text:
    Frank Michels, Appellee, v. Charles S. McCarty, Appellant.
    Gen. No. 6,224.
    1. Injunction, § 177

      —when terms “city marshal” and “chief of police” used to describe same person. In a bill by a city official claiming to be “city marshal and chief of police,” to restrain another claimant to such office from interfering with complainant’s performance of duty as such, it is to be inferred that the terms “city marshal” and “chief of police” are used in the bill to describe the same office.
    2. Municipal corporations, § 119

      —how officer removed from office. Under section 7, art. II, part I, of the Cities and Villages Act (J. & A. ¶ 1291), authorizing the mayor of a city to remove any officer appointed by him, and requiring such mayor on such removal to state his reasons therefor to the city council within ten days, an officer so removed stands suspended and is restored to office only by the failure of the mayor to file such reasons within the time limited, or by the disapproval by the city council by a two-thirds vote of such removal.
    3. Municipal corporations, § 119

      —when officer removed by failure of council to disapprove of action of mayor. If a city council fails to disapprove by a two-thirds vote of the removal by the mayor of a city officer appointed by him under section 7, art, II, part I, of the Cities and Villages Act (J. & A. ¶ 1291), after the mayor has filed his reasons for such removal as required by such section, such officer stands removed.
    4. Injunction, § 182

      —when allegation as to nontermination of office conclusion of law. In a bill by a city official seeking to restrain another claimant to the office held by complainant from interfering with complainant’s performance of duty as such, an allegation that complainant’s term of office as such official has not expired is a mere conclusion of law.
    5. Injunction, § 177

      —how allegation as to nomination of another person for office by mayor construed. In a bill by a city official to restrain another claimant to the office held by complainant from interference with complainant’s performance of duty, an allegation that on a named date the mayor of such city nominated another person for the office held by complainant implies either that such mayor had attempted to remove complainant or that such mayor considered that complainant’s term had expired.
    6. Municipal corporations, § 112

      —when mayor right to appoint officer in place of removed officer. Where the mayor of a city removes a city official appointed by him under the authority of section 7, art. II, part I, of the Cities and Villages Act (J. & A. ¶ 1291), such mayor has the right to appoint an officer to act for the time being, although such mayor has no power to appoint a successor to such official prior to filing his reasons and the action of the city council thereon as required by the statute.
    7. Injunction, § 177

      —when bill to restrain removal of city official insufficient. Even if it be held that a court of equity has jurisdiction to restrain the removal of a city official, a bill therefor cannot be entertained which does not show that the office held by complainant was duly established by ordinance, the nature and extent of complainant’s right to hold the office, and the nature of the authority by which he was sought to be removed.
    8. Officers, § 2

      —what is nature of office of city marshal. The office of city marshal in a city is political in its character, being one of the agencies by which a city government is conducted.
    9. Equity, § 1

      —what equity will not interfere with. Courts of equity will not take jurisdiction of political controversies or undertake to control the government of the State, or of cities or other governmental agencies.
    10. Equity, § 1

      —what is subject-matter of jurisdiction of equity. The subject-matter of the jurisdiction of courts of equity is civil property, and the injury thereto, actual or prospective, and such courts ‘have jurisdiction of matters of a political character only under special circumstances where such jurisdiction is necessary in order to protect rights of property.
    11. Equity, § 1

      —when no jurisdiction over appointment and right of officers to office. Disputed questions concerning the appointment of civil officers and of their right to hold office as such are of a nature purely legal and cognizable only by courts of law.
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed and injunction dissolved.
    Opinion filed December 27, 1915.
    John K. Newhall, A. J. Kelley and Charles O’Connor, for appellant.
    Alschuler, Putnam & James, Mighell, Gunsul & Allen and Murphy & Lyon, for appellee; Garnsey, Wood & Lennon, of counsel.

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

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On November 2, 1915, Frank Michels filed in the City Court of Aurora a bill of complaint against-Charles S. McCarty for an injunction, and on said day an injunction was issued as prayed in said bill, and without notice, and said injunction was served on that day. Defendant moved to dissolve the injunction for various reasons, among which were that there was no equity on the face of the bill; that the court had no jurisdiction of the subject-matter; that complainant had an adequate remedy at law; and that the relief prayed is political in its character and not for the protection of property rights. Defendant also filed a demurrer to the bill. On November 5th the court denied the motion to dissolve the injunction and overruled the demurrer to the bill. Defendant prayed and was allowed an appeal to this court from the order denying the motion to dissolve the injunction. Pursuant to that order he filed an appeal bond, which was approved on the same day, and which recited' an appeal both from the order granting the injunction and from the order denying the ¡motion to dissolve. The cause was submitted at this term, pursuant to the statute, requiring us to give such an appeal precedence over other causes in this court.

The bill alleges that Michels is a resident, citizen, taxpayer and qualified elector of the City of Aurora; that for seventeen years he has been city marshal and chief of police of the City of Aurora, and is now occupying that office, and discharging the functions and duties thereof; that no proceedings have been filed before any lawful authorities asking for his removal or suspension from office, and that no action has been taken by any duly constituted authority looking to his suspension or removal from said office; that no order has been made by any authority directing him to turn over the property in his possession as such officer, and that his term of office has not expired; that though he is the lawful holder of said office, the mayor, át a council meeting on November 1, 1915, illegally appointed McCarty chief of police, and submitted that appointment to the city council, and it voted not to confirm the appointment; that later on the same day the mayor unlawfully appointed McCarty acting chief of police or chief of police pro tem, which said office was not vacant or open to appointment by the mayor, but was lawfully held by Michels. The bill further alleges that by virtue of such appointment McCarty claims to be city marshal and chief of police of said city, and attempts, seeks and threatens to intrude himself into said office, and to hinder and prevent Michels from discharging the duties of said office; that McCarty has not established his title to said office in any court or before any civil service commission or other legally constituted municipal or governmental body; that McCarty will carry out his threats and intentions of usurping said office and interfering with and preventing Michels from performing the duties thereof unless immediately restrained by injunction, and that McCarty will thus inflict irreparable injury upon Michels. There are allegations of the existence of crime and disorder in Aurora, and of the dangers thereof, and of the special need the citizens have that Michels shall have charge of the police department, but there are no facts stated which tend to show that law and order will not be duly enforced by McCarty, and we consider such allegations of crime and disorder in Aurora immaterial. In oral argument, reference was made to the act to regulate civil service in cities. We find no allegation in the bill that this act has ever been adopted by the City of Aurora, nor anything from which it can be determined that if so adopted it would apply to the city marshal or chief of police. We infer that the terms “city marshal” and “chief of police,” as used in this bill, describe the same office.

Under section 6 of article I of the Act for the incorporation of cities and villages (J. A. ¶ 1276), we are required to take judicial notice that the City of Aurora is organized under said general law. Section 2 of article VI of that Act (J. & A. ¶ 1345) authorizes the city council by ordinance to provide for election by the legal voters of for appointment by the mayor, with the approval of the city council, of a city marshal; and also, by an ordinance or resolution to take effect at the end oí the fiscal year, to discontinue such office, and to devolve its duties on any other officer. Section 3 of article VI (J. & A. ¶ 346) authorizes the city council by ordinance to fix the term of office of the city marshal. It is there enacted that where not otherwise provided, officers shall be appointed by the mayor, and vacancies shall be filled by the mayor with the consent of the city council. Section 7 of article II of that Act (J. & A. ¶ 1291) authorizes the mayor to remove any officer appointed by him. He is required to report his reasons for such removal to the city council within ten days thereafter. The officer thereby stands suspended, and is restored to office only if the mayor fails to file such reasons with the city council within the time limited, or if the city council by a two-thirds vote shall disapprove of the removal. Heffran v. Hutchins, 160 Ill. 550. If the mayor files his reasons within the time limited and the council do not disapprove of the removal by a two-thirds vote, the officer stands removed

The allegations of this bill are vague and general, and are in various respects conclusions of law, and not allegations of fact as correct equity pleading requires. The bill does not advise the court whether the office in question was ever established by any ordinance, nor whether any term of office has been fixed for such office, nor what that term, if any, was. There is no statement whether Michels was elected by the people or appointed by the mayor with the consent of the council. If he was appointed by the mayor, there is no statement when he was last so appointed, nor when he was last confirmed, nor when he last gave bond and took the oath of office required by another section. The allegation that his term of office has not expired is a mere legal conclusion, and the facts upon which that allegation is based are not stated, and the court has no means of ascertaining from the bill whether his conclusions as to the law upon the subject of his term of office are well or ill founded. He does not aver that he has not been removed from the office of city marshal or chief of police, but, only that no action has been taken by any duly constituted authority looking to his suspension or removal. The implication is that an attempt has been made in some way to suspend or remove him, but that such action was not taken by the person or body whom he considers a duly constituted authority to take that action. It may be that the mayor did in fact undertake to remove bim on the last day of October, 1915, but that it is his opinion that the mayor has no authority to do so. The fact that the mayor onNovemberlst nominated another person for the position implies either that there had been some attempt by the mayor to remove him or that the mayor considered that his term had expired. If the mayor undertook to remove Michels on the last day of October, while he did not thereby acquire power to appoint a successor, he no doubt did have the power to appoint an officer to act for the time being, and could, within ten days after the last of October, file his reasons for the removal with the city council, and Michels would not be again restored unless the mayor failed to file such reasons within ten days or the city council, by a two-thirds vote, refused to approve the removal; and such ten days within which he could file his reasons had not expired when this appeal was perfected in the court below. All of this could have occurred, and still every fact averred in this bill be true, if it is the legal opinion of Michels that the mayor was not the duty constituted authority who had power to take such action. This is but an illustration of the meagerness of the allegations of this bill. There being no showing in this bill that any ordinance was ever passed establishing this office, nor, if so, whether it was required to be filled by an election by the people or by an appointment by the mayor, nor any showing when Michels’ last term of office began, nor for how long a period it legally existed, nor any allegation that he has not been removed by some show of authority, nor any statement by what pretended authority, if any, he has been removed, we are of opinion that if a court of equity has jurisdiction to grant an injunction to prevent the removal of a city marshal until the title of some one else to the office has been established, still this bill would not justify such an injunction.

