text:
    Louis A. Schmidt, Appellee, v. Frank P. Schmidt and Henry J. Schmidt, Appellants. Frank P. Schmidt and Henry J. Schmidt, Appellants, v. Louis A. Schmidt, Appellee.
    Gen. No. 9,019.
    Opinion filed April 3, 1936.
    C. E. McNemar, of Peoria, for appellants.
    Bartley & Younge, of Peoria, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Frank P. Schmidt, Sr. died intestate about the year 1910, leaving as his only heirs his three sons, Louis A. Schmidt, Frank P. Schmidt and Henry J. Schmidt, and one daughter, Freda Schmidt. He died seized in fee of a certain 49.75 acres of land, including the underlying coal, located in the north part of the East Half of the Southeast Quarter of Section Fourteen, Town Eight North, Range Seven East of the Third Principal Meridian in Peoria County, Illinois. This tract will be referred to herein as tract number one. Frank P. Schmidt, Sr. was also, at the time of Ms death, seized of the coal and mineral underlying an adjoining eighty acres of land on the west, which will be referred to herein as tract number two.

In 1915 the said Frank P. Schmidt, Henry J. Schmidt and Freda Schmidt, three of the four children of Frank P. Schmidt, Sr., conveyed their undivided interests in the surface of tract number one to their brother Louis, reserving, however, to the grantors, the underlying coal. By a mistake, however, the word grantees was used instead of grantors, but this error was afterward corrected in the partition suit hereinafter referred to. Shortly after the execution of the deed, the sister, Freda, conveyed to her three brothers, as tenants in common, all her interest in the coal underlying both tracts. By virtue of the death of his father and the foregoing conveyances Louis became the owner of the fee to the surface of tract number one and also the owner of an undivided one-third interest in the coal underlying both tracts.

Shortly thereafter, Louis drove an entry a distance of about 650 feet, on tract number one, down to the coal. The mouth of this entry was and is about 75 feet north and west of a public road known as Harrop road. In mining and removing the coal, Louis used a strip of ground running from the mouth of the entry to this public road. This strip of ground is approximately 75 feet wide and 75 feet in length, and upon it he erected a platform, scale house, scales, roadway, track and rails in order to operate cars from the mine entry.

About 1920, a dispute arose between the brothers. Louis A. Schmidt claimed to own not only the surface of tract number one, but also the coal under it, and thereupon Frank and Henry filed a bill against Louis for partition of the coal underlying both tracts. In this partition suit, a decree was entered which found and decreed that the parties were tenants in common of the coal underlying both tracts. Commissioners were appointed who found the coal not susceptible of division and appraised each tract separately. The coal underlying tract number one was appraised at $6,360 and the coal underlying tract number two was appraised at $18,000. This report was approved and a decree of sale was thereupon rendered ordering the sale of the coal underlying tract number one, “together with the right of entering said premises and mining said coal,” and also ordering the sale of the coal underlying tract number two, with the privilege of mining and removing the same at any and all times and with the privilege of sinking air shafts through the surface of the land. At the sale, Louis A. Schmidt was present and participated by bidding, but his brothers Frank and Henry outbid him and on October 25, 1921, the master in chancery, pursuant to the order and decree of the circuit court, made and delivered to Frank P. Schmidt and Henry J. Schmidt for the consideration of $31,625, the amount of their bid, a deed for the coal underlying both tracts. This deed conveyed all the coal underlying tract number one, which it described, and following the description is the following, viz.: “Containing 49.75 acres, more or less, together with the right of entering said premises and mining said coal.” Then follows another paragraph as follows, viz.: “Also, all of the coal and mineral of every kind and description underlying that part of (describing tract number two), with the privilege of mining and removing the same at any and all times and also with the privilege of sinking air shafts through the surface of the land. ’ ’ It was in this partition suit that the deed from Frank P., Henry J. and Freda Schmidt to Louis A. Schmidt was reformed.

On November 8, 1921, Louis A. Schmidt filed his bill for an injunction against his brothers, Frank and Henry, the purchasers of all the coal underlying both tracts. In his bill he averred that he owned not only the surface of tract number one, but also the coal underlying that tract and that he was at that time mining coal thereunder; that he had constructed an entry for 1,300 feet, and made other improvements, all at a cost of about $6,000 for the purpose of making practical the mining of said coal; that the mouth of said mine and mine entry is located some distance from the public highway adjoining said real estate; that said public highway constitutes the only available entrance to the surface of the lands; that the construction of the shaft into the entry and the installation of said equipment was completed before the entry of a decree in the partition suit reforming his deed; that after the completion of the partition proceedings above referred to, Frank P. and Henry J. Schmidt seized and appropriated unto themselves the shaft and entry and all equipment on and under the surface for mining coal, and that to prevent them from using said entry and equipment, he erected harriers and fences and they tore them down and their conduct constitutes a continuing trespass upon his rights and property. The defendants answered and the cause was referred to the master who found that the complainant had no right to interfere with or prevent the use and possession by defendants of the rails in the track leading from the public road to and into the mine, that the passage ways and facilities upon the surface of said real estate were reasonably necessary for the removal and marketing of said coal and that upon the construction thereof, the same became and were, and yet are, appurtenances to the estate then possessed by all the tenants in common in said coal and now possessed by the defendants under their master’s .deed, and that the complainant has no right to remove the same or interfere with the possession thereof by the defendants. The master therefore recommended the entry of a decree dismissing the bill. The master’s report was thereafter, on November 8, 1922, approved by the chancellor and a decree rendered dissolving the preliminary injunction theretofore issued and dismissing the bill for want of equity at the costs of the complainant. There was no appeal ever taken from this decree and the defendants have continued to mine the coal and operate the mine from the date of that decree, November 8,1922.

