reached by service upon their representatives there found. That a representative for limited purposes may be an agent for purposes of service under the' statute, is plainly seen from the fact that not only a general agent may be served, but also any agent may be served.”

When it is considered that O. C. Owen advertised himself as general agent or manager for appellant, entered into contracts for the sale of automobiles as such general agent, upon blanks furnished by appellant, used forms furnished by appellant for sale orders containing appellant’s name, received checks made payable to appellant and indorsed appellant’s name on the back thereof as manager to the extent of thousands of dollars, consulted and corresponded with appellant as to the appointment of agents, covering a wide territory, can it be reasonably said that he was not acting in the capacity of a representative of appellant?

Mr. Bell was a salesman appointed by O. C. Owen, evidently with the knowledge and consent of the appellant, but certainly with their acquiescence and approval, because the proof shows that the appellant was notified by O. C. Owen of his appointment on the 23d day of September, 1908. The proof also shows that he sold seven or eight cars in McLean county alone and took the orders- therefor on blank forms furnished by appellant and on which his name appeared as salesman, and when cars were delivered he took checks payable to the appellant and they were presented to the banks and paid, and evidently deposited to the credit of appellant, as their name was indorsed thereon by O. C. Owen, their manager.

In addition to this, this record shows that on one occasion Mr. Bell made orders upon the appellant for repairs for one of the machines sold by him, and his order was filled and he was recognized as an agent, and such recognition appears in one of the letters referred to and quoted'from herein. On another occasion appellant desired that Mr. Bell be sent to St. Louis for a few days to help in making some demonstrations of cars. His name had been furnished to appellant in the list of agents, and that fact is referred to in one of the letters in the record.

Hence we conclude that Mr. Bell was the recognized agent of the appellant in and for the county of McLean at the date service was had upon him, and for some time before and after that date. There is a controversy as to whether the appellant had any knowledge of the commencement of the suit until after judgment had been taken. Both R. M. Owen and O. C. Owen deny any such knowledge, while appellees insist that they had knowledge both through Mr. Bell, their agent, and one of the appellees. Be that as it may, we fail to see how that could affect their legal standing and rights in this case. If they were notified in the manner required by our statute, they were in court for all of the purposes of the suit.

It is further contended that there was no legal liability or consideration upon which to base a judgment in the common law suit.

That question was inquired into to some extent when default and judgment was taken in that case. But, aside from that, it was one of the issues made by the bill and answer in the cause now in hearing. Proof was taken, and the master found that the amount of the judgment rendered in the common law case was due to the appellees from appellant, and the court approved the master’s finding.

We have gone sufficiently into the accounts of appellant and appellees, and we concur in the finding of the master and the decree of the chancellor.

For the reason given, the decree of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Creighton

text:
    S. W. Love, Trustee, and A. J. Wagner, Executor, Defendants in Error, v. Metropolitan Church Association and Nicholas H. Larry, Plaintiffs in Error.
    1. Religious societies, § 22

      —power to acquire real estate. An incorporated church association has power to purchase real estate for its corporate purposes and to borrow money and mortgage such property to secure the loan.
    2. Religious societies, § 25

      —when church association estopped to question authority of its officers to mortgage. Where the president and secretary of the board of trustees of an incorporated church association give a mortgage on real estate purchased by them for a church site to secure notes given for the purchase money, the association is estopped to question the authority of such officers to give the mortgage, where it has received the benefits, and the acts of the association in taking possession and control of the property warrant the conclusion that the acts of such officers have been ratified.
    3. Corporations, § 346

      —ratification of acts of officers. Very slight circumstances are sufficient to establish a ratification by a corporation of the acts of its officers where the benefits have all inured to its advantage.
    Error to the Circuit Court of Champaign county; the Hon. Solon Philbriok, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Rehearing denied October 15, 1913.

      Certiorari granted by Supreme Court.
    F. Wm. Kraft, for plaintiffs in error.
    Schaefer & Dolan, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Creighton

delivered the opinion of the court.

This was a hill filed by the defendants in error in the Champaign County Circuit Court, to foreclose a mortgage against the plaintiffs in error, in favor of the defendants in error.