The office of city marshal is political in its character and is one of the agencies by which the government of the city is conducted. It is well settled that courts of equity will not take jurisdiction of political controversies nor undertake to control the government of the State or of cities or other governmental agencies. It will be instructive to consider some of the cases in which the Supreme Court of this State has applied this doctrine. In Delahanty v. Warner, 75 Ill. 185, Delahanty filed a bill in equity in which he alleged that he was superintendent of streets of the City of Peoria and had been unlawfully removed from his office, and he sought an injunction to restrain the mayor and aldermen from appointing his successor and from interfering with him in any way in the discharge of his duties as such officer. A temporary injunction was dissolved and the bill was dismissed for want of equity. The Supreme Court affirmed that ruling, and said that his remedy was complete at law, and that if he had not been properly removed and if a successor could not therefore be legally appointed, that question could be settled by an action at law against the person claiming to be his successor in office; and also that if by the action of the mayor and aldermen he was unlawfully deprived of any fees and emoluments pertaining to said office, he had a complete remedy therefor at law. In Sheridan v. Colvin, 78 Ill. 237, an election had been held for the reincorporation of the City of Chicago, and that election had been decided in favor of reincorporation under the general act, and the city council had passed and the mayor had approved an ordinance for the reorganization of the police department, but there was pending a suit at law to determine the validity of said election. Sheridan and others were police commissioners up to the time of said alleged new incorporation, and they filed a bill in equity against the mayor, the city council and other officers to restrain all acts under said ordinance, on the ground that they possessed the only authority to control the police force and the public property belonging to the police department. A temporary injunction was issued pursuant to the prayer of the bill, but it was after-wards dissolved and the bill was dismissed, and the commissioners appealed. Three questions were presented and discussed, the third of which was whether a court of equity had jurisdiction to interfere with the action of the city council. The Supreme Court held that a court of equity had not that power; that the subject was purely political; that the subject-matter of the jurisdiction of courts of equity is civil property; that injury to property, actual or prospective, is the foundation on which the jurisdiction rests; that matters of a political character do not come within the jurisdiction of a court of equity, and that such court cannot interfere with the public duties of any department of government except under special circumstances and where necessary for the protection of rights of property. The court there quoted with approval from High on Injunctions to the effect that a court of equity is not the proper tribunal for determining disputed questions concerning the appointment of public officers or their right to hold office, such questions being purely of a legal nature and cognizable only by courts of law; and that equity will not interfere by injunction- to restrain persons from exercising the functions of public officers on the ground of the illegality of the law under which their appointments were made, but will leave that question to be determined by a legal forum; and that a temporary injunction until the question of the validity of the law which defendants claim office can be determined will be dissolved. In Dickey v. Reed, 78 Ill. 261, which related to the same election as the case last referred to, an injunction had been issued upon another bill in equity attacking said election, and the city council had been enjoined from canvassing the returns of the election. That injunction had been violated, and certain members of the city council had been fined for such contempt, and had appealed. It was held that elections belong to the political branch of the government and are beyond the control of the judicial power; that it was not designed by the constitution that either department of government should interfere with or control the other; that it was for the political power of the State, within the limits of the constitution, to provide how elections should be held, and how those elected should qualify and how their elections should be contested; and that a court of equity had no power to hear and adjudicate in that class of. cases, and that the defendants were not guilty of contempt because the writ was void for want of power. In that opinion many illustrations are given to show how harmful the exercise of such jurisdiction might be made, and how greatly it might .interfere with the function of government. Burgess v. Davis, 138 Ill. 578, was a bill by a citizen and taxpayer to prevent the payment of a salary to a person acting as judge of the County Court of Cook county, on the ground that by certain action he had taken he had vacated that office and was no longer lawfully in possession thereof. The court below dismissed the bill. The Supreme Court reiterated the doctrine that courts of equity will not interfere by injunction to determine questions concerning the appointment or election of public officers or their, title to office, and will not interfere to enjoin the payment of salaries to de facto incumbents, and will not disturb a de facto incumbent in the receipt of the fees of the office, and have no jurisdiction on that subject. The two cases of Fletcher v. Tuttle and Blair v. Hinrichsen, 151 Ill. 41, were bills in equity attacking the validity of a certain act of the Legislature, and seeking to enjoin an election and other proceedings thereunder. The Supreme Court said the entire object of both bills was the assertion and protection of political rights as distinguished from civil, personal or property rights. It was held that matters of a political character do not come within the jurisdiction of courts of equity, and that a court of equity has no jurisdiction to restrain an officer from the exercise of political powers. Reference was there made to State of Georgia v. Stanton, 6 Wall. (U. S.) 50, where it was held that the bill in equity there filed called for the judgment of the court upon a political question, and would not be entertained by a court of equity. The court also there referred to In re Sawyer, 124 U. S. 200, where it was held that the Federal Court had no jurisdiction to entertain a bill in equity to restrain a mayor from removing a city officer. The court there said that qnless enlarged by express statute, the office and jurisdicrtion of a court of equity are limited to the protection of rights of property, and that it has no jurisdiction over the appointment and removal of public officers, and that to assume jurisdiction over the removal of public officers is to invade the domain of the courts of common law or of the executive and administrative departments of the government. The Supreme Court of Illinois then proceeded to reassert that wherever there are established distinctions between equitable and common-law jurisdictions, courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political and where no civil or property right is involved, but the remedy must be sought in a court of law; that the matters involved in that case pertained solely to the political administration of government, and if the public officer charged with political administration has disobeyed the law, the party injured or threatened with injury had his remedy in a court of law and not in a court of equity. In Heffran v. Hutchins, supra, Heffran had been chief of the fire department, and his term of office had expired, and the mayor had appointed other parties who had not been confirmed by the city council, and Heffran had held the office thereafter for a year, and the mayor again made several appointments which the city council rejected, and he then removed Heffran and directed him to vacate the office and to turn over the property of the department to a subordinate officer, and threatened to eject him if he refused to comply. Heffran then filed a bill in equity and obtained an injunction restraining the mayor from removing or interfering with him in the office, and that injunction was modified so as to restrain the mayor from interfering with Heffran in his office until he should be lawfully removed or his successor appointed and qualified. That decree was made perpetual, and an appeal to this court resulted in its reversal with directions to dismiss the bill (56 Ill. App. 581), and from the latter judgment the case came to the Supreme Court. It was there held, as already suggested, that the removal by the mayor took effect at once, and remained in force unless the mayor failed to file charges within the time limited or the city council by á two-thirds vote disapproved of the removal, and it was held that he could not act after such removal until those proceedings had been had, and that he should have complied with the order directing him to turn over the property to another, and he no longer had any right to discharge the functions of the office. It was there further held that a court of equity had no jurisdiction to interfere with the public duties of the departments of government, but only to maintain property rights as distinguished from political rights, and that it had no jurisdiction to determine political questions between the mayor and the council of a city concerning the appointment and removal of officers, nor to determine the right of a party to an office. In many respects this case applies closely in principle to the matter now before us. A leading case on this subject is Marshall v. Illinois State Reformatory, 201 Ill. 9. Marshall had been appointed physician of the reformatory, and it was held that that was a public office. The act under which he was appointed gave the board of managers power to remove him for cause, after opportunity given to the officer to be heard upon written charges. A complaint in writing was preferred against Marshall to the board of managers, charging him with certain neglect of duty, and he was notified to appear before the board on a certain day to answer the charges. On the day preceding the time so fixed he filed a bill in equity to enjoin the board from removing him from that office, and he therein alleged that said charges were not made in good faith, and that a quorum of the board had conspired to illegally remove him from office. He had a temporary injunction, which was dissolved and the bill dismissed for want of equity, and that decree was affirmed by this court. 103 Ill. App. 65. The Supreme Court on a further appeal said that the title to a public office and the right to exercise its functions cannot be determined by a court of equity unless expressly authorized by statute. The court there quoted, with approval from In re Sawyer, supra, that a court of equity has no jurisdiction over the appointment and removal of public officers, but that jurisdiction belongs exclusively to courts of law, and pointed out various methods by which a legal remedy can be had; and the Supreme Court said that matters of a political character do not come within the jurisdiction of a court of equity. People ex rel. v. Rose, 211 Ill. 252, was an action at law concerning a certain office and an election to fill the same, and it was argued that the writ of mandamus there sought from the Supreme Court should be granted because an injunction had been issued in equity by a Circuit Court restraining the Secretary of State from doing certain things. The Supreme Court said in effect that little attention need be paid to said injunction proceeding, because the rights involved were purely political rights, and that the jurisdiction of courts of chancery is confined to questions arising relative to property rights or civil rights, and that the mere right to office or the acts of public officers in the discharge of their official duties cannot be regulated or controlled by writ of injunction, and any order of the Circuit Court upon such a question would be void for want of jurisdiction of the subject-matter. In Lavin v. Board of Commissioners of Cook County, 245 Ill. 496, which was a bill in equity in which the Appellate Court had reversed the decree of the Circuit Court so far as it granted an injunction against the paying of compensation to a person who claimed to have been performing the duties of a public office, the Supreme Court held that equity was not the proper forum to determine the questions involved, and would not interfere by injunction to determine questions concerning the appointment or election of public officers or their title to office, nor to enjoin a de facto incumbent of an office from performing its duties or receiving fees or salary therefore. In People v. McWeeney, 259 Ill. 161, which was a proceeding to attach for contempt defendants who had violated an injunction issued by a court of equity in a matter concerning the holding of a political convention, and in which the defendants were fined for contempt and appealed to the Supreme Court and the Supreme Court reversed the conviction, the court said that courts cannot be drawn into political contests, of any sort or description unless required by statute, and that any injunction for the purpose of restraining or controlling acts of a political nature is void. That an office is not a matter of property, and does not confer a right of property upon the incumbent, and that an action involving the title to or possession of an office does not involve a right of property so as to give a court of equity jurisdiction, is indicated in several of the cases above cited.