On March 6, 1934, Louis A. Schmidt filed the instant complaint. In this complaint he alleged that he was the owner of said tract number one, except that his brothers, Frank and Henry, who were made defendants, were the owners of the coal underlying said tract. The complaint further alleged that by virtue of the deed from the master heretofore referred to, the said defendants acquired not only the title to the coal underlying said tract number one, but also the right to enter said tract one for the purpose of mining the same; that in pursuance to the said master’s deed and the provisions of said decrees heretofore referred to, the defendants entered upon the surface of said tract number one, built a tipple and other top works and proceeded to' mine the coal thereunder. The complaint further alleged that the defendants own tract number two, which is adjacent and contiguous to tract number one, together with the coal underlying the same, and that the defendants have been mining the coal underlying tract two and hauling the same through the entry beneath the surface of tract number one and have been using the shaft on tract number one and the surface of tract number one for mining coal from tract number two. It was further averred that the defendants have a right to use the surface of tract number one, plaintiff’s premises, for mining coal underlying tract number one, but not for mining the coal under tract number two. The relief the plaintiff sought was an injunction restraining the defendants from using tract number one for the purpose of bringing to the surface coal mined from tract number two, and that they be restrained from maintaining any tipple or top works on tract number one except for the sole purpose of mining and removing coal still remaining under the surface of tract number one. The defendants answered and filed a counterclaim. In their answer they denied that they were using plaintiff’s premises for any illegal or improper purpose, alleged that they had a right to enter the plaintiff’s premises and remove not only the coal underlying tract number one, but also the right to remove the coal under tract number two. By their counterclaim they sought an injunction restraining the plaintiff from in any way interfering with them in and about the operation of their mine and along the entries and right of way thereto.

After the issues were made up, the cause was referred to the master in chancery, who took the evidence and reported his findings of fact and conclusions of law and recommended that the original complaint be dismissed for want of equity and that the defendant in the counterclaim, Louis A. Schmidt, be enjoined from interfering with Frank P. and Henry J. Schmidt in their mining the coal underlying both tracts or from interfering’ with their using the present entry and right of way in removing the coal from both tracts. To this report exceptions were sustained and a decree entered dismissing the counterclaim for want of equity and finding the equities for the plaintiff and enjoining the defendants from using or going upon the surface of tract number one for the purpose of mining, removing or bringing to the surface any coal or material taken from tract number two or from any other premises other than tract number one and from operating any tipple, top works or other improvements on plaintiff’s land except for the sole purpose of mining and removing coal which may yet remain unmined underlying tract number one. From this decree this appeal has been prosecuted.

It is insisted by counsel for appellants that the cases of Consolidated Coal Co. v. Schmisseur, 135 Ill. 371, and Schobert v. Pittsburg Coal & Mining Co., 254 Ill. 474, are decisive of the issues involved herein. In the Schmisseur case it appeared that the complainant Mary Ann Schmisseur had sold and conveyed the coal underlying her farm to the Schuremans and the contract of sale contained the following provision: And for the purpose of enabling said Schuremans to sink pits or shafts and successfully remove said coal, said Schmisseur hereby leases unto them and to their legal representatives for the term of thirty-five years, (unless the said coal shall be sooner exhausted, in which event said lease and the right to mine said coal shall cease and expire,) certain portions of said farm, containing in all eleven acres,” the contract then described said 11 acres. It further appeared that Schuremans sank a shaft, opened a mine and mined coal until they sold out to the Consolidated Coal Company which had purchased 100 acres of coal land adjoining the land of Mrs. Schmisseur. It further appeared that only about one-half of the coal under the Schmisseur land had been removed when the coal company commenced to mine the coal under this adjacent land, removed it through entries on the Schmisseur land and hoisted the coal so mined through the shaft and pit on her land. Thereupon Mrs. Schmisseur filed her bill to enjoin the coal company from transporting across or through her land or through the pit or shaft sunk upon her land any coal mined on lands other than hers. The hearing in the circuit court resulted in a decree enjoining the defendant coal company from using the pit and entries for any purpose except hoisting and removing coal mined under complainant’s land. The Appellate Court affirmed this decree. The Supreme Court reversed the judgment of the Appellate Court and remanded the cause to the circuit court with directions to dismiss the bill.

The court held that by the contract of sale executed by Mrs. Schmisseur, she sold absolutely the coal under her land for a gross sum and under the terms of the contract the grantees and their assigns had 35 years in which to mine and remove the coal and that the contract contained no provision requiring the removal of the coal before the end of that period. The opinion then continues: “It is insisted, and with much force, that a court of equity should interfere, by way of injunction, to prevent appellant from using its entries and the pit and shaft upon the leased premises for the purpose of removing and delivering coal upon its adjacent lands, for the reason, as is alleged, that it is in violation of the contract and a breach of its conditions. Where a contract of leasing,” continues the court, “is certain, and the use of the demised premises for a specified purpose is clearly fixed by the agreement of the parties, the appropriation of the premises to a use inconsistent with that for which they were demised will frequently afford ground for the interposition of a court of equity by way of injunction; and it is well settled, that whenever the use to which premises are sought to be appropriated is inconsistent with the purposes for which they were let, and the change will operate to the injury of the lessor, the aid of such court may properly be invoked. In respect of purely negative covenants annexed to or contained in contracts or leases, courts of equity will frequently interpose by injunction, and indirectly enforce specific performance of such negative covenants by prohibiting their breach: and it seems to be well settled, that where there is an express negative covenant, courts of equity will entertain bills for injunction to prevent their breach, although the same will occasion no substantial injury or though the damages, if any, be recoverable at law. This is upon the principle that the owner of land selling or leasing it may insert in his deed or contract just such conditions and covenants as he pleases touching the mode of enjoyment and use of the land. . . . The provision in the contract under consideration, in respect of the leasehold interest is, simply, that it is granted for the purpose of enabling said Schuremans to sink pits or shafts and successfully mine and remove the coal conveyed to them by appellee. Unquestionably, appellee might, had she seen proper, have restricted the use of the land leased by express stipulation, and have required the lessees to covenant against any use she might have deemed antagonistic to her interests. She did not do so, and as we have seen, a court of equity cannot interfere to prevent the threatened use by appellant unless injury results for which appellee has no adequate remedy. As already said, appellant has the right to use the shaft, and the leased premises upon which it is located, for the term of thirty-five years from the date of the contract, for the purpose of mining and removing the coal under appellee’s land, unless it shall sooner exhaust the same. It is not shown or pretended that the use of the entries through the mine in any way interferes with the use, occupation or enjoyment of appellee’s land by her. By the sale and conveyance of the fee of the coal, appellee severed it from her estate in the land, and the right of her grantees or their assigns to use the estate thus granted by appellee in the coal, so long as her property is not interfered with or injured in any way, cannot be questioned. It is manifest that until the expiration of the term, or until appellant or its assigns shall exhaust the coal under appellee’s land, appellee can have no right of re-entry in the mines or in the leasehold estate.” The court then stated that it was not conceivable how the proposed use of appellant’s mine and shaft could result in any damage to appellee and that at most her damages would be only nominal and. as no irreparable injury was shown as would justify the interposition of a court of equity, the bill should be dismissed.

