text:
    W. O. Funston, for use of John M. Wolf et al., Appellant, v. J. A. Shirey et al., Appellees.

      Verdicts—when mot disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action in debt. Appeal from the Circuit Court of Moultrie county; the Hon. W. G. Cochran, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    John B. Eden, for appellant.
    John E. Jennings and W. K. Whitfield, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an action in debt upon a replevin bond executed by the defendants, J. A. and W. S. Shirey, to the plaintiff, W. O. Funston, as sheriff, for the use of John M. Wolf and John T. Dawdy, in an action of replevin instituted by said J. A. Shirey against" said plaintiffs, to recover the possession of certain chattel property which had theretofore been seized by the said Funston as sheriff under and by virtue of a chattel mortgage thereon given by said Shirey to said Wolf to secure the payment of certain promissory notes, the principal of which aggregated the sum of $437.40. The replevin suit was dismissed by said Shirey without a trial upon the merits, and upon his failure and refusal to return the said chattel property this suit was instituted upon said replevin bond. To the declaration on the bond the defendants filed a plea of non est factum, and also filed their notice of proof of certain special matters which would be relied upon in defense of the action. Such notice of special matters so relied upon by defendants set forth, in substance, that they would make proof that the replevin suit was disposed of without a trial upon the merits; that the chattel property therein involved was the property of J. A. Shirey and that John M. Wolf was claiming the same under a chattel mortgage; that the notes which said chattel mortgage was given to secure, were certain of a series of notes secured by chattel mortgages which had been given by said Shirey to J. M. Wolf, W. H. Whitaker and Grace Cunningham, and that each of the said notes in said series were tainted with usury and unlawful commission charges of all of which the said Wolf had notice and knowledge; that prior to instituting said replevin suit said Shirey had tendered to said Wolf the sum of $20 which sum was all that was legally due said Wolf upon said notes. Upon the trial of the issues by a jury there was a verdict in favor of the defendants on the issue of tender, upon which verdict the court entered judgment against the plaintiffs for costs.

At the time of the transactions here involved the defendant, J. A. Shirey, was a farmer residing near Lovington, Moultrie county; the beneficial plaintiff, John M. Wolf, was a chattel mortgage loan broker residing in the city of Sullivan in said county; W. H. Whitaker was a lawyer and chattel mortgage loan broker residing in the city of Shelbyville in Shelby county; and Grace Cunningham, whose relation to the transactions involved is hereafter disclosed, was a stenographer and clerk in the office of said Wolf. There is evidence tending to show, and the jury were warranted in finding, that on May 2,1905, J. A. Shirey applied to Wolf for a loan of money to be secured by a mortgage upon certain chattel property and that said Shirey then executed his note for the sum of $146 with interest at 7 per cent payable to W. H. Whitaker, on September 2, 1905; that Whitaker remitted to Wolf the amount of said note less ten per cent; that on August 28, 1905, said first note having not been paid and without the advancement or loan to Shirey of any additional sum of money, he then executed another note and mortgage securing the same to Whitaker for the sum of $166.91, which last mentioned note and mortgage was made to mature November 28,1905; that on said last named date said Shirey made a payment of $40' or $45 upon said note and in renewal thereof executed another note and mortgage securing the same for the sum of $166.91 maturing February 28, 1906; that on March 2, 1906, said Shirey in renewal of the' last mentioned note and mortgage executed two'notes aggregating the principal sum of" $233.10 payable to Grace Cunningham on August 20, 1906, and also then executed a chattel mortgage securing said notes; that Grace Cunningham then made no loan of any money to said Shirey and that said notes were made payable to her to serve some purpose of Wolf or Whitaker; that on July 30, 1906, Shirey executed two notes payable to the order of Grace Cunningham, one for the sum of $32 payable September 1, 1906, and one for $251.10 payable November 1,1906, together with a chattel mortgage securing the payment of said notes, which said notes and mortgage were given in renewal of the notes maturing August 20,1906, and included a charge of $50 as commission for procuring a renewal of' said last mentioned notes; that on October 31, 1906, and in renewal of the two notes dated July 30-, 190'6, payable to" Grace Cunningham, said Shirey executed a note for the sum of $201.10 payable to W. H. Whitaker, on March 1, 1907, together with a chattel mortgage securing the same, and also then paid to Wolf $138.32 to be applied as a payment upon the note maturing November 1, 1906; that on February 28, 1907, said Shirey executed two notes payable to W. H. Whitaker, one for $53.43 due March 28, 1907, and the other for $200 due July 1,1907, together with a chattel mortgage securing said-notes, which said notes and mortgage were given in-renewal of the notes maturing March 1, 1907, and included a commission of about $50 to Wolf or Whitaker-, or both of them, for procuring such renewal; that on July 2,190-7, said Shirey executed two notes, payable to W. H. Whitaker, one for $115 due October 1,1907, and the other for $224.67 due December 1, 1907, together with a chattel mortgage securing the same, which notes and mortgage were given in renewal of the two notes maturing respectively March 28, 1907, and July 1, 1907, and included an additional commission for procuring such renewal; that on November 30, 1907, said Shirey executed two notes payable to W. H. Whitaker, one for the sum of $224.67 maturing December 15, 1907, and the other for the sum of $161.36 maturing December 30, 1907, together with a chattel mortgage securing said notes, which notes were given in renewal of the two notes maturing October 1, 1907, and December 1,1907, respectively, and included another commission for procuring such renewal; that on December 19, 1907, said Shirey executed three notes payable to John M. Wolf, one for the sum of $161.36 due January 1, 1908, one for the sum of $44.44 due February 15, 1908, and one for the sum of $224.67 due January 10, 1908, together with a chattel mortgage securing the same, which said notes and mortgage were given in renewal of the notes maturing December 15, and December 30, 1907, and included an additional charge as a commission for procuring such renewal. The notes and mortgage last described constitute the culmination of the financial transactions between J. A. Shirey and Wolf and Whitaker and are the notes and mortgage involved in this litigation.

It is established by the evidence beyond controversy that the relation of principal and agent existed between Whitaker and Wolf and that the latter with full knowledge of all the facts so manipulated the transactions with the knowledge of Whitaker, that he appeared alternately in the role of principal or agent as he conceived best suited his purpose. We think the jury were justified in finding that the notes in question were almost wholly tainted with usury and that the tender of $20 made by J. A. Shirey was all that was legally recoverable thereon.

There is no error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    Sarah E. Rice et al., Appellees, v. L. C. Burgess, Appellant.
    1. Instructions—when refusal to exclude particular counts not subject to review. In order to save for review the propriety of the action of the trial court in refusing to exclude from the jury the particular counts of a declaration, it is essential that a peremptory instruction limited to such counts shall have been presented and refused.
    2. Variance—when objection to, comes too late. An objection of variance not raised in the trial court cannot be first urged on review.
    Trespass on the case. Appeal from the Circuit Court of Macon county; the Hon.William C. Johns, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed on remittitur.

    Opinion filed October 25, 1909.
    James Hicks and A. C. Edie, for .appellant; Le Forges & Vail and Phillip L. Miller, of counsel.
    F. R. Wiley and Whitley & Fitzgerald, for appellees.
   Mr. Presiding Justice Baume

of the court.

This is a suit by the plaintiffs, Sarah E. Rice and C. L. Schellenger, against the defendant, L. C. Burgess, to recover damages for the wrongful taking of certain personal property in which the plaintiffs claimed a two-thirds interest as tenants in common or joint owners with the defendant. The declaration contains four counts, of which three counts in trespass charge the defendant with having wilfully and maliciously taken and carried away one linotype machine, one gasoline engine and certain books of account, records and papers, all being part and parcel of a certain newspaper and job printing plant known as the Piatt County Pilot, and with having wrongfully taken possession of and locked up the premises in which said property was kept, whereby the said business was necessarily discontinued and ruined; and one count in case which charges that the same property had been leased by the plaintiffs to one Kilborne who was in possession and management of the same, and that the defendant wrongfully contriving to injure the reversionary interest of the plaintiffs therein took and converted the same to his own use and wrongfully seized and locked up the office in which said business was conducted, whereby the said newspaper was forced to suspend publication and the said business became a total loss to the plaintiffs. A trial by jury in the Circuit Court of Macon county resulted in a verdict and judgment against the defendant for $3281, from which judgment he prosecutes this appeal.

