author: Mr. Justice Dove

text:
    Lelia J. Wilson and George F. Wilson, Administrators of the Estate of Frank Wilson, Deceased, Appellants, v. Henry W. Sand, Appellee.
    Gen. No. 8,840.
    Opinion filed January 10, 1935.
    Arthur DeBoo, of Atkinson, and Connelly, Walker, Searle & Hubbard, of Bock Island, for appellants; Franklin P. Searle, of counsel.
    Francis C. King, of East Moline, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Appellants are the administrators of the estate of Frank Wilson, deceased, who died intestate on May 28, 1923. On January 26, 1924, the administrators filed in the county court an inventory, which described the premises designated in this record as Farm No. 1, consisting of approximately 300 acres of land. The inventory also described another 300 acres of land, upon which the deceased and his wife lived at the time of his death, which is designated in this record as Farm No. 2. This' land was all subject to various mortgages and the inventory so stated. The personal estate which was inventoried was the crops growing on these farms, together with a note of $2,115.11, which was described as. desperate, the maker thereof having been adjudicated a bankrupt.

On February 11,1924, the administrators filed in the county court their petition to sell real estate to pay debts. By this petition it appeared that the claims theretofore allowed against the estate amounted to $6,196.89, and that other just claims would be presented and allowed to the amount of $10,000 in addition to the expenses of administration; that personal property to the amount of $1,002.06 had come into their hands, which had been disbursed and that the personal estate of decedent was insufficient by $16,220.10 to pay the claims. The petition, after describing the real estate sought to be sold, then recited that Farm No. 1 was incumbered by a mortgage executed by deceased and his wife to the Northwestern Mutual Life Insurance Company on August 9, 1918, to secure the payment of $17,000; that there was also a second or junior lien thereon, executed by the deceased and. his wife to Dora C. Seyller and Bertha M. Bollenbach on August 13, 1918, to secure the payment of two notes aggregating $7,000; that said premises were also incumbered by a third mortgage, dated September 30, 1921, and executed by the deceased and his wife to Henry W. Sand, appellee herein, to secure the payment of a note for $6,000. Prior to the time this mortgage was executed, but after the execution and recording of the second mortgage to secure the payment of $7,000, a number of judgments were rendered in favor of various parties and against Wilson by the circuit court of Henry county, aggregating more than $15,000, , and after the Sand mortgage was executed and filed for record, other creditors of Wilson obtained judgments against him aggregating $10,000.

It further appeared from the petition that the Northwestern Mutual Life Insurance Company also held a mortgage on Farm No. 2, executed by the deceased and his wife on April 9, 1918, to secure the payment of $17,000, which was a first lien on this farm. This insurance company also held a second mortgage on this farm given to secure the payment of $5,000, said note and mortgage being dated September 9, 1920. On February 2, 1921, Wilson and his wife executed a mortgage covering 70 acres of this Farm No. 2 to secure the payment of a note for $2,700, which they had executed to the Farmers State Bank of Atkinson, appellee herein. These three mortgages were all executed and recorded prior to the time any judgments had been rendered against Wilson.

The petition made all mortgagees, judgment creditors, heirs and holders of the various incumbrances parties defendant and prayed for an order directing the administrators to sell these farms free and clear of all liens and incumbrances of any kind, such liens, however, to attach to the proceeds of the sale in the order of their respective priorities; that the widow’s dower and homestead estate be ascertained, assigned and set off to her and that the balance of the proceeds be applied toward the payment of the other debts and obligations of decedent. The widow assented in writing to the sale of her dower and homestead interest in the farms and elected to look to the proceeds of the sale for the money value of her dower and homestead interests.

Service was had or appearances entered by all defendants, and the Farmers State Bank and Henry W. Sand each /filed separate answers and the Northwestern Mutual Life Insurance Company defaulted. On February 12, 1925, a decree was entered, which found the liens, both judgment and mortgage, as set forth in the petition and directed the sale of the land free and clear and disincumbered of the mortgage and judgment liens and of the dower interest and estate of homestead of the widow and provided that the liens of the several creditors should attach to the proceeds derived from the sale of the premises according to their respective priorities. Pursuant to this decree, a sale was properly advertised and had. At the sale, Henry W. Sand purchased Farm Ho. 1 for $33,780 and Charles W. Vandersniclc purchased Farm Ho. 2, paying $5,600 for the 70 acres upon which the Farmers State Bank had a third mortgage, and paying $25,107.71 for the balance of the land. This sale was duly approved by the court, and on April 25, 1929, the administrator's filed a report of their acts and doings as administrators up to that date. Sand and the Farmers State Bank of Atkinson filed objections thereto, and upon the hearing in the county court, some of these objections were sustained by the court and others overruled. Except as to the disbursement for their attorney fees amounting to $2,000, the report of the administrators was approved and from an order directing them to recast their report and eliminate that item, appeals were prosecuted to the circuit court by the administrators. Because Farm Ho. 1 brought 52.4 per cent of the total purchase price of all the land and Farm Ho. 2 brought 47.6 per cent of the total purchase price, the administrators in their report asked to be credited with the payment of $1,048 attorney fees out of the fund received from the sale of Farm Ho. 1 and $952 as attorney fees out of the proceeds received from the sale of Farm Ho. 2. These two items aggregate $2,000. From that portion of the order of the county court which found that the administrators were authorized to take credit upon their report for the cost of an abstract of title to the premises sold, the amount paid the auctioneers to make the sale, the premiums on the surety bond given by the administrators in connection with the sale of this real estate to pay debts, and the commissions of $1,934.57 to themselves as administrators, the Farmers State Bank also appealed to the circuit court.

Upon the hearing in the circuit court, that court, upon the appeal of the administrators, ordered the administrators to restate their account, and take no credit for any attorney fees until after the mortgage and judgment liens of Henry W. Sand are paid in full and from that order the administrators have appealed to this court, and that case is General No. 8,840. The circuit court upon the appeal of the administrators also ordered the administrators to restate their account and take no credit for any attorney fees until after the mortgage lien of the Farmers State Bank is paid in full, and from that order the administrators have appealed to this court, and that case is General No. 8,841. The circuit court also, upon the appeal of the Farmers State Bank, ordered the administrators to restate their account and take no credit for administrator fees until after the mortgage lien of the Farmers State Bank is paid in full. From that order the administrators have also appealed to this court and that case is General No. 8,842. Cases No. 8,841 and No. 8,842 have been consolidated with No. 8,840, for the purpose of the hearing in this court.

. The question presented for determination upon these records is whether appellants, as administrators, out of money which came into their hands from the proceeds of ihe sale of decedent’s land, can retain a part thereof as commissions to themselves and in addition expend for attorney fees any part thereof when to do so would prevent appellees, as mortgage and judgment creditors, from being paid in full.

Counsel for appellants in their argument state that this question has not been passed upon in this State by either the Appellate or Supreme Court, and they rely upon cases from other jurisdictions, especially Klimper v. Klimper, 12 Ohio App. 332, and those federal authorities which hold that in proceedings in bankruptcy, where the trustee sells the bankrupt estate free of liens, that then court costs, trustees ’ commissions and attorney fees are first deductible, even though to do so will render the balance insufficient to pay the lienors in full. In re Williams’ Estate, 156 Fed. 934; In re Torchia, 185 Fed. 576. Counsel further insist that inasmuch as the equity of the deceased in his real estate was of uncertain value, there was a chance that the land might sell for more than the liens thereon, and it therefore became the duty of appellants, as administrators, to endeavor to obtain such excess, if any, for the general unsecured creditors of their intestate. In this connection counsel call our attention to the fact that the mortgages were'all in default and the mortgagees were made parties to the proceeding to sell; that they made no objection to the sale or to any of the provisions of the decree of sale or to the decree approving the report of the sale, but that now, since it is ascertained that the proceeds of the sales, after payment of the costs of sale and the amounts due the first and second lienholders are insufficient to pay in full the sums due appellees upon their third mortgages, come in and object to the administrators’ report upon the ground that they are entitled to have their liens satisfied, even though to do so deprives appellants from retaining any of the proceeds for their services, and prohibits them from paying, out of the proceeds of said sales, any fees to their attorneys for the services which were necessarily rendered in bringing about the sales.