It appears that in some other jurisdictions equity will issue an injunction at the instance of the actual incumbent of an office to restrain an adverse claimant from interfering therewith until his title has been established at law. But the language of the Illinois statutes above cited is so positive and unequivocal that we conclude that such a rule cannot obtain in this state. Under the allegations and omissions of this bill, which is to be construed most strongly against the pleader, the act of the mayor in appointing McCarty chief of police pro tem on Nov. 1st, may well be treated as equivalent to removing Michels from that office, and terminating his right thereto unless either the mayor failed to file charges within ten days thereafter or the city council by a two-thirds vote disapproved of such removal; and Heffran v. Hutchins, supra, and Delahanty v. Warner, supra, are conclusive that in this State equity has no jurisdiction to enjoin the removal or to decide the controversy. Great confusion might result if a mayor were enjoined from enforcing his statutory authority until it was determined whether he was pursuing the precise course prescribed by law. The action invoked here could be carried to the length of causing a court of equity to assume the government of a city. Many situations can be supposed in which under such a rule a court of equity could be used to the great detriment of municipal and state governments. The illustrations given by the court in Dickey v. Heed, supra, to show the evil effects which might result from permitting such a jurisdiction in equity, can easily be very much enlarged.

We therefore are of opinion that the injunction was improvidently issued, and should have been dissolved. The order refusing to dissolve the injunction is therefore reversed and the injunction is here dissolved.

Order reversed. Injunction dissolved.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    George W. Black, Appellant, v. George W. Brown, Appellee.
    Gen. No. 6,146.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Officers, § 55

      —when not personally liable on contract. A public officer making as such a valid and enforceable contract is not personally liable on such contract for the payment of the debt.
    2. Officers, § 55

      —when public officer not personally liable on invalid contract. A public officer who mistakes the law and makes an invalid contract does not incur personal liability thereon in the absence of fraud or of evidence that such officer intended to bind himself personally on such contract, or that the person with whom such officer makes such contract supposed he was dealing with such officer as an individual, the person with whom the contract was made being presumed to know that such officer exceeded his powers in making the contract.

      Appeal from the Circuit Court of Winnebago county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed December 27, 1915.
    Statement of the Case.
    Action by George W. Black, plaintiff, against George W. Brown, defendant, in the Circuit Court of Winnebago county, to recover for work done by plaintiff on an alleged public and private road at the request of defendant who was then acting as highway commissioner. It was stipulated that defendant contracted with plaintiff as a town official. The case was tried by the court without a jury, and there was a finding for defendant at the close of plaintiff’s evidence. A motion for a new trial was overruled. From a judgment for defendant, plaintiff appeals.
    Fisher & North, for appellant.
    E. P. Lathrop, Robert Lathrop and R. H. Brown, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

3. Principal and agent, § 169 —what is distinction between personal liability of public agent and private agent on unauthorized contracts. There is a distinction between the personal liability of an agent of an individual and that of a public agent in respect to contracts made on behalf or the principal without authority, in that the agent of an individual is personally liable thereon, being presumed to know the extent of his authority, while a public agent is usually not liable.


text:
    Henry Berg, Defendant in Error, v. George Michell, Plaintiff in Error.
    Gen. No. 6,153.
    1. Automobiles and garages, § 3

      —when negligence in operation of automobile question for jury. In an action for personal injuries alleged to be due to defendant’s negligence in operating an automobile, held that the question whether defendant was negligent was a question of fact for the jury.
    2. Automobiles and garages, § 3

      —when contributory negligence of person injured by automobile question for jury. In an action for damages for personal injuries alleged to be due to the negligent operation of an automobile, held that whether plaintiff exercised due care was a question for the jury.
    3. Appeal and error, § 1401

      —when verdict will not be disturbed. A verdict will be allowed to stand upon appeal where the evidence as to negligence and contributory negligence is doubtful,'even though the Appellate Court might have reached a different conclusion on the facts, provided the record is free from errors of law.
    4. Automobiles and garages, § 1

      —how Motor Vehicle Act construed relative to speed of automobiles. Section 10 of the Motor Vehicle Act (J. & A. ¶ 10010), regulating the speed at which persons may drive such vehicles on public highways, does not directly prohibit driving in excess of ten miles an hour on such highways, but does prohibit driving such vehicles at unreasonable speed on such highways, and makes the fact that such vehicles are so driven at a speed of more than ten miles an hour prima facie evidence of such unreasonable speed.

      5. Automobiles and garages, § 3

      —when instruction on speed of automobiles erroneous. In an action for personal injuries alleged to be due to defendant’s negligencé in driving a motor vehicle at an unreasonable speed on a public highway, striking plaintiff, and causing the injuries sought to be recovered for, an instruction stating the provisions of section 10 of the Motor Vehicle Act (J. & A. If 10010), prohibiting the driving of such vehicles at unreasonable speed on public highways and making the driving of such vehicles on such highways at a speed in excess of ten miles an hour prima facie evidence of unreasonable speed, and adding, “And the running of such automobile at a rate of speed in excess of ten miles an hour under the circumstances above stated is regarded by the law as negligence,” held erroneous.
    6. Automobiles and garages, § 1

      —how Motor Vehicle Act construed relative to speed. Section 10 of the Motor Vehicle Act (J. & A. ¶ 10010), prohibiting the driving of motor vehicles on public highways at unreasonable speed, and making the fact that such a vehicle was so driven at a speed in excess of ten miles an hour prima facie evidence of unreasonable speed, differs essentially from section 24 of the Railway Act (J. & A. ¶ 8836), prohibiting the running of trains through a city at a speed prohibited by a city ordinance, in that the fact of violation of such ordinance is thereby made negligence per se so that proof of the violation establishes negligence, it thus appearing that in framing such section 10 the Legislature did not intend to prohibit the driving of such vehicle at a rate of speed in excess of ten miles an hour, but merely to require a person driving at such rate of speed to show that such rate was not unreasonable.
    7. Automobiles and garages, § 1

      —when statute not violated by driving automobile at speed exceeding ten miles per hour. Under section 10 of the Motor Vehicle Act (J. & A. ¶ 10010), prohibiting the driving of motor vehicles on public highways at unreasonable speed and making the driving of such vehicles on such highway at a speed in excess of ten miles an hour prima facie evidence of unreasonable speed, driving a motor vehicle on such highway at a speed in excess of ten miles an hour will not be a violation of the statute and will not amount to negligence, where it appears that owing to the deserted condition of the streets at night, or the lack of traffic thereon, such speed is reasonable and proper and will not endanger life or limb or the property of any person.
    8. Evidence, § 279

      —when X-ray photographs properly admitted. In an action to recover for personal injuries sustained by being struck by defendant’s automobile which was alleged to have been negligently operated at the time of the accident, whereby plaintiff suffered a fracture of the bones of his leg, rule as to the evidence necessary to lay a foundation for the introduction of X-ray photographs considered, and such photographs held not erroneously admitted.
    9. Automobiles and garages, § 3

      —when instruction on measure of damages for injuries sustained sufficient. In an action to recover for personal injuries sustained as a result of defendant’s alleged negligence, an instruction as to the measure of damages and the evidence required to support the amount found, held not erroneous under the evidence.
    Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding.
    Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed December 27, 1915.
    Weil & Bartley, for plaintiff in error.
    Cameron & Cameron, for defendant in error.

