author: Mr. Justice Eldredge

text:
    City of Springfield and Springfield Sanitary District, Appellees, v. North Fork Outlet Drainage District, Appellant. W. O. Matthew et al., Defendants.
    Gen. No. 8,127.

      Opinion filed January 25, 1928.
    Dobbins & Dobbins and Leslie J. Taylor, for appellant.
    W. E. Sampson, A. D. Stevens, Boy M. Seeley and Clayton J. Barber, for appellees.
   Mr. Justice Eldredge

delivered the opinion of the court.

This is an appeal from an order entered in the circuit court of Sangamon county granting an interlocutory or temporary injunction pendente lite, restraining appellant from further proceeding in the work of straightening the course of the North Fork of the Sangamon Biver. The averments in the original bill, in so far as they are material to be considered on this appeal, are in substance as follows: that the complainant, City of Springfield, has a population of about 70,000 inhabitants, embraces an area of 11 square miles and is situated about 2 miles south of the Sangamon Biver, which flows in a general westerly direction; that it owns and operates a system of municipal waterworks which includes pumping and filtration plants located on the south bank of said river; that for more than 40 years said city, as an adjunct to its waterworks system, has maintained a dam therein so as to impound the water in the channel thereof and maintain the water level above the natural summer stage thereof at a height of 10 feet at the site of said waterworks and at a height of 6 feet at the bridge over the same on highway No. 10, near the village of Biverton; that by means of said waterworks system the water supply of said city is obtained by filtration from said river and the underlying strata in the basin thereof.

That complainant, the Springfield Sanitary District, embraces within its boundaries 36 square miles of territory, including all of that within said City of Springfield, and was organized for the purpose of constructing and maintaining a system of intercepting sewers and treatment plant to collect, purify and dispose of the sewage of said district and to save and preserve from contamination the water supply thereof with regulatory powers to that end for a distance of 15 miles from the source of such water supply; that said district is now engaged in and within six months will have constructed a system of intercepting sewers and other public works for the purpose of disposing of the sewage of said city and territory so as to prevent contamination of said river into which all the streams in the vicinity of said City and said Sanitary District naturally discharge and to prevent any sewage from said Sanitary District from entering the water of said river above said dam.

That the Sanitary District of Decatur, defendant, includes within its territory the corporate limits of the city of Decatur, which has a population of about 55,000 inhabitants, and also outlying farm lands adjacent thereto in the town of Decatur; that the city of Decatur is situated about 40 miles east of the City of Springfield near to and upon said Sangamon Diver, which flows thence in a general westerly direction towards and north of the City of Springfield; that the Sanitary District of Decatur was organized for the purpose of constructing and maintaining plants for the purification of the sewage of said district and protect from contamination the water supply of the inhabitants thereof; that although said Sanitary District of Decatur has constructed a system of intercepting sewers and other works for the collection, treatment and disposal of the sewage of said district, yet said system and works are greatly inadequate to properly treat and purify said sewage; that the sewage of said city and Sanitary District of Decatur, including much offensive industrial waste, is now being carried and discharged, in its unpurified state, into the Sangamon River to such an extent that the stench therefrom in summer can be smelled for a distance of more than a mile from the point of discharge.

That the course of said Sangamon River between the cities of Decatur and Springfield is very winding and tortuous, 'with a channel of irregular width and depth, having a total length following the sinuosities of the channel between said Riverton bridge and the west line of the Sanitary District of Decatur, of about 50 miles, said channel, in many places, being more than 10 feet deeper than further down stream, and having therein many pools and natural dams as well as drifts of logs and other obstructions tending to retard and accumulate the waters and make the flowage thereof more nearly uniform throughout the seasons of the year, so that the flow of the waters is very much retarded, thereby affording such time and opportunity for dilution, settling, oxidation, evaporation and other natural purification of the sewage and other impurities contained therein before the waters of said stream reach the impounding dam and waterworks system of the City of Springfield, as to not injuriously affect its water supply.

That the defendant, North Fork Outlet Drainage District, as originally organized, included the alluvial lands along the Sangamon River extending from the Avest boundary line of the Sanitary District of Decatur westerly for a distance of about 24 miles to a point one mile below the Roby bridge and by subsequent proceedings the western boundary was extended doAvn said river a further distance of about 11 miles to said bridge over said highway No. 10 near Riverton, which point is approximately 5 miles by channel from said waterworks of the City of Springfield; that said Outlet Drainage District has completed the construction of a ditch extending from a point in said river known as the Niantic bridge westerly to a point about one mile below said Eoby bridge and that by means thereof the course of the water in said river between said points was reduced from 22.2 miles to a distance of 15.80 miles and the fall greatly increased to a uniform fall of 2 feet to the mile and the water in said stream, including all sewage and impurities therein, was thereby caused to flow at a greatly increased rate down a well-defined and straightened channel at a speed of from 6 to 8 miles per hour; that said Outlet Drainage District is now engaged iii constructing a further ditch to connect with and to extend the aforesaid ditch upstream from the said Niantic bridge to the western boundary of said Sanitary District of Decatur and to the point of the outlet of the Sanitary District of Decatur into the Sangamon Eiver, which said channel, when completed, will shorten the course of the waters of said river from 10 miles to 8.55 miles between said points; that said channel will have a bottom width of 40 feet, a uniform grade of 2 feet to the mile and will accelerate the speed of the current, including the sewage and impurities therein, to a speed of from 6 to 8 miles per hour and thereby prevent the purification of said sewage by oxidation, etc., and will cause said sewage and impurities to enter into and pollute the impounding dam and waterworks of the City of Springfield ; that said Outlet Drainage District has made and filed plans for and is now further intending to construct a new channel along said Sangamon Eiver from a point near the Eoby bridge thence downstream to said Eiverton bridge of a bottom width of 60 feet, an average depth of between 11 and 12 feet, and a uniform grade of 2 feet to the mile and shorten the distance between said points from 16.1 to 10.95 miles and has ordered an assessment to be spread against the adjacent lands supposed to be benefited thereby; that if such last-mentioned ditch should be so constructed and the course of the waters of said river between the two points last named so reduced and shortened and the flow thereof so increased and accelerated, the sewage and impurities contained in such stream will be carried with greatly increased velocity and with little or no natural purification to said impounding dam and waterworks system of the City of Springfield.

That in its natural state the course of the Sangamon River between the cities of Decatur and Springfield, being very winding, tortuous, irregular and obstructed as aforesaid, the said sewage and impurities discharged into said river by the city and Sanitary District of Decatur, oxidize, evaporate, settle and become purified by natural means before reaching the impounding dam of the City of Springfield and do not injuriously affect its water supply, but by the construction of the new channel, as aforesaid, the course of the flow of the river between said cities will be shortened from 49.2 miles to 35.3 miles, the fall thereof increased to 2 feet per mile and the rate of flow increased to a speed of 6 to 8 miles per hour, and, by reason thereof, the impurities and sewage aforesaid will have little or no opportunity to become purified by natural means as the same would occur with said stream in its former and natural state, but will be carried to the impounding dam and waterworks óf the City of Springfield, thereby polluting the water supply of said city and rendering it unfit for use by the inhabitants thereof.

Thereafter an unverified amendment to the original bill was filed in which it is alleged that the Sangamon River is a navigable river and that the Outlet Drainage District, before commencing any of the work of shortening or straightening the course of the Sangamon River, had not submitted any plans to or obtained the approval thereof by the Department of Public Works and Buildings, as required by “An Act creating a rivers and lakes commission for the State of Illinois and defining the duties and powers thereof,” in force July 1,1911, Cahill’s St. ch. 19, ft 59 et seq.