Bayless v. People, 56 Ill. App. 55, was an action of debt upon the official bond of an administrator. In that case it appeared that during the course of the administration of the estate of Martha A.' Baker, her administrator, Francis M. Bayless, filed his petition in the county court to sell real estate of the deceased in order to pay the debts and claims against his estate. The real estate sought to be sold was incumbered by a mortgage, and the mortgagees were made parties to the proceedings. The decree found the mortgage to be a valid lien, and the amount due thereon to be $178 and directed the premises be sold disincumbered of the mortgage and ordered the administrator to first pay out of the proceeds of the sale the said amount so found due the mortgagees, together with interest thereon from the date of the decree, then to pay certain taxes and to bring the balance into court for distribution as thereafter ordered. Pursuant to this decree the premises were sold by the administrator for $525 and so reported to the court. Thereafter the administrator filed his final report showing a payment of $100 to the mortgagee, Dick, who had acquired, the interest of the other mortgagee, and the balance of the proceeds of the sale were retained as commissions by the administrator and paid out by him for the costs of administration. This final report was approved by the court and the administrator discharged and subsequently suit was instituted upon the administrators ’ bond. The court held that the order discharging the administrator was inoperative as against the lien creditor, inasmuch as the final report of the administrator only disclosed the payment to the lien creditor of $100, while his report of sale disclosed that he had received from the sale more than sufficient moneys to pay the entire amount due the lien creditor. In that case it was urged that the proceeds of the sale other than the $100 paid the lien creditor were only applied toward the payment of costs; that the proceeding was in effect the foreclosure of the mortgage and that the lien creditor could not expect to have his mortgage foreclosed without having the costs paid out of the proceeds of the sale of the mortgaged premises and that the question of costs was a matter of equitable consideration. In disposing of that contention, the court said that the proceeding was not in fact a proceeding by the mortgage holder to foreclose his mortgage. “He did not” continues the opinion, “come into the court of his own motion for any purpose. He was brought in to show his claim, which was found to be a specific and first lien upon the premises the administrator sought leave to sell. There was no dispute about its amount or character. The property was more than sufficient to pay it. The order of the court was to pay it in full, with interest, without diminution or deduction, and pay on other accounts only the surplus remaining thereafter. The other claims, which the administrator, in disregard of that order, diminished it to pay, were not confined to the costs of the proceedings for the sale, but included taxes, which were not to be paid until the mortgage debt was paid in full, court costs, aside from those incurred in connection with the sale, attorney’s fees, and his own commissions and expenses — commissions" presumably on the diminished amount he paid the mortgage creditor. His payment of them out of moneys in his hands of right and by adjudication belonging to the creditor, and consequent failure to pay him, in disobedience of the express order of the court, was a wrong done by him to such creditor, which the court could not legally or equitably make right by a subsequent order, merely approving his report of it.” It is true that in the Bayless case the decree specifically directed the distribution of the proceeds of sale while in the instant case the decree made no direction as to distribution, but expressly provided that the several liens should attach to the proceeds of the sale, according to their respective priorities, directed the administrators to file a report thereof and provided that 15 per cent of the amount bid should be paid in cash on the day of sale and the balance upon the confirmation of their report of sale. This report of sale was duly made and a decree entered confirming the same, but there was no provision therein which directed any distribution, and it was not until the final report of the administrators was filed on April 25,1929, that there was anything of record to indicate how the administrators had distributed the proceeds derived from the sale of this real estate and it was to this report that objections were filed, which for the first time challenged the manner of distribution which the administrators had adopted. This final report discloses that a portion of the funds derived from the sale of this real estate and upon which the several liens of appellees had attached, according to their respective priorities, as provided by the original decree of sale, was retained by appellants for their services as administrators and disbursed by them to their attorneys for services rendered by them in connection with said sale. In our opinion the retention of this portion of the funds derived from said-sale was just as violative of the provisions of the original decree as if the original decree had expressly provided for distribution as did the decree in the Bayless case. By the provision in the decree in the instant case, the liens of appellees were simply transferred from the land to the proceeds derived from the sale thereof, and now to subject those proceeds to the payment of administrators’ fees and attorney fees would be not to use the money of the deceased to pay the costs of administering his estate, but would be using for that purpose the money which rightfully and by all the principles of fair dealing, belongs to appellees, and which the provisions of the decree of sale recognized and sought to protect.

In Klimper v. Klimper, 12 Ohio App. 332, it appeared that the mortgagee joined with the administrator in proceedings to sell the real estate of the deceased to pay debts, and the court stressed the fact that the property was purchased by some one other than the mortgagee, and held that it was not inequitable to charge the proceeds of the sale with an allowance to the administrator for his services and the services of his attorney. In the case of In re Williams’ Estate, 156 Fed. 934, it appeared that the real estate of the bankrupt was covered by liens and the amount realized from its sale was less than the amount of the liens. The lien creditor filed his claim as a secured creditor and requested that the property covered by his lien be sold by the bankruptcy court. In its opinion, the court reaffirmed a previous holding to the effect that the title to incumbered property upon the owner being adjudicated a bankrupt passes to the trustee in bankruptcy and held that by coming into the bankruptcy court, the lienholder came into an appropriate place and into a court amply able to enforce and protect his rights, that if the lienholder went into another court to enforce his lien, the proceeds derived from the sale of the property upon which he had a lien would be subject to the payment of appropriate costs and so in the enforcement of such lien in a court of bankruptcy, the proceeds of the property upon which such a lien exists is properly chargeable with the costs of such court appropriate to such enforcement.

These authorities are distinguishable from the instant case, as in the Klimper case, supra, the lienholder joined with the administrator and requested the order with which he was subsequently dissatisfied, and in the Williams case, supra, the lienholder requested that the property be sold by the bankruptcy court. Not so here, as appellees filed no claims against this estate. Their mortgages, as well as the several judgments, were valid liens against the land inventoried by appellants. The administrators took the property of the deceased subject to these valid liens and incumbrances. Upon the death of appellants’ intestate, appellants, as administrators, acquired no title to his real estate, — in fact the decedent had only an equity of redemption, Waughop v. Bartlett, 165 Ill. 124, and had they sold his real estate subject to the lien incumbrances thereon, no funds would have come into their hands for administration purposes. The administrators were in no way misled because their petition sets forth the value of the farms at $65,000, and recites that the aggregate amount of mortgage incumbrances thereon is $58,000, besides judgment liens aggregating $30,000. Their report of sale discloses that they sold these farms dis-incumbered of all liens for $64,485.71. The administrators realized therefore that, as their counsel so well express it, “there was nothing more than a chance that there would come into their hands any sum whatever for the benefit of the general creditors of the estate by the sale of decedent’s interest in this real estate.” Nor are we able to say that appellees were so benefited by the services of the administrators and their attorneys that they should not now be heard to complain. The contract of appellees with the deceased was that the amount due them would be paid when due. At the time of the death of appellants’ intestate, the amount due had not been paid. If the sale had not been made by appellants perhaps appellees would have been compelled to foreclose or otherwise enforce their liens, but this contingency never arose because of the action of the administrators in filing their petition to sell. Appellees were made parties, employed counsel who saw that their rights were protected and safeguarded by the decree, which, when the sale was had, transferred appellee’s lien to the proceeds which came into the hands of the administrators.

Marx v. State Bank of Chicago, 294 Ill. 568, was a proceeding instituted by Frederick Z. Marx to partition certain real estate which, at the time of his mother’s death, belonged to her and upon which his mother had placed two incumbrances in the form of trust deeds to the State Bank of Chicago to secure the payment of $11,300.