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

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

Henry Berg, the plaintiff below, had a verdict against Dr. George Michell, the defendant below, of $12,000, in a suit for damages for injuries sustained by the plaintiff who was struck while a foot passenger on a street in Peoria by an automobile driven by the defendant. The plaintiff remitted $2,500 from the verdict, and the court entered judgment for $9,500, from which the defendant prosecutes this writ of ’error. The declaration charged as negligence of the defendant in the first count negligent running of the automobile, in the second and third, running in the closely built up business portion of the city at a speed in violation of the motor vehicle statute; also charging in the third count failure to give warning by gong or otherwise of the approach of the automobile. The general issue was pleaded. It appeared that the plaintiff was at the time of the accident (August 5, 1912) in good health, fifty years old, employed in a wholesale drug house in Peoria at $11 a week; that he left his work about 6 p. m. and went to a saloon; and had two glasses of beer, then went to a carnival and stayed until ten o’clock, then started on foot for home, stopping at a saloon and drinking two more glasses of beer, and at another place purchasing a bag of peanuts. He proceeded to a street crossing and passed to the far side of the intersecting street to wait for a street car. He saw one that had approached on the same street and in the same direction that he had been walking, standing on the near side of the intersecting street to discharge and take on passengers. He walked diagonally across the intersecting street eating peanuts the while, to get a view of the sign in front of the car, then, discovering that it was not the one he wished to take, he passed by the front of the car and immediately after clearing the car tracks was struck by the automobile, knocked down, and dragged some distance. He did not see the automobile before it struck him, and the defendant did not see him before the collision. Both of the bones in his left leg were broken between the ankle and the knee, his head was bruised, and he was otherwise somewhat bruised and injured. The defendant stopped his automobile and took him to the hospital, where he appeared to be in an intoxicated condition. He was there eared for. The most serious injury was the fracture of the bones of the leg, and to procure a union the surgeons used metal plates fastened by metal screws to the bone above and below the break, and one of the plates was afterwards removed. He was about five months in the hospital, and suffered much pain.

There is much conflict in the testimony as to the permanent effect of the injury. Evidence was introduced sustaining the contention of the defendant that no very serious permanent injury resulted, and other evidence sustaining the contention of the plaintiff that the result was a very serious permanent disability. There was also a close question of fact whether at the time of the accident the plaintiff was intoxicated and not in condition to exercise proper care for his own safety. There is no direct evidence that he had drunk more or other intoxicating liquor than above stated, and he says he had not, but there is evidence that his condition when taken to a hospital indicated a degree of intoxication that would °not have been produced by the amount of beer so taken. There is also a sharp conflict in the testimony whether the automobile was at the time running over ten miles an hour, and while it appears the horn was sounded as the automobile approached, there is some conflict about that. We will not attempt to analyze the testimony or express any opinion thereon further than to say there is much doubt whether the evidence warrants the conclusion that the automobile was at the time running at ten miles or more an hour, and whether the plaintiff was exercising reasonable care for his own safety. These were all questions for the jury, and their verdict might prevail and control even against our different conclusion from a reading of the record, if the record is free from error of law. But in this condition of the evidence a judgment should not be permitted to stand unless the record is free from such error. Section 10 of the Motor Vehicle Act of 1911 (J. & A. ft 10010) provides:

“No person shall drive a motor vehicle * * * upon any public highway in this State at a speed greater than is reasonable and proper having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person. If the rate of speed of any motor vehicle * * * operated upon any public highway in this State where the same passes through the closely built up business portions of any incorporated city, town or village, exceeds ten (10) miles an hour * * * such rate of speed shall be prima facie evidence that the person operating such motor vehicle * * * is running at a rate of speed greater than is reasonable and proper having regard to the traffic and use of the way or so as to endanger the life or limb or injure the property of any person.”

The statute does not directly prohibit driving in excess of ten miles an hour, but makes such driving prima facie evidence of unreasonable speed, which is prohibited. Plaintiff’s given instruction Ño. 1 correctly informed the jury of this provision of law substantially in the language of the statute, but added: “And the running of such automobile at a rate of speed in excess of ten miles an hour under the circumstances above stated is regarded by the law as negligence.”'

This was error. The law does not regard that rate of speed as negligence, but as prima facie evidence of negligence; that is, when the higher rate of speed is shown, it is not necessary to further show conditions that make that rate of speed unreasonable, but the law makers assumed that conditions might be such that the high rate of speed would not be unsafe and unreasonable and left the question of fact to be determined by a jury or other tribunal passing on the facts, with the burden of proof on the accused party. This motor vehicle statute is substantially different in effect from section 24 of our Railway Act (J. & A. ¶ 8836), which prohibits running a train through a city at a greater rate of speed than permitted by ordinance of such city; that is, in case of an ordinance limiting the rate of speed of a railway train to ten miles an hour, the running of one at a higher rate of speed is negligence per se, and proof of such excess speed establishes the negligence of the defendant. The language of the motor vehicle statute clearly indicates that the Legislature did not intend to prohibit a speed in excess of the rate there mentioned, but only to require a person exceeding that rate of speed to show that it was not unreasonable, etc. If the jury in this case believed from the evidence that the defendant was running eleven or twelve miles an hour, and further believed that because of the time of night and deserted condition of the street such rate of speed was not greater than is reasonable and proper, having regard to the traffic and use of the way, or so as to endanger the life or limb or injure the property of any person, then such rate of twelve miles an hour was not a violation of the statute and not something which the law regards negligence. We express ho opinion whether driving at a rate of speed higher than ten miles an hour, if so found by the jury, was or was not negligence under all the circumstances shown by the evidence as to the surroundings, but only say that it was a question of fact for the jury, and it was by the instruction determined as a matter of law by the court. In other words, there is a material and marked distinction between saying that driving at the rate of twelve miles an hour is negligence and saying that driving at that rate may or may not be negligence, and putting the question to the jury to say whether or not, with the burden of proof on the defendant to show it is not.

X-ray pictures of the broken bones of the leg were exhibited to the jury. It is contended that there was insufficient evidence to permit their introduction under the rule in regard to the use of ordinary photographs on the trial of a cause, which has been held to be the proper rule (17 Cyc. 420, and authorities there cited). It is true that some, and perhaps all, of these X-ray pictures were calculated to shock a layman, and together with the fact that steel was used in getting a union of the bone, as before mentioned, might create an impression of much graver injury than a surgeon would understand existed from a consideration of the same facts, and it is quite likely that the exhibition of these pictures resulted in much increasing the size of the verdict, not because of any correct information they furnished the jury, but because of the shock produced on their sensibilities. Still, we are not inclined to hold that there was error in permitting that testimony. The court gave the jury an instruction as to the measure of damages and evidence required to support their finding of the amount of damages that was proper, except for the fact that there was some testimony as to physicians’ bills and expenses charged in the declaration that was capable of direct proof as to value. There was some confusion in the testimony as to the question of physicians ’ bills and expenses, it being asserted by defendant’s counsel that the defendant paid the bills and there was no bill to be paid or liability incurred by the plaintiff. We do not think-the court erred as to either of these matters under these facts. On another trial it will, we assume, appear more clearly whether a liability for those expenses does exist, and the evidence will be received and instructions given in accordance with what may there develop.

We are of the opinion that the ends of justice require another trial of this case. The judgment is therefore reversed and the cause remanded.

Reversed cmd remanded.

Mr. Justice Niehaus took no part.


text:
    The People of the State of Illinois, Defendant in Error, v. Edward Fichter, Plaintiff in Error.
    Gen. No. 6,157.
    (Not to he reported in full.)
    Error to the County Court of Lake county; the Hon. Perry L. Persons, Judge, presiding.
    Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed December 27, 1915.

      Abstract of the Decision.
    1. Witnesses, § 253

      —when weight of testimony for jury. Owing to the removal of many disqualifications of witnesses, such as being interested, many witnesses formerly barred are now heard, and the weight of their testimony is primarily to be determined by the jury subject to the approval of the trial court and that of a reviewing court.
    2. Witnesses, § 267

      —how weight of testimony of detectives determined. In a criminal case the testimony of private detectives employed and paid to secure evidence against defendant is to be considered and weighed like the testimony of other witnesses, with a proper consideration of the influences under which such witnesses were acting.