The plaintiffs in error filed answer to the bill, in which it was averred that the plaintiff in error, Metropolitan Church Association, is an incorporated company, organized and incorporated under the laws of the State of Illinois, not for pecuniary profit; that it was governed by a board of three trustees; that there had never been passed by the said plaintiff in error or its board of trustees any by-law, resolution or any authority whatever, to authorize the president and secretary to execute the trust deed and note described in complainant’s bill; that the board of trustees of the said plaintiff in error had not, at any time, ratified the action of its president and secretary in executing said instruments. The answer admitted being indebted on December 31, 1909, to the defendant in error in the sum of $2,000, and admitted to having received of the defendant in error the $2,000 mentioned in complainant’s bill.

Replication was filed to the answer, and the cause was referred to the master in chancery to take and report the proofs.

Upon the incoming of the report of the master, exceptions were filed thereto, and the cause submitted to the court. A decree was entered in favor of the defendants in error in the sum of $2,370.05, and foreclosure awarded. From this decree this record is brought before us for review by a writ of error.

The undisputed facts, as appear from this record, are, that the debt for which the note and trust deed here involved were given for money borrowed from a former conservator of the defendant in error’s intestate, by the president and secretary of the board of trustees of the plaintiff in error, for the purpose of making a payment upon the purchase price of the property described in the trust deed here involved, which was purchased by the said president and secretary of such board of trustees of plaintiff in error for a church site. Immediately after the completion of the loan in question, a deed to the site was delivered to the said president and secretary of the plaintiff in error, and the plaintiff in error, the Metropolitan Church Association, took possession and have held and used such property for church purposes from that time on.

The note and trust deed were signed as follows:

“Metropolitan Church Association.
Duke M.‘ Farson, Pres.
E. L. Harvey, Secy.”

and the same was attested by the corporate seal.

It is contended by the plaintiff in error that the president and secretary of its board of directors or trustees had no power or authority to bind the corporation; that they acted without the direction or approval of the plaintiff in error.

The plaintiff in error, the Metropolitan Church Association, had power, under our statute, to purchase real estate for its corporate purposes, and to borrow money and mortgage such property to secure such loan, so that the question of its being an act ultra vires, so far as the corporation is concerned, need not be considered. It had the power and it remains to be seen whether or not it exercised the power in any of the methods recognized by law.

The subject of the power of such corporations and their agents to act for them in cases of the character of the one at bar is fully discussed by our Supreme Court in Alton Mfg. Co. v. Garrett Biblical Institute, 243 Ill. 298, from which we quote:

“Might exercise this authority in a number of ways: (1) They might appoint one of their number as agent of the corporation for that purpose and expressly or impliedly clothe him with authority to borrow money and give notes; (2) where no actual authority has been conferred upon the agent of the corporation to borrow money and give notes but where the agent has done so, and with full knowledge of all the facts the corporation has approved and ratified the acts of the agent, it will be liable to the same extent as if actual authority had been given to perform the acts; (3) where no authority had been given or existed in the agent to borrow money but where the corporation received the use and benefit of the money it will be liable; (4) by holding an agent out to the public as possessing authority to exercise the powers assumed by the agent and to do the acts performed by him, in which case the corporation would be bound to the extent of the agent’s apparent authority.”

It appears from the record in this case that immediately upon the purchase of the property in question, the congregation, for which the president and secretary (two of the trustees) acted, moved in and took possession and exercised all of the acts of control over said property. It would be marvelous to say, without any notice or knowledge of the action of the two trustees or any one else, that the whole congregation, of one accord, would from thenceforth assemble there weekly for religious services and be-ignorant of the act of the officers in securing the property.

The proof further shows' that the treasurer of the plaintiff in error, who was the third member of the board of trustees, paid two instalments of interest upon the note secured by the trust deed in question, and sent the third instalment of interest, in form of a check, to Mr. Webber, who had previously acted as conservator of defendants in error’s intestate at the time of the making of the loan, but who had resigned at the date of the receipt of the check for the third instalment of interest. This check was signed: “Metropolitan Church Assn., by Mrs. Harvey, Treas.” and was returned to her with directions to send it to the defendant in error. These facts present the action of the congregation covering a period of more than eighteen months after the property had been bought, possession taken, loan made and mortgage executed.