It is first urged that the verdict of the jury is against the manifest weight of the evidence. A detailed review of the conflicting evidence in the case would necessarily extend this opinion beyond reasonable bounds. There is evidence in the record tending to show, and we think the jury were warranted in finding, a state of facts substantially as follows: Prior to July 1, 1905, C. H. Kilborne and his father were the owners of a newspaper and job printing plant in Monticello, Illinois, known as the Piatt County Pilot, which plant was equipped with a cylinder press, two job presses, a paper cutter, paper folder, gasoline engine, type, office fixtures, paper stock, books of account and subscription books. At the same time and up to the time of the transactions here involved the defendant conducted a rival newspaper in Monticello, known as the Piatt County Republican. On July 1, 1905, A. R. Spicer purchased a two-thirds interest in the Piatt County Pilot from the father of C. H. Kilborne and the business was thereafter conducted by C. H. Kilborne. In September, 1905', Kilborne suggested to Spicer the propriety of purchasing a linotype for use in the business, which machine Kilborne represented could be purchased for $1500', and further represented that he had on hand sufficient money belonging to the business to make the first cash payment of $250, and that the remaining payments could be made out of the proceeds of the business. In October following, Kilborne purchased a Merganthaler Linotype Junior, No. 77, for the sum of $1500 payable as follows: $250 in cash and thirty-four notes for $35 each, payable monthly, and one note for $60, which notes were executed by Kilborne to whom a bill of sale for thé linotype was made, and Kilborne executed a chattel mortgage on the linotype to secure the payment of said notes. The linotype was installed in the office of the Pilot, and three or four employes, whose services were no longer required by reason of the purchase of the linotype, were discharged. During all of the time that Kilborne managed the business all of the proceeds of such business were deposited by him to the -credit of his individual account at the bank. In September, 1906, Spicer sold a one-sixth interest in the said business, including a like interest in the linotype, to the plaintiff S'chellenger, who assumed to pay his share of the unpaid balance on the purchase price of the linotype, and in December following, Spicer sold his remaining one-half interest in the business, including a like interest in the linotype, to one McGinley, who, likewise, assumed the payment of his share of the unpaid balance due for the linotype. On January 1, 1907, McGinley executed a lease of his one-half interest in the business of the Piatt County Pilot to C. H. Kilborne for a term of one year, whereby Kilborne was to manage the business upon the following terms: First, to pay as rent therefor at the end of each and every month a sum of money equal in amount to 7% % of the entire gross income of the business; second, to pay in addition thereto, the lessor’s one-half part of certain monthly payments due on the linotype; third, to pay all other incidental expenses of the business including the premium upon $3700' insurance upon the plant.' It was further thereby agreed that the business should be conducted as the individual business of the lessee, and that it was not the intention of either party thereto to form, a partnership relation as to said business. Shortly after the execution of said, lease Kilborne procured a lease, upon like terms, from the plaintiff, Schellenger, of the latter’s one-sixth interest in the property. On August 21, 1907, McGrinley sold his one-half interest in the business, including a one-half interest in the linotype, to the plaintiff, Sarah E. Bice, and also assigned to her his lease to Kilborne. In August or September, 1907, the defendant Burgess opened negotiations with McGrinley for the purchase of an undivided two-thirds interest in the business and property, being the one-sixth interest owned by the plaintiff, Sehellenger, and the one-half interest owned by Mc-Grinley, or the plaintiff Sarah E.. Bice, and Burgess was then informed by McGrinley that the linotype was a part of the property of the business, and. the negotiations were conducted by Burgess upon that assumption. The negotiations between Burgess and Mc-Grinley did not result in a purchase by Burgess, but on November 2, following, Burgess purchased from Kilborne the latter’s one-third interest in the business and property of the Pilot for the sum of $1000, and assumed by such purchase to acquire the entire ownership of the linotype upon the representation of Kilbome that the linotype was his individual property. The sale by Kilborne to Burgess was negotiated and closed about midnight on Saturday, November 2, and on the following Sunday morning' Burgess took possession of the entire business and property of the Pilot, and placed a padlock on the door of the building where the property was located and the business was conducted. The building in question was owned by Dighton, a brother-in-law of Burgess, who claimed a balance due him of $225 for unpaid rent, and on Saturday, November 2, or Monday, November 4, Dighton caused a distress warrant to be issued to recover such rent. Early Monday morning, November 4, Burgess removed the linotype and a gasoline engine from the building and installed the same as a part of the plant of the Piatt County Republican conducted by him in. another building. Thereafter, on the same day, the officer having the distress warrant, demanded the keys to the Dighton. building from Burgess and upon receiving the same levied the warrant upon the remaining property in the building. A judgment was subsequently recovered in the distress proceeding for the rent in arrears, and special execution awarded against the property levied upon. On Wednesday, November 6, McG-inley went to Monticello and demanded of Burgess that he return the linotype and gasoline engine to the office of the Pilot. Burgess refused to comply with the demand as to the linotype but admitted that he was liable for a two-thirds interest in the gasoline engine. In explanation of his conduct in placing a padlock on the office of the Pilot and removing the linotype and gasoline engine, which were necessary equipments for the publication of the Pilot, Burgess then said that as he had one newspaper to look after he did not have any use for the Pilot and did not care to look after two. Thereafter, the business and publication of the Pilot was necessarily discontinued and ceased to exist as a going concern. Kilbome left Monticello immediately after the sale of his interest to Burgess, and so far as the record discloses has not been since heard from. We think a consideration of these facts fully justified the jury in finding a verdict for the plaintiffs.

The fact that some of the payments made by Ell-borne upon the purchase price of the linotype were the proceeds of money borrowed by him for that purpose does not establish his ownership of the machine. The payments so made by him, in part at least, appeared in the books kept by him as having been charged against the earnings of the business, and. as he kept but one bank account and that in his own name, it is clearly inferable from his financial condition that he used the funds derived from the business for his personal purposes and any money he may have borrowed and applied in payment for the linotype was thus used by him in lieu of the funds derived from the business and which he had misappropriated.

It is next urged that the trial court erred in refusing to direct a verdict for the defendant on the trespass counts of the declaration. The failure of defendant to preserve this question for review by proper motion limiting the request for a peremptory instruction to the counts in trespass, precludes the necessity of discussing the technical rules of pleading involving the distinctions between trespass, and trover and trespass on the case, urged upon our attention by counsel for defendant. No question of variance was raised in the court below, and the case was tried by defendant upon the theory that there was a right of recovery under the trespass counts of the declaration, to which the defendant pleaded the general issue. It is now too late to raise the questions sought to be raised upon that branch of the case.

The property in question was owned by the several parties in interest as tenants in common and not as partners, and in such case the right of the plaintiffs to resort to an action of trespass is expressly authorized by the statute. Rev. Stat. 1908, chap. 76, sec. 2.

As to the final contention that the verdict of the jury is excessive in amount we are satisfied that the error in that respect is well assigned. While the conduct of Burgess justified the jury in awarding punitive damages we are constrained to hold that they exceeded the limits of propriety in that respect. A careful consideration of the evidence compels us to the conclusion that the valuation of $6000 put upon the property and business of the Pilot when it was a going concern by the witness Spicer, is largely exaggerated. The cost price of the linotype was $1500, of which amount about $450 was still unpaid, and the value of the gasoline engine was from $75 to $100. We are persuaded that no inconsiderable part of the consequential damages suffered by the plaintiffs by reason of the peremptory discontinuing of the business was occasioned by the levying of the distress warrant by the landlord Dighton.

If within twenty days the plaintiffs will remit the excess above' $2000 from the judgment, the judgment will be affirmed for that amount, otherwise the judgment will be reversed and the cause remanded.

Affirmed upon remittitur.

Remittitur filed and judgment affirmed November 3, 1909.


text:
    Mattie G. Fitzgerald, Administratrix, Appellant, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company, Appellee.

      Negligence—when action for death, caused hy wrongful act may he maintained in this State. • If the plaintiff’s intestate suffered the injury which caused his death in a sister state, was thereafter removed and died within this State, his personal representatives may maintain in this State an action upon a statute existing in such sister state which conferred a cause of action because of the negligence which resulted in such death.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. James W. Craig, Judge, presiding. Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Lindley, Penwell So Lindley, for appellant.