In Schobert v. Pittsburg Coal & Mining Co., 254 Ill. 474, the Schmisseur case was followed and it was there held that one who sells the coal underlying his land might by express stipulation forbid the mining of coal from adjacent lands through the tunnels made in the mining of coal under the grantor’s land, but unless such restriction is expressly made, the grantor cannot enjoin the grantee or his assigns from using such tunnels in removing coal from adjacent lands. The Schobert case cited Lillibridge v. Lackawanna Coal Co., 143 Pa. St. 293, and Moore v. Indian Camp Coal Co., an Ohio case reported in 80 N. E. 6 and quoted with approval what was said in those cases to the effect that coal in place is a corporeal hereditament, the title to which passes in fee simple to the purchaser by apt conveyance and that when the coal is removed and there remains an empty chamber or space, the owner thereof is the party who owned the coal formerly therein and he may use such space as a way for the carriage of minerals from his adjoining-lands ; that the owner of the fee may create a separate mining right and if he does, he may protect himself by restrictions, but in the absence of express restrictions, the law recognizes that the ownership of the surface and the ownership of the underlying- coal is separate and distinct and that the owner of the surface has no access to the space or chamber after the coal is removed and cannot use it and can be in no manner injured by the use of it by the owner thereof.

In Westerman v. Pennsylvania Salt Mfg. Co., 260 Pa. 140, 15 A. L. R. 943, the Schobert case, supra, is cited and the Pennsylvania court quotes with approval from a note following the report of the Schobert case in 40 L. R. A. (N. S.) 826, where it is said: “It is generally held that a grantee of coal in place, with license to mine and remove it, in the absence of express stipulation, may at any time, before the coal is all removed, use the underground passages opened for its removal for the transportation of coal from his adjoining lands,” the opinion then continues: “The rule is different in the case of a right of way upon the surface of land which is incorporeal and can be used only for the purpose specified in the grant,” citing among other cases Vogel v. Webber, 159 Pa. 235, 28 Atl. 226.

In Vogel v. Webber, supra, it appeared that Mrs. Lewis and andther were the owners of a certain tract of land and they conveyed to one Sutton the underlying coal, together with the free and uninterrupted right of. way into, upon, and under said land as might be proper and necessary for the purpose of taking and carrying away the coal. Sutton conveyed his right and title to the coal to Weinmann, of whom Vogel was lessee. A pit was opened from which coal was taken and Webber became the owner of the surface of this tract, which was subject to the grant to Sutton. Weinmann also owned the coal underlying an adjoining tract and this he also leased to Vogel and Vogel claimed the right to take through the pit opened on the surface of the land, then owned by Webber, the coal underlying such adjoining land and to carry it to a public road over a way on the surface of Webber’s premises. Webber denied that Vogel was entitled to so use the pit and the surface of his premises for such use and brought suit in trespass and recovered in the trial court. The Supreme Court affirmed the judgment of the trial court, and in its opinion said that Vogel’s right to use the pit in question was by the terms of the grant or conveyance made by Mrs. Lewis; that the terms of this grant or conveyance confined and restricted the use of the pit to the coal lying beneath the tract of Webber; that the words of the grant were clear and explicit and conveyed all the merchantable coal lying beneath the described premises, together with the free and uninterrupted right of way for the purpose of digging, mining and carrying away the said coal. “Under these terms,” said the court, “appellant (Vogel) had no right to take through that pit coal from beneath the adjoining tract, except such as may possibly have been required as a part of the mining operation for the purpose of opening up an air shaft, and necessarily incident to the mining under appellee’s (Webber’s) tract. If appellant mined coal from beneath the adjoining tract, and carried it through the pit in question, he became liable for so doing. . . . By the terms of the grant to Sutton, he became the owner of the merchantable coal under appellee’s tract, and was entitled to mine the same, but he had no right to mine upon other lands, and use the pit for such mining operations, because his grant expressly limits his right to the coal mined and lying beneath the tract in question. ... In this case the appellant, as lessee, claimed the right to mine and take coal out of the adjoining tract through the pit on appellee’s land, and over it, although his lessor had accepted the grant, which restricts the use of the pit and the right of way to the mining and hauling of the coal which underlies only the tract of appellee. The use of the pit and of the right of way was specially restricted to the mining and to the hauling of the coal under appellee’s tract.”