      Statement of the Case.
    Prosecution by the People of the State of Illinois against Edward Fichter, defendant, in the County Court of Lake county, charging defendant with unlawfully keeping open a tippling house on Sunday. Defendant was regularly licensed to keep a bar in connection with a dancing pavilion, at which bar intoxicants were sold. It was admitted that on some Sundays defendant’s place was kept open for the sale of tobacco and “soft drinks,” including “near beer.” The conviction was based on the testimony of two hired investigators, whose testimony was denied by defendant, corroborated by Ms bartender, and to some extent by another person. The case was tried by a jury.
    To reverse a judgment of conviction with sentence to pay a fine of one hundred and fifty dollars, defendant prosecutes this writ of error.
    A. L. Tompkins and George W. Field, for plaintiff in error.
    R. J. Dady and E. M. Runyard, for defendant in error.

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

   Mr. Justice Carnes

delivered the opinion of the court.

3. Appeal and error, § 1404 —when verdict will not be set aside on appeal. Since the jury and the trial court are more likely to judge correctly of the truth or falsity of the testimony of interested witnesses, a verdict based on such testimony will not be set aside by a reviewing court unless the finding is so palpably against the weight of the evidence as to indicate that the verdict is based on passion or prejudice.

4. Intoxicating liquors, § 147 —when evidence sufficient to sustain conviction for unlawfully keeping tippling house open on Sunday. In a prosecution for unlawfully keeping a tippling house open on Sunday, where the prosecuting witnesses were private detectives employed and paid to secure evidence against defendant, and where the evidence was conflicting, evidence held sufficient to warrant a judgment of conviction.


author: Mr. Justice Niehaus

text:
    Edward Reeb, Appellee, v. M. A. Bronson, Appellant.
    Gen. No. 5,935.
    1. Principal and agent, § 167

      —when agent personally liable to third person for goods purchasedl. Where a sale of goods is made to one who is known to be an agent for a principal, and for whom vendor supposes such agent is acting, but such agent has no authority to act and does not act for such principal in making the purchase, he is personally liable.
    2. Trial, § 155

      —when province of jury to weigh conflicting evidence. The determination of disputed questions of fact properly comes within the province of the jury.
    3. Evidence, § 475

      —what constitutes preponderance. In an action to recover for goods sold and delivered, where defendant denied that a sale was made as alleged, evidence held' fairly to preponderate in plaintiff’s favor, plaintiff being sufficiently corroborated by other witnesses and by the circumstances of the case.
    4. Assumpsit, Action of, § 89

      —when necessary to show delivery of goods sold. In an action for goods sold and delivered where recovery is based on the common counts, the evidence must show a delivery of the goods alleged to have been sold.
    5. Assumpsit, Action of, § 89

      —when evidence sufficient to show delivery of goods. In an action to recover for goods sold and delivered where plaintiff declares on the common counts, a delivery of the goods alleged to have been sold is shown where it appears that plaintiff hired a drayman to haul the goods to and to load them in a freight car procured by defendant for the transportation of the goods, and where defendant paid the charges of such drayman for such hauling and loading.
    6. Sales, § 126

      —what constitutes delivery of goods. A vendee of goods is placed in actual possession of such goods so as to constitute a delivery where it appears that such goods are placed in the direct control of such vendee.
    7. Principal and agent, § 183

      —when purchaser of goods ratifies act of seller in employing drayman. A vendee of goods by paying the charges of a drayman employed by vendor, who hauls and loads such goods into a car engaged by defendant for the transportation of such goods thereby ratifies the act of vendor in employing such drayman to haul and load such goods.
    8. Sales, § 126

      —what constitutes delivery of goods. Actual delivery consists in giving to the buyer, or his servants, or accredited agent, the real possession of the goods sold.
    9. Sales, § 126

      —when evidence sufficient to establish delivery of goods. In an action to recover for goods sold and delivered, evidence held sufficient to establish the fact of a delivery to the vendee of the goods sold.
    10. Principal and agent, § 249

      —when instruction as to personal liability of agent malcing sale without authority correct. In an action to recover for goods sold and delivered where defendant was local manager for a brewing company, and where the goods alleged to have been sold consisted of the stock of a saloon, an instruction as to the personal liability of defendant as agent for selling goods without authority, approved.
    11. Principal -and agent, § 169

      —when agent personally liable to third person on contract. If a person undertakes to contract for an individual or corporation and contracts in a manner not legally binding on his principal, the person so undertaking to contract is personally liable on such contract.
    12. Principal and agent, § 225

      —when burden on agent to show authority to bind principal. An agent who makes a contract on behalf of a principal can exonerate himself from personal liability on such contract only by showing affirmatively that he has authority to bid such principal by the contract made, and it is not incumbent on the person with whom the contract is made to show that such agent had not such authority.
    13. Principal and agent, § 249

      —when instruction as to authority of agent properly modified. In an action to recover for goods sold and delivered where defendant was local manager of a brewing association, where it was undisputed that defendant had no authority to purchase the goods for his principal, an instruction in reference to such authority held properly modified.
    14. Instructions, § 120

      —when instruction not based on issue or evidence properly refused. In an action to recover for goods sold and delivered, where a count presenting the issue as to whether or not plaintiff contracted with defendant as agent for .a brewing^ association, under representation of defendant that he had authority to so contract, had been stricken from the files at the close of plaintiff’s evidence, and where there was no evidence on such issue, an instruction on such issue held properly refused.
    15. Appeal and error, § 1514

      —when improper remarles of counsel harmless error. In an action to recover for goods sold and delivered, remarks of counsel in final argument, an objection to which was.sustained by the trial court, held improper but not of such a prejudicial character as to have influenced the jury in deciding the merits of the case.
    16. Interest, §23

      —when interest not allowed on ground of unreasonable and vexatious delay in payment. Where the right to recover is disputed both on the facts and on the law, the case is not a proper one for the allowance of interest on the ground of an unreasonable and vexatious delay in payment, if it is clear that the delay was due to the defense made to the action.
    17. Interest, § 24

      —what does not constitute unreasonable and vexatious delay. The right to appear and defend .a suit is one which cannot be construed into an unreasonable and vexatious delay without impairing the right.
    18. Interest, § 24

      —what does not constitute unreasonable or vexatious delay in payment. Mere failure to pay a demand will not necessarily constitute the delay in payment unreasonable or vexatious.
    19. Interest, § 25

      —when question of what constitutes unreasonable or vexatious delay in payment not for jury. Where the only delay in payment of a demand is that occasioned by defending the action, the question of the allowance of interest for an unreasonable and vexatious delay in payment is not a question for the jury and should not be submitted to them. '
    20. Appeal and error, § 1659

      —when remittitur cures error in judgment. Where a judgment is erroneous in that it includes interest which plaintiff is not entitled to recover, the entry of a remittitur for the amount of such interest cures the error.

      Appeal from the Circuit Court of Livingston county; the Hon. G. W. Patton, Judge, presiding.
    Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed December 27, 1915.
    Boys, Osborn & Griggs, for appellant.
    Norton & Ortman and C. H. Thompson, for appellee.

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

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

In this case an appeal was taken by the appellant, M. A. Bronson, from a judgment for $341.23, rendered against him in assumpsit, in favor of the appellee, Edward Beeb, in the Circuit Court of Livingston county. The suit was commenced by appellee to recover for the remnants of a stock of liquors and cigars which the appellee had carried in the saloon business conducted by him in the Village of Dwight. The saloon fixtures which the appellee had used in the business were owned by the Anheuser-Busch Brewing Association, and the appellant was the agent of this association, with headquarters at Streator, Illinois.

The appellant came to Dwight, with a man by the name of Shanley, on April 18, 1907, two days after the village election which had resulted in making Dwight dry territory, and had limited the time in which appellee could operate his saloon to May 10th, the date of the expiration of his dramshop license. Appellant, as agent of the Anheuser-Busch Brewing Association, had been trying to assist Shanley to get started in the saloon business at Ottawa, Illinois, within the territory controlled by his agency; and he wanted to get, for Shanley, a set of saloon fixtures. Having failed to get a new set of fixtures for Shanley from the Anheuser-Busch Brewing Association, he had come to Dwight, on the day in question, to see about procuring the fixtures which had been in use by appellee.

Appellee asserts, in his testimony, that appellant and Shanley were desirous of getting the fixtures by May 1st, that is to say, ten days prior to the time limit of his license and business, and that he told appellant, who was acting in this matter as agent of the brewing association, that he would not be willing to let him take the fixtures before the 10th of May, unless appellant would also take the remnants of his stock of goods on hand, which he was willing to sell at the cost price; that appellant, upon being informed by appellee’s bartender that these remnants of his stock would not exceed in cost the sum of $300 or $400, agreed to take them at the invoice prices; that appellee inferred, from the fact that appellant was representing the AnheuserBusch Brewing Association as agent in the procuring of the fixtures, he was also acting for the association in the purchasing of the liquor and cigars, and was purchasing them for the brewing association, but that appellant did not make any representation to him to the effect that he had authority from the brewing association to purchase the goods.