      George B. Gillespie, for appellee; L. J. Hackney, Hamlin, Gillespie 8s Fitzgerald and Bearick 8s Meeks, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit instituted in the Circuit Court of Vermilion county by Mattie G. Fitzgerald, as administratrix of the estate of her deceased husband, Bruce G. Fitzgerald, against the Cleveland, Cincinnati, Chicago & St. Louis By. Co., to recover damages for wrongfully causing the death of her intestate. The declaration alleges that on October 31, 1905, the deceased was employed by the defendant as a brakeman on a local freight train running between Indianapolis and Peoria; that a statute of the State of Indiana then in force gave a right of action to the legal representatives of any employe of any railroad corporation for any injury resulting in the death of such employe by reason of any defect in the condition of ways, works, tools and machinery caused by the negligence of the corporation or by some person entrusted by it with the duty of keeping the same in proper condition, and the several provisions of such statute are set out in full in the declaration. The declaration further alleges that it became necessary in the performance of his duties for the deceased to use the .hand-rail or grab-iron attached to the rear of the tender of the locomotive which was then hauling one of the defendant’s trains; that said grab-iron was so misplaced and bent down toward the tender that not sufficient space was left between it and the tender to enable the deceased to use the same, and that such defective condition of the grab-iron was the result of the negligence of the servants of the defendant entrusted by the defendant with the duty of keeping the same in proper condition; that while the deceased was in the performance of his necessary duties and was in the exercise of due care for Ms own safety he attempted to catch hold of said grab-iron and by reason of its said defective condition he was unable to do so and was thereby caused to fall under the locomotive and was so injured thereby that he died.

The evidence introduced on behalf of the plaintiff discloses that the deceased was a citizen of the State' of Indiana; that the wrongful act, neglect or default which caused Ms death occurred in the State of Indiana and that Immediately after Ms injury he was removed by the defendant to a hospital in the city of Danville in the State of Illinois, where he died. Such evidence further tends to prove all the material allegations of plaintiff’s declaration. At the close of the plaintiff’s evidence the trial court at the instance of the defendant gave to the jury a peremptory instruction to find the defendant not guilty upon the ground. that the statute of this State prohibited the bringing of this suit. From the judgment entered upon such verdict the plaintiff prosecutes this appeal.

The propriety of the action of the trial court is justified by the defendant upon the authority of Crane v. C. & W. I. R. R. Co., 233 Ill. 259, where it was held that the proviso to section 2 of the statute of this State entitled “An Act requiring compensation for causing death by wrongful act, neglect or default, ’ ’ was intended to be considered in connection with section 1 of the act of which it forms a part, and when so considered it must be construed to mean that no action shall be brought in tMs State to recover damages for a death where the wrongful act,' neglect or default causing the death occurred outside of this State. The proviso there referred to and construed by the court reads as follows: “Provided further, that no action shall be brought or prosecuted in this State to recover damages for a death occurring outside of this State.”

At common law no right of action existed for the recovery of damages for wrongful death and such right of action is therefore purely a creature of statute law. If the cause of action in the case at bar was predicated upon the statute of the State of Illinois authorizing a recovery of damages for wrongful death the decision in Crane v. C. & W. I. R. R. Co., supra, would be conclusive against the plaintiff’s right of recovery, because the wrongful act, neglect or default which occasioned the death of plaintiff’s intestate occurred without this State, but the decision in that case has no reference to a cause of action for wrongful death predicated upon the statute of a sister state, and if the courts of this State may entertain jurisdiction of a cause of action based upon the statute of a sister state authorizing a recovery of damages for wrongful death there is nothing in the Crane case which prohibits such recovery. The language employed in the decision of the Crane case must be limited in its application to the precise question which was then before the court, viz-, the proper construction to be given to the statute of the State of Illinois authorizing a recovery of damages for wrongful death.

The statute of the State of Indiana on which the right of recovery is here sought is the same statute in substance under which a recovery was had in C. & E. I. R. R. Co. v. Bouse, 178 Ill. 132, where it was held that the provisions of such statute were not repugnant to good morals or natural justice or prejudicial to the best interests of the people of this State, and that a suitor might enforce in the courts of this State a right of action arising under such statute. The decision in the Crane case properly limited and applied, in no wise conflicts with the decision in the Bouse case, and the judgment of the court in the latter case is conclusive of the right of plaintiff to maintain this action in the courts of this State.

For the error in giving the peremptory instruction the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


text:
    William Lanum, Appellee, v. W. D. Patterson et al., Appellants.
    1. Attorney and client—character of privileged communications. Communications between an attorney and his client are privileged, but the privilege is that of the client and not of the attorney. If the client waives the privilege then the attorney is bound to answer.
    2. Attorney and client—what not privileged communications. The rule which makes communications between attorney and client privileged is not one which will enable them to act together to perpetrate a fraud. When, an attorney and his client both engage in committing a wrongful act, the client cannot prevent a disclosure by the attorney on the ground that the latter became acquainted with the facts connected with it as his legal adviser, but the attorney may be required to disclose whatever act was done in his presence towards the perpetration of the fraud.
    3. Instructions—must not give undue prominence to particular evidence. An instruction is erroneous which singles out and gives undue prominence to certain evidence introduced by one of the parties.
    4. Appeals and errors—what cannot he assigned as error. A party on appeal cannot urge alleged errors which concern some other party not complaining thereof.

      Assumpsit. Appeal from the Circuit Court of Moultrie county; the Hon. Solon Philbrick, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    E. J. Miller, for appellants.
    Eden & Martin, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

The facts necessary to an understanding of the issues involved in this case are set forth in the opinion of this court on a former appeal. Lanum v. Patterson, 143 Ill. App. 244. Upon the second trial of the case there was a verdict and judgment against the defendants, makers of the note in question, for $3266, from which judgment W. D. Patterson and Leona D. Patterson, the principal makers of the note, prosecute this appeal.

The principal defense interposed hy the defendants relates to the alleged change in the amount of attorney’s fee from $100 to $400 in the warrant to confess judgment, which change it is claimed by the defendants was made with the knowledge and consent of the plaintiff in pursuance of an agreement between the plaintiff and his attorney, George A. Sentel, whereby the attorney’s fee of $400', as was provided by the warrant in its alleged altered form, was to be divided between the plaintiff and his said attorney.

George A. Sentel, who acted as attorney for plaintiff when the judgment by confession was entered upon the note, which judgment was subsequently opened up, was not a witness upon the former trial of the case, but upon the second trial, when called as a witness by the defendants, he testified that he changed the amount of attorney’s fee in the cognovit from $100 to $400 immediately before the entry of judgment by confession, and that the plaintiff was present when such change was made. Plaintiff by his counsel then waived any objection to the testimony of Sentel upon the ground that it was a privileged communication between attorney and, client, and thereupon, the witness was asked, what, if anything, was said between himself and the plaintiff about a division of the $400 attorney’s fees, and the witness refused to answer the question upon the ground that it involved a privileged communication between himself and his client, the plaintiff. The trial court then informed the witness that he need not answer the question unless he desired so to do, and the witness signified his desire not to answer. Thereafter, other questions of similar import and relating to the knowledge of the plaintiff that the amount of the attorney’s fee included in the judgment was $400, were asked the witness and upon Ms signifying a desire not to answer the same, the court ruled that he did not have to answer. Subsequently, upon the motion of counsel for plaintiff the court excluded from the jury all the testimony of the ¡witness Sentel with reference to the cognovit and the change in the amount of attorney’s fee thereon. The action of the court in the respects indicated was erroneous.

Communications between an attorney and his client are privileged, but the privilege is that of the client and not of the attorney. People v. Barker, 56 Ill. 299; Wood v. Thornly, 58 Ill. 464. The plaintiff having waived the privilege which protected the communications with his attorney, Sentel, from disclosure, Sentel could not avail himself of the privilege and refuse to answer questions relating to such communications. Furthermore, there is a well-established exception to the general rule that communications between an attorney and his client are privileged. In this case it is claimed on the part of the defendants that the alteration in the warrant of attorney whereby the amount of attorney’s fee was raised from $100 to $400 was made by Sentel with the knowledge and consent of the plaintiff, and with the understanding or agreement between Sentel and the plaintiff that the amount recovered as attorney’s fees should be divided between them. This, if true, was a fraud upon the defendants, to which fraud Sentel was a party and directly interested in the transaction.

In his exhaustive work on Evidence, Mr. Wigmore says: “All reasons in favor of privilege cease to operate at a certain point, namely, where the desired advice refers not to prior wrong doing but to future wrong doing.” 4 Wigmore on Evidence, see. 2298.

In 23 Am. and Eng. Ency. of Law, 2d Ed. 76, numerous authorities are cited in support of the statement in the text, that when the attorney and client both engage in committing a wrongful act the client cannot prevent a disclosure on the ground that the latter became acquainted with the facts connected with it as his legal adviser.