Hooper v. Dora Coal Mining Co., 95 Ala. 235, 10 So. 652, was a suit for injunction to restrain the defendant coal mining company from using the complainant’s land for the purpose of loading and carrying away coal mined on lands adjacent to the complainants. The bill alleged, among other things, that the complainant was the owner of certain premises other than the underlying coal and the right to mine the same; that the defendant company had opened a mine on said land and erected certain buildings thereon used for mining coal; that the company had ceased to mine the coal lying beneath the surface of complainant’s land to any appreciable extent and had extended the openings of the mine to adjacent lands from which large quantities of coal are mined, using the plant upon complainant’s land to load and transport such coal, not loading or transporting coal mined beneath the surface of complainant’s land. A demurrer to the bill was sustained by the lower court and the Supreme Court of Alabama in reversing the decree of the trial court which dismissed the. bill said: “The bill does not inform us whether the right of defendant to mine is by reservation in a deed to the surface, or by a grant of the minerals, the grantor reserving to himself the surface. But it is immaterial; the relative rights and duties of the parties are the same. It is well settled that where one person is the owner of the surface and another of the subjacent minerals, the surface is servient to the mining right as to the occupation and use of so much as may be reasonably necessary for the beneficial and profitable working of the mines. A reservation or grant of the minerals, severed from the ownership of the surface, carries with it the rig’ht to penetrate through the surface to the minerals for the purpose of mining and removing them. This includes the adoption and use of such machinery, methods, appliances, and instrumentalities as may be reasonably necessary and are ordinarily used in such business. . . . The right to use the surface, implied from the reservation or grant, arises from and ceases with the necessity of the case. When all the subjacent ore is dug and removed, and the mine exhausted, there no longer exists any necessity for the use of the surface. Without an express reservation or grant, the right to use the plant erected on the surface of complainant’s land for the loading and transporting of coal mined on adjacent lands does not exist. Midgely v. Richardson, 14 Mees. and W. 595.”

In 40 C. J. 1012, the author states that “except to the extent that the right to use the surface of the leased premises in connection with adjacent mining operations is expressly granted or necessarily implied, a mining lessee cannot use his surface rights or privileges for the purpose of taking out minerals from other lands not owned by the lessor; nor has he the right to . . . use the openings and apertures on the leased land to mine adjacent lands not owned by the lessor.”

There is an exhaustive annotation as to the right of the owner of minerals under one tract to use the surface in connection with mining another tract in 48 A. L. R. 1406. The editor of the annotation there says: “However true it may be that, in the absence of any provision to the contrary, the lessee or grantee of minerals in place, as the owner of the minerals and the space they occupy, to use the gangways and underground passages cut through his own minerals for the purpose of going to and removing minerals mined from other lands, he has no right, in the absence of agreement, express or necessarily implied, to the use of surface privileges for the purpose of such outside mining operations, inasmuch as the use of surface privileges for such purposes is not ordinarily deemed incidental to the rights granted, nor reasonably necessary to their exercise.”

In Brasfield v. Burnwell Coal Co., 180 Ala. 185, 60 So. 382, it appeared that Brasfield leased certain lands to one Francis for a period of 20 years or until the coal and minerals were worked out, the lessor to receive a certain royalty per ton. Francis assigned his lease to the Burnwell Coal Company, which commenced to mine the coal from said lands. Thereafter the coal company leased other adjoining lands from other parties, designated as the Bryan land, and began mining coal thereunder, but used for that purpose the opening, tipples and tracks which it had constructed on Brasfield’s lands. Thereupon Brasfield instituted this proceeding to enjoin the coal company from using the surface rights of his lands for such purpose. In holding that the plaintiff was entitled to such relief, the court said: “He (the lessor) certainly has a right to object to the lessee’s using the surface of his land in order to mine and market the coal in the Bryan land. He has made no contract to that effect, and it is not claimed that he has ever consented to such use of his lands. He did contract, agree,' for the use of the surface of his land, in order to mine the coal in his land, but not to mine coal in other people’s land. The lessee has no more right to use the surface of complainant’s land for mining the coal from the Bryan land, than he would have to use the surface of the Bryan land for mining coal from the complainant’s "land. We do not think it possible to so construe the lease in this case as to confer the rights which the appellee contends for and is asserting over the protest of complainant.”

The facts in the cases of Consolidated Coal Co. v. Schmisseur, supra, and Schobert v. Pittsburg Coal & Mining Co., supra, are distinguishable from the facts in the instant case. In those cases the owner of the surface had leased a certain portion thereof for a definite period unless the coal thereunder was sooner exhausted and did not restrict its use by any express stipulation and our Supreme Court held that in the absence of any such express stipulation forbidding the mining of coal from adjacent lands through the tunnels made in the mining of coal under the grantor’s land that the grantor could not enjoin the grantee or his assigns from using such underground spaces or chamber for the transportation of coal mined from adjoining lands. In the instant case the record does not disclose who owns the surface of tract number two, but appellee has been the owner of the surface of tract •number one since 1915. From 1915 to 1921 appellee also owned an undivided interest in the coal underlying both tracts. Since 1921 appellee has had no interest in or title to any of the coal underlying either tract. Since October 25, 1921, appellants have been the sole owners of the coal underlying both tracts by virtue of the master’s deed which they received on that date. Following the proper legal description of tract number one in this deed are these words: “containing 49.75 acres, more or less, together with the right of entering said premises and mining said coal.” Following the legal description of tract number two in this deed are these words: “with the privilege of mining and removing the same at any and all times and also with the privilege of sinking air shafts through the surface of the land.” Whatever rights appellants now have in the surface of tract number one were acquired by them by virtue of this conveyance and while the law is well settled that the surface of tract number one is servient to the right of appellants to penetrate through that surface for the purpose of mining the coal underlying tract number one and while the surface of that tract is also servient to the use and occupation of so much thereof as may be reasonably necessary to properly remove that coal, there are no cases to which our attention has been called that hold, in the absence of any express contract, that the surface of tract number one is servient to the right of appellants as the owners of the coal underlying tract number two to use the surface of tract number one to hoist, transport, unload and load coal underlying tract number two.