The bill set forth the interest of the parties and made the other tenants in common and the State Bank of Chicago parties defendant. The bank answered, setting up its liens upon which there was due $12,423.14 at the time the decree of partition was rendered. The premises not being susceptible of division, a decree of sale was entered, ordering the sale of the premises free from the liens of the bank, and directing the master to hold the proceeds of the sale until the further direction of the court. The property was sold for $12,500 and the report of sale by the master was approved. The costs aggregated $1,051.77 of which amount $625 was for solicitor fees. The chancellor decreed that the master pay all the costs including the solicitor fees out of the proceeds of the sale, and the balance be paid to the bank to be credited upon the amount due it. In its amended answer, the bank averred a default in the payment of interest, and by reason thereof it elected to declare the principal sums due and sought to have the proceeds of a sale, in case there was one, charged with the payment of its indebtedness. In holding that all of the items which went to make up the total cost of $1,051.77, with the exception of $625 solicitor’s fee, should be paid out of the proceeds of the sale and the balance applied to the bank’s indebtedness, the court said: “If the partition suit had not been instituted, the bank would have foreclosed its mortgage, the costs of which Avould have come out of the amount the property sold for at the foreclosure sale. By answering and proving up the amount due it, the bank’s liens were ordered paid out of the proceeds of the sale, and it was relieved of the necessity of foreclosure. We repeat, the amount due the bank was increased $250 for its solicitor’s fee under the terms of the trust deeds and notes. Under these conditions, the costs should be apportioned so that at least a part of them should come out of the proceeds of the sale. ’ ’ What the court held in this case was that under the Partition Act a mortgagee of the premises sought to be partitioned was a necessary party within the meaning of section 40 of the Partition Act, Cahill’s St. ch. 106, If 40, and under that act it was equitable that some portion of the costs be paid from the sale, even though the proceeds are less than the amount due the mortgagee but the deficit should not be further increased by the payment of solicitor fees.

In the instant case, all that the petition of the administrators asked was that the balance of the proceeds derived from the sale of the land of the deceased after the payment of the liens of appellees, as well as the other lienholders, be applied toward the payment of the other debts and obligations of decedent. The decree was in accordance with the prayer of the petition, and transferred appellee’s liens from the land to the proceeds derived from the sale thereof. The trial court held that it was proper that the cost of procuring abstracts of title, sale bills, publication notices of sale, service of auctioneers, sheriff’s fees for service, premium upon the administrators ’ bond, and the amount expended in redeeming from tax sales should all be paid out of the proceeds of the sale. In our opinion this was proper and equitable, even though the proceeds derived from the sale are less than the amount due appellees, but in accordance with what was said in the Marx case, supra, this deficit should not be further increased by the retention of commissions to appellants for their services or by the payment by them of attorney fees. The orders appealed from are therefore affirmed.

Orders affirmed.


source: Caselaw Access Project

author: Mr. Justice Hueeman

license: Public Domain

text:
    Agnes Franko, Administratrix of the Estate of Martin Virant, Deceased, Appellee, v. James J. Crosby, Appellant.
    Gen. No. 8,838.

      Opinion filed January 17, 1935.
    Clarence W. Heyl, of Peoria, and Jesse Black, Jr., of Pekin, for appellant.
    Michel & Wesner, of Peoria, for appellee.
   Mr. Justice Hueeman

delivered the opinion of the court.

This was an action brought by appellee under the Injuries Act, Cahill’s St. ch. 70, ¶ 1 et seq., to recover damages for the next of kin of Martin Yirant because of his alleged wrongful death. The appellant was the sheriff of Tazewell county. Trial resulted in a verdict in favor of appellee for $5,000, and this appeal is prosecuted from the judgment of the court upon the verdict.

The deceased, Martin Yirant, lived with appellee, his sister, and her husband Frank Franko, together with his brother, Frank Yirant. These parties had lived together in the home of Frank Franko for a number of years prior to the death of the deceased. On August 30, 1932, the deceased was arrested in connection with the murder of one Louis Nelan. He was taken to the sheriff’s office in the courthouse in the City of Pekin, in Tazewell county, where he was questioned and where the officers attempted to take Ms fingerprints. He refused to submit to having his fingerprints taken and. ivas thereafter taken to the county jail. On the following day, he was again taken to the sheriff’s office and questioned by the State’s attorney. He again refused to submit to having his fingerprints taken. He was returned to jail. On the evening of August 31, he was taken to the ICuecks Funeral Home in Pekin, to attend the inquest over the body of the said Louis rielan. Following this, he was returned to jail. On the following day, September 1, at about 2 or 2:30 o ’clock in the afternoon, the sheriff (appellant herein), pursuant to instructions from the State’s attorney, directed deputy sheriff Skinner to go to the jail and release Martin Virant. The appellee and Mr. Michels, one of her attorneys herein, were at the sheriff’s office and accompanied the deputy to the jail. They remained in the jail yard while the deputy entered the jail for the purpose of releasing the prisoner.

The evidence discloses that the deputy, upon entering the cell of Martin Virant, found him suspended by his neck from the top bars of his cell, by means of his leather belt. The coroner was immediately called and arrived ivithin a very few minutes. The deceased ivas taken doAvn by the coroner and efforts were made to resuscitate him. These efforts Avere unsuccessful.

It is the contention of appellee that the deceased came to his death as the result of external violence inflicted upon him by the appellant, his deputies and agents. Appellee contends that deputy sheriff Skinner, upon going to the cell of deceased, found him dead from such alleged violence, took the deceased’s belt, placed it about his neck in the above manner, and suspended him thereby from the top bars of his cell. It is the contention of appellant that the deceased came to his death by his own act in hanging himself with his belt in the above manner.

The evidence of the coroner discloses that the body of the deceased Avas warm at the time he arrived, and that he applied artificial respiration until an artificial breather could be secured, at which time he used this in an effort to resuscitate the deceased. The evidence of the coroner was to the effect that the deceased did not come to his death by hanging, and that there were no physical manifestations present which accompany death in this manner. The coroner’s evidence further disclosed that the deceased had a discolored and swollen right ear of recent injury; that the discolored area extended back of the ear and down the neck to the shoulder, and was about three inches in width; that there was an abrasion on the back of the skull; that both eyes were discolored; that there were extensive injuries to both sides above the hip bone; that on the right side was an area of discoloration seven and a half inches by four inches; that on the left side was a like injury but not so extensive; that both elbows were injured and discolored; that the shin bones disclosed a discolored area about three inches below the knees; and that there was a discolored area on the chest. An autopsy was performed in the presence of the coroner by two other doctors. A second autopsy was performed by Dr. McNally of Chicago, an assistant professor of medicine in Rush Medical College. He had been connected with the coroner’s office of Cook county for 17 years, during which time he performed many post mortems and examined the organs of 11,000 people. The results of the post mortems, as reflected by the testimony of the doctors performing same, corroborates the evidence of the coroner. It was found that on the right side of the head and to the back thereof, was a wound which had caused an extensive hemorrhage in the cranial tissue back of the right ear. It also appeared that the muscles and tissue of the back and sides of the deceased were hemorrhagic due to external violence. The evidence of the coroner and these physicians was to the effect that the above described injuries were received by the deceased before his death, and that his death was due to shock and hemorrhage resulting from such injuries.