In 10 Enc. of Evidence, 292, cases are collated in support of the rule that, “In cases where the attorney is a party to the transaction in regard to which communications were made the rule does not apply.”

In Matthews v. Hoagland, 48 N. J. Eq. 455, it was said: “In the case of fraud if it is affected by the cooperation of the attorney, it falls within the rule as to ■crime, for their consultation to carry it out is a conspiracy, which on its accomplishment by the commission of the overt act, becomes criminal and an indictable offense.” In Dudley v. Beck, 3 Wis. 246, it was held that a fraudulent agreement between client and attorney to act together was not privileged.

In Coveney v. Tannahill, 1 Hill (N. Y.) 33, it was said: “Now if the plaintiff consulted counsel before hand as to the means, the expediency, or the consequences of committing such a fraud, his communications may, perhaps, be privileged; and they are clearly so, as to what he may have said to counsel since the wrong was done. But the attorney may, I think, be required to disclose whatever act was done in his presence towards the perpetration of the fraud. One who is charged with having done an injury to another, either in his person, his fame, or his property, may freely communicate with his counsel, without danger of having his confidence betrayed through any legal agency. But when he is not disclosing what has already happened, but is actually engaged in committing the wrong, he can have no privileged witness. See the remarks of Ld. Brougham in Greenough v. Gaskell, 1 Myln. & K. 98.”

The relaxation of the rule in the respect indicated is not in contravention of sound public policy, but rather tends to the maintenance of a higher standard of professional ethics, by preventing the relation of attorney and client from operating as a cloak for fraud.

We have examined the other errors assigned upon the rulings of the trial court as to the admissibility of certain evidence and find nothing therein harmful to the plaintiff, or which merits any discussion.

The fifth instruction given at the request of plaintiff is inartificially drawn and was calculated to mislead the jury to the prejudice of the principal makers of the note, the appellants here, in that it inferentially authorized a finding against all the defendants if the alleged alterations in the note were made with the knowledge of the surety, Woodruff, or were ratified by him.

The first instruction tendered by the defendants improperly singled out and gave undue prominence to certain evidence introduced on their behalf, and was properly modified by striking out such improper matter. The defendants could not have been prejudiced by the modification of the third instruction tendered on their behalf, and that instruction properly presented the issue which the defendants sought to have presented by their second instruction, which was properly refused because it assumed the existence of a controverted issue of fact in the case.

The defendant, E. P. Woodruff, who is the surety upon the note, is not complaining of the judgment and the action of the court in modifying and refusing certain instructions tendered on his behalf does not concern the other defendants, the appellants here, as no claim is made that such action was prejudicial to them.

For the error in excluding evidence proper to be considered by the jury the judgment is reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Philbbick took no part.


text:
    Emma Waschow, Appellee, v. Kelly Coal Company, Appellant.
    1. Variances—when objection to, comes too late. An objection of variance not raised in the trial court cannot be first urged on review.
    2. Mines and Miners Act—what not defense. Contributory negligence is no bar to an action instituted under the Mines and Miners Act.
    3. Conduct of counsel—when not saved for review. If complaint is made on appeal of remarks of counsel made in argument to the jury, a ruling should be obtained thereon; otherwise their propriety is not saved for review.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    O. M. Jones and Charles Troup, for appellant; Mastín & Sherlock, of counsel.
    Keeslar & Gunn and H. Ernest Hutton, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In this suit the plaintiff, Emma Waschow, recovered a verdict and judgment against the Kelly Coal Company for $3125, as damages for the death of her husband, Herman Waschow, occasioned, as it is alleged, by the wilful failure of the defendant to comply with certain provisions of the Mines and Miners Act. The declaration contains two counts. The first count alleges that the deceased was employed by defendant in its coal mine as a mule driver, and that in the course of such employment it was customary for the driver to ride upon the front part of the car, just back of the animal drawing the same; that in the performance of his duty it was necessary for the deceased to be in and to pass along a certain entry in said mine with a loaded car of coal, from a point near the entrance of room 20 off said entry, down said entry and past room 17 to the bottom of said mine; that there was a steep incline in said entry from room 20 to room 17, and that the track was laid so close to the rib side of the entry that there was no room for a driver to dismount from a passing car on said rib side; that on the opposite or gob side of said entry were large quantities of gob, stone, slate or refuse matter, piled so close to said track and so high and near to the entrance to the room-necks turned off said entry, that a driver on a car driving down said entry had no place on said gob side where he could dismount from said car without injury to himself; that on the rib side of said entry opposite room 18 a cross-cut had been filled up with rock and debris so that a driver could not escape in said cross-cut, all of which constituted an unsafe and dangerous condition in said mine, and which said unsafe and dangerous condition had existed for many weeks and was well known to the defendant; that the defendant disregarding its duty wilfully and knowingly permitted the deceased to enter said mine and to pass along and work in said entry at said place without then and there being under the direction of its mine manager while said mine and said entry was in an unsafe and dangerous condition; that while the deceased in the usual course of his employment was riding on a car loaded with coal down said incline in said entry, near the entrance of room 18, he attempted to dismount from said car and because of such unsafe and dangerous condition was thereby crushed and injured, so that he died, etc. The second count of the declaration is substantially the same as the first, except that it alleges that the deceased was caught and crushed between the car and the gob side of the entry.

It is not seriously urged by defendant that an unsafe and dangerous condition was not shown by the evidence to exist in the mine, substantially as is alleged in the. declaration, but it is insisted that such unsafe and dangerous condition was not shown to have been the proximate canse of the injury to the deceased. There was no eye witness to the accident. The evidence tends to show that at the time of his injury the deceased was driving a mule hitched to a loaded car of coal down the incline in entry No. 8 southwest in defendant’s mine; that immediately before the deceased was found upon the track, with his head in the middle of the track and his feet toward the rib side of the entry, a noise was heard which indicated that the mule was running away; that the injury to the deceased which resulted in his death consisted, as described by the attending physician, in a fracture of the pelvis about two inches to the left of the center, whereby the left fragment of the pelvis penetrated the bladder; that there*was no discoloration of the frontal tissues of the body of the deceased, and that the injury indicated that the body of the deceased had been forcibly crushed, not by a direct blow, but by some object in motion or by some object striking the body while in motion. One witness called on behalf of the. defendant testified that he saw the deceased immediately after the accident, and that in answer to an inquiry by the witness as to how the accident happened, the deceased said: “Well, when I was coming over the hill there, that big hill on the 8th south, the mule kicked me off: the chain.” The character of the injury inflicted upon the deceased and which resulted in his death, clearly indicates that it was caused by his being crushed between the moving car and a protruding rock on the rib side of the entry, and not by the kicking of the mule. If the deceased was kicked by the mule, and thereby voluntarily or involuntarily dismounted from the car, and the injury which resulted in his death was caused by his being crushed in the manner above indicated, the plaintiff was entitled to recover.

No question of variance was raised upon the trial and defendant cannot raise that question on this ap*peal. Whether or not the wilful failure of defendant as alleged in the declaration was the proximate cause of the death of the deceased, was a question of fact for the jury and the trial court did not err in refusing to give the peremptory instruction offered by the defendant, nor are we disposed to hold that the finding of the jury upon that issue was unwarranted by the evidence. The case of .Olson v. Kelly Coal Co., 236 Ill. 502, is in point upon the question of proximate "cause involved in the case at bar.

As contributory negligence, if any, on the part of the deceased, is no bar to a recovery by the plaintiff in this action, the trial court did not err in excluding evidence offered by the defendant to the effect that the deceased was informed or had 'knowledge, prior to his injury, of the vicious habits of the mule.

The declaration alleges all the facts requisite to a recovery by plaintiff, and it was not reversible error to give the fifth instruction offered at her instance.

Complaint is made by the defendant of certain remarks of counsel for the plaintiff in their argument to the jury. This assignment of error is not properly preserved for review because of the failure of counsel for defendant to obtain a ruling by the trial court upon the propriety of the language used in the arguments. McCann v. The People, 226 Ill. 563; Lipsey v. The People, 227 Ill. 364. A consideration, however, of the language complained of suggests that while it may in some instances have exceeded the limits of strict propriety it was not sufficiently intemperate to have affected the verdict of the jury under the evidence in the case.

The record is free from error prejudicial to the defendant and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    M. B. Moffett, Administrator, Plaintiff in Error, v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company et al., Defendants in Error.