The only proper construction that can be given the words, employed in the master’s deed, so far as tract number one is concerned, is that the grantees acquired the right to use 'the surface of that tract for the purpose of mining and removing the coal underlying that tract and the only proper construction that can be given to the words employed in the master’s deed so far as tract number two is concerned is that the grantees acquired the right to use the surface of that tract for the purpose of mining and removing the coal underlying that tract. In the absence of an express grant, we are clearly of the opinion that the right to use the surface of tract number one for the purpose of hoisting, transporting, loading and unloading the coal underlying tract number two does not exist. If the contention of appellants is correct, then they could continue' to acquire the coal underlying other lands adjoining either tract one or tract two in any direction and solely by virtue of the provisions of the conveyance of October 25,1921 continue to use the surface of tract number one to mine all the coal underlying all such additional lands. There are no words employed in the decree or in the master’s deed made in pursuance thereof which in our opinion would permit of such construction.

The decree of the chancellor is in harmony with the foregoing authorities and will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Edwards

license: Public Domain

text:
    Clessie Hicks, Administrator of the Estate of Robert Robertson, Deceased, Appellant, v. Swift and Company, Appellee.
    Opinion filed March 6, 1936.
    Rehearing denied April 30, 1936.

      Wilmer L. Vogt, of East St. Louis, for appellant; Callahan & Callahan, of counsel.
    E. W. Eopiequet and Henry G-. Miller, both of East St. Louis, for appellee.
   Mr. Presiding Justice Edwards

delivered the opinion óf the court.

Appellant, administrator of the estate of Eobert Eobertson, deceased, hereafter referred to as plaintiff, brought suit against appellee, who will be designated as defendant, to recover damages under the statute for the benefit of the next of kin of decedent, for causing the death of said Eobert Eobertson by a collision of defendant’s truck with a coupe in which Eobertson was riding as a guest passenger on May 14, 1934.

The complaint, as amended, consisted of two counts, the first of which charged general negligence on the part of defendant, and also alleged two specific acts as constituting a want of care on its part. The second count charged wilful and wanton misconduct. Defendant answered, denying all the material averments relating to negligence and wanton misconduct.

The cause was tried before a jury. At the close of plaintiff’s case defendant moved for a directed verdict as to the second count, which motion was sustained. At the conclusion of all the evidence defendant again moved that the jury be instructed to find defendant not guilty. The court, acting under sec. 68 of the Civil Practice Act, held in abeyance a ruling upon the motion, and the jury returned a verdict for plaintiff in the sum of $5,000. The motion was thereafter argued, and sustained by the court, who rendered judgment finding defendant not guilty, in bar of the action, and against plaintiff for costs. The propriety of the court’s action in this respect is the basis for this appeal.

As we read the brief and argument of defendant, the only question seriously discussed or contended for is that there is no proof of defendant’s negligence.

As to the specific charges of acts claimed by the plaintiff to be a want of care on the part of defendant, as being the proximate cause of the accident, we think there was no sufficient proof to justify their submission to the jury, and that the court’s ruling at least to that extent was correct.

Relative to the general charge that the defendant, by its servant, so carelessly drove its truck that as a proximate consequence the collision resulted, a consideration of the proof is necessary.

The testimony is that on the day in question a coupe, in which deceased and one Curtis Marshall were riding as guest passengers of Frank Talcott, the driver, was proceeding northwesterly on a cement State highway through National City; that defendant’s truck, loaded with two tons of tankage and driven by its servant Charles Nevin, was proceeding southeasterly on said highway. Directly ahead of the coupe were two cars; all three were running at about 15 miles per hour. The car directly in front of the coupe turned to the right to pass the one ahead, whereupon the first car stopped. Talcott, driver of the coupe, in order to avert a collision, applied his brakes, and the coupe skidded to the left over the wet pavement; that rain was falling at the time, and that the coupe continued on an angle southerly until it contacted the curb on the south side of the cement slab, where it stopped. Marshall testifies that at such time defendant’s truck was 60 or 70 feet distant, coming at 35 to 40 miles an hour; that it struck the coupe on its right side, breaking the door and throwing Robertson and Marshall on to the pavement; that it ran over the former, killing him almost instantly, and finally stopped with Robert-, son’s body just back of the truck’s rear axle.

Nevin testified that he saw the coupe shoot at an angle southerly across the road; that he was then about 30 feet from it and traveling at 15 miles an hour, and that he applied his brakes and slowed down, turning to the left and attempting to avoid contact with the coupe. He further stated that under the conditions of speed at which he was then running, the wet condition of the pavement, and the weather, he could have stopped his truck within a space of its length, which was 15 feet. Talcott testified that the truck was 30 or 40 feet distant when his coupe crossed to the south, and Enos Mathews, a bystander, testified to substantially the same distance.

That defendant, at the time of and immediately before the collision, was bound to use the care and caution to avoid collision that an ordinarily prudent person would have then and there exercised, is clear. The rule is well stated in Kessler v. Washburn, 157 Ill. App. 532, where the court, on page 537, said: “No owner or operator of an automobile is necessarily exempt from liability for collision in a public street by simply showing that at the time of the accident he did not run at a rate of speed exceeding the limit allowed by the law or the ordinances. On the contrary, he still remains bound to anticipate that he may meet persons at any point in the public street, and he must keep a proper lookout for them and keep his machine under such control as will enable him to avoid a collision with another person, using proper care and caution; and if necessary he must slow up and even stop.

. . . The true test is that he must use all the care and caution which an ordinarily careful and prudent driver would have exercised under the same circumstances.” The rule is similarly stated in 42 Corpus Juris, 928, sec. 638.