The issues raised by the joint and several answer of the Outlet Drainage District and its commissioners are, in substance, as follows: that said Drainage District had expended "approximately $300,000 on said work and that the landowners in said district were being assessed to pay therefor, and that the bonds of said district had been sold and made a lien upon the lands therein, all of which the complainants well knew and by reason of their delay in objecting to the work done by said district, if they had any right to object thereto, they are now estopped from raising any objection thereto; they deny that the condition of said stream, prior to the construction of the work, aided in any way in the natural purification of the sewage from the. city of Decatur and that the City of Springfield is not entitled to use the lands of the landowners in said drainage district for the purpose of purifying the sewage from the city of Decatur or impurities thrown therein by other persons; that the construction of the work already done and to be done by said Drainage District of Decatur instead of injuring the water of the river at or near the dam of complainants has, by means of the rapid circulation thereof, aeration, and the exposing of the same to sunlight, aided in purifying the same and in increasing the oxygen contents thereof; that any impurities thrown into said river by others have no right in said stream and defendants are, in nowise, responsible therefor; that all the work is being done in the matter of improving a natural stream and will take no water out of its natural course, but the same is being carried in its natural course to the lands of the complainants; that defendants may legally improve and increase the flow of the water in said natural stream so long as they in nowise pollute the same and so long as they bring no water into said stream out of its natural course and carry the water from off the lands of said Drainage District of Decatur in the course in which the same left the lands of said district in the course of nature, even though the flow of the waters are by artificial means increased; that defendants have done nothing and allowed nothing to, in any way, pollute the waters of said stream or which they have not a right and duty to do under the law; that any rights that the complainants may have to prevent pollution of the river lie wholly against persons who are polluting the same and not against said defendants; and deny that the wrongful acts of others can deprive said defendants, or the owners of the land in said drainage district, of their legal rights to improve the drainage of their said lands and the outlet therefor.

The motion for a temporary injunction was heard upon the bill, answers and affidavits. The North Fork Outlet Drainage District only appeals from the decree granting the injunction.

It seems expedient to first consider the proposition advanced by the amendment to the bill, because, if it is well founded, a determination of the other issues raised will be unnecessary. The contention presented by the amendment is based upon section 29a of the Rivers and Lakes Commission Act, chap. 19, SmithHurd Rev. St., which provides as follows: “Before any drainage district now or hereafter organized in this State shall undertake any work which will increase the flow of water to be discharged into any of the streams of this State or which will involve any change in the natural course of any stream, work therein, or improvement thereof, such district or districts shall submit the proposed plans for such work to the Department of Public Works and Buildings for approval.” Cahill’s St. ch. 19, 90.

By section 18 of the same act it is provided: “Wherever the terms public waters, public bodies of water, or streams and lakes are used or referred to in this Act, they shall be construed to mean all open public streams (except as to any sanitary district channel now constructed or being constructed) and lakes capable of being navigated by water craft, in whole or in part, for commercial uses and purposes, and all lakes, rivers, and streams which in their natural condition were capable of being improved and made navigable, or that are connected with or discharge their waters into navigable lakes or rivers within, or upon the borders of the State of Illinois, together with all bayous, sloughs, backwaters, and submerged lands that are open to the main channel or body of water and directly accessible thereto.” Cahill’s St. ch. 19, ¶ 76.

Section 29a has no application to any river unless it is a navigable stream or one of the public waters of the State as defined by section 18. Gottschall v. Zipple, 308 Ill. 428. The status of the Sangamon Biver in regard to its navigability has been judicially determined by the Supreme Court of. this State. In the case of Central Illinois Public Service Co. v. Vollentine, 319 Ill. 66, the court held: “The Sangamon river is a stream over which commerce cannot be carried on in the customary modes in which such commerce is conducted by water, and is therefore not a navigable stream and is not among the public waters of the State, nor can it be made navigable by mere legislation. (Hubbard v. Bell, 54 Ill. 110; People v. Economy Power & Light Co., 241 Ill. 290.) The river is therefore not under the exclusive jurisdiction of the Department of Public Works and Buildings, but for the purposes in question in this suit is under the jurisdiction of the Commerce Commission.” This court is therefore bound to take judicial notice of the fact that the Sangamon Biver is not such a stream as comes within the purview of the act mentioned. Also, the amendment to the bill was not sworn to, and it is indispensable to a right.to a temporary injunction that all the material facts alleged in the bill be properly verified by affidavit. United Romanian Meat Market & Grocery Store v. Abramson, 218 Ill. App. 577; Patterson v. Johnson, 214 Ill. 481; Jones v. Kennicott, 83 Ill. 484. Finally, the chancellor, in granting the temporary injunction, did not base his decree upon the grounds set forth in the amendment but his findings of fact, as set out therein, are as follows: “ That the alterations already made, now being made and contemplated, by the defendant said North Fork Outlet Drainage District and the defendant Fred M. Crane Company, its contractor, do and would greatly accelerate the flow of the waters of the Sangamon river between the City of Decatur, Illinois, and the impounding dam of the complainant City of Springfield, and do and would cause the water supply of the inhabitants of the complainants City and Sanitary District to be polluted to a much greater degree than does or would exist with the Sangamón river in its natural condition; and that the further shortening and alteration of the course of the waters of said Sangamon river, as contemplated by the defendant said North Fork Outlet Drainage District would cause the water supply of the inhabitants of the complainants to be further polluted, to the detri-. ment of the public health of the inhabitants of the said City of Springfield and said The Springfield Sanitary District.”

The vital and material question in the case is, has appellant the right under the drainage laws of this State, to straighten the course of the Sangamon River in the manner mentioned, if such action will result in such an increased pollution of the waters thereof as to destroy its use for domestic purposes by the servient proprietors, the Springfield Sanitary District and the City of Springfield. Appellant claims its right to do so by virtue of sections 65a and 57 of the Act of 1879 and the amendments thereto in regard to Drainage for Agricultural, Sanitary and Mining purposes. Ca-hill’s St. ch. 42, ¶¶ 65, 55. In chapter 48, Smith-Hurd Rev. St., it is provided by section 65a: “When any river or other stream or watercourse in this State constitutes the common outlet for two or more drainage districts heretofore or hereafter organized under any of the laws of this State, and also constitutes the outlet for the drainage of lands not organized into a drainage district, and when it will be a benefit to the lands included in said drainage districts and to said lands not so included but having said river or watercourse as the outlet for drainage, for agricultural or sanitary purposes, that said river, watercourse or other stream or any portion thereof constituting such common outlet be deepened, widened or otherwise improved or that the channel thereof be changed or straightened, an outlet drainage district may be organized in the manner provided in this Act for the organization of drainage districts, * * Cahill’s St. ch. 42, ¶ 65. Appellant was organized under this Act. Section 57 provides, among other things: “And to secure complete drainage of the lands within any drainage district, the commissioners are hereby vested with full power to ividen, straighten, deepen or enlarge any such watercourse, or remove driftwood or rubbish therefrom, whether such watercourse is situated in, outside of or below any drainage district.” Cahill’s St. ch. 42, ¶ 55. The word “rubbish” in its construction, is governed by the doctrine ejusdem generis and refers to such solid matter or debris as is of the same species as driftwood, that is, such as would naturally be carried or accumulated in the flow of a watercourse, and can have no reference to sewage or such things as would cause pollution placed therein by artificial means. It was held in City of Kewanee v. Otley, 204 Ill. 402: “It is the right of every owner of land over which a stream of water flows, to have it flow in its natural state and with its quality unaffected. The right to a stream of water is as sacred as a right to the soil over which it flows. It is a part of the freehold, of which the owner cannot be disseized except by due process of law, and the pollution of a stream constitutes the taking of property, which may not be done without compensation.” It follows that a servient estate has a right, as a part of its freehold, to have the water flow in a stream free from pollution and he cannot be deprived of this right by legislation. To hold that the above sections of the statute attempted to give a drainage district the right to straighten the course of a stream in such a manner as to cause it to carry sewage and pollution into its waters to such an extent as to deprive a servient proprietor of its use for reasonable and proper purposes, would be in effect to hold these sections of the statute unconstitutional. While this court is not authorized to pass upon the constitutionality of an act of the legislature, yet it has the right to construe a statute and will always give it that construction, if possible, as will uphold its constitutionality.