      Instructions—when erroneous will not reverse. Notwithstanding instructions may be subject to just criticism the judgment will not be reversed and a new trial awarded if the verdict is clearly right.
    Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Edgar county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    F. W. Dundas and H. S. Tanner, for plaintiff in error.
    George B. Gillespie, for defendants in error; L. J. Hackney, Bajulin, Gillespie & Fitzgerald and Frank T. O’Hair, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This was a suit by M. B. Moffett, administrator of the estate of Silas Moffett, deceased, against the Cleveland, Cincinnati, Chicago and St. Louis By. Co. and The Cairo, Vincennes and Chicago By. Co., to recover damages for wrongfully causing the death of plaintiff’s intestate at a public crossing in the village of Kansas. Four grounds of recovery are alleged in the declaration: First, that the defendants approached the crossing in question at a dangerous rate of speed at a time when a view of such crossing was wholly obstructed; second, that the defendants were running their train at a greater rate of speed than ten miles an hour, in violation of the village ordinance; third, that the defendants were negligent in failing to give proper warning signals of the approach of said train; and fourth, that the defendants negligently failed to maintain at such crossing a watchman or flagman, to warn persons attempting to cross of the danger incident thereto. Upon the trial by jury there was a verdict in favor of the defendants and judgment against plaintiff for costs, to reverse which judgment the plaintiff prosecutes this writ of error.

.The only ground relied upon for a reversal of the judgment is the alleged erroneous action of the trial court in giving certain instructions offered on behalf of the defendants.

The uncontroverted evidence bearing upon the question of the exercise by the deceased of due care for his own safety, discloses that, about 11:1'5 o’clock in the forenoon of June 1, 1906, the deceased was driving south on Front street toward the railroad crossing, and stopped at a point about sixty feet north of the crossing to permit a freight train which was then moving east upon a switch-track to clear such crossing; that while the deceased was still waiting or immediately after the freight train had cleared the crossing, and he had started to 'drive south, he was told by the witness Boyer not to undertake it, that he couldn’t make it, because he (the witness) could hear a train coming which he could not see, and the deceased replied, “I believe I can” and proceeded toward the crossing; that as the deceased drove on the north switch track a brakeman at the switch target waved his hand and shouted to the deceased to stop, but the deceased gave no heed to the warning and drove upon the main track where he was struck by a passenger train coming from the east, and killed. This evidence conclusively establishes the contributory negligence of the deceased and precludes a recovery in the case. While some of the instructions given at the instance of the defendants are inaccurate and erroneous, and would require a reversal of the judgment if the evidence bearing upon the issue of due care by plaintiff’s intestate was conflicting, the giving of such instructions cannot have harmed the plaintiff, because any verdict which the jury might have returned against the defendants would be set aside by this court as not being supported by the evidence, and any judgment rendered on such verdict would be reversed with a finding of fact that the deceased was guilty of negligence which contributed to his death. It would serve no useful purpose to review in detail the several instructions upon which error is properly assigned. What was said in Daily v. Boudreau, 231 Ill. 228, may be appropriately quoted as applicable here: “The judgment; however, should not be reversed and a new trial awarded, if the verdict and judgment were clearly right and the plaintiff could not succeed upon another trial.”

It follows that the judgment of the Circuit Court must be affirmed.

Affirmed.


text:
    John T. Pierce, Appellee, v. The Decatur Coal Company, Appellant.
    1. Evidence—when showing conditions after accident incompetent. Held, that it was prejudicial error to permit testimony as to the condition of a platform 15 months after the date of the injury to the plaintiff.
    2. Instructions—when containing abstract propositions of law ground for reversal. Instructions which are abstract in form and calculated to mislead are ground for reversal.
    3. Instructions—must not assume facts in dispute. An instruction which assumes that an alleged defective and dangerous condition of a platform was due to a latent defect, when such question was in issue in the cause, is erroneous and ground for reversal.
    4. Master and servant—obligation of latter to exercise care. While the law casts the duty upon the master to exercise reasonable care to inspect the place where a servant is directed to work, such duty of inspection does not justify a servant in closing his eyes and relying upon such inspection by the master, when by the exercise of ordinary care on the part of the servant he might have discovered the existence of an unsafe and dangerous condition.

      Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. W. G. Cochean, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Lb Forges '& Vail, for appellant.
    Charles M. Borchers .and Buckingham & Gray, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion

of the court.

On June 24, 1907, the plaintiff who was then employed by the defendant as a carpenter, was directed by John Fahey, a top boss in the employ of the defendant, to remove an old and abandoned coal chute on the northwest corner of a large wooden platform constructed of heavy timbers covered with elm planks, and while so engaged necessarily stepped upon one of said planks which by reason of its decayed condition then broke and precipitated the plaintiff a distance of twenty-four feet to the ground, causing the injury complained of. The principal ground of negligence alleged in the declaration and relied upon for a recovery, was the failure of the defendant to exercise reasonable care to provide the plaintiff with a reasonably safe place in which to work. A trial of the case resulted in a verdict and judgment gainst the defendant for the sum of $2500:

'As the judgment must be reversed for errors of law, we refrain from a discussion of the evidence in the case.

It was error prejudicial to the defendant to permit the witnesses Charles Bordman and Archie Archer to testify to the condition of the platform in August, 1908, fifteen months after the injury to the plaintiff. The time when said witnesses examined the platform was too remote from the date of the injury to make their testimony admissible.

The first and second instructions given at the instance of the plaintiff are abstract in form and were calculated to mislead the jury. As relating to the first instruction it may he said that while the law casts the duty upon the master of exercising reasonable care to inspect the place where a servant is directed to work, such duty of inspection does not justify the servant in closing his eyes, and relying upon such inspection by the master, when by the exercise of ordinary care on his part the servant might have discovered the existence of an unsafe and dangerous condition. The second instruction assumes that the alleged defective and dangerous condition of the platform was due to a latent defect, and the third instruction given at the instance of the plaintiff is subject to the same criticism. The sixth instruction given at the request of the plaintiff, which directed a verdict, failed to inform the jury that the plaintiff was chargeable with knowledge of the condition of the platform which he might have acquired by the exercise of reasonable care on his part.

For the errors indicated the judgment of the’ Circuit Court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Baumb

text:
    Lizzie Busing, Appellee, v. Modern Woodmen of America, Appellant.

      Insurance—effect of waiver of one defense upon another Tcindred defense. Even though a waiver of a defense predicated upon the excessive use of intoxicating liquors may be established, yet such a waiver does not extend to and include the separate and distinct defense predicated upon the death of the insured having resulted directly or indirectly from his intemperate use of intoxicating liquors.

      Assumpsit. Appeal from the Circuit Court of Ford county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed with finding of facts.
    Opinion filed October 25, 1909.
    Rehearing denied November 24, 1909.

      Truman Plantz, George G. Peerin and L. A. Cranston, for appellant.
    A. L. Phillips and M. L. McQuiston, for appellee.
   Mr. Presiding Justice Baumb

delivered the opinion of the court.

Appellee, Lizzie Busing, the beneficiary named in a benefit certificate issued to her husband, Adolph Busing, by the Modem Woodmen of America, a fraternal beneficiary society, appellant, recovered a verdict and judgment in the Circuit Court of Ford county against appellant for the sum of $3000 in her suit upon said benefit certificate. The declaration set out the benefit certificate which provides in part, that the insured: “is, while in good standing, entitled to the privileges of this society and his beneficiary or beneficiaries hereinafter named shall, in the case of his death while a beneficial member of this society in good standing, be entitled to participate in the benefit fund of this society to the amount of three thousand dollars, to be paid to the said beneficiary, to-wit: Lizzie Busing, related to said member in the relationship of wife; provided, however, that all the conditions contained in this certificate and the by-laws of this society, as the same now exist or may be hereafter modified or enacted, shall be fully complied with. * * *

“If the member holding this certificate shall become intemperate in the use of alcoholic drinks * * * then this certificate shall be null and void and of no effect, and all moneys which have been paid and all rights and benefits which may have accrued on account of this certificate, shall be absolutely forfeited and this certificate become null and void. * * *

“This certificate and contract is and shall be subject to forfeiture for any of the causes of forfeiture which are now prescribed in the by-laws of the society, or for any other cause or causes of forfeiture which may be hereafter prescribed by this society by amendment of said by-laws.”