Appellant denies that the transaction concerning the alleged sale to him occurred, and there is a conflict of evidence on this question in the case. If the sale was made to appellant, as testified to by appellee, then it was.a sale to the appellant, for which he was personally liable. It is not contended in this case, by appellant, that he purchased these liquors for the AnheuserBusch Brewing Association, nor, that he was acting under any authority from the association, for that purpose, or that as agent generally, he had any authority to purchase these goods, and he testified expressly, that as agent he had no authority to make a purchase of this character. His defense was, that there was no sale made to him at all, which leaves the question as to whether or not there was such a sale rdade the only real issue in the case. The disputed question is one of fact, and properly comes within the province of the jury for determination; and the jury did determine it, by their verdict. It may be further said, that while the appellant denies that he had the conversation with appellee, which appellee claimed resulted in a sale, yet the appellee is sufficiently corroborated by other witnesses, and the circumstances surrounding the transaction, as to make the whole evidence concerning the matter fairly preponderate in appellee’s favor.

It is true, as a legal requirement, that inasmuch as the recovery in this case is based on the common counts, it is necessary that the evidence should show a delivery of the goods alleged to have been sold to appellant; and we think the evidence does show such delivery. It appears from the evidence that the fixtures, as well as the goods in controversy, had been hauled and placed by a drayman whom appellee had hired for that purpose, in a 0. & A. freight car which had been engaged by appellant from the railroad company, and which had been provided for him by the railroad company, to carry freight to Ottawa, Illinois; and it also appeared from the testimony of the dray-man that while the appellee hired him, the appellant paid him, not only for hauling the fixtures, but also for hauling the goods, and paid the drayman after he had been informed by him that the goods had been hauled, and put into the car, as well as the fixtures. The goods and the fixtures, therefore, were placed directly within the control, and thereby into the actual possession of the appellant, by the appellee, and appellant by paying the charges for this service, ratified the act of the appellee in employing the drayman to haul these goods, and to place them into the car.

“Actual delivery consists in giving to the buyer, or his servants, or accredited agent, the real possession of the goods sold.” (35 Cyc. 189.) Furthermore, after the goods in question came into appellant’s possession and control, as stated, he made a disposition of them at Ottawa, by directing the drayman at Ottawa, whom he had employed, to take them out of the car and into the drayman’s storehouse. We think the evidence in the case, both with reference to the sale and with reference to the delivery of the goods to appellant, clearly preponderates, to establish these two important facts in the case.

The giving of the second instruction is assigned as error by appellant. The instruction is as follows: “You are instructed that if you believe from the evidence that Bronson was the local manager of the Anheuser-Busch Brewing Association, at Streator, but as such, had no authority to buy goods for it, but that Beeb thought Bronson had that authority and sold him goods believing at the time he was selling to the Anheuser-Busch Brewing Association, through Bronson, as its agent, and if you further believe from the evidence that Bronson promised to pay for said goods, but did not say whether he was buying for AnheuserBusch Brewing Association or not, and made no representations in regard thereto, but concealed his lack of authority to make the purchase for said Brewing Association, then, in that state of the evidence, Bronson was individually liable for such goods and it made no difference if Beeb thought at the time that he was selling to the Anheuser-Busch Association, through Bronson as its agent.”

This instruction purports to state the law involved in this case, pertaining to the personal liability of appellant as agent, and states it accurately. The point presented by the instruction is well settled. Justice Sutherland, in the case of Mott v. Hicks, 1 Cow. (N. Y.) 536, clearly defines the rule concerning this feature of the personal liability of agents, as follows: “It is perfectly well settled, that if a person undertake to contract as agent for an individual or corporation, and contracts in a manner which is not legally binding upon his principal, he is personally liable. * * * And the agent, when sued upon such a contract, can exonerate himself from personal liability only by showing his authority to bind those for whom he undertakes to act. It is not for the plaintiff to show that he had not authority. The defendant must show affirmatively that he had.” The definition given is quoted with approval by our Supreme Court in Wheeler v. Reed, 36 Ill. 91; also in Frankland v. Johnson, 147 Ill. 525. The personal liability of agents under circumstances similar to this case was also affirmed in Kadish v. Bullen, 10 Ill. App. 566; Rice v. Western Fuse & Explosive Co., 64 Ill. App. 603.

We think the court properly refused to give appellant’s instruction No. 6, as presented, because under the facts as proven it was undisputed that appellant had no authority to purchase the goods in question; and if the goods were purchased by him, under these circumstances, he was personally liable therefor, even though he may have purchased them as agent. The modification made by the court was entirely proper and pertinent, and there was no error in giving the instruction as modified.

The court also properly refused appellant’s instruction No. 18, because there was no evidence, and no issue in the case, upon the question whether or not the appellee contracted with appellant as agent of the Anheuser-Busch Brewing Association upon the appellant’s representation that he was duly authorized to make the purchase in question, as their agent; the count of the declaration presenting such an issue had been stricken from the files, at the conclusion of the evidence for appellee, and was out of the case; and there was no evidence whatever, of any representation made by appellant or any authority as agent, to purchase the goods in question.

Error is also assigned on some of the remarks of appellee’s attorney in his closing argument. These remarks were objected to by appellant, and they were improper, and the court sustained the objection. But the remarks, while improper, were not of such a prejudicial character that they could have unduly influenced the jury in arriving at a decision on the merits of the case.

This case, however, was not a proper one for the allowance of interest. There was no evidence of what legally would constitute an unreasonable and vexatious delay in making payment of the appellee’s claim. The right of appellee to recover is a disputed matter, both as to the law and the facts involved, and it is evident that the delay in payment was occasioned by the defense made by appellant.

“To appear and defend a suit is a right which cannot be construed into ‘unreasonable and vexatious delay of payment,’ without impairing the right itself.” (Aldrich v. Dunham, 16 Ill. 404.)

Mere failure to pay a demand will not necessarily constitute the delay in payment unreasonable or vexatious. (Pieser v. Minkota Milling Co., 94 Ill. App. 595.)

It is clear, therefore, under the state of evidence in this case, the allowance of interest was not a question' for the jury, and should not have been submitted to them. (Hatterman v. Thompson, 83 Ill. App. 217; Sammis v. Clark, 13 Ill. 544; Aldrich v. Dunham, supra; Franklin County v. Layman, 145 Ill. 145; Devine v. Edwards, 101 Ill. 138.)

For the reasons stated, the appellee is not entitled to judgment for more than the amount of his claim, without interest, which is $253.90; but having heretofore entered a remittitur to reduce the judgment to the amount above stated, the error in this regard is cured, and there is now no reversible error in this case, and the judgment should therefore be affirmed, in the sum of $253.90 at the costs of appellee.

Affirmed.


text:
    Christ Kammerer, Appellee, v. United States Silica Company, Appellant.
    Gen. No. 6,092.
    (Not to be reported in full.)
    Appeal from the Circuit Court of La Salle county; the Hon. Samuel C. Stough, Judge, presiding.
    Heard in this court at the April term, 1915.
    Reversed and remanded.
    Opinion filed December 27, 1915.
    Statement of the Case.
    Action by Christ Kammerer, plaintiff, against the United States Silica Company, defendant, in the Circuit Court of Lake county to recover for breach of the covenants of a lease of real estate.
    From a judgment for plaintiff for $125, after trial by jury on appeal from a justice of the peace, defendant appeals.
    It appears from the evidence that the defendant on February 26, 1914, leased to the plaintiff the land in question, by a written lease. The term which was from March 1, 1914, to February 28, 1915, and which contained a provision by which the defendant reserved the privilege at any time to enter the property for certain purposes, and also the further stipulation that plaintiff should not hold the defendant liable for any damages as a result of the occupation of portions of the property by the defendant, for the purposes named.
    The land in question, which was situated about two miles from the City of Ottawa, was known as sand land; and could also be used for pasture. There was a dwelling house on the land. The plaintiff from obtaining his lease from the defendant paid the first instalment of rent, and on the commencement of his term endeavored to take possession of the premises, but found another person in possession who claimed that he had a prior lease from the defendant, and refused to surrender possession. Plaintiff had come there with his household goods and effects, which he wanted to install upon the premises, and being thus prevented from entering was forced to rent other premises of a different kind and in a different locality.
    Abstract of the Decision.
    1. Landlord and tenant, § 161*—when lessee entitled to possession. Where a lessee is in possession of premises under an oral lease, the legal as well a's the actual possession of such premises is in such lessee.
    2. Landlord and tenant, § 176*—what constitutes breach of implied covenant for possession and quiet enjoyment. The covenant for possession and quiet enjoyment impliedly contained in a lease is breached where at the time when the lessee seeks to take possession of the demised premises another is in possession thereof under a prior lease.
    3. Landlord and tenant, § 191

      —when questions as to existence of prior lease and possession by third person' for jury. In an action by a lessee to recover for breach of a lease, where the breach assigned is that plaintiff was prevented from taking possession of the demised premises by the fact that another was in possession thereof under an alleged prior lease from defendant, the questions whether there was such a prior lease and whether such other person was in possession thereunder are questions of fact for the jury.
    4. Assumpsit, Action of, § 6

      —when lies. An action of assumpsit will lie to recover for a breach of the implied covenant of a lease for possession and quiet enjoyment of the demised premises.
    5. Landlord and tenant, § 191

      —what is measure of damages for breach of lease by lessor. In an action by a lessee.to recover. for breach of the condition of a lease, the measure of damages is the difference between the rental value of the premises involved and the rent which lessee actually agreed to pay, together with such special damages as may have been directly and necessarily occasioned to plaintiff by defendant’s wrongful act, but not including what plaintiff might have made on the premises during the lease, or loss sustained by being compelled to sell Ms stock, agricultural implements, etc., for less than their value.