It will never be presumed that the legislature intended to pass an act in violation of the restrictions of the constitution and if the purposes of the act can be fully carried out by a construction thereof which will not bring it within the inhibitions of the constitution that construction will be adopted.

Nor can appellant avoid the responsibility of its acts by the fact that the Sanitary District of Decatur and the city of Decatur were responsible for placing the sewage in the river. In the case of City of Kewanee v. Otley, supra, it was further held: “The further contention of counsel for appellant, that the objectionable sewerage came from some other source than that of appellant, is also untenable. * * * Though other sources than that of the defendant city may have been responsible for the collection of this objectionable sewage, such fact furnishes no defense to the defendant here, if it in fact contributed to the nuisance complained of and participated in the pollution of the waters that caused injury to appellees.”

The cases chiefly relied upon by counsel for appellant to sustain their contention are those of Fenton & Thompson R. Co. v. Adams, 221 Ill. 201, and Brown v. McAllister, 39 Cal. 573. In the former case the natural course of the water over the dominant estate was in a southerly direction to and across the right of way of the railroad company. A ravine ran across the northeast portion of the lands through which the natural flow of the water was towards the northwest. In freshets the waters descending through this ravine toward the northwest overflowed the lands and entered the natural watercourse on the west. To obviate this the owner constructed a dam in the ravine and contemplated constructing a new ditch connecting the ravine with the natural watercourse. The railroad company filed a bill seeking to enjoin the construction of the proposed new ditch, charging that it would cast large quantities of water and debris upon the right of way of the railroad company, which, but for said proposed ditch, would be carried into the basin, where the debris would remain and where large quantities of water would evaporate and seep away and never reach the right of way of the railroad company. The court held: “Any drain that accelerates the flow of water will increase the amount of solid matter that it carries to the servient estate, and we do not think it is a good objection to the exercise of the right of a dominant proprietor to say that the increased flow will carry debris beyond the boundary - line, which would not reach there except by reason of the artificial drainage.” There was no question of the pollution of the water, by draining thereinto any noxious or unhealthful matter, involved in that case. The effect of this decision is to hold, that under the facts shown, the dominant proprietor had a right to dig the ditch in question although by so doing additional driftwood and debris would be carried upon the servient estate. There is a vast difference between the natural debris carried by flowing streams and pollution cast therein by artificial means. In the case of Brown v. McAllister, supra, the facts disclosed that in the City of San Francisco there were three adjacent lots upon a declivity. The highest lot was occupied by a number of Chinamen, the middle lot by the defendant and the lowest lot by the plaintiff; that foul and offensive water, caused by a Chinese hospital and cigar factory situated upon the highest lot, flowed across the lot of the defendant upon the premises of the plaintiff and percolated through the walls of his building thereby injuring the same. The theory of the plaintiff was that it was the duty of the defendant to prevent the passage of the offensive matter flowing from the dominant estate, across his land on to that of the plaintiff. The court there held: “But the proposition that it was ‘necessary for the defendants to prevent the passage of offensive matter flowing from the land of others across their land on to that of the plaintiff, ’ in order to escape responsibility to the plaintiff for the damage which resulted therefrom, is not tenable. The rule founded on the maxim ‘Sic utere tuo ut alienum non laedas’ has never been carried so far. If the defendant had no control over the property lying on the declivity above his lot, nor over the persons who occupied it, and if, without any fault of his, offensive water thrown upon the upper lot floived naturally across his premises on to the lot of the plaintiff, we can perceive no reason, founded in law or justice, why he should be amenable to the plaintiff for the damage which ensued. * * * But we are not to be understood as deciding that the defendant is not responsible for any damage to the plaintiff, either caused, promoted or increased by any act of his, or by any negligence on his part to provide proper drainage for carrying off offensive water or other matter from his own lot, except such as may flow across it from lots above it in the manner already indicated.” This opinion holds, inferentially, if not expressly, that the. defendant would have been liable for damage to the plaintiff if such damage had been either caused, promoted or increased by any act of his. In the case of Mississippi Mills v. Smith, 69 Miss. 299, it appears that the plaintiffs owned a tract of land through which a small stream of pure water originally ran; that on one of the branches of this stream, above them, the defendant erected a cotton and woolen mill more than 20 years before the suit was brought, which mill was located near some springs from which the branch of the stream took its origin. The defendant dug a pond about the springs, dammed up the water and with a pump forced the water from the pond into its dye house and through the closets in its mills. The water, after being so used, was returned to the stream, below the pond, and from thence flowed into the stream on the plaintiff’s land. The defendant had thus used the water for more than 20 years, but during that time the stream below the pond was small and its bed crooked and filled with large holes in which the water would, to a great degree, stagnate and deposit much of its impurity before reaching the lands of the plaintiffs; that in same parts of the defendant’s land it spread out over a field on which much of the polluting matter 'was deposited; that after this use and condition had prevailed for more than 20 years, about 5 years before the suit was brought, the defendant, for the purpose of accelerating the flow of the water and preventing the deposits in the bed of the stream on its land, or on the field, dug a ditch by which the channel of the stream on its lands was straightened, the result of which was that the befouled water was hastened to the stream on the land of the plaintiffs; that before the ditch was cut plaintiffs suffered but little inconvenience or injury because of the pollution of the water, but that since the cutting of the ditch the foul and polluted water, continuously and in large quantities, was passed into the stream, on their land, rendering its water unfit for any purpose and creating a stench throughout its course. It was held that the right s.ecured by prescription to pollute the waters of a stream must be limited by the character and extent of the right exercised during the prescriptive period and that for any increase causing material injury to riparian owners, damages might be recovered. We think the principle announced in the latter case is in conformity with the long-established law of this State. Evans v. Merriweather, 4 Ill. 492; Village of Dwight v. Hayes, 150 Ill. 273; City of Kewanee v. Otley, supra; Sutton v. Findley Cemetery Ass’n, 270 Ill. 11; Tetherington v. Donk Bros. Coal & Coke Co., 232 Ill. 522; Beidler v. Sanitary Dist. of Chicago, 211 Ill. 628.

If the acts of appellant in straightening the course of the Sangamon River contribute to causing a pollution thereof, it is no defense that the city of Decatur and the Sanitary District of Decatur contributed thereto or may be the chief offenders. Kewanee v. Otley, supra; Barrett v. Mt. Greenwood Cemetery Ass’n, 159 Ill. 385; Voss v. Chicago Sandoval Coal Co., 165 Ill. App. 565. The right of each proprietor to use a stream is subject to a like reasonable right in other riparian owners and each must submit to such reasonable use by the other so long as such use does not inflict substantial injury upon the others who have a like right. Tetherington v. Donk Bros. Coal & Coke Co., supra.

The City of Springfield is a proper complainant because a municipality may maintain a bill for injunction to restrain an injury to its public water supply, and in such an action is vested as representing the public interest, with all the rights of a riparian owner. City of Pana v. Central Washed Coal Co., 260 Ill. 111; Kenilworth Sanitarium v. Village of Kenilworth, 220 Ill. 264.

It is urged by appellant that the remedy of the City of Springfield is by bill for injunction to restrain the city of Decatur and the Decatur Drainage District from depositing the sewage of said city into the river. So long ds the sewage and pollution in its natural flow down the river does not reach the City of Springfield, the latter suffers no damage by reason thereof and has no cause for injunction against the city of Decatur or the Sanitary District of Decatur. If it should be necessary for appellant, in carrying out the purposes of its organization, to straighten and shorten the course of the Sangamon River, and if it be a fact that such further shortening of the river, as contemplated, will cause such a pollution of the waters thereof as to damage the water supply of the City of Springfield, then it is the duty of appellant to take such steps as will abate the nuisance before it proceeds with the contemplated work, so that no harm, by pollution, will result thereby to the servient proprietors. Appellant may or may not, as it sees fit, permit the waters and lands within its jurisdiction to act as a reservoir for the sewage of the city of Decatur, but it cannot rid itself of such pollution by causing the same to flow upon or through the lands of servient proprietors to the injury of the latter.