To the declaration the appellant pleaded the general issue and certain special pleas wherein it averred that the insured became intemperate in the use of alcoholic drinks; that the by-laws of appellant provided that if any member of the society should become intemperate in the use of alcoholic liquors or if his death should result indirectly from his intemperate use of intoxicating liquors, such benefit certificate should be null and void and all payments made thereon be thereby forfeited, and that the death of the insured resulted indirectly from the use of intoxicating liquors; and that said insured at the time of his death was not a member of appellant society in good standing. Appellee joined issue on the plea of general issue and as to the special plea of appellant that the insured became intemperate in the use of alcoholic liquors, appellee, upon her motion, was granted leave to reply double and in pursuance of such leave she filed her four replications, as follows: First, that the insured did not become intemperate in the use of alcoholic drinks subsequent to the time when said benefit certificate was issued; second, that after the insured made application for membership in appellant society appellant became informed and well knew that the insured had become intemperate in the use of alcoholic drinks, and with full knowledge of the same treated the insured as a member of the society in good standing, and received dues and assessments from him, which it still retains; third, that after the issuance of said benefit certificate appellant by its agents became informed and well knew that the insured had become intemperate in the use of alcoholic drinks and after such knowledge received dues and assessments from the insured; fourth, that after the issuance of said benefit certificate, appellant, by its agents, accepted from said insured dues and assessments up to the time of his death, and still retained the same, well knowing that the insured became intemperate in the use of alcoholic drinks. To said second replication appellant interposed its general demurrer which was overruled by the court, and thereafter appellant joined issue on said replications and appellee joined issue upon said second and third pleas of appellant.

The by-laws of the appellant society, which are a part of the contract of insurance, were offered in evidence, and the several sections thereof here particularly involved, are as follows:

“Section 40. No Waiver of Any By-law. No officer of this Society, except as provided in Section 107 hereof, nor any local Camp officer, is authorized or permitted to waive any of the provisions of the By-laws of this Society, which relate to the contract between the member and the Society, whether the same be now in force or hereafter enacted.
“Section 107. May Grant Dispensations. The Head Consul may grant written dispensations for any purpose except to admit a person to membership who is not eligible thereto under the laws of this Society; and provided, further, that he shall not have the power to do anything that will in any manner impair the contract of a Beneficial member of this Society.
“Section 287. Clerk Declared to be the Agent of Local Camp. The Clerk of a Local Camp is hereby made and declared to be the agent of such Camp, and not the agent of the Head Camp, and no act or omission on his part shall have the effect of creating a liability on the part of this Society, or of waiving any right or immunity belonging to it.
‘ ‘ Section 276. Adviser. Duties. The Adviser shall be the second officer in rank in the local Camp. He shall have charge of the movements and decorum of the Camp, and of the entrance and exit of those present, subject only to the further will of the Consul. He shall preside and perform all the duties of Consul in case of the absence or disability of the latter. Should the office of Consul become vacant by death, resignation, or otherwise, the Adviser shall succeed to the office. In case of the absence or disability of both the Consul and Adviser, the Banker shall preside and perform the duties of Consul.
“Sec. 14. Prohibition Against Intemperance. If any member of this Society, heretofore or hereafter adopted, shall become intemperate in the use of intoxicating liquors, or in the use of drugs or narcotics, or if his death shall result directly or indirectly from his intemperate use of intoxicating liquors, drugs, or narcotics, then the benefit certificate held by said neighbor shall by such acts become and be absolutely null and void, and all payments made thereon shall be thereby forfeited. ’ ’

Adolph Busing became a member of Drummer Camp No. 235 of appellant society, at Gibson City on December 3, 1897, and paid all dues and assessments up to the time of his death on January 16, 1908. It is established by a preponderance of the evidence that for some time prior to his death Busing had become intemperate in the use of alcoholic liquors, and. that the immediate cause of his death was uraemia, which disease was specially caused by alcoholism. It is urged that the predominant question in the case is whether or not appellant waived its right to rely upon the provisions of the certificate and by-laws relating to the intemperate use by Busing of intoxicating liquors as a defense to this action upon such certificate.

The evidence bearing upon the question of waiver is, that one Robert Ashby, who held the office of worthy adviser of Drummer Camp in 1902, and the office of venerable consul in 1905, had observed that Busing was under the influence of intoxicating liquors on numerous occasions and had become intemperate in the use of intoxicating liquors; and that when he was such worthy adviser he notified the clerk of said camp to stop Busing’s assessments, because the latter was drinking liquor to excess; and the testimony of one John Pierpont, who held the office of clerk in said camp, and whose duty it was to collect dues and assessments from the members, that while he had no notice during the sessions of said camp that Busing was intemperate in the use of intoxicating liquors, he had heard that Busing was using intoxicating liquors to excess, and when he collected dues and assessments from Busing the latter appeared to be under the influence of liquor. It is insisted on behalf of appellant that the doctrine of waiver has no place in the case, because by section 40 of the by-laws, which are a part of the contract of insurance, it is expressly provided that no local camp officer is authorized or permitted to waive any of the provisions of the by-laws which relate to the contract of insurance, and because by section-287 of said by-laws the clerk of a local camp is declared to be the agent of such camp and not the agent of the Head Camp, and no act or omission on the part of such clerk shall have the effect of creating a liability or of waiving any right or immunity belonging to the society.

In the view we are compelled to take of this case it is unnecessary to determine whether or not the sections of the by-laws referred to preclude appellee from asserting the doctrine of waiver as to the defense interposed by appellant that the certificate became null and void by the intemperate use of Busing of intoxicating liquors, and we do not regard that question as the predominant one in the case.

As heretofore stated it is established by a preponderance of the evidence that the death of Busing was caused directly or indirectly by alcoholism, or the excessive use by him of intoxicating liquors. There is no claim by appellee that there is any evidence in the record tending to show that appellant waived its right to interpose the defense, that the certificate became null and void by reason of the death of Busing resulting directly or indirectly from the excessive use of intoxicating liquors. The two grounds of defense to a recovery upon the certificate, namely, the excessive use of intoxicating liquors, and the death of the insured resulting directly or indirectly from his internperate use of intoxicating liquors, are wholly separate and distinct, and evidence tending to show a waiver of the former ground of defense only does not tend to show a waiver of the latter ground of defense. Newman v. Covenant Mut. Ben. Assn., 40 N. W. Rep. 87.

The death of the insured having resulted indirectly from his intemperate use of intoxicating liquors, and there being no evidence tending to show a waiver by appellant, or by any of the officers of the local camp, of the right of appellant to avoid the payment of the certificate upon that ground, there can be no recovery in this case, and the judgment of the Circuit Court will be reversed with a finding of facts to be incorporated in the judgment of this court.

Reversed, with finding of facts.

Findings of facts: We find that the death of Adolph Busing resulted indirectly from the excessive use of intoxicating liquors, and that the appellant has not waived its right to avoid payment of the certificate sued on, upon the ground that the death of the said Busing resulted therefrom.


text:
    John Allison, Appellee, v. Electric Coal Company, Appellant.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Evidence—when admission of substantive, proper. It is within the sound discretion of the trial judge whether or not he will permit a plaintiff suing for personal injuries, to remove his clothing and exhibit such injuries to the jury.
    3. New trial—when newly discovered evidence not ground for. Newly discovered evidence is not ground for a new trial if cumulative in character and was, during the trial, within the control of the party subsequently seeking to present it.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.

      ' O. M. Jones and Charles Troup/for appellant; Mas-tin So Sherlock, of counsel.
    Walter V. Dysert, for appellee; Thomas A. Graham, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit by appellee against appellant to recover damages for personal injuries, wherein appellee recovered a verdict and judgment for $3500; The case was submitted to the jury upon the first and two additional counts of the declaration. The first count alleges the wilful violation by appellant of the provisions of paragraph “b” of section 18 of the Mines and Miners Act, and the two additional counts allege common law negligence. •

Appellee, a night laborer, employed in the'coal mine of appellant, was seriously and permanently injured about twelve o’clock, midnight, on February 24, 1908, by the falling of a large rock from the roof of an entry in which appellee was then walking to- his destination in another part of the mine where he had been directed to do some work.

It is persistently insisted on behalf of appellant that the verdict of the jury is against the clear preponderance of the evidence.