It is obvious that as the coupe skidded across the pavement, two courses were open to the driver of the truck in order to avert a collision. One was to pursue the course which he adopted of slackening his speed and turning to the left, or to apply his brakes and bring his car to a stop, which he testified he could have done within a distance of 15 feet. He further stated that he was at least 30 feet distant from the coupe as it crossed the pavement. It is therefore manifest that if he, upon seeing the danger, had at once used the means at his command to stop his machine, which, as he stated, he could have accomplished in 15 feet or one-half of the distance he then was from the coupe, the truck would have halted before it reached the other car and the collision would not have occurred.

Whether in so acting he used the care and caution which an ordinarily prudent and careful person would have exercised in the same situation, or whether such a person would have stopped the car, as he said he might have done, and that the failure to do so was negligence which proximately caused the accident, were questions of fact. Petro v. Hines, 299 Ill. 236.

In Fox v. Barekman, 178 Ind. 572, 99 N. E. 989, it was held that a jury’s finding of negligence was justified where the driver failed to apply his emergency brake, on discovering his steering gear was broken, so as to have prevented the accident in question.

In Russell v. Electric Garage Co., 90 Neb. 719, 134 N. W. 253, the court ruled that a driver, who sees he is about to collide, is not sufficiently prudent if he uses only one of the methods at hand to avert same, and when such use is. not sufficient he may not sit inert or helpless and fail to use other preventive means at his command.

The Supreme Court of New Jersey held, in Eastmond v. Wachstein, 135 Atl. 67, that it was proper to instruct the jury, “it is the duty of the driver of an automobile to use reasonable care to avoid injuries to others, and it is a breach of that duty to fail to stop the machine or slacken its speed when that is the only way in which injury to others can be avoided.”

Walmer-Roberts v. Hennessey, 191 Iowa 86, 181 N. W. 798, is authority for the doctrine that whether an automobile driver who ran into a person standing in the street, was guilty of negligence in not bringing his car to a full stop on observing that the person facing the other way was apparently oblivious of his approach, is, at the least, a question for the jury.

The authorities cited illustrate the rule that whether an automobile driver situated as was that of defend ant’s truck, acted under the conditions as would an ordinarily prudent and careful person similarly situated, was, to say the least, a question of fact for the determination of the jury. The truck driver had at his command two available methods of attempting to avert the impending collision. He chose one and ignored the other.

Negligence does not become a question of law unless the evidence, which may be properly weighed upon the motion to direct a verdict, is such that all reasonable men would agree in their deductions from it, and if from the facts bearing upon the question of negligence, reasonable men of fair understanding might draw different conclusions, the question is one of fact, not of law, and must be submitted to the jury. Chicago & N. W. Ry. Co. v. Hansen, 166 Ill. 623; Hoehn v. Chicago, P. & St. L. Ry. Co., 152 Ill. 223; Petro v. Hines, supra, at page 240.

It cannot be said that, within the rule, all reasonable minds would agree that the truck driver, in electing to slow his car and turn to the left in order to avoid a collision, and failing to bring his vehicle to a stop, as he said he had the power to do, within 15 feet, while the coupe was at least twice that distance away, and the employment of the latter method, by his own testimony, would have prevented the accident, acted as an ordinarily prudent and careful person similarly situated would have done.

The question was one of fact for the determination of the jury, not one of law for the court, and the sustaining of the motion and the entering of judgment notwithstanding the verdict was error.

It is not seriously contended that decedent was guilty of contributory negligence, and we think the evidence bearing thereon was sufficient to fairly raise a question of fact.

Div. (c) par. 3 of said sec. 68 of the Civil Practice Act provides that if the court is of opinion that the trial court erred in so entering judgment, same shall be reversed, and it shall order or enter judgment in accordance with the verdict unless it appear that error was committed that would have entitled the party in whose favor judgment notwithstanding the verdict was entered, to a new trial if such judgment had not been entered by the trial court, in which case a new trial shall be ordered.

There is no claim of error in the trial of the cause. Accordingly, the judgment is reversed and the cause is remanded, with directions to the trial court to enter judgment on the verdict.

Reversed and remanded with directions.


author: Mr. -Justice Murphy

text:
    Theodore Litzelman et al., Appellants, v. Town of Fox, Appellee.

      Opinion filed March 6, 1936.
    Rehearing denied April 30, 1936.
    Kasserman & Kasserman, of Newton, for appellants.
    John C. Bitter, of Olney, for appellee.
   Mr. -Justice Murphy

delivered the opinion of the court.

April 7, 1935, pursuant to the provisions of the Dram Shop Act, there was submitted to the voters of Fox Township, Jasper county, the question whether the sale at retail of alcoholic liquor should be prohibited in said township. The affirmative of the proposition carried by a majority of eight votes.

Theodore Litzelman and four others, voters and taxpayers of said township, who are herein referred to as plaintiffs, filed a complaint in the circuit court of Jasper county, charging irregularities in the count of the ballots and prayed for a recount. Fox Township was the sole party defendant.

Section 17, Article IX, ch. 43, Ill. State Bar Stats. 1935, provides that suits contesting the validity of an election held under said act shall be filed in the county court and that it shall have final jurisdiction to hear and determine the merits of such cases. Provision is also made for the issuance of a summons addressed to the clerk of the city, village, town or road district, as the case may be. No other provision is made in said section for the bringing of any party into court by summons but any legal voter of the district in which the election was held may appear and defend the validity of the election. Pursuant to this latter provision, Robert Collins and four others, taxpayers and voters of the township, who are referred to herein as defendants, appeared and filed a motion to dismiss on the grounds that the circuit court did not have jurisdiction of the subject matter. No one appeared on behalf of the township. Under the reasoning in Saylor v. Duel, 236 Ill. 429, the circuit court did not have jurisdiction to hear and determine this election contest.