It is not maintained by appellee that the appellant in person committed any of the acts of violence charged, but it is urged that the same were committed hy certain of his deputies and particularly by deputy Skinner. There is nothing in the evidence to disclose how or when the deceased received the injuries alleged to have caused, his death. It does appear however that he did not have such injuries upon his person at the time of his arrest. The sheriff’s deputies who had the deceased in charge at the various times mentioned deny the above acts of violence, and deny that any acts of violence were committed by them upon the deceased. It does not appear that the sheriff personally had anything to do with the deceased, except to examine him at his office in the courthouse. It is claimed by appellant that the deceased sustained the injuries by attempting to hang himself in his cell with strips cut from his mattress; that these strips were not strong enough and broke, letting the deceased fall to the iron floor of his cell, thus sustaining the bruises and injuries. The evidence discloses that strips had been cut from the covering of the mattress and tied to the bars at the top of the cell. The ends thereof remained hanging from the bars where they were tied. A prisoner directly below the cell of the deceased testified that on the night previous to the finding of the deceased by the deputy he heard several noises as though the said Martin Virant was falling down upon the floor. The floor separating these cells, was immediately above this witness and close enough that when sleeping in the upper bunk, his knees, if raised, would touch the floor. The evidence discloses that the deceased on the evening of August 31, when being taken from his cell for the purpose of attending the inquest, made an effort to escape and in running down the stairway toward the door, met officer Hickey, a policeman from Peoria, standing at the door waiting to see some of the officers. Officer Rickey saw no marks on the man at that time. It is claimed by appellant that none of the deputies was at the cell of the deceased at any other times than those above mentioned, and the evidence fails to disclose any other visits to the cell of deceased by any of such officers.

It is urged by appellant that the evidence does not support the verdict and that the trial court erred in refusing to instruct the jury to return a verdict for appellant. The questions involved in the trial of this case were questions of fact. It is for the jury to weigh and determine the evidence. They see and hear the witnesses and have a superior advantage over a reviewing court in determining the credibility of the witnesses and the weight that should be given their testimony. Verdicts of juries should not be disturbed when there is evidence to support the same, in the absence of other errors intervening.

Appellant also objects to the instruction given by the court on behalf of appellee. This instruction was in relation to the element of damages. We do not discover any error in the instruction. It appears to be designed after a similar instruction approved by this court in the case of Mugaviro v. Chicago, B. & Q. Ry. Co., 239 Ill. App. 544, at page 549.

It is urged by appellant that the verdict is excessive; that the records of the coal mining companies where the deceased, his brother Frank Virant, and the husband of appellee worked disclosed that the brother of deceased and appellee’s husband each made more money than the deceased. The evidence shows this to be a fact, yet appellee testifies that the deceased had lived in her home for several years and that he gave her from $10 to $15 each week. It is argued by appellant that the husband of appellee and the next of kin having a greater income than the deceased, and also having a sufficient income upon which to live, any assistance from the deceased was not necessary; and therefore no verdict should be sustained in this case for more than nominal damages, the next of kin being collateral. The rule that the presumption of substantial damages results to the parents of a minor child, or to the immediate next of kin, by the wrongful death of a parent, does not extend to the collateral next of kin such as brothers and sisters. As to them, no presumption exists that they suffered more than nominal damages. However, this presumption exists only in the absence of proof to the contrary. There was evidence in this case by the sister (appellee herein), and by the brother, Frank Virant, that the deceased contributed a portion of his earnings to them for their support. Damages to the collateral kindred, other than nominal damages, are only such actual damages as are proved. The fact that the next of kin of the deceased possessed their own earning power is not controlling in the presence of positive evidence that the deceased did regularly contribute to their support. In cases of this kind, no rule can be laid down concerning frugality and economy. If the fact be that the decedent’s brother and sister depended in part upon his contributions, and that he made same, then under such circumstances they are entitled to recover more than nominal damages.

Appellant urges the reversal of this case because of misconduct of counsel for appellee during the trial thereof. Judicial proceedings should be conducted in such manner as is consistent with due respect for the orderly administration of law and justice.

Occasional unguarded remarks are not to be unexpected in prolonged and heated trials. However, the persistent over-indulgence in such may demand a reversal when otherwise the same might not have been deemed necessary. When arguing within the limits of admitted or controverted facts, counsel should enjoy the greatest latitude consistent with decorum and a reasonable ambition to succeed by honorable means, but they should keep within the evidence and when attacking a witness, should not use language that is not justified by the record. Uncalled-for personal abuse by counsel of witnesses, whether during the course of examination or in argument before the jury, when calculated to inflame the passions of the jury, and materially prejudice the case adversely to the rights of the complaining party, will in proper cases afford grounds for reversal. Libby, McNeill & Libby v. Cook, 123 Ill. App. 574, 579.

In the trial of a case, attorneys should not persist in disregarding the admonitions of the trial judge. Neither should they indulge in remarks of material character that are so grossly unwarranted and improper as to be clearly injurious to the opposite party. Attorneys should not persist in arguing and in making statements to the jury about facts not in evidence or such as have been rejected as incompetent. Argument of counsel should be for the purpose of assisting the jury to fairly and impartially arrive at the facts submitted to them for their decision. It is improper for counsel in their argument to indulge in personal abuse and inflammatory remarks calculated to arouse the passions and prejudices of the jury against the defendant, and which throw no light upon the questions for decision. People v. Bimbo, 314 Ill. 449, 454; People v. Chrfrikas, 295 Ill. 222, 227-229.

The record in this case contains evidence of such persistent efforts to appeal to the passions and prejudices of the jury as cannot be reconciled with any other intent than to arouse the passions of the jury and inflame their minds against the defendant. This conduct continued throug*hout the trial and argument. Efforts of attorneys to obtain verdicts by such means cannot be sanctioned. Under such conditions, unless it can be seen that it did not result in injury to the defendant, the judgment should be reversed. Wabash R. Co. v. Billings, 212 Ill. 37, 41. Intemperate language, vituperation, and the expression of the personal opinion of attorneys, outside of the record, have no place in the argument of a case to the jury.

Appellee’s attorneys argue that since the verdict is for but $5,000, it does not indicate it ivas the result of passion and prejudice, and thus refutes any presumption that their conduct and remarks aroused or inflamed the minds of the jury against the defendant. We have no way of determining this fact. It would be mere conjecture for us to attempt to do so. Had the attorneys not indulged in such remarks and conduct, it might then be urged that the verdict standing alone did not indicate that it was the result of passion and prejudice; but here, the verdict ivas returned after a trial lasting from the 21st to the 29th day of May, where the bitterest feeling was manifest throughout, and a course of conduct employed calculated to inflame the minds of the jury and arouse their passions and prejudices against the defendant. Under such circumstances, we are unable to say that the verdict ivas not affected thereby.

Improper argument may be effective in arousing prejudice and passion on the part of the jury notwithstanding the fact that objections thereto are sustained by the trial court. Chicago Union Traction Co. v. Lauth, 216 Ill. 176, 184. The remarks of counsel for appellee in this case and the course of trial were not such as to assist the jury fairly and impartially to arrive at the facts submitted to them for their decision. The argument that the amount of the verdict does not indicate improper motives on the part of the jury does not serve to obviate the objections urged by appellant. There is no way to determine what the jury would have done under different circumstances than those which existed upon this trial.

After a long and careful examination of the record, Ave are convinced that a deliberate attempt Avas made by appellee’s attorneys to inflame the minds of the jury against the defendant. To quote or discuss, the remarks made by counsel for appellee during the trial and to which appellant objects, would occupy too much space and serve no good purpose.

Under conditions such as the foregoing, this court is of the opinion it becomes necessary to reverse and remand this case, unless it can be seen from the record, that the defendant received a fair trial. Such does not appear.

The law provides but one mode of trial for both the innocent and the guilty. The judgment of the circuit court of Peoria county is reversed, and this cause remanded for a new trial.

Reversed and remanded.


text:
    Rose A. Clark, Appellee, v. Public Service Company of Northern Illinois, Appellant.
    Gen. No. 8,733.