Appellee testified that the rock fell upon him without any warning whatever, and that he had not been in that part of the mine for two weeks prior to the accident. Fred Staunton, a witness called on behalf of appellee, testified that on the night of the accident he was driving a mule in appellant’s mine; that he heard appellee calling and went to the place where the rock had fallen and found appellee lying under the rock; that he ran for help and with the assistance of Boy Ogle, Jack Muller and George Marshall lifted the rock off of appellee; that subsequently at the request of Henry, the night boss, he returned to the entry for the purpose of breaking up the rock, which he did with the assistance of Boy Ogle; that when the rock was turned over they found a cross-mark upon it indicating a dangerous condition; that the rock was unsupported by any props or cross-bars; that some time jprior to the accident he saw the rock supported by several cross-bars about eighteen inches apart, which had been hitched into the sides of the entry; that on Saturday night, February 22, when he was driving a mule in the entry in question, he noticed that the crossbars which had previously been under the rock had been removed and that some dirt had fallen from the roof; that he tested the roof and found it loose, and that the rock dipped down from six to eight inches. W. B. Seed, called as a witness on behalf of appellant, testified that he was mine manager of appellant’s mine; that he went through the entry where appellee was injured on the 24th day of February about nine or ten o’clock in the forenoon and about one o’clock in the afternoon; that there were no cross-marks on the rock, and the rock was solid; that the cross-bars which had previously been under the roof of the entry at thw, place in question were placed there for the purpose of driving nails and hanging strings for sights and not for the purpose of supporting the roof; that the rock which fell upon appellee was bellied down or sagged in the center and had been in that condition for some time; that a part of the rock had already fallen down and that it was the only rock that was not timbered. William McFadden, employed by appellant as its mine examiner, testified that he examined the roof of the entry in question by sounding it with a rod and found it solid; that he did not place any cross-marks on the rock. The cross-examination of this witness, however, tended somewhat to weaken the effect of his testimony on direct examination. John Henry, employed by appellant as a night boss, testified that he saw no cross-marks upon the rock. Upon his cross-examination he testified that he passed through the entry a night or two- before appellee was injured and the rock then looked rather suspicious; that it was lower in the centre than it was at the edges and had worked away from the edges along the sides of the entry. He further testified that it was his duty to keep the time of the men employed in the mine and that he kept the same in a book, from which it appeared that the witness, Staunton, did not work in the mine on February 22. Sam Dixon, employed by appellant as a day man, testified that there was no cross-mark on the rock; that the rock was not timbered, and was the only rock that was not timbered. John Hayes, who was employed by appellant as its boss-driver, testified that he saw the rock every day and that he saw no cross-mark upon it. It was admitted by appellee that if Boy Ogle was present as a witness at the trial he would testify that he had assisted in removing the rock which fell upon appellee, and had then carefully examined the same to ascertain if there were any cross-marks upon it indicating a dangerous or loose condition, and that there were no such marks thereon. Appellant introduced in evidence the timebook kept by the witness, Henry, whereon a cipher appeared under the date of February 22, opposite the name of the witness Staunton, as indicating that Staunton did not work in the mine on that day. It is claimed by counsel for appellee that there are changes ' and erasures apparent upon the face of the timebook, wherein the time of the witness Staunton purports to have been kept.

The duty imposed upon this court to examine questions of fact and to determine from the record whether ,-or not the verdict of a jury upon an issue of fact is against the manifest weight of the evidence, is one which this court is frequently called upon to exercise, and where it is apparent from the record that the jury have been actuated by passion or prejudice in arriving at their verdict, or have failed to weigh the evidence by the application of well-recognized and established rules, it does not hesitate to set aside such verdiet. A very careful examination of the evidence as it appears in the record compels us to the conclusion that we would not be warranted in holding that the verdict of the jury in this case is against the clear preponderance of the evidence and palpably wrong. Whether or not the rock in question had upon it a cross-mark indicating a dangerous condition is not controlling. It is uncontroverted that the rock was not timbered, that it sagged in the centre, that its edges had the appearance of having separated from the sides, and that this condition had existed for a sufficient length of time prior to the injury to appellee to charge appellant with notice that it constituted a dangerous condition.

The testimony of the witness Staunton, the truth of which was a question for the jury, established a right of recovery under the first count of the declaration, and the trial court did not err in refusing to give the peremptory instruction offered by appellant.

It is urged that it was error to permit appellee to remove his clothing and exhibit his injured back to the jury. The propriety of this action was within the sound discretion of the trial court and there was no abuse of such discretion in this case. C. & A. R. R. Co. v. Walker, 217 Ill. 605; Swift v. Rutkowski, 182 Ill. 18.

The third instruction given at the instance of appellee is similar in form to the first instruction given on behalf of appellee in Mertens v. Southern Coal Co., 235 Ill. 540, and there approved. The sixteenth instruction offered by appellant and refused by the court was covered by the fifth instruction given at the instance of appellant, and the eighteenth instruction offered by appellant and refused by the court was covered by the twelfth and thirteenth instructions given at the instance of appellant.

It is further urged that the court improperly denied appellant’s motion for a new trial, which motion was based upon alleged newly discovered evidence of other timebooks from which it appeared that the witness Staunton was not working in the mine on the night of February 22. This alleged newly discovered evidence was within the control of appellant during the trial and was merely cumulative in its character. The trial court did not err in refusing to grant the motion for a new trial.

There is no error in the record and the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    H. B. W. Kallista, Appellant, v. Mary J. Ahalt, Appellee.

      Injunctions—when error to dismiss bill upon dissolution of temporary. Where the only relief sought by a bill in equity is an injunction and a temporary injunction has been issued, a motion to dissolve such injunction for want of equity appearing upon the face of the bill operates as a demurrer to the bill, and upon the granting of such motion the bill may properly be dismissed, but where the bill alleges facts, which, if true, entitle the complainant to the relief prayed, even though such relief be by injunction only, and a hearing is had upon a motion to dissolve a temporary injunction issued upon such bill, and such motion is granted upon a consideration of ex parte affidavits, the bill should not be dismissed but should he retained for a final hearing upon the merits according to the usual practice in courts of equity.
    Bill in equity. Appeal from the Circuit Court of Adams county; the Hon. Habby Higbee, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Brown & Soule and Vandeventer & Woods, for appellant.
    Walter H. Bennett, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

On November 14, 1908, appellant filed Ms bill in equity in the Circuit Court of Adams county, wherein he alleged that he was the owner of a certain quarter section of land and that the appellee was the owner of another quarter section of land adjoining 'the land of appellant on the west; that the natural slope of said land was toward the southwest, and that surface water from rains and overflow from creeks, naturally flowed in a southwesterly direction over and across appellant’s land to and upon the land of appellee, which was lower than and servient to appellant’s land; that about November 1, 1908, appellee began to construct a levee of earth, four feet high and eight feet wide at the base, from the north line of her land to the south line thereof, and immediately west of the line dividing her land from the land of appellant; that appellee had already completed said levee, save and except about 600 feet thereof, and threatened and was proceeding to complete the same with the intention of perpetually maintaining the same; that the construction and completion of said levee would wrongfully hinder and obstruct the natural flow of surface water from the land of appellant to the land of appellee, and cause ponds or lakes to be formed on appellant’s land to his great and irreparable damage. The bill prays for a temporary injunction and that upon the final hearing thereon, appellee be permanently enjoined from maintaining said levee and from mating any extension thereof. In pursuance to notice served upon appellee of the application therefor, a temporary injunction was issued in accordance with the prayer of the bill on November 14, 1908. Thereafter, appellee filed her answer denying the truth of the several allegations in the said bill, to which answer appellant filed a general replication. On December 16,1908, appellee filed her motion to dissolve said temporary injunction, and in pursuance to notice said motion was heard by the chancellor upon the bill, answer, replication, and numerous affidavits filed by the respective parties in support of the several allegations of the bill and answer. Upon such hearing the chancellor entered a decree dissolving the temporary injunction and dismissing the bill for want of equity.

It is not now necessary to determine whether the action of the chancellor in dissolving the temporary injunction upon a consideration of the facts averred in the several affidavits was justified or not, but we are of opinion that it was error to dismiss the bill for want of equity before a final hearing was had, where an opportunity would be given to the respective parties, by direct and cross-examination of the several witnesses produced, to elicit the true state of facts in the case.