Very slight circumstances are sufficient to establish, a ratification by the plaintiff in error of the acts of its officers where the benefits all inured to the advantage of the plaintiff in error.

In National Home B. & L. Ass’n v. Home Sav. Bank, 181 Ill. 35, the Court uses the following language :

“It (meaning ultra vires) has been applied indiscriminately to different states of fact in such a way as to cause considerable confusion. When used as applicable to some conditions, it has been frequently said that a corporation is estopped to make such a defense where it has received the benefit of the contract. For example, the term has been applied to acts of directors or officers which are outside and beyond the scope of their authority, and therefore are invasions of the rights of stockholders, but which are within the powers of the corporation. In such case the act may become binding by ratification, consent and acquiesence, or by the corporation receiving the benefit of the contract.”

The facts in this case warrant us in concluding that the action of the trustees, or officers, was ratified, consented to and acquiesced in; and, beyond question, the plaintiff in error received the benefit of the loan to secure which the note and trust deed were given, and still hold and retain such benefit. In equity the plaintiff in error will not be permitted to accept the benefits of the agent’s contract, and, at the same time, repudiate that part of the agent’s acts by which it secured title to the property.

Believing that exact justice has been done in this case, the decree will be, and is, affirmed.

Affirmed.

Mr. Justice Philbeioe took no part.


text:
    James A. Elward, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Damages, § 207

      —when instruction misleading. In an action for personal injuries, an instruction relating to assessment of damages which closes with a statement to the effect that it is not necessary for any witness to express an opinion as to the amount of damages claimed in the declaration, held misleading and erroneous.
    2. Damages, § 42

      —when expert evidence as to effect of injury improper. In an action for personal injuries, opinions of medical experts as to the effect of injury on plaintiff’s life, held improper under the circumstances of the case.
    3. Damages, § 42

      —consequential damages. Consequences which are contingent, speculative or merely possible are not proper to be considered in ascertaining damages. To entitle plaintiff to recover present damages for apprehended future consequences there must be such a degree of probability of their occurring as amounts to a reasonable certainty.
    4. Evidence, § 444

      —when opinion of medical expert incompetent. Expert evidence which is a result of personal examination made during the trial, based in part upon subjective symptoms, is incompetent.
    Appeal from the Circuit Court of DeWitt county; the Hon. William G. Cochran, Judge, presiding.
    Heard in this court at the April term, 1912.
    Reversed and remanded.
    Opinion filed April 18, 1913.
    Rehearing denied October 16, 1913.
    Lemon & Lemon, for appellant; John G. Drennan, of counsel.
    Herrick & Herrick and Edward J. Sweeney, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Creighton

delivered the opinion of the court.

This suit was begun by appellee against the appellant Company in the Circuit Court of DeWitt county, to recover damages for injuries alleged to have been sustained by appellee by reason of the breaking in two of a freight train on appellant’s road, while the train was running down grade, and when the rear part of the train caught up .with and ran into the front portion thereof, appellee, who was in the caboose, was thrown from his seat and injured.

This cause was before us once heretofore (Elward v. Illinois Cent. R. Co., 161 Ill. App. 630), where it was found error had intervened, as disclosed by the opinion filed in that cause, and the judgment was reversed and the cause remanded for another trial. Upon the second trial in the Circuit Court the jury found the issues for the appellee and rendered a judgment for twelve thousand dollars, and the court entered judgment on the verdict for that sum, after overruling motions for new trial and in arrest of the judgment, and the cause is brought before us again by a further appeal.

A careful examination of the record presented for our inspection upon this appeal discloses the fact that on the trial of the cause the question of the extent and permanent character of the injury to appellee was the only matter for the jury, the liability of the appellant having been practically admitted.

The account of the accident and the various movements of the patient and his subsequent treatment were given at great length and with minute detail, and are, largely, unimportant to the determination of the cause. It is important, however, to learn the extent of the injury and it was important to have that presented to the jury according to the rules of practice in this State.

In addition to the evidence presented in this case bearing directly upon the accident and the circumstances surrounding it, we have before us the statements of twelve medical experts, about one-half of whom had treated the appellee at different times for the injury received in this accident, and the other half had' personally examined appellee during the trial with a view to testifying in the case.