Before any action was taken on defendant’s motion, plaintiffs filed an amended complaint in which it is alleged that the petition calling the election and which was filed with the town clerk was irregular and insufficient in that after deducting the names of certain signers for irregularities, there was not 25 per cent of the voters of the township that had signed the petition. The only allegation in the amended complaint which refers to any special interest or right the plaintiffs have is that one of the plaintiffs was the owner of a tavern in said township where alcoholic liquor was sold and that two of the plaintiffs owned a tavern where beer was sold and alleged that by reason of the insufficiency of the petition the election should be declared void and the officers restrained from carrying out and enforcing the result of the election. It does not appear that any of the township officers appeared to make answer to the amended complaint.

A temporary injunction was issued as prayed without notice. Paul Bohr and nine others, taxpayers and legal voters, none of whom had been parties to the litigation, appeared and filed a motion and prayed that the temporary injunction be made permanent. The court denied the prayer of their motion and the court’s ruling in that regard is not here on this appeal.

Defendants filed a motion to dissolve the temporary injunction. Plaintiffs filed a cross motion to strike defendants’ motion on the ground that the defendants are not parties to the suit and had no right to contest the matter on behalf of the township. Plaintiff’s cross motion to strike defendants’ motion was denied and the court dissolved the temporary injunction and dismissed plaintiffs’ amended complaint. Plaintiffs appeal from that order.

The view we take of this whole proceeding makes it unnecessary to consider the propriety of the court’s rulings in reference to plaintiffs’ cross motion to strike defendants’ motion to dissolve.

The right to contest an election is purely statutory and where the statutes designate the court in which such proceedings may be instituted, any court other than the one named is without jurisdiction to hear and determine such contest. Saylor v. Duel, supra. The circuit court had no jurisdiction tQ hear and determine the matters set forth in plaintiffs’ original complaint. Plaintiffs abandoned the original complaint praying for a recount and alleged a different state of facts and endeavored to obtain relief from a court of equity by the issuance of an injunction.

It is a general well established and recognized rule in this State that the jurisdiction of a court of equity pertains only to the maintenance of civil, personal and property rights and that it has no jurisdiction over matters or questions of a political nature unless civil property rights are involved. Spies v. Byers, 287 Ill. 627; Payne v. Emmerson, 290 Ill. 490; People v. McWeeney, 259 Ill. 161. Unless a party is injured in his property rights, he cannot by writ of injunction determine the validity of an election or contest the acts of public officers in the discharge of their duties. Any order entered by a circuit court upon such questions is void for want of jurisdiction over the subject matter. People v. Rose, 211 Ill. 252.

In Payne v. Bmmerson, supra, the court in defining civil rights and rights arising out of question of a political nature said, “A political right is defined by Anderson to be ‘a right exercisable in the administration of government,’ while a civil right is ‘a right accorded to every member of a distinct community or nation.’ Bouvier puts it thus: ‘Political rights consist in the power to participate, directly or indirectly, in the establishment or management of government. ’ ‘ Civil rights are those which had no relation to the establishment, support or management of the government. These consist in the power of acquiring and enjoying property, of exercising the paternal and marital powers, and the like.’ People v. Barrett, 203 Ill. 99.”

The allegation in the amended complaint that a part of the plaintiffs owned taverns in said township where alcoholic liquors and beer were kept for sale and that if the officers were permitted to enforce the result of the election, they would be damaged, is not an allegation in reference to a property or civil right. Before they could lawfully conduct such business in their taverns, it was necessary for them to comply with the provisions of the Dram Shop Act and acquire a license. The right to such a license is not a civil right. Section 1, Article VI, of the Dram Shop Act provides that a license issued under its provisions is purely a personal privilege, cannot be assigned, is not a subject of inheritance and shall not constitute property. Since plaintiffs did not show by their amended complaint that they were damaged in any of their civil rights, the circuit court was without jurisdiction of the subject matter and had no power to grant the temporary injunction and having done so, the court had the power on its own motion to correct the error by dissolving the injunction. Hawkins v. Hawkins, 350 Ill. 227. Jurisdiction could not be conferred by consent or acquiescence. Miller v. Illinois Cent. R. Co., 327 Ill. 103; Larson v. Kahn & Co., 322 Ill. 147; Road Dist. No. 6 v. McKinney, 299 Ill. 130; Foote v. Lake County, 198 Ill. 638. A court cannot proceed in a cause where jurisdiction to determine it is wanting. Will v. Voliva, 344 Ill. 510; Miller v. Illinois Cent. R. Co., supra; Bennett v. Bennett, 318 Ill. 193; McMahan v. Trautvetter, 297 Ill. 604.

After dissolution of the temporary injunction, defendants filed a motion for suggestion of damages. In reference to that matter the order recites “and by agreement of parties damages are assessed in the sum of $50.00. The motion for assessment of damages to abide by said appeal.” That amounted to a confession of the decree for that sum. Holmes v. Stateler, 57 Ill. 209. Neither the notice of appeal nor plaintiffs’ brief and argument question the allowance of damages. The decree is affirmed and under the stipulation the damages consented to are allowed.

The decree of the lower court in dissolving the injunction and dismissing the amended complaint is affirmed and a money decree for $50 will be entered in this court in favor of the defendants and against the plaintiffs.

Decree affirmed.


author: Mr. Presiding Justice Huffman

text:
    Bernice Welty, Appellee, v. Wilbur Laurent, Appellant.
    Gen. No. 9,021.
    Opinion filed April 13, 1936.
    North, Gtbboney & North, of Rockford, for appellant.
    Miller & Thomas, of Rockford, for appellee; Charles A. Thomas, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is an action brought by appellee against appellant and one Thomas C. Young to recover for personal injuries received by appellee as a result of a collision between an automobile operated by appellant and an automobile operated by the said Thomas C. Young. Appellee was riding as a guest in appellant’s car. The action was commenced by appellee against appellant and the said Young as joint tortfeasors. After the cause was set for trial, a severance was granted. A jury was called and impaneled to try the cause as against the defendant Young. On motion of appellee, - the suit against Young was dismissed. Subsequently the cause as against appellant came on for trial. A verdict in favor of appellee and against appellant for $1,000 was returned, and judgment entered upon the verdict. It is from this judgment appellant, appeals.