The facts alleged in the bill, if true, entitled appellant to the relief sought, and we do not understand that appellee seriously contends to the contrary. That the decree dissolving the temporary injunction, and dismissing the bill for want of equity was predicated upon a consideration and determination of the issues of fact involved is manifest from the language of the decree, that “the court having read said bill and answer and the affidavits accompanying the same, and having heard the arguments of counsel, and being fully advised in the matter, doth find that the material allegations of said complainant’s bill of complaint have not been sustained by the evidence herein, and that the equity of the cause is with the defendant.” Where the only relief sought by a bill in equity is an injunction, and a temporary injunction has been issued, a motion to dissolve such injunction for want of equity appearing upon the face of the bill operates as a demurrer to the bill, and upon the granting of such motion the bill may properly be dismissed, but where the bill alleges facts, which, if true, entitle the complainant to the relief prayed, even though such relief be by injunction only, and a hearing is had upon a motion to dissolve a temporary injunction issued upon such bill, and such motion is granted upon a consideration of ex parte affidavits, the bill should not be dismissed but should be retained for a final hearing upon the merits according to the usual practice in courts of equity. Clabby v. Sheldon, 47 Ill. App. 166; C. P. & St. L. R. R. Co. v. St. L. P. & K. Ry. Co., 79 Ill. App. 384; Field v. Village of Western Springs, 181 Ill. 186; Goddard v. C. & N. W. Ry. Co., 202 Ill. 362; Cahill v. Welch, 208 Ill. 57.

For the error in finally dismissing the bill, the decree is reversed and the cause remanded.

Reversed and remanded.


author: Per Curiam:

text:
    S. E. Green, for use of C. Brennan et al., Appellants, v. L. W. Johnson, Garnishee, et al., Appellees.
    1. Garnishment—when answer cannot be objected to. The fact that an answer in garnishment does not disclose the amount due the debtor at the time of its filing, cannot be first raised by objection upon appeal.
    2. Garnishment—when payments by garnishee voluntary. The fact that money due at the time of service may become subject to a lien claim, does not authorize its disbursement prior to proceedings being instituted to procure such lien.
    3. Statute of Frauds—how and by whom defense availed of. The Statute of Frauds to be availed of must be pleaded and it can only be invoked by parties to the contract and not by strangers to it.
    Garnishment. Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the November term, 1908.
    Reversed and remanded.
    Opinion filed August 5, 1909.
    Dwyer & Dwyer, for appellants.
    West, Eckhart & Taylor, Lindley, Penwell & Lindley and Keegan & Cosgrove, for appellees.
   Per Curiam:

C. Brennan and William Brennan brought suit in garnishment in the name of S. R. Green for their use in the Circuit Court of Vermilion county against L. W. Johnson, to recover from Johnson the amount alleged by them to be due from Johnson to Green upon a contract to furnish and haul gravel for use upon a public street in the city of Danville. E. J. Kelly interpleaded and upon trial there was a judgment in favor of Kelly and against Johnson in the sum of $99.20, and a judgment in favor of Brennan & Brennan against Johnson in the sum of $7.90, from’ which judgment Brennan & Brennan have appealed. .

At the October term, 1906, of the Circuit Court of Vermilion county, C. Brennan and William Brennan, as partners, recovered a judgment against S. R. Green for the sum of $215.49. Execution thereon having been returned “nulla bona” garnishment process was sued out in the present proceeding against L. W. Johnson and served on August 2, 1907.

Upon trial it developed that Johnson had a contract with the city of Danville to gravel English street in that city and that he entered into a written contract with Green to deliver and furnish gravel upon said street from E. J. Kelly’s pit at 75 cents per load and that to enable Green to get the gravel from Kelly, Johnson, with Green’s consent and approval, agreed verbally to become responsible to Kelly for the gravel, which Green was to haul, at the rate of 22% cents per yard; that at the time of the service of the garnishment writ, Johnson then had in his hands the sum of $355.26 due Green upon his contract, but that he, Johnson, after that time paid for labor that had been employed and used prior to August 2, in the hauling of said gravel, a large sum, which he insists had to be paid to prevent liens against the fund due from said city to Johnson; also that Johnson had to pay Kelly for the gravel bought from him under Johnson’s guaranty. Johnson claimed that these sums so paid by him to Kelly and for the labor employed in hauling such gravel, should be credited to him upon the said sum so due Green and he be held responsible for the balance only. The trial court allowed such claims or off-set to Johnson and rendered judgment for the balance over and above such amounts so paid.

Appellants insist that Johnson had no authority to make payments upon the accounts mentioned, after the service of the garnishment writ, and that such payments in no way relieved him from liability to appellants under their garnishment. The answer of Johnson only purported to disclose the amount due Green at the time of service of garnishee summons. That was all the interrogatories asked for. No objection was made in the trial court that it did not disclose the amount due at the time of filing the answer. Objection cannot be made for the first time in this court.

The amended answer of garnishee admits owing Green $159.26, and shows a payment for him after service of summons of $296 for labor, thus showing a total of $355.26 due Green when the summons was served. It also sets forth that Green was then indebted to Kelly in the sum of $277.36 for gravel, and that Johnson had guaranteed the payment of this sum before Kelly furnished Green with the gravel, and this item, with the $296 paid for labor, exceeded the indebtedness to Green, and Johnson asked to be discharged.

The answer was traversed, and the evidence in the record shows that no lien existed against the $296 paid for labor, but that payment was made by Johnson in anticipation of a lien under section 23 of Liens Act.

The right to a lien is purely statutory and could be invoked only by complying with the provisions of the statute. No notice was given, as required by statute, in order to establish or claim a lien. Johnson claims that had he not paid this item, he could not have protected himself. He could have withheld payment and answered the garnishment, setting up the facts, and had the hearing continued until all rights in regard to a lien had been determined. The payment of this sum by him was purely voluntary on his part and such payment cannot avail him in this proceeding.

The record further discloses that Johnson owed Kelly but $99.20, instead of $277.30 on his guarantee. Kelly, on his interpleader, was entitled to recover $99.20, for which judgment was rendered in his favor. There was then left in Johnson’s hands owing to Green $256.-06. Appellants were entitled to a judgment against Johnson, as garnishee, in favor of Green for their use, for the fund in Johnson’s hands not exceeding the amount of their judgment against Green.

It is contended by appellants that the promise of defendant Johnson to Kelly by which Johnson, with Green’s consent, guaranteed to Kelly the payment of 22% cents per yard for the gravel sold to Green, was void under the statute of frauds, because it was not in writing. The statute of frauds was not pleaded.

The statute of frauds can only be invoked by persons who are parties to the contract, not by strangers to it. In the present case the contract attacked was between Johnson and Kelly, and as neither one of them made the objection suggested, it is without force. In the case of Laidlou v. Hatch, 75 Ill. 11, relied upon by appellant, the defense that the promise was within the statute of frauds was interposed by a party to the contract, against whom a recovery was sought.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    DeWitt County National Bank, Appellee, v. William Booth et al., Appellants.
    Appeals and errors—when freehold involved. An appeal from an order directing a master in chancery to execute a deed to real estate involves a freehold and the appellate courts have no jurisdiction.
    Bill in chancery. Appeal from the Circuit Court of DeWitt county; the Hon. W. C. Cochran, Judge, presiding. Heard in this court at the May term, 1909.
    Transferred to Supreme Court.
    Opinion filed October 25, 1909.
    E. J. Sweeney, for appellant.
    Ingham & Ingham, for appellee.
   Per Curiam:

This is an appeal from an order of the Circuit Court directing the master in chancery to execute a d.eed to certain real estate to the complainant. A freehold being involved, this court is without jurisdiction to consider and determine the errors assigned and it is, therefore, ordered that the record and files therein be transferred to the Supreme Court.

^Transferred to Supreme Court.


text:
    Joseph S. Galvin, Appellant, v. John G. Pearn et al., Appellees.
    Appeals and errors—when questions not saved. Held, under the state of the record in this case, that no questions of law or fact were presented for review.
    Action of debt. Appeal from the Circuit Court of Cass county; the Hon. Albert Akers, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    Charles Martin, for appellant.

      E. W. Mills, for appellees.
   Per Curiam:

This is an action of debt by the appellant against one Pearn as principal, and Glenn, Gist and Massey, the other appellees, as sureties upon a fidelity bond executed by them to appellant as obligee. The cause was tried by the court without a jury. It appears from the clerk’s recitals in the transcript of the record, that the court found the issues for the appellees Glenn, Gist and Massey, and rendered judgment against the plaintiff for costs. The bill of exceptions as it appears in the abstract of the record filed, fails to show any finding or judgment of the trial court, and consequently any exceptions thereto. Neither does it appear from the bill of exceptions that propositions of law were submitted to the court to be held as the law applicable to the facts involved. There is clearly no question of law or fact properly preserved for review by this court, and the judgment is affirmed.

Affirmed.