' As to the merits of the case, which can only be determined upon the final hearing, we express no opinion. Whether such straightening and shortening of the Sangamon River, as contemplated by appellant, would, in fact, carry said pollution to the impounding dam of the City of Springfield and thereby injure or ruin its water supply, is a matter to be proven largely by the testimony of experts in sanitary engineering and those versed in such matters. A temporary injunction is merely an interlocutory writ, the purpose of which is to preserve the status of the parties until the court can determine the merits of the controversy. Lambert v. Alcorn, 144 Ill. 313; Thomson & Taylor Spice Co. v. I. Lanski & Son Scrap Iron Co., 209 Ill. App. 331; Paxton v. Fabry, 200 Ill. App. 104; Hillmer Co. v. Behr, 196 Ill. App. 363. The verified bill and the affidavits filed in support of the motion tend to sustain the contention .of appellees, while the answer and affidavits filed by appellant tend to support its theory that the pollution, after the contemplated improvement should have been completed, would never reach the impounding dam and no injury could result to the water supply of the City of Springfield. Under these conditions, the chancellor did not exceed his discretion in granting the temporary injunction.

It is next contended by appellant that appellees are estopped by laches from now prosecuting its suit for an injunction. It is pointed out that they were fully aware of the fact that appellant had straightened several miles of the course of the river and had expended large sums of money in prosecuting said work, which had been paid by assessments upon the lands within the North Fork Outlet Drainage District and by its delay in objecting to said improvement, in equity, they should not now' be allowed to enjoin its completion. As we understand, from the pleadings and the proofs, up to the time the bill was filed by appellees, no material pollution of the waters at the impounding dam had taken place, but the theory of appellees is that the further shortening and straightening of the channel of the river as contemplated will cause the injury complained of. Appellees are not attempting to cause to be undone anything that has already been done, but to enjoin the doing, in the future, of things which will inure to appellees’ injury. The defense of laches has no application under these circumstances.

Appellees have assigned cross errors because of the failure of the chancellor to enjoin appellant from prosecuting its petition in the county court of Christian county seeking to recover money from the Decatur Sanitary District for furnishing it an outlet for sewage, and because of the failure to enjoin the Decatur Sanitary District from paying any money to appellant in settlement' of said claim. It is of no concern to appellees what action appellant.may take in the county court of Christian county in regard to the matters mentioned and the cross errors are overruled.

The chancellor properly granted the motion for a temporary injunction and upon a proper basis. The decree of the, circuit court is affirmed.

■Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Gerald Taylor, Administrator of the Estate of Theodore E. Taylor, Deceased, Defendant in Error, v. William W. Wheelock and William G. Bierd, Receivers of the Chicago & Alton Railroad Company, Plaintiffs in Error.
    Gen. No. 8,132.

      Opinion filed January 25, 1928.
    William L. Patton and Silas H. Strawn, for plaintiffs in error.
    W. St. J. Wines, for defendant in error.
   Mr. Justice Eldredge

delivered the opinion of the court.

Defendant in error, Gerald Taylor, administrator of the estate of Theodore E. Taylor, deceased, in an action on the case, recovered a judgment for the sum of $10,000 against William W. Wheeloek and William G. Bierd, as receivers of the Chicago & Alton Railroad Company, to reverse which this writ of error was sued out. Hereafter in this opinion the defendant in error will be designated as plaintiff and the plaintiffs in error will be designated as defendants.

The death of the deceased resulted from a collision between an automobile driven by himself and a train of cars operated by defendants, at about 7:45 o ’clock p. m., April 17, 1926, at the intersection of Third and Allen streets in the city of Springfield. The cause was submitted to the jury upon three counts, in the first of which it is averred, in substance, that the deceased was driving an automobile, with due care and caution, west on Allen street towards the railroad and that the defendants so carelessly drove the train that by and through their said carelessness and negligence in that behalf, the engine and train were brought into violent collision with the automobile, whereby plaintiff’s intestate was killed.

The second count avers that the railroad ran on Third street and crossed Allen street and that both streets and the surrounding” territory were closely built up and thickly populated; that the Allen street crossing was much used and that defendants did not maintain a flagman at said intersection between the hours of 6:00 o’clock p. m., and 7:00 o’clock a. m., nor any signal device of any kind to warn persons about.to cross said railroad tracks of approaching trains, nor any sign of any kind or character to inform such persons of the presence of railroad tracks on said Third street; that certain buildings, a tree and a telephone pole served to obstruct the view of persons traveling west on Allen street towards the railroad tracks of any trains approaching the intersection from the south, so that persons traveling west on said Allen street towards said railroad tracks were peculiarly and extraordinarily exposed to danger unless trains approaching thereon from the south were driven and operated with especial care and caution and at a low and moderate speed, all of which facts were then and there known to said defendants; that plaintiff’s intestate was driving an automobile west on Allen street and that the defendants with knowledge of the above-mentioned conditions wilfully and wantonly ran said locomotive engine at a high rate of speed, to wit, 40 miles an hour, with intentional disregard of their duty in that behalf and with a disregard of the consequences to persons lawfully using the intersection of said Allen street and said Third street, and with a willingness to inflict injury upon such user of said intersection, of Allen street and Third street, whereby the said locomotive engine and train were brought into violent collision with the said automobile-, whereby plaintiff’s intestate was killed, and that the.defendants were conscious that their conduct would naturally and probably result in injury to persons crossing said railroad tracks.

The fifth count contains substantially the same allegations 'as are alleged in the second with the exception that the negligence is not charged as being wilful and wanton.

The first error assigned and argued is the refusal of the trial court to sustain the motion by defendants, made at the close of plaintiff’s case, to exclude the evidence from the jury on the ground of variance in that the declaration charges, in substance, that the train ran into and collided with the automobile, while the proofs show that the automobile ran into and collided with the train. This point is very strenuously and extensively presented by counsel for defendants and many cases are cited upholding the general proposition that the proofs must correspond with the allegations, but we fail to comprehend how this ancient and well-settled rule can have any application to the allegations and proofs in this case. In the first place, it is not charged in the declaration that the train ran into and collided with the automobile. The language used in the declaration is that “the said engine and train were brought into violent collision with the said automobile.” The common definition of the word “collision,” as generally understood, is a violent contact between two objects. All that the expression used in the declaration means is that the engine and train and automobile were brought into violent contact with each other, which allegation was fully sustained by the proofs. In the second place, the criticism is hypercritical and without merit.

The next contention is that the second count does not set out a cause of action for wilfulness. At the conclusion of all the evidence in the case the defendants made a motion to instruct the jury to disregard the second count for the reason that there was no evidence fairly tending to prove the allegations charging that the defendants operated said locomotive in a wilful or wanton manner, which was overruled. If it be assumed that the sufficiency of this count can be raised and preserved by this motion, we cannot concede the correctness of the contention. It must be remembered that the tracks of the Chicago & Alton Railroad do not run through the city of Springfield, in the vicinity where the accident happened, on a private right of way of the railroad company, but are laid in the center of Third street, a public street in said city, and it is so charged in the count. It is also charged that both Allen and Third streets, and the territory surrounding the intersection of said streets, were closely built up and were in a thickly populated section of the city, and that said crossing was regularly used as a thoroughfare by a large number of travelers, both on foot and in vehicles; that no flagman was maintained at said intersection at the time of the accident, nor any signal device of any kind to warn persons of approaching trains, nor any sign to inform persons of the presence of the railroad tracks; that the view thereof was obstructed by certain buildings, poles and trees, so that persons traveling west on Allen street, towards the railroad tracks, were peculiarly and extraordinarily exposed to danger unless trains approaching thereon from the south were driven and operated with especial care and caution and at a low and moderate rate of speed, all of which facts were then and there well known to the defendants; that defendants, with a knowledge of such conditions, wilfully and wantonly ran, drove and operated said train at a high and dangerous rate of speed, to wit, at a speed of 40 miles an hour, while approaching said intersection, with intentional disregard of their duty and of the consequences to persons lawfully using the intersection of said, Allen and Third streets, and with a willingness to inflict injury upon said user of said intersection. It is urged that because the count did not also charge that the bell was not rung, nor the whistle blown, or that the train was backing up, or other circumstances accumulated with the charge of speed, it is faulty for the reason that excessive speed alone is not evidence of wilfulness. We concede that under some circumstances excessive speed alone would not be evidence of wilfulness, but under the facts as presented by this count of the declaration, we are of the opinion that a good cause of action is stated and if the facts, as therein alleged, were proven the jury would be justified in returning a verdict for the plaintiff. There was evidence in this case tending to support all the facts set out in the declaration, and the question was one of fact for the jury.