      Opinion filed September 18, 1934.
    Rehearing denied February 5, 1935.
    Gardner, Foote, Morrow & Merrick, of Chicago, for appellant; Walter M. Fowler, of Chicago, of counsel.
    C. W. Beed and Bussell W. Keeney, both of Naperville, and Gale C. Marquess, of Glen Ellyn, for appellee; Bussell. W. Keeney, Gale C. Marquess and Gordon Moffett, of Lombard, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

This suit was originally instituted by George W.. Clark and Rose A. Clark against the Public Service Company of Northern Illinois to recover damages which they alleged they sustained as a result of their property being injured and destroyed by a fire on July 30, 1931. Before the trial, George W. Clark was dismissed out of the suit as a plaintiff and the declaration appropriately amended. As amended the declaration consisted of five counts. In the first count it was alleged that on July 30, 1931, the defendant was a public utility engaged in the business of furnishing to the inhabitants of DuPage county and other communities, electric light and power and for that purpose controlled certain lines of wires and meters; that the plaintiff owned certain real estate outside the corporate limits of any city or village, but in the vicinity of Wheaton; that said premises were improved by a modern dwelling, trees, plants and shrubbery of great value; that a certain well of water was also upon said premises, the ivater being pumped therefrom by means of a pump operated by electricity supplied through its wires and meters by the defendant for a reward ; that the meter was located in the building of the plaintiff; that plaintiff relied solely upon its pump and water supply to protect her premises from loss by fire, all of which defendant knew or by the exercise of reasonable care could have known; that the premises caught fire on the date aforesaid without the fault of the plaintiff; that the water, pump and electric current were then being used or could have been used for the purpose of extinguishing said fire; that it therefore became the duty of defendant to keep said meters and wires in good condition so as to supply electric power for the pump and not to cause the same to be removed or disconnected so as to cause the pump to become inoperative; that after the premises had become ignited, but at a time when the fire could have been extinguished without loss to the plaintiff by the use of water furnished by the pump, the defendant negligently, carelessly and improperly removed and disconnected the meters from the premises, thereby stopping the flow of electricity and cutting off the supply of water and causing the building, trees, plants, and shrubbery on the premises to be burned and destroyed. In the second and fifth counts the specific negligence alleged was that defendant negligently, carelessly and improperly disconnected and severed the electric wires. The third count charge wilfulness and wantonness. The fourth count charged that the duty of the defendant was to use the highest degree of care consistent with the practical operation of its business and to keep its wires and meters in good condition and charged the same negligence as alleged in the first count. To this declaration a plea of the general issue was filed and a trial had. At the conclusion of the evidence offered on behalf of the plaintiff, an instructed verdict in favor of the defendant was returned as to the third count, which charged wilfulness and wantonness. As to the other counts of the declaration, defendant’s motions for an instructed verdict were denied and the trial proceeded, resulting in a verdict in favor of the plaintiff for $8,600, upon which the court, after overruling a motion for a new trial, rendered judgment and the record is before us for review by appeal.

It is insisted by appellant first, that the evidence failed to disclose that it was guilty of any negligence or wrongful act or that it violated any. duty it owed appellee, and that therefore the trial court should have directed, a verdict in its favor; second, that appellee failed to establish by the evidence, with reasonable certainty, the amount of her loss and therefore only nominal damages could be recovered; third, that it was "error to overrule appellant’s motion for a new trial inasmuch as the verdict is manifestly against the weight of the evidence, that erroneous instructions, particularly as to the measure of damages, were given, that incompetent evidence was admitted over its objection and prejudicial remarks were made by counsel for appellee in the presence of the jury.

Inasmuch as the judgment must be reversed and the cause remanded for another trial, we deem it inadvisable to express an opinion as to the weight of the evidence. There was evidence tending to prove that appellee was the owner of the premises in question, being two acres of land located a mile and a half from the city limits of Wheaton. The property was improved by a modern 11-room, two-story, frame dwelling house and the grounds were planted with trees, shrubbery and landscaped. On July 30, 1931, the property was occupied by George W. Clark and family, which consisted of his wife and two daughters. George W. Clark is the son of appellee, who at this time was living in Chicago. Appellant furnished the occupants of the dwelling with the necessary electric current, not only to light the house, but to drive an electric one-horse-power motor. A Cataract fresh water air pressure system furnished the occupants of the house with necessary Avater supplied from a well 136 feet deep, located about 50 feet from the house, the normal Avater level in the well being 66 feet from the surface of the ground, and a pipe went down in the well about 70 feet. The system Avas automatic and consisted in part of this electric motor, an air compressor and storage tank, all located in the basement of the dwelling. The motor compressed the air into the tank.' The pump Avas operated by air pressure carried from the storage tank by an air line leading from the air storage tank to the top of the pump. On the air line leading from the air storage tank were two gauges, the one nearest the air storage tank showing the pressure on the tank and the other gauge showing the well pressure on the pump. In the well house and between these two gauges was a reducing valve, which was a check on the whole system. These gauges operated automatically and when the gauge showed 40 lbs. pressure in the tank, the motor would start automatically and supply more air into the tank. There was an outside faucet or sill cock on the east foundation wall suitable to attach a garden hose and there was an inch and a quarter pipe leading out of the foundation, with a cap on it suitable to attach a hose of that dimension, and there was a garden hose in the pump house and an inch and a quarter web or fabric hose hanging up on a reel in the well house on the day of the fire.

About four o’clock in the afternoon of July 30, 1931, George W. Clark left the home to go to Wheaton, and no one was there when he left. Shortly thereafter a fire from some unknown origin broke out in the southeast upper corner of the dwelling. The Wheaton fire alarm sounded and George W. Clark arrived at his home not long thereafter.

Upon their way home from work, two of appellant’s employees discovered the fire and immediately upon their arrival began to help remove the furniture from the house. Later they went across the road and cut the service wires at the pole and then went inside the basement and removed the meter. Neither of these employees had any knowledge of the existence of the water system in the dwelling and the reason they cut the wires was to keep from injuring the firemen and others who were about the premises and to protect appellant’s equipment from the danger of a short circuit, which would destroy the equipment and service to other customers of appellant.

The Wheaton Fire Department arrived at the fire before George W. Clark came home. The fire had gained considerable headway. The chemical truck, consisting of four 40-gallon tanks, was used, and when these tanks were exhausted, water was brought from the house and cistern, but it was impossible to check the flames and the house was destroyed. Upon his return home, which occurred while water was being carried from the cistern to the chemical truck, George Clark went to the rear of the house, then to the well house, found that there was no pressure indicated, observed that some of the furniture had been removed from the house, then went to the basement and found that the meter had been removed and on going outside observed that the electric wires across the street had been cut. When he arrived, the south wall of the building was in flames, but according to his testimony there was no smoke in the basement and prior to the time he left that day the water system was working and in good order.

It further appeared that the plaintiff owned the premises when the meter .was installed and connected with appellant’s wires, but she subsequently deeded the property to her son, who installed the water system and electric motor and later her son conveyed the property to her in 1928.

In support of its first contention, appellant insists that George W. Clark occupied the premises and its service was rendered to him for residential light; that its bills so disclosed and as it had no contractual or other relation with appellee, it owed no duty to appellee, and appellee therefore had no legal right to require appellant to furnish electric power to run the electric motor while the fire was in progress.

In support of this contention, appellant relies upon the cases of Peck v. Sterling Water Co., 118 Ill. App. 533; German Alliance Ins. Co. v. Home Water Supply Co., 226 U. S. 220, and other cases of like character. The Peck case was an action brought by a citizen of Sterling to recover damages from the water company for alleged negligence in failing to perform certain duties imposed upon it, under the provisions of a contract entered into by the City of Sterling and the Sterling Water Company. In this contract the water company agreed to install hydrants and maintain a certain water pressure in consideration of a certain hydrant rental per year. It was held in that case that an individual citizen could not maintain an action against the water company for a breach of such a contract. The reasons the court assigned were that the contract was entered into between the city and the water company and that there was no privity between the citizen suing and the defendant, and as a citizen cannot hold a city liable for loss by reason of its failure to furnish adequate water supply, neither can a citizen hold the agent liable with whom the city has contracted to perform this governmental function.