      McDougall & Chapman, for appellant.
    H. M. Kelly, for appellee.

      See Illinois Notes Digest# Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

6. Trial, § 276 —when interrogatories as to rental value of land erroneous. In an action by a lessee to recover for breach of the condition of a lease, where the breach assigned is that plaintiff was prevented from taking possession of the demised premises by the fact that another was in possession under an alleged prior lease from defendant, and where plaintiff’s lease reserved the right to enter upon the demised premises to lay tracks and to mine silica, and that plaintiff should exonerate defendant from liability for damages in case the rights reserved should be exercised, interrogatories to the jury as to the rental value of the land not incorporating such reserved rights as elements of value, held erroneous.

7. Landlord and tenant, § 191 —when evidence as to rental value of house as distinct from land inadmissible. It is error to permit the jury to consider evidence of the rental value of a house apart from the rental value of a tract of land on which the house is situated, in computing the rental value of the premises occupied in estimating damages for breach of an implied covenant of possession and quiet enjoyment.

8. Instructions, § 104 —when instruction as to amount of recovery erroneous. An instruction that if certain facts are found the jury should find for plaintiff, “in such damages as it is proved under the instructions in this case he has suffered,” is erroneous where no other instruction is given laying down a correct measure of damages.


author: Mr. Justice McBride

text:
    Ernest Smiley et al., by Nora Smiley, Appellees, v. Millard Barnes, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Massac county; the Hon. William M. Clemens, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed November 9, 1914.
    Rehearing allowed and opinion filed September 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Ernest Smiley, Perry Smiley and Opal Smiley, by their next friend Nora Smiley, plaintiffs, against Millard Barnes, in the Circuit Court of Massac county, to recover for the death of plaintiffs’ father. From a judgment for plaintiffs for $3,000, defendant appeals.
    The declaration in three counts, in substance, alleged that plaintiffs were minor children of the deceased, Will Gr. Smiley, who was a farmer deriving an income of about $2,000 a year from his farm, by means of which he maintained plaintiffs in a liberal maimer, and the deceased came to his death'by reason of intoxicating liquor sold to him by defendant, who was alleged to be engaged in selling such liquor in Brookport, by reason of which liquor deceased became intoxicated and while intoxicated received injuries causing his death, injuring plaintiffs in their means of support. A fourth count contained substantially similar allegations, except that the income of deceased was alleged to be $3,000 per year, derived from his farm and stock raising.
    It appeared from the evidence in this case that Will Smiley, father of plaintiffs, was a farmer living near Brookport. That on September 27, 1912, he hauled a wagon load of railroad ties to Brookport and sold them and that after the making of the sale he visited defendant’s saloon in Brookport and purchased a drink of whisky. Thereafter he drank four drinks of whisky and some beer at defendant’s saloon and purchased half a pint of whisky that he took away with him, and that by three or four o’clock he was intoxicated and started home riding upon the running gears of his wagon. Afterwards he drank more liquor from the half pint purchased and became very badly intoxicated and drove his team at times at a very rapid gait. He had not gone far from Brookport before he fell from his wagon, but again recovered Ms place and after having driven a short distance further he again fell and at this time his legs caught over the hounds of the wagon, with his head and shoulders dragging on the ground, in which position he was dragged the distance of about ten feet, being at this time much intoxicated. He was carried to one side of the road. About ten o ’clock at night a Mr. Edwards discovered him and tried to get him up, but Smiley made so much complaint of pain on being handled that Edwards threw his coat over him and left him alone, and he remained there all night. The next morning Smiley was carried to the home of Edwards. He was cold and sick and could not eat and in a short time his leg began to swell and he began vomiting, which continued until his death. There was no outward appearance of injury to the leg which had swollen, very badly. His bowels and Mdneys were apparently so paralyzed that there was no operation from his bowels, and his urine in small quantities had to be removed by the use of a catheter. Purgatives were used for the bowels but without effect. Different doctors visited him but it seems that none of them were able to give him relief. On October 7th Smiley was taken with bleeding at the nose, which was treated by his physician who on October 9th found the hemorrhage of the nose very profuse and the vomiting almost constant. He plugged the posterior nares with adrenalin gauze but was unable to stop the hemorrhage and Smiley died on the morning of October 10th. There is no evidence or claim of Smiley having drank or procured the liquor at any other place than the saloon of the appellant, and in fact there is no dispute but that the liquors were, procured at ap-; pellant’s saloon, that he became very badly intoxicated, that the vomiting and retching and paralysis of the bowels and kidneys continued from that day until his death. It also appears from the evidence that deceased was of the age of about thirty-four years, and not in the habit of becoming intoxicated; that he was a healthy, able-bodied man, excepting a deafness which had been caused many years ago by cerebral meningitis, and was an active, energetic and reasonably prosperous farmer.
    Two of the plaintiffs’ physicians testified for plaintiffs that he died of alcoholism. The physicians testifying for defendant said that it could not be definitely told what caused the nose bleed without a post mortem examination. Upon cross-examination of the physicians offered by defendant they, or most of them at least, admitted that vomiting and retching might be the cause of the rupturing of the blood vessel; that increased pressure in the arteries would cause it, and that the obstructed condition of the bowels and kidneys would cause an increased pressure in the walls of the blood vessels, and some of them admitted that the meningitis with which the deceased was afflicted many years ago might produce a diseased condition of the blood vessels of the head, rendering them brittle and weakened and that in such condition the .vomiting and retching, together with the increased pressure of the blood, might cause a rupture of the artery.
    Abstract of the Decision.
    1. Intoxicating liquors, § 228

      —when evidence sufficient to show intoxication proximate cause of death. In an action by minor children to recover for injury to their means of support by the death of their father, where such death was the result of personal injuries sustained by deceased while intoxicated as a result of drinking liquor sold to him by defendant, a saloon keeper, where it appeared that as a result of the injuries sustained deceased became sick and vomited and retched constantly, being unable to eat, and his kidneys and bowels being paralyzed, and suffering much pain, and so continued until his death, which was immediately caused by hemorrhage of the nose, evidence held to sustain a finding that the proximate cause of his death was intoxication.
    2. Intoxicating liquors, § 247

      —when question whether death due to. intoxication for jury. In an action by minor children to recover for injury to their means of support by the death of their father, which death was the result of personal injuries sustained by deceased while intoxicated, as a consequence of drinking liquor sold to him by defendant, a saloon keeper, the question of proximate cause held a question for the jury where it appeared that the immediate cause of death was hemorrhage of the nose, and where the evidence was conflicting whether such hemorrhage was caused by the sickness resulting from the intoxication, or from a weakened condition of the blood vessels of the head due to a previous attack of spinal meningitis.
    3. Negligence, § 48

      —what constitutes proximate cause of injury. The proximate cause of injury must be understood to be that which in a natural and continuous sequence, unbroken by any new or independent cause, produces the result and without which the event would not have occurred.
    Courtney, Helm & Helm, F. P. Drennan and W. H. Nelms, for appellant.
    George B. Baker and Fred R. Young, for appellees.

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

      See Iliinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

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

   Mr. Justice McBride

delivered the opinion of the court.

4. Intoxicating liquors, § 245 —when verdict for loss of support not excessive. In an action by three minor children to recover for injury to their means of support by the death of their father, where such death was the result of personal injuries sustained by deceased while intoxicated as a consequence of drinking liquor sold to him by defendant, a saloon keeper, a verdict for plaintiffs of $3,000 held not excessive, where it appeared that plaintiffs were of the age whiph required education and the ordinary expenses of rearing them, and that deceased was an active and reasonably prosperous man, thirty-four years of age, with an earning power of $1,500 a year, from which he properly supported and provided for plaintiffs.

5. Appeal and error, § 1406 —when verdict will not be disturbed on ground of excessive damages. A verdict will not be disturbed on the ground of excessive damages where it does not appear that the jury were influenced in assessing damages by sympathy, prejudice or some other improper motive.

6. Instructions, § 104 —when instruction as to amount of recovery not erroneous. In an action to recover for death due to defendant’s alleged wrongful act, an instruction containing a correct recital of the essential facts to be proven by plaintiffs in order to recover in the action is not open to criticism because it concludes: “Then the law makes it your duty to find said defendant guilty and assess plaintiffs’ damages as explained in these instructions.