It is also contended by counsel for defendants that the proximate cause of the death of plaintiff’s intestate was his own negligence, amounting to constructive wilfulness, in approaching a crossing familiar to him, where the view was obstructed, driving in the nighttime, with the windshield misted by rain, in a closed car, engaged in conversation with two other boys on the front seat, at a speed in violation of two statutes enacted for the safety of the public. One of the statutes referred to is chapter 121, wherein section 145b provides, that on approaching any highway crossing of a railroad at grade, the person controlling the movement of any self-propelled vehicle shall reduce the speed of said vehicle to a rate of speed not to exceed 10 miles per hour, Cahill’s St. ch. 121, ¶ 161; the other is chapter 95a, wherein section 22 provides that no person shall drive a vehicle upon any public highway 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, Cahill’s St. ch. 95a, ¶ 23.

The facts leading up to the accident show that Theodore E. Taylor, the deceased, at the time of his death, was 16 years of age, in his junior year at high school, and an exceptionally bright and intelligent boy, of good habits, active and strong. At about 7:30 o’clock on the evening of April 17, 1926, the deceased took his father’s automobile, at his home in the city of Springfield, and proceeded to the home of William Metier, Jr., who lived on South Grand avenue between Fifth and Sixth streets, where Metier got into the automobile with him. The two boys then proceeded to the home of Hugh Graham, at the corner of Seventh and Allen streets, where Graham also got into the automobile, and the three boys, sitting in the front seat, then started for the high school to attend a dance that was to be given there that night. The three boys were classmates and friends, and the deceased frequently picked them up in his automobile and took them to the high school with him. After leaving Graham’s home they proceeded west on Allen street towards the home of another boy by the name of Freeman Butts, for the purpose of taking him also to the high school. The automobile stopped at Sixth street for the boulevard, then proceeded past Fifth and Fourth streets and approached Third street. On the southeast corner of Third and Allen streets is a one-story double-front grocery and market known as the Piggly-Wiggly. The evidence tends to show that approaching Third street on Allen street, going west, the wall of this store obstructs the view of Third street towards the south. In Third street, four and one-half feet west of the store and thirteen and one-half feet north of the line of the store, was a flagman’s shanty, eight feet square, and all but two feet of it was out on Third street. There were also telegraph poles and trees for two blocks along that side of the street east of the railroad tracks and also the garages and barns of the people who lived on Fourth street. On the west side of Third street is a sidewalk and that side is built up with residences and the same condition substantially exists on both the east and west sides of Third street, north of Allen street. There was no warning-post or signal device of any kind at the intersection of Third and Allen streets and no flagman was on duty between the hours of 6:00 p. m., and 7:00 a. m. The night in question, while not cold enough to freeze, was chilly and a heavy mist prevailed. There is evidence tending to show that the deceased drove his automobile along Third street at a rate of speed between 15 and 20 miles an hour until it neared the Third street crossing. Metier, who sat between the deceased and Graham, testified that as the former neared the crossing he slowed down and shifted the gears into second speed and as the automobile approached the railroad tracks, in the center of Third street, it seemed to him that it was just “oozing along, hardly going.” This witness, when he testified before the coroner’s jury, stated that in his judgment the automobile was going 12 to 15 miles an hour just before it ran into the train, and testified on the trial that after thinking the matter over since the inquest, he remembered distinctly that the deceased shifted into second speed because the shift lever struck his knee when the shift was made, and that the automobile was, in fact, going very slowly. The credibility of his testimony was for the jury to determine. Graham, who sat on the far side of the seat in the automobile, did not remember whether the gears were shifted or not, nor at just what speed the automobile was going when it attempted to cross Third street. Metier’s testimony is corroborated by the testimony of the witness Carberry, who was an automobile mechanic and arrived at the scene of the accident just as the last coach of the train was going past the intersection. He looked at the automobile and found that the gear was in second speed. The witness Gorman, who was with Carberry at the time, also corroborates him in the fact that the gear was in second speed. The witness, James Brown, testified that he was at the southeast corner of Third and Allen streets when the accident occurred; that when the automobile passed him it was running at a speed of between 8 and 10 miles an hour and this was when the automobile was within 20 feet of the railroad tracks. The witness, Boy Wanless, was sitting in a Ford car in front of the Piggly Wiggly store, and testified that he saw the automobile which the deceased was driving, going west on Allen street at a speed of between 10 and 12 miles an hour and as it approached the railroad tracks it looked as if the deceased stooped over a little like he was going to shift gears and that the automobile then slowed down to about 5 miles an hour. Other witnesses testified as to the speed of the automobile at different points on Allen street, their estimates varying between 10 and 20 miles an hour, but there is no evidence to contradict the proof that as the automobile proceeded to cross the tracks its speed was between 5 and 10 miles per hour. Under this state of the record this court cannot find, as a matter of fact, that the deceased, at the time of the accident, was violating either of the statutes above mentioned, and was thereby guilty of either contributory negligence or wilfulness, but these were questions properly left to the jury to determine.

The train was known as the Lincoln Limited due to arrive at Springfield at 5:45 p. m., and was two hours and five minutes behind time. Six witnesses estimated the speed of the train at between 40 and 55 miles per hour and two placed it at between 35 and 40 miles per hour. One placed it at between 30 and 40 miles per hour. Defendants offered no evidence whatever in regard to the speed of the train. There is a conflict in the evidence as to whether any bell or whistle was sounded. Some of the witnesses who were very close to the crossing testified that they heard no bell or whistle, some witnesses, who were some distance from the crossing, stated that they heard a whistle of a train somewhere, and others testified that they heard both the bell and whistle. There is also a sharp conflict in the evidence as to how far a train could be seen approaching the crossing on account of the buildings and other obstructions in close proximity thereto.

No contention is made in defendants’ brief and argument that there was any error in the admission or ' exclusion of evidence, in the giving or refusal to give instructions, or that the verdict was excessive. The court gave 21 instructions on behalf of the defendants, which apparently covered every phase of the law applicable to the case. We have considered herein all the points raised by counsel for the defendants, except possibly the theory advanced by them that the deceased was guilty of constructive wilfulness, but whatever merit this proposition may have, we are of the opinion there are no facts in the record in this case on which to base it.

In our opinion the record in this case presents only questions of fact for the jury to determine and as there is evidence tending to support both the charge of negligence and of wilfulness and the verdict is not against the manifest weight thereof, the judgment will be affirmed.

Affirmed.


author: Mr. Justice Eldridge

text:
    J. N. Manker for use of T. A. Ruyle, Appellant, v. Leslie Manker, Appellee.
    Gen. No. 8,141.

      Opinion filed January 25, 1928.
    William and Barry Mumford, for appellant.
    Williams & Williams, for appellee.
   Mr. Justice Eldridge

delivered the opinion of the court.