In German Alliance Ins. Co. v. Home Water Supply Co., supra, which counsel for appellant states is directly in point, it appeared that the water company had agreed to supply a city and its inhabitants with water suitable for fire, sanitary and domestic purposes, and the breach of duty of which the plaintiff complained was that the defendant did not lay water pipes pursuant to the provisions of an ordinance and as a result thereof there was no hydrant near plaintiff’s property and plaintiff’s property was destroyed because he was deprived, of water. It further appeared that the city had agreed to pay an annual rental of $40 for each hydrant and to levy a tax sufficient to pay the same. In holding the plaintiff could not recover, the court stated that the suit was for a breach of contract, that a third person could not sue for a breach thereof, inasmuch as he was a stranger thereto unless he is in privity with the parties and given a direct interest therein.

What these cases hold is that there is no privity of contract between a citizen of a city and a water company which was furnishing a city and the inhabitants thereof water by virtue of the provisions of an ordinance or franchise adopted by the city and under which a water company was operating. In the instant case it is true that the contract to furnish electric current was made with the occupant of the premises and not appellee, but appellee is not basing her action upon any breach of contract, but for an alleged tort. The charge of negligence which appellee makes is that appellant carelessly, negligently and improperly cut its electric wires with a resultant damage’ to appellee. We think the foregoing cases are distinguishable from the instant case and we are inclined to agree with the opinion in the case of Mullen v. Otter Tail Power Co., 130 Minn. 386, 153 N. W. 746, and hold that appellant, even though there was no contractual relation between it and appellee, owed appellee the duty not to cut off the supply of electric current going to her premises arbitrarily. The Mullen case, supra, was an action to recover from a public utility the value of a stock of merchandise and fixtures destroyed by fire, the alleged liability of the defendant being that the defendant, at the time of the fire, negligently cut the service wires that supplied electric light to plaintiff’s store and the plaintiff, by reason of the darkness which ensued, was unable to remove and save his stock or fixtures. It appeared in that case that the defendant owned and operated an electric light plant in the City of Morris, Minnesota, furnishing electric light current to the plaintiff and other consumers under a contract with them. The plaintiff occupied a portion of a building which he used as a clothing and furnishing store, another portion of which was used as a restaurant. On the morning of February 20, 1930, the premises were destroyed by fire and the greater portion of the plaintiff’s stock of goods and fixtures was consumed. It appeared from the evidence that the fire started in the restaurant and that soon after the fire alarm sounded, an electrician in the employ of the defendant cut the electric wires which supplied plaintiff’s store with current some 40 minutes before there was any necessity of so doing and with knowledge that by so doing he might prevent the plaintiff from saving his property; it further appeared from the evidence that had the electric light been burning in the store, all of the stock of goods and fixtures could have been removed to a place of safety in 20 minutes. In its opinion the Supreme Court of Minnesota said: “The contract between the parties is not important except for the bearing it has on the question of what the legal duty of defendant was. It is not a breach of contract that plaintiff complains of, but a tort, actionable negligence on the part of a servant of defendant in the course of the performance of his duties. We are unable to find that the state of facts has ever been presented to any court for its decision as to whether it constitutes actionable negligence. It is admitted that ordinances have been enacted in some cities requiring power companies to cut their electric wires in case of a fire, but there was no such ordinance in the city of Morris. We hold, however, that in casen of fire, a power company supplying electricity to consumers has the right to cut its wires in case it is reasonably necessary to do so in order to save loss or damage to its property. But this does not answer the present question. While the company should not be compelled to take nice chances as to the particular moment of time when it is justified in severing the wires supplying current to a burning building, there would certainly be no excuse for such action in a case where it was apparent that there was no danger for hours of the .fire reaching a point where the wiresj would be affected, and where it was apparent that the act might cause-loss to the consumer. It cannot be said that defendant owed no^gaTMuty to plaintiff. It could not cut off his supply of current arbitrarily and escape liability for consequent damages. We think it must be held that the legal duty of defendant was not to deprive plaintiff of needed light unless and until the protection of its own interests, or safety to the public, made it reasonably necessary to do so. It would be liable for a breach of this duty that was the proximate cause of damages to plaintiff. And we are unable to hold on the evidence before us that the trial court was not justified in finding that there was this [^breach of duty, as before pointed out. Finneman cut the wires from 40 to 50 minutes before there was any necessity for doing so, either from the standpoint of protecting the property of defendant or that of protecting people on the street from electrical shocks. That it was an error of judgment defendant concedes. To the knowledge of Finneman, the fire was then confined to the restaurant, there was no wind, and it was not making rapid progress toward the store. He knew that plaintiff had a stock of goods that could be saved if he had light. His act was unnecessary, and the trial court’s finding that it was a negligent act must be sustained. Was the negligence of defendant in cutting the wires the proximate cause of plaintiff’s loss? We are unable to draw a sound distinction between this case and that of Erickson v. Great Northern Ry. Co., 117 Minn. 348, 135 N. W. 1129, 39 L. R. A. (N. S.) 237, Ann. Cas. 1913 D 763, where it was held that the act of cutting a hose being used to extinguish the fire was the proximate cause of the burning of the hotel, the evidence being sufficient to sustain a finding that the fire would have been extinguished but for the act. In the present case the evidence is uncontradicted that plaintiff’s stock and fixtures could and would have been saved had defendant postponed for half an hour the severing of the service wires. It is impossible to distinguish between the two cases. We hold that the evidence sustains the finding of the trial court that the negligent act of cutting the wires was the proximate cause of plaintiff’s loss, unless it can be said that plaintiff could have averted the loss by the exercise of reasonable diligence after discovering that the wires had been severed.’’

In the instant case we are inclined to follow this authority in the absence of any controlling authority in our own State, and hold that while appellant had a perfect right to cut its service wires whenever it was reasonably necessary for it to do so in order to protect its own interests or provide safety to the public, it had no right to do so arbitrarily and if it did so, it can be held liable for consequent damages. Whether it acted arbitrarily is a question of fact. Appellant insists that the evidence discloses that its servants only cut the wires after they had been at the fire 20 or 30 minutes and then did so only in order to protect the firemen and others from the danger of coming in contact with its live wires as well as to protect its own property by virtue of a short circuit and to protect the property of its other customers from loss. Appellee insists that notwithstanding the direct testimony in the record to the effect that the servants of appellant cut the wires and removed the meter 20 or 30 minutes after their arrival, yet the facts and circumstances in evidence substantiate the contention of appellee that the wires were cut and the meter removed immediately upon the arrival of the servants of appellant.

Wesley Hout and Ira Singletary were the employees of appellant who were working on appellant’s transmission line a mile and a half from appellee’s premises on the day the fire took place. They both testified that they quit work at 4:30 p. m., and started home in a truck, and while they were some distance away from appellee’s premises their attention was directed to the fire and at that time they observed great volumes of black smoke coming therefrom. When they arrived at the Clark premises, the truck was driven into the yard. The fire truck from Wheaton had not arrived and they both assisted in removing the furniture, which included a piano, from the front room to the porch and from the porch over to a vacant lot. According to Hout’s testimony, between 20 and 30 minutes elapsed after their arrival before the service wire was cut by Singletary at the pole on the opposite side of the Geneva road from the Clark premises. According to Singletary, he did not cut the wire until after he had been on the premises for 25 minutes.

In this connection appellee particularly calls our attention to the testimony of Alice Purnell. She testified on behalf of appellee to the effect that she was at her home located two or two and one-half miles distant from the Clark premises on the afternoon of the fire; that her aunt lived directly across the road from the Clark place and that her aunt notified her family by phone of the fire, and she accompanied her mother, who drove the car, and her father to her aunt’s'home, and after parking their car in her aunt’s yard walked over to the northeast corner of the Clark place and there remained 100 or 150 feet from the house until it was completely destroyed. At the time she arrived, there were somewhere between 45 and 60 people already there and the fire truck from Wheaton had already arrived. Ten minutes after her arrival she observed Mr. Singletary arrive in his truck, and noticed him walk from the front to the rear of the house, observed him on a ladder on the house and on a pole at the north side of the lawn and while she saw others engaged in carrying out furniture, she did not see Singletary assist. She observed Singletary back his truck out and at that time the fire had not progressed very far.