The chief controversy among the medical experts, as appears from the record, was whether the spinal cord or bony structure of the spinal column of appellee had been injured, and whether he still was suffering from the same. Upon this vital question the experts disagreed, the greater number, in our judgment, concluding that there was no injury to the vertebrae or spinal cord, while the remaining experts contended that there was a curvature of the spine and an injury to the spinal cord and that this created the condition in which appellee was found to be.

The expert evidence that was the result of a personal examination made during the trial was based, in part, upon subjective symptoms, and, therefore, was not competent evidence. Elward v. Illinois Cent. R. Co., 161 Ill. App. 630; Lauth v. Chicago Union Traction Co., 244 Ill. 244.

A portion of these medical experts gave their opinion, over the objection of appellant, as to the effect of this injury upon appellee’s life, which we regard as being improper under the circumstances developed in this case. In the case of Lauth v. Chicago Union Traction Co., supra, at page 252 of the opinion, the Supreme Court said: ‘‘Consequences which are contingent, speculative or merely possible, are not proper to be considered in ascertaining- the damages. It is not enough that the injuries received may have developed into a more serious condition than those which are visible at the time of the injury, nor, even that they are likely to develop. To entitle plaintiff to recover present damages for apprehended future consequences, there must be such a degree of probability of their occurring, as amounts to a reasonable certainty.” See also Chicago City Ry. Co. v. Henry, 62 Ill. 142.

The following instruction is objected to by appellant as being erroneous and misleading:

“The court instructs the jury, that if you find for tile plaintiff, you will be required to determine the amount of his damages. In determining the amount of damages the plaintiff is entitled to recover in this case, if any, the jury have a right to, and they should take into consideration all the facts and circumstances as proven by the evidence before them, the nature and extent of plaintiff’s physical injuries, if any, so far as the same are shown by the evidence to be the direct result of the injury; his suffering in mind and body, if any, resulting from such physical injuries, and such future suffering and loss of health, if any, as the jury may believe from the evidence before them in this case, he has sustained or will sustain by reason of such injuries ; his loss of time and inability to work, if any, on account of such injuries; the necessary expense of medical care and attendance, if any is shown by the evidence on account of such injuries, if any, and you may find for him such sum as in the judgment of the jury under the evidence and instructions of the court in this case, will be a fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages and injury, if any, are claimed and alleged in the amended declaration-1 or additional counts and proven; and it is not necessary for any witness to express an opinion as to the amount of such damages. ’ ’

The declaration alleges, among other things, that the appellee was damaged by reason of the injury complained of because he could not follow his usual employment and thereby earn a salary, and also was damaged in consequence of being compelled to lay out large sums of money for medical care and attendance in an effort to be cured of his injury. 1 These two items constitute a material part of the damages sought to be recovered in this suit, and for the Court, in the closing part of the above quoted instruction, to announce as a proposition of law, that “it is not necessary for any witness to express an opinion as to the amount of such damages,” is clearly misleading and erroneous.

It was incumbent upon the appellee to prove by evidence the amount of damages he had sustained by reason of these two items.

The evidence was very conflicting and close upon the question of whether there was or was not an injury to the spinal cord or bony structure of the spinal column; and the evidence as to the extent of the injury leaves the matter in serious doubt as to the permanent character of the injury complained of.

If, as contended by the medical experts above referred to, the spinal column was not injured, and from the whole evidence we are inclined to entertain that view, then, in that case, the damages as fixed by the judgment are excessive.

The conduct of counsel for appellee, in the closing argument of the cause, is justly complained of. Courts cannot indorse the action of attorneys which are calculated to inflame the minds of the jury, in cases so closely contested as to the extent of the injury and the amount of the damages, as in this case. And while we do not mention this as ground of reversible error, it certainly added to the cause of complaint.

For the reasons above indicated we are compelled to reverse the judgment of the trial court, and the judgment is reversed and the cause will he remanded.