On September 16, 1926, T. A. Ruyle, for whose use this suit is brought, recovered a judgment by confession against Charles O. Dunham and J. N. Manker, in the circuit court of Pike county, for the sum of $527.20. An execution was issued and a return thereon shows that $81 had been collected thereon from the debtor Dunham, and no property found as to the debtor J. N. Manker. On October 19,1926, Ruyle filed his affidavit for a garnishment summons against Leslie Manker, appellee, which was served on October 20. In the answer of appellee, as garnishee, it is set out that he was the son of said J. N. Manlier, the original debtor and nominal plaintiff in this suit; that on the date of the service of the garnishment summons he was indebted to his father, J. N. Manlier, for money borrowed, in the amount of $250, and that it was evidenced by a promissory note, executed by himself and payable to his father, dated October 21, 1925, due one year from date, with interest at 7 per cent; that prior to October 19,1926, the payee had gone to the State of California, taking the note with him, and the note was then in the State of California. The trial was had before the court, without a jury, and a judgment rendered in favor of appellee.' Where an indebtedness is evidenced by a negotiable promissory note and the situs of the note is in a foreign State, and without the jurisdiction of the court, the general rule is that the maker of the note is not subject to garnishment by a judgment creditor of the payee in the note. The reason for the rule is that in such cases the garnishee may have originally owed the debt evidenced by the note to the payee or original holder of the note, yet he cannot truthfully say that at the time of the service of the garnishment summons he still owed the debt to the payee in the note because the note may have been negotiated and the debt transferred to another person. Thus it was held in the case of Bowen v. Pope, 125 Ill. 28, that a party cannot be charged as garnishee in respect to promissory notes or other evidences of indebtedness executed by third persons and belonging to the defendant in the attachment, which, at the time of the service of the garnishment process, and during the pendency of the suit, are in another State. In Waples on Attachment and G-arnishment, page 207, the rule is stated thus: ‘ ‘ The maker of a negotiable note owes somebody, but not necessarily the payee named therein. And in a suit against the payee, he cannot ordinarily be subjected to garnishment. How can he answer that he owes the payee, when the note may have passed into other hands? He usually does not know. His obligation is to pay the holder at maturity. ' Even if he does know and does answer that the note is still in the hands of the original payee, which it is not yet due, no judgment can be rendered against him as granishee, for the reason that the holder may pass it off afterwards, and the obligation would be to the transferee; and therefore, should judgment be rendered against him upon his answer, he might be subjected to the injustice of having to pay twice.”

The evidence for appellee tended to prove that about three weeks after he had been served with summons his father released and canceled the note and the mortgage securing it and surrendered it to appellee. “If the holder of a note voluntarily, although gratuitously, and without consideration cancels and surrenders it to the maker, this discharges the maker, unless there is fraud or mistake.” 3 B. C. L. sec. 498. There was no evidence of any fraud or mistake and consequently the surrender and cancellation of the evidence of the indebtedness must be held to have cancelled the indebtedness itself.

The judgment of the circuit court is affirmed.

Affirmed.


text:
    Fred Genzel, Administrator of the Estate of Charles Wellman, Deceased, Appellee, v. New York, Chicago & St. Louis Railroad Company, Appellant.
    Gen. No. 8,144.

      Opinion filed January 25, 1928.
    H. M. Steely and H. M. Steely, Jr., for appellant; John B. Cockrum and J. T. Markey, of counsel.
    Louis J. Bremer, for appellee; H. Ernest Hutton, of counsel.
   Mr. Justice Eldredge

delivered the opinion of the court.

Appellee recovered a judgment in the sum of $2,500, in an action on the case against appellant, for damages resulting from the death of one Charles Wellman, alleged to have been caused through the negligence of appellant.

The original declaration consisted of two counts. Subsequently six additional counts were filed and the case went to the jury upon all the counts except the second additional count. It is averred in each count, in substantially identical language, that on the 18th day of June, 1926, and for a long time prior thereto, ■the defendant was possessed of, using and operating a certain steam railroad extending from the State of Indiana into the State of Illinois, and through the county of McLean thereof, which said railroad passed through the villages of Ellsworth and Padua in the said county aforesaid, and in the operation of such business said defendant, by divers of its servants, in that behalf, propelled, drove and operated over said railroad divers locomotives, cars of trains, carrying passengers, express, freight and United States mail matter, consigned from points in Illinois to destinations in States other than Illinois, consigned from points in Indiana to destinations in the State of Illinois, and consigned from points outside of Illinois through Illinois to points in States other than Illinois, and over1 its said railroad in said business of carrying such passengers, freight and United States mail, received, hauled and handled divers cars, both empty and loaded, of other railroads, connecting with said railroad of defendant, all in and about the said business of the defendant, and was then and there possessed of a certain track over which said railroad conducted its business, which' said business of the defendant then and there and theretofore, for many months, was that of a common carrier by railroad engaged in moving interstate commerce and passengers for hire.

The above facts alleged are sufficient to charge that appellant, in its general business, was engaged as a common carrier of interstate commerce. In the first count it is further stated that the deceased was employed as a section man and that in the regular course of his employment, on the day in question, was directed to proceed to a point about one mile east of Padua, for the purpose of flagging a passenger train of the defendant, which was then and there traveling over said, railroad in a westerly direction; that on account of the repairing of said track a slowboard or signal was posted in the line of the track, at a point 1,000 to 1,800 feet east of the point where deceased was directed to go for the purpose of flagging the train; that it was the duty of servants of appellant, operating said train, when they reached the point of said slowboard to reduce their rate of speed to eight miles per hour and run their train under full control, keeping a close lookout for persons on said track, who might be making repairs on same, including the deceased, acting as flagman; that the deceased had gone several hundred feet east of the section crew for the purpose of flagging said train and while engaged in said work he either became suddenly ill or fell asleep on said track; that the engineer and fireman on the engine of said train wilfully and knowingly failed to observe the warning of said signal board and ran past the same in disregard of said warning, at a high and dangerous rate of speed of, to wit, 30 miles per hour. On account of such wilful and knowing misconduct, the passenger train was not, then and there, under full control and because thereof ran upon and over the body of the deceased.

The second count of the original declaration is substantially the same.

In the first additional count it is averred that during the repair work on the track one of the section men had by defendant daily been stationed along said track at respective points, to wit, one mile in each direction from the place where the work was being done, and on the day in question the deceased had been stationed to act as such flagman, one mile east of Padua; that the engineer and fireman had daily, in the daytime, for one year prior to said date, traveled in a westerly direction along the main track where flagmen had so customarily been stationed and then and there knew that one of such flagmen was likely to be upon or along said track at said point; that it became and was the duty of said engineer and fireman, when so approaching said part of said track, to use reasonable care and keep a constant and vigilant lookout for the presence of such flagman and that such lookout would have revealed to said engineer and fireman the presence of the deceased; that in violation of their said duty said engineer and fireman propelled said train toward and upon said deceased and wilfully, recklessly and wantonly failed to keep such lookout, in consequence whereof the train struck said deceased causing his death. The third additional count, after stating the facts in regard to the flagman being stationed along the track as set out in the previous counts, further avers that the deceased was lying, reclining or sitting, asleep, sick or resting upon, next to and against the rail and ties of the track in such a position that he would be struck and injured or killed by trains of defendant passing thereover; that at a point 200 feet before reaching the place where the deceased was in said perilous position, servants of the defendant in charge of the train saw and knew that he was on or near said main track at said point in such perilous position, that their train, if it continued to proceed westward over said track, would be likely to kill or injure him; that by the exercise of reasonable care they could have reduced the speed of the train and have brought the same to a stop before reaching said point, but wilfully failed to slacken the speed or stop the train, thereby causing the death of the deceased.

In the fourth additional count, after setting out the prior averments mentioned, the negligence charged is that the deceased while in the performance of his duties, with all due care and diligence for his own safety, was within one foot of the track, and that the train was so carelessly and improperly driven that it struck him, causing his death.