We have considered all the evidence, not only upon the question as to the time when appellant’s employee cut the wire, but also upon the question as to whether the water system could have been used and a portion of the property saved, even though the wires had not been cut and also that offered in support of appellant’s contention that its current was furnished for .lighting purposes only and that none of its employees had any knowledge that appellee’s water system had any connection with appellant’s electric current or that it was in any sense essential thereto. The undisputed evidence is that the employees of appellant who cut the wires did not know of the water system and George Clark, appellee’s son, testified that he never consulted with any of appellant’s servants with reference thereto, but did speak to appellant’s service man at one time at West Chicago with reference to the motor. It appears, however, from the evidence that this motor was in the basement near the air compressor and the pressure tank, at the time appellant’s service lines were connected to appellee’s premises and that appellee owned the premises at that time and appellant’s meter was on the north wall of the basement. This is substantially all the evidence in this record to sustain the averment of the declaration that appellant knew or by the exercise of reasonable care and vigilance could have known of the use appellee was making of appellant’s current; still, it is a well known fact that electrical current is used for many, many purposes other than lighting and its use in connection with appellee’s water system is not unusual or extraordinary. Appellant undertook to furnish appellee’s premises with electric current. The occupant of the premises was free to use that current for any proper purpose and it was a proper purpose to use it to drive.a motor. In all the cases involving the liability of a manufacturer to third persons, there exists no contract relation between the parties and liability is grounded upon the negligence of the manufacturer. For instance, in McPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, it appeared that the plaintiff was injured by reason of a defective wheel of the automobile in which he was driving. This automobile was purchased by the plaintiff from a retail dealer, but the plaintiff sued the manufacturer and based his recovery upon the ground that the manufacturer was guilty of negligence in failing to inspect the car properly and a recovery was allowed on the ground that the law requires a person to act with reasonable care if under all the circumstances his conduct is reasonably calculated to cause injury. It is therefore, in our opinion, not a question upon this record of whether any contractual relation existed between the parties hereto, but the inquiry is, Did appellee have any interest in those premises at that time which was under legal protection, and if so, did or did not appellant act reasonably with respect to appellee’s premises in severing the service wires at the time they were severed? These are questions of fact for the jury, provided there is any evidence in the record from which the jury would be warranted in finding that the servants of appellant acted unreasonably or arbitrarily or carelessly or negligently or improperly. There must also be, as frequently expressed by the authorities, a reasonably clear, physical, causal connection between the negligence and the injury claimed as a result thereof, so that it can be seen that, but for the negligence, the injury would probably have not resulted, or as otherwise sometimes expressed, the wrongful act or negligence must have been an appreciable or substantial factor in producing the damage. This, too, is a question of fact and while the evidence upon these several questions of fact may not be all that would be desired, still in our opinion the evidence warranted the court in submitting the case to the jury and the trial court did not err in denying appellant’s motions for an instructed verdict.

Robert B. Faxon, a nurseryman and landscape architect, testified that he had examined the trees upon the Clark premises since the fire and found that nine trees were damaged and had no ornamental or other value; that he had an opinion as- to the cause of the damage or injury, and in his opinion the damage was caused by fire through the branches, and that the fair, usual cost of replacing these trees, i. e., delivering them, replanting them and putting them in place would aggregate $3,639, itemized as follows, viz.: one hack-berry $127; the 7%-inch American elm $115; the five-inch American elm $56; the 5%-inch horse chestnut $67; the 5-inch Norway maple $63; the Silver maple $711; the two Black Walnut trees $1,800, or $900 each; and the Poplar $700.

Jake Hahn, a member of the Wheaton Volunteer Fire Department for 17 years, was at his place of business one-half block from the fire house when he heard the alarm and immediately thereafter reported at the station and arrived at the fire between 10 and 15 minutes after the alarm sounded, saw the premises on fire before he had arrived, and when he got there found the southeast corner of the house ablaze, applied the chemical first from the ground, then went inside and up the stairs to the second floor where he found that one of the rooms was full of fire. Counsel for appellant conceded at the trial that this witness was a competent, experienced fireman, and in answer to a question whether in his opinion ‘ ‘ at any time that you were at the fire was the fire under control!” answered: “That is a pretty deep question to answer. I wouldn’t want to answer no, nor I would not want to answer it yes for this reason. Sometimes a man misjudges a thing like that. It might have been under control by some party. He would think so and by another man he would not think so.” The witness later was permitted to state that he had an opinion as to whether the fire was under control and that in his opinion it was. According to this witness it took between 30 and 40 minutes from the time he arrived until the roof of the dwelling- fell in and in about one hour from the time he arrived, the dwelling was completely consumed.

Lee Farnsworth testified that he was in the real estate business and was experienced in the construction of buildings and dwellings, and over appellant’s objection he was permitted to testify that a frame dwelling house well kept up would depreciate about two per cent a year; that for six years the depreciation would be a little better than six per cent and that the life of an ordinary frame dwelling was 50 years.

It is insisted by appellant that the trial court erroneously permitted all of this testimony to go to the jury. In our opinion the testimony of Faxon to the effect that the trees which he had examined on appellee’s premises and which he found to have no ornamental or other value had been damaged by fire through their branches was competent. Furthermore, the jury were permitted by agreement of counsel to view the premises and if appellant’s objection that the jury were as fully competent as this witness to pass upon this question, then no harm resulted from permitting this experienced and qualified nurseryman to express his opinion. He was shown to have the specialized knowledge essential before he was permitted to express his opinion, and we think the trial court ruled properly in admitting this testimony.

Whether the fire was or was not under control at any time after the service wires were cut was one of the ultimate decisive questions the jury were called to pass upon. If the fire was under control and the jury found with appellee upon her other contentions then there was nothing for the jury to do but assess appellee’s damages. On the other hand if they found all of the other contentions in favor of appellee and yet believed that the fire was beyond control, no matter if the department and helpers would have had the benefit of appellee’s water supply, still there could have been no recovery. The previous answer of Hahn discloses that his answer when made was little more than conjecture upon his part, and we are of the opinion that to permit this witness to express his opinion upon this question invaded the province of the jury. In the instant case appellee contended that she was damaged because of appellant’s negligence. Appellant contends that she was not. Where there is a conflict as to whether the party suing was injured as a result of defendant’s negligence it is not competent foi; a witness, even though testifying as an expert, to give his opinion on the fact which the jury is to determine. Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71.

During the trial appellant stipulated, not waiving however, but insisting upon its objections as to relevancy and materiality, that the cost of rebuilding the dwelling, fixtures and equipment would have been $15,000 on the day of the fire. While appellee was testifying she was asked how much she paid for the premises when she acquired them in 1923, and before the court could rule upon an objection, replied $13,000. The court afterward sustained the objection but as no motion was made to exclude the answer, appellant is in no position to complain,.

Instruction No. 7, given at the request of appellee, is as follows, viz.:

“The court instructs the jury that if you find from the evidence that a portion of plaintiff’s dwelling house and trees growing on her premises adjacent thereto were destroyed by fire, due to the wrongful act of the defendant in cutting the electric service wires serving plaintiff’s premises, and the removal of the meter therefrom, the proper measure of damages (if you find from the evidence the plaintiff is entitled to damages) to be employed, is the fair and reasonable value of restoring that portion of the dwelling house on plaintiff’s premises to the condition it was in on July 30, 1931, and prior to the fire, which would not have been destroyed had it not been for any act or acts of the defendant in cutting of the electrical service wires serving plaintiff’s premises, and the removal of the meter therefrom, and the fair and reasonable value of such trees in place on said premises on July 30, 1931, which would not have been destroyed had it not been for the act or acts of the defendant in cutting of the electric service wires serving plaintiff’s premises and the removal of the meter therefrom.”