Reversed and remanded.


author: Mr. Justice Philbrick

text:
    W. P. Potter, Plaintiff in Error, v. S. A. Gibson et al., Defendants in Error.
    (Not to be reported in full.)
    Abstract of the Decision.
    Fraud, § 35

      —when statements as to financial condition of corporation not actionable. In an action on the case to recover money paid for stock in a corporation, alleged to have been induced by the misrepresentations concerning the financial condition of the company made by defendants to whom plaintiff had been referred by the seller, a direction of a verdict for defendants held not error where some of the statements and representations were mere expressions of opinion and others were made after the plaintiff had raised money to make the investment so that plaintiff could not have relied thereon.

      Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed April 18, 1913.
    Rehearing denied October 15, 1913.
    Statement of the Case.
    Action by W. P. Potter against S. A. Gibson, A. C. Gibson, G. A. Gibson, J. Francis Miller, Illinois National Bank and H. M. Merriam, to recover the sum of four thousand dollars alleged to have been paid by plaintiff for stock in a certain corporation upon the misrepresentations of defendants as to the solvency and financial condition of such corporation. Plaintiff dismissed the action as against the Gibsons. From a judgment entered in favor of other defendants on a directed verdict, plaintiff brings error.
    J. E. Winterbotham and E. A. Perry, for plaintiff in error.
    McAnulty & Allen, for defendants in error, H. M. Merriam and Illinois National Bank.

      Sce Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Philbrick

delivered the opinion of the court.


text:
    Nellie M. Pressley, Administratrix, Appellee v. Kinloch-Bloomington Telephone Company and Bloomington & Normal Railway and Light Company, Appellants.
    1. Electricity, § 27

      —when verdict against telephone company not sustained by the evidence. In an action against an electric light company and a telephone company for the death of plaintiff’s intestate, alleged to have been caused by an electric light current while acting as a city electric light trimmer, a verdict in favor of the plaintiff against the telephone company held manifestly against the weight of the evidence in that the evidence failed to show that the telephone wire which fell on the electric light wire and made the current belonged to the defendant telphone company.
    2. Appeal and error, § 1793

      —joint judgment. Where a joint judgment against two defendants is erroneous as to one defendant, it will be reversed as to both.
    Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding.
    Heard in this court at the October term, 1912.'
    Reversed and remanded.
    Opinion filed October 16, 1913.
    Rehearing denied November 5, 1913.
    Lillard & Williams, for appellant Kinloch-Bloomington Telephone Co.
    Sigmund Livingston and William R. Bach, for appellant Bloomington & Normal Railway and Light Co.
    Jacob P. Lindley, John E. Pollock and Edward Barry, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section .number.

   Mr. Justice Creighton

delivered the opinion of the court.

This was an action on the case brought by appellee, as administratrix of the estate of John W. Pressley, deceased, to recover for the death of her intestate, caused by an electric current received by him while acting as an electric light trimmer for the city of Bloomington. Both the appellant companies were made defendants.

This cause has been in this court on two different appeals (Pressley v. Kinloch-Bloomington Tel. Co., 158 Ill. App. 220, and 164 Ill. App. 167), where the facts relative to the cause of action are fully stated, and the cause was reversed and remanded each time. No change occurred in the pleadings since the last appeal.

In the judgment of the court, on the last appeal the cause was reversed and remanded because of the fact that the evidence contained in that record failed to show the appellant Telephone Company was the owner of the wire which broke, fell and caused the injury to appellee’s intestate by reason of the cross-circuit thereby caused; and as the suit was a joint one and the judgment appealed from was a joint judgment, it was held that if it was necessary to reverse the judgment as to one of the appellants it was necessary as to both.

Upon the retrial of the cause in the Circuit Court the evidence upon the former hearing, as to the ownership of the wire which it is alleged caused the injury, was read from the notes of the reporter, except that two of appellee’s witnesses, and one new witness, were called and testified.

On the last hearing a verdict and judgment was entered in the sum of four thousand five hundred dollars against both appellants and in favor of the appellee, and thereupon this appeal was perfected.

This court, in the last opinion herein filed, used the following language, with reference to the wire which caused the injury to appellee’s intestate: “The McLean County Telephone Company owned other pairs of wires upon this pole and number 5 was one of these wires. There is evidence in the record that that wire extended to and was connected with a cable which entered the telephone exchange of the McLean County Telephone Company which was located a block or more from the telephone exchange of the Kinloch-Bloomington Telephone Company; this wire was upon the top cross-arm of that pole. The Kinloch-Bloomington Telephone Company owned wires upon the second cross-arm and these wires extended to and were connected with a cable which entered the telephone exchange of the defendant telephone company.