In the fifth additional count the negligence charged is substantially that while the deceased was within one foot of the south rail of the track, either resting or sick, the roadbed curved in such a manner that trains coming from the east would proceed within 100 feet of such point before the presence of the deceased could be seen by the fireman and engineer thereof; that defendant had conspicuously placed and maintained one-half mile east and one-half mile west of where deceased was stationed as flagman, fixed signals called “slowboards” which bounded an area called “slow area” all by the rules and customary operation and work of the defendant; that certain rules and regulations of defendant required that firemen must be in position to see all governing signals at any dangerous points and to call the same as clear or not to the engineer ; that enginemen should, at all times, keep a constant and vigilant lookout ahead; that at a cautionary signal the train should be kept under such control that the enginemen thereof can stop the same within their range of vision; that in approaching curves the engineer must sound the whistle to give working parties a chance to get out of the way; that the engineer and fireman well knew and by the exercise of due care would have known that a flagman was likely to be stationed at the point where deceased then was and knew or by the exercise of due care would have known of such curves in the road; that they drove said train in violation of their duty prescribed by said rules and the law, and failed to sound such signals when so approaching said curves, to keep such lookout ahead and to keep the movement of such train under such control.

In the sixth additional count it is averred that the deceased was lying, reclining or sitting, asleep, sick or resting next to and against the rail and ties of the track; the maintenance of the slowboards and the duties of the engineer to reduce the speed to eight miles per hour and- to have the train under such control that it could be stopped within range of his vision; that the fireman and engineer saw, knew and were appraised of an object along said track, which object was the deceased, and that after so seeing said object the engineer and fireman, by the exercise of ordinary care, should have stopped their train before reaching the same, and that it was their duty to use reasonable care and keep said train, approaching said object, under such control that they would not drive the same against said object until it was definitely known to them whether it was a flagman and to bring the train to a full stop before passing the same, but wilfully, wantonly and recklessly drove said train against said object, which was the deceased, thereby causing his death.

The action is brought under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, TT 321 et seq., and the rights of the parties must be determined from the provisions of that act, governed by the interpretation placed thereon by the Federal courts. The declaration and pleas present only issues arising out of said act and the case was tried and the jury instructed upon that theory. At the close of the evidence introduced on behalf of appellee, and again at the close of all the evidence, appellant made a motion to exclude the evidence under each count and to give an instruction directing the jury to find it not guilty. These motions were overruled. The appellant also, after its motion to set aside the verdict and. for a new trial had been overruled, made a motion in arrest of judgment. Numerous errors have been assigned upon the record, one of which is the contention of appellant that no count in the declaration is sufficient to sustain a cause of action under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, If 321 et seq. It has been consistently held, both by Federal and State courts, that it must be both charged in the declaration and proven by the evidence that, at the time of the injury complained of, the employer and employee must have been engaged in interstate commerce. In no count in this declaration is it averred that at the time of the injury that the deceased was engaged in interstate commerce, and only by mere inference, in three of the counts, that appellee was so engaged therein. Illinois Cent. R. Co. v. Behrens, 233 U. S. 473; Pedersen v. Delaware L. & W. R. Co., 229 U. S. 146; Southern R. Co. v. Howerton, 182 Ind. 208; Walton v. Southern Ry. Co., 179 Fed. 175, 176. In the case of Northern Trust Co. v. Grand Trunk Western R. Co., 282 Ill. 565, it is held: “To authorize a recovery under the Federal Employers’ Liability Act it is required that the carrier and the injured employee should both have been engaged in interstate commerce at the time of the injury. * * * It would seem to follow that a declaration against an interstate carrier for an injury to an employee does not state a cause of action under the Federal Employers’ Liability Act unless it alleges that at the time of the injury the employee was also engaged in interstate commerce, and that to maintain an action under the Federal Employers ’ Liability Act the plaintiff must specifically state in the declaration all facts necessary to bring himself within the provisions of the act and thus enable the court to judge whether he has a cause of action under the Federal statute.”

A demurrer to the declaration had in the first instance been overruled, and appellant, instead of electing to abide by its demurrer, joined issue thereon by-filing pleas thereto and cannot now question the ruling on the demurrer. On a demurrer pleadings are construed most strongly against the pleader, but after verdict this rule is reversed, and anything necessary to be proved which may fairly be inferred from the declaration will be assumed to have been alleged. Tested by this rule, an inference can be drawn from the declaration that at the time of the injury appellant was engaged in running a train from the State of Indiana to points in Illinois, and the deceased was killed while acting as flagman to protect the section crew while it was repairing the tracks over which the train was running. Wagner v. Chicago, R. I. & P. R. Co., 277 Ill. 114, 117.

Counsel for appellee on the trial served notice on appellant to produce its book of rules. The book was produced in court and offered to counsel for appellee. Instead of proving the rules of appellant in regard to the operation of its trains and especially in regard to the conduct of engineers and its other employees when stopboards were met, it placed the witness Lawrence upon the stand and handed him a book containing the rules of the Wabash Railroad Company, and he was permitted to testify, over objection, that the said rules were standard railroad rules that had been adopted by 32 railroads; that appellant was a member of the New York Central system which was working under said rules and that appellant itself was working under such rules. This witness was not and never had been an employee of appellant, though at one time he had been a conductor on some other road. He had not been connected with any railroad for seven years. No basis for his knowledge of whether appellant had ever adopted or was working under the so-called standard rules at the time of the accident was shown. Moreover, it was conclusively proven that appellant was not a member of the New York Central system of railroads. Over objections the rules of the Wabash Railroad were permitted to be introduced in evidence. The witness was permitted also to go into detail and explain the meaning of the words used in the rules governing the operation of the Wabash Railroad. Appellant was refused permission to show that the Wabash rules were not the rules adopted by appellant. The court stated to counsel for appellant when he permitted the Wabash book of rules to be admitted in evidence as follows: “You offer them, your book of rules. They did not see fit to use them. They didn’t seem to like them or to want them after they got them. They want to use their own. They proved by witnesses, and the testimony is to the effect, that these rules are the same rules your company operates under, they are standard rules. There is some evidence to that effect and there is nothing else to do but admit them. ’ ’ The effect of this ruling was simply to permit a witness, who had no knowledge whatever of what rules the appellant company was operating under, to testify that the appellant was operating under what was called “Standard Buies,” or such rules as had been adopted some time in the past, not by appellant but by the Wabash Bailroad Company, and this notwithstanding the fact that upon notice appellant produced its own rules in court and offered them to counsel for appellee. The rules of the Wabash Bailroad Company, and the elucidation thereof by this witness, were wholly incompetent evidence. This witness was also permitted to testify, in answer to numerous hypothetical questions, how the brakes should have been applied by the engineer, in what space the train could have been stopped going at certain speeds, and what the engineer and fireman should have done under various states of facts without showing any other foundation for his knowledge in regard thereto, than that he had, at one time, been a conductor, seven years prior to the accident. Not one of the hypothetical questions was based upon a proper hypothesis.

It is also assigned as error that the verdict is contrary to the evidence. As the judgment in this case must be reversed for the reasons hereinbefore stated, it is unnecessary to discuss this question.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    T. B. Adams, Inc., Appellee, v. Astoria Box Company, Appellant.
    Gen. No. 8,146.
    Opinion filed January 25, 1928.

      Wilson & S chmiedesic amp, for appellant.
    Martindale & Martindale, for' appellee.
   Mr. Justice Eldredge

delivered the opinion of the court.

In a trial before the court, without a jury, appellee obtained a judgment against appellant in an action of assumpsit for $408.95, in the circuit court of Adams county. Appellee is a corporation located in the city of Quincy, Adams county, Illinois, and its business is that of a lumber broker. Appellant is engaged in the wholesale business of selling lumber at Astoria, ,Oregon. The suit was commenced by the issuance of an attachment writ levied upon the Moller-Vandenboom Lumber Company as garnishee. The declaration consists of the common counts to which the plea of general issue was filed. The suit is brought to recover commissions alleged to have been earned by appellee for various sales of lumber for and on behalf of appellant. Appellee claims that he is entitled to a eommission of 5 per cent of the amount of all sales of spruce lumber made by him for appellant, after there has been deducted from the gross amount thereof the charges for freight and a discount of 2 per cent which was allowed the customer if payment for the lumber was made within 15 days after the receipt thereof and that the amount of this commission was expressly agreed upon and was also the amount of commission established by the general usage and custom of the trade in the market where the lumber was sold.