This instruction should not have been given. It told the jury that the act of appellant in cutting the service wires was wrongful. It states the measure of damages to be the restoration of appellee’s dwelling and trees to the condition they were in on July 30, 1931, prior to the fire. We are of the opinion the proper measure of damages in the instant case is the difference in market value of the property before and after the fire. Peck v. Chicago Rys. Co., 270 Ill. 34; Swain v. Mehl, 200 Ill. App. 496; Jones v. Sanitary District, 252 Ill. 591; Champlin v. Baltimore & O. S. R. Co., 140 Ill. App. 94; Shrigley v. Chicago & E. I. Ry. Co., 158 Ill. App. 473; 17 C. J. 880-891.

In 17 C. J. 880, it is said: “The measure of damages for injury to real property is not invariable. Ordinarily, the difference between the fair value of the property immediately before and immediately after the injury will he taken as the measure, particularly where the injury is permanent. Where, however, the thing which is destroyed or injured, although a part of the realty, has a distinct value without reference to the realty on which it stands, or from which it grows, the recovery is for the value or depreciation of value of the thing destroyed or injured, .and not for the difference in the value of the land before and after the destruction. Under some circumstances, the proper measure of damages may be the cost of restoring the property to its original condition, as where the injury is susceptible of remedy at a moderate expense and the cost of restoration "may he shown with reasonable certainty.” In support of this last statement, the author cites Donk Bros. Coal & Coke Co. v. Novero, 135 Ill. App. 633; Donk Bros. Coal & Coke Co. v. Slata, 133 Ill. App. 280; Swanson v. Nelson, 127 Ill. App. 144. We have examined these cases. The Blata case, supra, was an action to recover damages sustained by reason of defendant mining coal from underneath plaintiff’s premises, thereby removing the surface support which caused the buildings on plaintiff’s premises to settle, crack and twist. “As a general rule,” said the court in its opinion, “the measure of damages in actions for injuries to real property is the difference in market value before and after the injury to the premises. To this rule there are exceptions, and especially where the injuries are of the kind and character alleged in this case, it has been held that the cost of repair or of restoring the premises to their original condition, is the true and better rule to apply.” The Novero case, supra, is likewise a ease to recover damages occasioned by subsidence and the same measure of damages was applied as in the Slata case, supra. In the Swanson case, supra, the plaintiff sought to recover damages on account of defendant inserting the ends of four 2 x 10 joists into her brick wall, upon which rested a bay window and which the plaintiff claimed caused her wall to settle and her building depreciated in value. In holding that evidence of the cost of disconnecting the bay window and repairing the wall so that it would be in as good condition as it was before the injury complained of was admissible, the court said that the cost of restoration or repair is to be considered the measure of damages in cases of injuries to real property. This “makes the damages conform to the general theory of the law that they are to be indemnity or compensation. But it frequently happens that an injury or trespass to real property may be in a certain sense irreparable. The condition of things before the trespass was committed or the injury done cannot be restored at all, or can be restored only at a very great and disproportionate expense. In either of these cases another measure of damages is properly adopted by the courts, namely, the difference in market value of the property before and after the act complained of. The result of this reasonable view which has been taken by almost all courts of last resort where they have had occasion to pass on the matter has been to establish a rule that makes the measure of damages, in cases of injury to real estate, the cost of restoration or the difference in market value, as one or the other is the less amount.”

The case of FitzSimons & Connell Co. v. Braun & Fitts, 199 Ill. 390, was an action brought against a public contractor-who, in excavating for a tunnel, used dynamite, which resulted in injury to building’s of the plaintiff and the court there held that it was proper to advise the jury to adopt as the measure of damages the cost of repairing the building so that it would be •in as good condition as it was before it was damaged by the explosion. In its opinion the court said: “We think the cost of repairing the building and restoring it to its proper condition was the true measure of the damages. It was so held in Hide v. Thornborough, 61 Eng. C. L. 250, and in Shreves v. Stokes, 8 B. Mon. 453, in which cases the injuries were occasioned by excavations made on adjoining lots to those on which the buildings injured were situate.”

Recovery in these cases is not based upon negligence, but upon a trespass and the courts adopted the view that the buildings destroyed had a value apart from the real estate upon which they stand.

In Jones v. Sanitary District, supra, it was held that the correct measure of damages for injuries or damage to real estate is the difference in value of the land before the injury and its value afterward. Where a meadow is destroyed or injured by fire, the correct measure of damages is the difference between the value of the premises before and after the fire. Champlin v. Baltimore & O. S. R. Co., supra. In 17 C. J. 891, it is said that the measure of damages for the destruction of ornamental and shade trees is the difference in the value of the land before and after the injury and the same rule applies to orchards. Shrigley v. Chicago & E. I. Ry. Co., supra.

In the instant case, the court having admitted evidence that it would cost $3,639 to replace the nine shade and ornamental trees which were injured by the fire, the jury under the instructions were warranted, having found appellant guilty of the negligence charged, in awarding this sum to appellee for the damage done by the destruction of the nine trees alone. The result of the fire to appellee’s premises, improved as they were by a modern dwelling, shade and ornamental trees, was that nothing remained of the dwelling except the foundation and nine of the nearby trees were killed, the damage was permanent and in our opinion there is no reason for applying any rule as to the admeasurement of damages except the general, universal rule applied in similar cases, which is the difference between the fair value of the two-acre tract immediately before and immediately after the fire. This being the proper measure of damages, it was error not to sustain appellant’s objections to the testimony of Faxon as to the cost of replacing the nine trees about which he testified and also the testimony of Farnsworth as to the per cent of depreciation of a frame dwelling each year.

Under the authority of Molloy v. Chicago Rapid Transit Co., 335 Ill. 164, appellee’s instruction No. 2 should have been refused. Appellee’s instruction No. 5 was an abstract proposition and should not have been given. Instruction No. 6 is not accurately drawn and is subject to the criticism directed against it in that it assumes that severing the wires rendered the water system inoperative. This was a controverted point and it is improper for an instruction to assume as a fact a controversial matter.

It is next insisted that the evidence did not show with reasonable certainty the amount of the loss appellee sustained and therefore the trial court erred in refusing appellant’s request that an instructed verdict for nominal damages be returned. In support of this contention, appellant insists that, conceding it arbitrarily cut the wires at a time when, under the evidence, it was wrongful for it to do so, still, the fire had been in progress for some time and that the north and west and southeast sides, the roof and a portion of the inside of the dwelling were on fire and therefore the evidence is so indefinite and uncertain as to what part of the dwelling, trees and shrubbery could have been saved but for the alleged negligence of appellant that the jury could not estimate with reasonable certainty the amount of appellee’s damages. What we have already said disposes of this contention and if the case is again tried, it will be on a different theory as to the measure of damages. The theory upon which the case was tried was that the proper measure of damages was the cost of replacing the building and trees in the condition they were in before the fire, and this was sought to be established by showing the amount it would cost to rebuild the dwelling at the time of the fire, together with the estimated depreciation since it was practically rebuilt in 1928, together with proof as to the actual cost of replacing the several trees that were killed or injured. As a general proposition, a plaintiff is entitled to recover all damages which naturally follow the commission of a tort, but in this case, as hereinbefore stated, the dwelling, other than the foundation, was completely destroyed; the ornamental and shade trees for which compensation was sought were rendered of no value by the fire and while damages cannot be based upon conjectural and uncertain estimates, still in a proper case where substantial damages have been suffered, they will not be denied simply because they cannot be determined with absolute certainty.

During the cross-examination of Mr. Hout, an employee of appellant, he stated that he removed the meter from the basement and further testified that he was required to report to appellant every hour as to Avhat he did. Counsel for appellee then asked him: “Is that the time you Avere telling them if they did not give you five dollars for the meter you Avould let it burn!” Counsel for appellant thereupon objected, stated to the court that such a question was improper and moved to withdraw a juror and continue the case. The court denied the motion and the examination proceeded. The asking of this question was highly improper, prejudicial and without justification. Counsel will undoubtedly be governed more by the proprieties of his profession upon another trial of this cause.

For the reasons indicated, the judgment of the circuit court is reversed and the .cause remanded.

Reversed and remanded.