There being no proof in this record that the defendant telephone company owned, controlled, operated or was in any manner responsible for the condition of the telephone wire complained of, the verdict of the jury as to that company is clearly and manifestly against the evidence, and as to it must be reversed.”

After a careful study of all the evidence in this record, including the new evidence of the witnesses heard to testify orally, we cannot but conclude the evidence here preserved fails to show the appellant Kinloch-Bloomington Telephone Company was the owner of the wire which fell and injured appellee’s intestate.

Mr. Hamilton, after testifying as to a state of facts relative to the ownership of the wire which fell, on cross-examination gave evidence as to the wires of the McLean County Telephone Company having been removed from the point where the wire in controversy fell, and said his statements were “as reported to the director’s meeting,” and that he “did not know personally.”

Mr. Ghilliford, construction chief of the McLean County Telephone Company, who was heard to again testify, stated, as to the condition of certain wires, that the said company had no wires in this alley.

But, as against this evidence, there was the positive and direct testimony of several witnesses who identified the particular wire which fell, and gave evidence as to the location of this wire upon the cross-arm on the pole, and testified directly that the wire was that of the McLean County Telephone Company. The wire which fell was identified as being wire number 5 on the top cross-arm on the pole. The witness, Mr. Far-well, testified that wires number 3, 4, 5, 6, 7 and 8 on the top cross-arm of that pole were the wires of the McLean County Telephone Company, and that the wire which fell was wire No. 5.

Mr. Boss testified that the six wires on the top cross-arm on the pole were bridled into the cable of the McLean County Telephone Company, and that the wire which fell was wire number 5, and that it did not belong to the appellant Telephone Company.

Mr. Philbrook, a city employe in the fire alarm department, testified that he had had sixteen years’ experience as an electrician and telephone man; that he helped build the first lines of the McLean County Telephone Company and that they had wires on the pole in this alley and that he examined them in the month of the accident here involved and that the wires of the McLean County Telephone Company were on the top cross-arm of the pole in question.

Many other facts and circumstances are shown by this record which fully convince us that the wire which fell and made the connection of the current on to the city light plant wire was not that of the appellant Telephone Company.

The appellants having been sued jointly, and the judgment here appealed from having been a joint judgment against both appellants, the judgment must be affirmed as to both or reversed as to both. There being no sufficient evidence showing the appellant' Telephone Company was the owner of the wire which is alleged to have caused the injury, the judgment as to it is erroneous and must be reversed, and therefore must be reversed as to both appellants.

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

Reversed and remanded.


text:
    Jesse Havron, Appellee, v. Shoal Creek Coal Company, Appellant.
    1. Mines and minerals, § 91

      —when mine examiner cannot recover for injuries resulting from failure to close cross-cuts. In an action by an assistant mine examiner to recover for injuries resulting from an explosion of accumulated gases while engaged in examining a mine, alleged to have been caused by wilful failure of mine owner to comply with section 14 of Miners’ Act, J. & A. If 7488, requiring certain cross-cuts to be closed, held that trial court erred in refusing to direct a verdict for defendant for the reason that the declaration was based solely on a statute which the evidence shows was inapplicable to plaintiff in his employment, and even under allegations of neglect of a common law duty to plaintiff held that plaintiff would not be entitled to recover under evidence showing that plaintiff was inexcusably careless in making an examination of the mine with an open lamp.
    2. Mines and minerals, § 82

      —persons entitled to protection under the provisions of the Miners’ Act. Person employed as mine examiner under section 21 of Miners’ Act, J. & A. ¶ 7495, does not come within the class entitled to protection under the provisions of section 14 of the Miners’ Act, J. & A. ¶ 7488.
    3. Mines and minerals, § 82

      —“operative miners” within meaning of constitution. Mine examiner is not an “operative miner” within the meaning of the constitutional provision, requiring “the legislature to pass such laws as may0 he necessary for the protection of operative miners.”
    Appeal from the Circuit Court of Montgomery county; the Hon. Albert M. Rose, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed.
    Opinion filed October 16, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    W. B. McBride, for appellant; Miller & McDavid and Mastin & Sherlock, of counsel.
    Lane & Cooper and Hill & Burlington, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Creighton

delivered the opinion of the court.