7. Intoxicating liquors, § 249 —when instruction as to proximate cause of death not erroneous. In an action by minor children to recover for injury to their means of support by the death of their father, as a result of personal injuries sustained while intoxicated as a consequence of drinking liquor sold to him by defendant, a saloon keeper, where the immediate cause of death was hemorrhage of the nose, an instruction that, “If as a natural result of sales deceased became intoxicated and sickened, and that such sickness induced in him an increased strain upon the arteries of the body, whereby an artery was ruptured and he died therefrom, then such sales would be the proximate cause of his death, and this notwithstanding that there might have been at the time a diseased condition of his artery, which rendered it more liable to burst from increased pressure,” held not improper as invading the province of the jury in determining the question of proximate cause, it appearing that deceased had at one time been afflicted with spinal meningitis, tending to harden the arteries of the head, and that defendant sought to show that the hemorrhage was caused by the weakened condition of the arteries, and the objection not being raised that the elements set forth in the instruction did not constitute proximate cause and it not being pointed out how the jury could have been misled thereby.

8. Instructions, § 88*—when instruction on preponderance of evidence sufficient. The use in an instruction of the words “however slight” in speaking of the preponderance of the evidence does not warrant a criticism of the instruction where the party objecting thereto admits that the use of the words, “if the evidence preponderated but slightly,” in the instruction would have been good, there being no material difference between the expressions.

9. Instructions, § 89 —when instruction sufficiently refers to number of witnesses as basis for determining preponderance of evidence. An objection to an instruction that it fails to mention specifically the number of witnesses as one of the things to be considered in determining the preponderance of the evidence is not well founded, where it appears from a reading of the whole instruction that the attention of the jury was called to the number of witnesses, among other things to be considered.

10. Intoxicating liquors, § 221 —when expert testimony unnecessary to determine proximate cause of death. In an action by minor children to recover for injury to their means of support by the death of their father, which death was the result of personal injuries sustained by deceased while intoxicated as a result of drinking liquor sold to him by defendant, a saloon keeper, there is no necessity for proving the fact that the proximate cause of the death was the wrongful act of defendant by the expert opinion of doctors where the facts connecting the death with the intoxication can be proven by the persons who attended him.

11. Instructions, § 93 —when instruction that testimony of expert witnesses should be considered proper. In an action where both sides introduce the testimony of physicians as expert witnesses, a requested instruction should be given advising the jury that the testimony of such witnesses as a class should be considered by the jury with all the other evidence in the case, although such instruction is faulty in calling the attention of the jury to a particular class of witnesses.

12. Appeal and error, § 1560 —when refusal of instruction not prejudicial error. The refusal to give a requested instruction that the testimony of physicians as expert witnesses should be considered by the jury with all the other evidence in the case is not prejudicial error, since the jury must have understood that they were to consider such evidence.

13. Appeal and error, § 1525 —when imperfect instruction will not cause reversal. Although the instructions given in a case may not be in every respect formal and accurate, yet where such instructions taken as a whole fully and fairly present the law of case to the jury, there is not such error as will justify a reversal.

On Rehearing.

Instructions, § 20 —when instruction that jury must'not consider propriety of law upon which action based not misleading. An instruction in a civil action for damages for injury to means of support- of children, owing to the intoxication of the father, that it is not for the jury to consider the propriety of the law in force relating to intoxicating liquors under which the action is brought, held not misleading.


text:
    Nora Smiley, Appellee, v. Millard Barnes, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Massac county; the Hon. A. W. Lewis, Judge, presiding.
    Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed November 9, 1914.
    Rehearing allowed and opinion filed September 1, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Nora Smiley, plaintiff, against Millard Barnes, defendant, in the Circuit Court of Massac county, to recover for injuries to plaintiff’s means of support by the death of plaintiff’s husband, Will G. Smiley, as the result of personal injuries sustained by deceased while intoxicated as a result of drinking liquor sold to him by defendant, a saloon keeper. The pleadings and evidence in this case were substantially the same as in that of Smiley v. Barnes, ante, p. 530, except that in this case such pleadings and evidence are adapted to the loss of deceased as the means of support of deceased’s widow.
    From a judgment for plaintiff for $4,500, defendant appeals.
    W. H. Nelms, F. P. Drennan and Courtney, Helm & Helm, for appellant.
    George B. Baker and Fred B. Young, for appellee.

      Abstract of the Decision.
    1. Appeal and error, § 1502

      —when not reversible error to refuse to permit peremptory challenge. It is not reversible error to refuse to permit the peremptory challenge of a juror of a panel of four after such panel has been accepted and before the last panel of four has been accepted.
    2. Jury, § 72

      —when right to peremptory challenge does not exist. After a panel of four jurors has been accepted, the right of peremptory challenge of jurors in the panel does not exist unless good cause is shown.
    3. Jury, § 72

      —when trial judge may permit peremptory challenge of juror. Section 21 of the Jurors’ Act (J. & A. ¶ 6851), providing that jurors shall be accepted in panels of four is not to be construed as restricting the right of the trial judge to permit a peremptory challenge of a juror of such panel after the panel has been accepted if deemed necessary or proper for the furtherance of justice, although such juror could not be challenged for any cause allowed by the statute.
    4. Appeal and error, § 1502

      —when not reversible error to permit peremptory challenge of juror. Section 21 of the Jurors’ Act (J. & A. ¶ 6851), providing that jurors shall be accepted in panels of four, is directory and the exercise of discretion by the trial judge in permitting a peremptory challenge of a juror in such panel after the panel has been accepted will not work a reversal unless injustice has been done by the exercise of such discretion.
    5. Appeal and error, § 1502

      —when failure to comply with statute in selection of jury not reversible error. The selection of the jury is not in all cases required to be in strict pursuance with the statute, and such failure to observe the requirements of the statute strictly will not be deemed reversible error where it does not appear that the jury so selected were prejudiced against either of the parties or were not fair-minded and intelligent.
    6. Instructions, § 19

      —when not deemed argumentative. The objection to an instruction that it is argumentative and misleading is not well taken where the objection is not pointed out, and it does not appear from a reading of.the instruction objected to wherein such instruction is misleading or what constitutes the argument claimed.
    7. Intoxicating liquors, § 251

      —when instruction that jury must' not consider propriety of law not prejudicially erroneous. In an action by a widow to recover for injury to her means of support by the death of her husband, which death was the result of personal injuries sustained by deceased while intoxicated as a result of drinking liquor sold to him by defendant, a saloon keeper, an instruction that it is not for the jury in assessing damages to inquire into the propriety of the law in force in relation to the sale of intoxicating liquors, held not prejudicially erroneous although of doubtful propriety, the instruction not relating to exemplary damages, and the jury being expressly instructed to assess damages at the amount in which the evidence showed plaintiff had been injured in her means of support as a result of such death.

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

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

   Mr. Justice McBride

delivered the opinion of the court.

8. Instructions, § 104 —when instruction as to amount of recovery not prejudicially erroneous. An instruction that if the jury find for plaintiff the damages assessed must be limited to the amount of the ad damnum is not prejudicially erroneous as not properly limiting the recovery, where the instructions as to damages properly define the elements-on which plaintiff’s damages are to be assessed, and where it appears that the verdict is for an amount less than half the amount of the ad damnum, it thereby appearing that the jury were not misled by the instruction complained of.

9. Intoxicating liquors, § 249 —when instruction as to cause of death not erroneous. In an action by a widow to recover for injuries to her means of support by the death of her husband, such death being the result of personal injuries sustained by the deceased while intoxicated as a consequence of drinking liquor sold to him by defendant, a saloon keeper, an instruction is not subject to criticism where the word “contributed” is used instead of “materially assisted or contributed,” in relation to the connection between the death sought to be recovered for and the intoxication produced by drinking the liquor sold to deceased by defendant, it not being denied that such intoxication was produced solely by such liquor, and the question of the contribution of defendant’s wrongful act in causing such death being therefore not involved.

10. Intoxicating liquors, § 251 —when instruction properly limits damages to right of support. In an action by a widow to recover for injury to her means of support by the death of her husband, an instruction objected to as not limiting plaintiff’s damages to injury to her right of support, examined and held properly to limit such damages to the amount in which plaintiff was injured in her right of support.

11. Intoxicating liquors, § 251 —when refusal of instruction that loss of support of children not element of damages not reversible error. In an action by a widow to recover for injury to her right of support by the death of her husband, it is not reversible error to refuse an instruction that loss of support of plaintiff’s children was not an element of the damages to be assessed in this action, although such an instruction might properly have been given.

12. Appeal and error, § 1406 —when verdict will not be disturbed on ground of excessiveness. In an action by a wife to recover for injury to her right of support as a result of the death of her husband, the question of the amount at which plaintiff’s damages is to be assessed is a matter for the determination of the jury, and the amount at which such damages were assessed by the verdict will not be interfered with where it does not appear that the jury in assessing damages acted from prejudice, sympathy or other improper motive.

13. Intoxicating liquors, § 245 —when verdict in favor of widow for loss of support not excessive. In an action by a widow to recover for injury to her means of support by the death of her husband, held that a verdict for plaintiff for $4,500 should not be disturbed on the ground that the amount of damages assessed was excessive, where it appeared that deceased was a young and healthy man in the prime of life, and situated so as to give his family a comfortable living and properly to care for, maintain and educate his children.