Appellant presents three reasons for avoiding liability: (1) that there never was any rate of eommission agreed upon; (2) that if the rate of commission is to be established by a trade custom it should be controlled by the trade custom established by the lumher mills of the Pacific coast, which is a commission of $1 per thousand feet for spruce lumber, and $.50 per thousand feet for common lumber, on which basis appellee has been fully paid; (3) that there was an accord and satisfaction between the parties.

On May 23, 1925, in reply to an inquiry made by appellee in regard to certain spruce lumber, appellant, by a letter, quoted the price of such lumber and concluded the same as follows: “We hope to be favored with these orders and any other spruce inquiries you have, because we expect to be sawing mostly spruce for the balance of the year.” On May 28, 1925, appellee sent the following telegram to appellant, “Refer your letter twenty-third if can ship immediately load car eight inch Band Better Spruce Springman Lumber Company, Alton, Illinois. Seventy six fifty prefer surfaced four sides. Subject five percent commission on the net to me. Wire car number as soon as loaded.” The above order for lumber was accepted by appellant although it was subsequently canceled by the buyer. In June of the same year, appellee received a telegram in response to an inquiry in regard to another sale of lumber wherein the price was quoted and contains these words, “delivered less usual commission.” On August 17, 1925, appellant sent a credit memorandum to appellee in regard to an invoice of lumber sold to the Peter Vredenburgh Lumber Company, July 13, 1925, which contained these words, “5 per cent commission on net... .$66.35.” At least one of the commissions earned by appellee was paid by appellant and was computed at the rate of 5 per cent on the net proceeds of the sale. Eight other carloads of lumber were subsequently sold by appellee for appellant, the last one being on July 3, 1926. The first order sent, to appellant, and which was accepted and agreed to by appellant, contained the condition that appellee was to receive a commission of 5 per cent on the net proceeds of the sale. By the credit memorandum above mentioned, appellant acknowledges that appellee was to receive the 5 per cent commission on that particular sale. The payment by appellant to appellee, in one instance, of the 5 per cent commission on the sale, conclusively shows that appellant understood and agreed to pay appellee 5 per cent commission on the net proceeds of all sales of spruce lumber. After the commission was agreed upon in the terms of the eon-tract for the first sale of spruce lumber, the same commission will be presumed to apply to all future sales of the same commodities, unless some other agreement in regard thereto was made. As was said by Mr. Justice Breese in the case of Bacon v. Cobb, 45 Ill. 47: “If a fruiterer buys a barrel of apples of a farmer at a certain price per bushel or barrel, to be paid for on delivery at the residence of the purchaser, and on inspection, sending his bill with the apples, and it is paid for by the fruiterer, and the farmer soon after addresses a letter to the purchaser, saying that he can have twenty barrels of apples at the same price, or a greater price, as the case may be, and the fruiterer accepts the offer, — can there be any question as to the place of delivery and inspection, though not one word is said about either? The subsequent contract is supposed to be on the same terms as to delivery, inspection and payment, as the contract for the first barrel, if there be no proof to the contrary. Such a case is within the spirit of the decision in the case of Robbins v. Laswell, 27 Ill. 365, and is the common sense of the world.” The above principle is applicable and pertinent to the facts in this case.

Appellee introduced testimony tending to prove that it was the trade custom of lumber brokers in the vicinity of Quincy, Illinois, to receive 5 per cent commission on the net proceeds of sales of spruce lumber. This evidence was proper as the trade custom which governs is established by the usual price charged and received for similar services by others engaged in the same line of work, in the same vicinity. 2 C. J. 783.

On February 16, 1926, appellee wrote a letter to appellant in substance stating that he had not received any commissions for the sale of seven cars of lumber, naming them, and closing with this request: “The commission on these cars amounts to between $500.00 and $600.00 and I need the money very badly. Won’t you please attend to this, if you have not already done so and send a check at once.” Appellant did not reply to this letter but sent to appellee á formal statement of the number of feet of lumber sold by appellee on which his commissions were figured at the rate of $1.00 per one thousand feet, and showing a balance due appellee, as his commissions, of $146.43, and a check was inclosed with the statement for the above amount. Appellee replied to this letter as follows: “I just received your check for $146.43 submitted as payment for six cars of lumber shipped on my orders. All of these shipments were subject to 5 per cent commission on the net to me. There were seven cars as listed in my letter of Feb. 17th. The total amount of commission for these seven cars figures according to your invoices $536.90. I am presuming that your check for $146.43 is a mistake and that you will send me a check for the balance promptly. All of our dealings were on the basis of 5 per cent and the shipments herein mentioned are, ■ of course, subject to the same basis. In your statement of February 18th you have left off car No. 30289 shipped on my order No. 2716.”- To this letter appellant replied as . follows: “We have received your letter of the 22nd ult. regarding our check for $146.43. The customary commission we pay on uppers is $1.00' per M, and, as a matter of fact, when we received your order and on all the wires which lead up to it, there was nothing to indicate anywhere that you, were to be paid a commis- . sion at all. By referring back to the correspondence we have been unable to locate any reference to commission, but as the customary commission is $1.00 on uppers and 50c on common where the wholesaler does not have to guarantee the account or have it charged to him, we feel that our check for $146.43 fully covers your commission.” From the facts above noted, it does not seem possible that the statements in this letter could have been made in good faith. Appellee did not return the check for $146.43 to appellant, but cashed the same and kept the money, and it is the contention of appellant that these facts constituted an accord and satisfaction. An accord and satisfaction must be based upon a compromise in good faith of unliquidated or disputed demands where there is an honest difference between the parties as to the amount due. Farmers’ ds Mechanics’ Life Ass’n v. Caine, 224 Ill. 599. It must be the compromise of a demand, the validity of which is disputed in good faith. Farmers’ & Mechanics’ Life Ass’n v. Caine, supra; Jackson v. Security Mut. Life Ins. Co., 233 Ill. 161; Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244; Bingham v. Browning, 197 Ill. 122; Ostrander v. Scott, 161 Ill. 339. The payment should be offered in such a manner or accompanied by such acts or declarations as amount to a condition that if the party to whom it is offered takes it, he does so in satisfaction of his demand. Caniton Coal Co. v. Parlin & Orendorff Co., supra. There were no words indorsed on the check in question to show that it was given in full settlement of the account and there was nothing in the statement presented with the check which tended to inform appellee that if he accepted the same it was in full settlement of his claim for commissions. Up to the time appellee requested the payment of the balance due on his commissions there had been no dispute in regard thereto or as to the rate thereof. There was nothing said or done between the parties that would lead appellee to understand that by accepting the check he was compromising and settling a disputed claim for his commissions, and also, under the evidence in this case, we do not believe that the validity of appellee’s claim is disputed in good faith by appellant. The defense of accord and satisfaction cannot be sustained.

The larger part of the bill of exceptions in this case consists of orders, letters, telegrams, statements and other exhibits, very few of which are abstracted. Fifty-one of such exhibits are not abstracted at all, but are referred to in the abstract, as an example, “Plaintiff’s Exhibit 23. See page 50 of record.” We have been put to the unnecessary burden of searching the record to ascertain what the evidence was and there is nothing in the abstract to indicate which witnesses testified on behalf of the plaintiff and which on behalf of the defendant. For these reasons alone this court had the power, under its rules, to affirm the judgment for want of proper abstract, if it had seen fit to do so.

There is no reversible error in the record and the judgment is affirmed.

Judgment affirmed.