This was an action on the case filed in the Montgomery Circuit Court by the appellee against the appellant Company, to recover for damages alleged to have been caused by the wilful failure of the appellant to comply with the provisions of paragraph “f” of section 14 of chapter 93, Hurd’s R. S. 1911 (J. & A. ¶ 7488), entitled “Mines and Miners.”

The cause was heard by the court and a jury, and a verdict was returned against appellant in the sum of fifteen hundred dollars and, after overruling motions for new trial and in arrest of the judgment, the court entered judgment in the amount of the verdict against appellant, whereupon the record was brought before us by appeal on the part of appellant.

The declaration charges, in substance, that appellant owned and was operating a certain coal mine at Panama, in said county, and that in the operation and construction thereof there were, among others, the third and fourth west entries which were inlet and outlet air courses; that the ends of the said entries were known as the face; that between the third and fourth entries were two cross-cuts open, the westward one being about sixty feet west of the first one, allowing the full current of air between the inlet and outlet air courses to circulate through it, and thus preventing the air from circulating through the first cross-cut nearest the said face of said inlet and outlet air courses; that appellant wilfully failed and neglected to close the cross-cut farthest from the face in said entries, as provided by said paragraph “f” of said chapter 93 J. & A. ¶ 7488 of the statute; that appellee was employed in said mine as assistant mine examiner, and while traveling through said mine to examine it, as requested by appellant to do at a point about thirty feet east of the cross-cut nearest the said face of said entry, suddenly, and without warning, certain gaseous substances which had at that time accumulated therein, by reason of the said eastward cross-cut being and remaining open, ignited and exploded, whereby appellee received the injuries complained of.

The general issue was pleaded.

The real contention of the appellant is that the appellee while engaged as assistant mine examiner, did not come within the class contemplated by the provision of the Mines and Miners ’ Act.

The paramount question in this case is, did the appellee, at the time of the injury complained of, come within the class designated by the constitution as ‘ operative miners?”

The provision of the constitution upon which the Mines and Miners’ Act is based, J. & A., Yol. I p. 187, is, in part, as follows: “It shall be the duty of the legislature to pass such laws as may be necessary for the protection of operative miners, by providing ventilation and constructing safety escapement shafts, or such other appliances as may secure safety in all coal mines. ’ ’

The paragraph of the statute here involved (“f” of section 14 of chapter 93, J. & A. ¶ 7488), reads as follows: “All cross-cuts connecting inlet and outlet air courses, except the last one nearest the face, shall be closed with substantial stoppings, to be made as nearly air-tight as possible. In the making of the air-tight partition or stoppings, no loose material or refuse shall be used.”

It is contended by appellant that the appellee, at the time of the accident complained of, was not a miner engaged in digging coal, but that he was at the time an employe, having been assigned to the duty of assistant examiner of mines, and, therefore, does not come within the class described as 6 operative miners, ’ ’ and construes the statute as applying only to those engaged in digging coal.

The statute makes it the duty of all persons or corporations operating coal mines to employ a mine examiner, and the duties of such mine examiner are fixed by statute (section 21, chapter 93, entitled “Mines and Miners,” J. & A. ¶ 7495) and are as follows:

(1) “To examine the underground workings of the mine within twelve hours preceding every day upon which the mines are to be operated.”
(2) “When in the performance of his duties to carry with him a safety lamp in proper order and condition and a rod or bar for sounding the roof.”
(3) “To see that the air current is traveling in its proper course and in proper quantity; and to measure with an anemometer the amount of air passing in the last cross-cut or break-through of each pair of entries, or in the last room of each division of long wall mines, and at all other points where he may deem it necessary; and to note the results of such measurements in the mine examiner’s book kept for that purpose.”
(4) “To inspect all places where men are required in the performance of their duties to pass or work, and to observe whether there are any recent falls or dangerous roof or accumulations of gas or dangerous obstructions in rooms or roadways; and to examine especially the edges and accessible parts of recent falls and old gobs and air currents.”
(5) “As evidence of his examination of said rooms and roadways, to inscribe in some suitable place on the walls of each, not on the face of the coal, which chalk, the month and day of the month of his visit.”
(6) “When working places are discovered in which there are recent falls or dangerous roof or dangerous obstructions to place a conspicuous mark or sign thereat as notice to all men to keep out; and in case of accumulation of gas, to place at least two conspicuous obstructions across the roadway not less than twenty feet apart, one of which shall be outside the last open cross-cut.” .
(7) “Upon completing his examination, to make a daily record of the same in a book kept for that purpose, for the information of the company, the inspector and all other persons interested; and this record shall be made each morning before the miners are permitted to enter the mine.”
(8) “To take into his possession the entrance checks of all men whose working places have been shown by his examination and record to be dangerous, and to give such entrance checks to the mine manager before the men are permitted to enter the mine in the morning.”

A careful study of this section and all of its provisions discloses the fact that it is there made the duty of the mine examiner to examine the workings of the mine within twelve hours preceding every working day in the mine; to carry a safety lamp properly equipped; to see that the air current is traveling properly; to measure the amount of air passing in the last crosscut or break-through; to inspect all places where men are required, in the performance of their duties, to pass or work; to observe whether there are any recent falls, dangerous roof or accumulation of gas; to place conspicuous marks or signs in places where there are recent falls or dangerous roof, and in case of an accumulation of gas, to place conspicuous obstructions across the roadway, one of which shall be outside the last open cross-cut, and to make a daily record of all of the above in a book kept for that purpose, for the information of the company, the inspector and all other persons interested, and that this record shall be made each morning before the miners are permitted to enter the mine.

This examination of the section convinces us that it was passed by the legislature as being in compliance with the requirement of the provision of the Constitution above quoted, namely, “to pass such laws as may be necessary for the protection of operative miners.” It is evident this employe of the appellant was employed for the purpose of examining the mine as required by said section 21, J. & A. ¶ 7495, in order that the operative miners might know, before they entered the mine, that it was safe. He is the agency designated by the legislature to see that the mine is safe for the operative miners. This law was not passed for the protection of the man who was required to make the examinations, but for the protection of those-whom the Constitution made it the duty of the legislature to protect by statute. The very purpose of his employment was that he should go into the mine in advance of the miners and ascertain whether or not it was safe from the dangers from which it was the legislative duty to protect them.

It is a matter of universal knowledge that employment in a coal mine is a dangerous occupation, and when appellee accepted employment as an examiner he knew it was a dangerous position to fill, or he would not be required. He knew all of the requirements of the law as to the duties to be performed by him, and when he accepted such employment he assumed all of the dangers incident to such employment. He was not an operative miner, but was the means selected by the legislature in the passage of the law, under the constitutional rquirement, for the protection of the operative miners.

The declaration herein is grounded alone upon the failure of the appellant to comply with a statutory requirement which was only applicable to operative miners. No common law duty of the appellant is counted upon, and no allegation is made as to the duty of the appellant to use reasonable care to give to the appellee a safe place in which to perform his labor, and to allege a failure of such duty.

But even if there had been such allegation of neglect of a common law duty of appellant towards appellee, the evidence would not be such as to warrant a judgment in his favor. The evidence clearly discloses that appellee, at the time of the accident, was making his examination of the mine with an open lamp. He was at the time in the mine looking for any accumulation of gas, lack of air, loose roof or any other dangers that might lurk there. He knew he was likely to encounter, as he did, an accumulation of gas at any time, and for him to proceed to make an examination with an open lamp was inexcusable carelessness. The section of the Mines and Miners’ Act here involved was not enacted for his protection.

Counsel for the appellant, at the close of the evidence, asked the court to give a peremptory instruction to the jury, directing them to find the issues for the appellant, defendant below, but this was refused and this action of the court is here assigned as for error.

Under the view we are compelled to take of this case, we think it was error for the court to have refused to give the peremptory instruction, for the reason the declaration was based solely on a statute which the evidence shows was not applicable to the appellee in his employment.

For the reason above stated, the judgment of the trial court is reversed.

Reversed.