It developed upon the trial of this case and by the testimony of appellee herself, as a witness called by the appellant, that she had settled the action against the said defendant Young for the sum of $806.50, and signed a release and receipt therefor. This evidence was introduced without any objections, and stands in the record uncontradicted and unexplained. Appellant filed his motion to direct a verdict and tendered, instruction thereon, both at the close of the plaintiff’s evidence and at the close of all the evidence in the case. These motions were denied by the trial court. It is insisted by appellee that the motions did not preserve the question of satisfaction and accord because they were general. Motions of this character coming at the proper time have been held sufficient to raise the question of accord and satisfaction. Wallner v. Chicago Consolidated Traction Co., 245 Ill. 148, 151. Furthermore, the rule is definitely established that the release of one of several joint tortfeasors is a release of all, and that an accord and satisfaction with one of them is a bar to an action against the others. City of Chicago v. Babcock, 143 Ill. 358; Wallner v. Chicago Consolidated Traction Co., supra. A covenant not to sne is a different instrument than a release or an accord and satisfaction for unliquidated damages and the legal effect of such instruments is not the same. City of Chicago v. Babcock, supra, at page 366; Scharfenstein v. Forest City Knitting Co., 253 Ill. App. 190, 202.

This trial between appellant and appellee was had upon the same pleadings as filed by the appellee against appellant and the said Young. Appellee’s complaint is to the effect that the two defendants were operating their automobiles at a time and place described, and because of the combined wrongful acts of said defendants, the cars they were then operating collided, resulting in appellee’s injuries. The question of release and satisfaction by appellee was raised by the evidence. No objection was interposed thereto. Appellee testified to such facts, as a witness for appellant. This manner of defense was accepted by appellee and the trial proceeded accordingly. The attorney for appellee, in his closing argument to the jury, stated to them that in fixing the amount of damages for appellee in this case, they should take into consideration the $806.50 already received by appellee from the defendant Young, and “take off” this sum from the amount arrived at as damages in this case; with the further comment that “I think that is the law and that is what the court will instruct you. ’ ’ Following this, the court in its narrative instructions to the jury with reference to this matter and the' fixing of appellee’s damages, stated among other things: “By the evidence it is shown that plaintiff has already received $806.00 to apply on the damages she claims to have suffered as a result of the accident in question, the same being paid to her on behalf of Thomas C. Young, one of the original defendants in this suit, and, even.though you may find the defendant guilty in this case, and you should consider and determine the amount of damages plaintiff is entitled to recover, you should take into consideration in arriving at any verdict fixing’ such amount, the amount of money already received by plaintiff on account of her damages . . . .”

There is nothing in the record to indicate that the instrument signed by appellee with reference to the defendant Young was anything other than a release and satisfaction of damages claimed as a result of the injuries received because of the collision of the two automobiles operated by the two defendants. The instrument itself was not introduced in evidence; however the evidence of appellee indicates that the same was a release and not a covenant not to sue. Under the circumstances it was error to instruct the jury in the manner as above indicated.

For the foregoing* reasons, this cause is reversed and remanded.

Reversed and remanded.


text:
    Isaac W. George, Appellee, v. County of DeKalb, Appellant.
    Gen. No. 9,051.
    Opinion filed April 13, 1936.

      Latham Castle, State’s Attorney, for appellant.
    Cassius Poust and L. Frank Moudry, both of Sycamore, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Appellee was a former sheriff of DeKalb county. This case originated by appellee, as claimant, filing his claim with the board of supervisors of said county for the sum of $847.69, claimed as a balance due him for his salary as sheriff. The claim was denied by the county board and an appeal was taken to the circuit court of said county, pursuant to statute, Ill. State Bar Stats. 1935, ch. 34, 38 (ch. 34, sec. 35 et seq., SmithHurd 1935). The cause was heard before the court and judgment rendered for appellee in the sum of $847.69. The county prosecutes this appeal from the above judgment.

It is the contention of appellee that at the expiration of his term of office as sheriff of said county, there was a balance of $847.69 due him for salary as such officer. He claims that during his tenure of office, he paid into the county $3,702.93 as excess fees, and that by virtue of Ill. State Bar Stats. 1935, ch. 53, fí 69 (sec. 69 of ch. 53, Smith-Hurd 1935), he is entitled to be paid the balance of his salary from such excess fees collected by him and turned over to the county.

He claims that during his term of office he turned over to the county treasurer the sum of $4,336.90 which should be considered as earnings of his office. It was appellee’s custom to keep and feed federal prisoners at the county jail. For this privilege, he paid to the county the sum of 10 cents per day for each of such prisoners. It was in this manner that the above sum of $4,336.90 was created. Appellee urges that by agreement with the county board, this per diem fee of 10 cents per day for the privilege of keeping federal prisoners in the county jail, was to be considered and treated as earnings of his office. While these things are argued by appellee in his brief, yet he admits there is no evidence in the record as to any of them except that the semiannual reports as filed by appellee show a total sum of $4,336.90 received by him for feeding federal prisoners, and that such sum was turned over to the county.

DeKalb county is a county of the second class. Article X of the Constitution of 1870 provides how the salary of the sheriff shall be paid. Ill. State Bar Stats. 1935, ch. 53, Tf 33 (sec. 37, ch. 53, Smith-Hurd 1935) classifies the fees of the sheriff’s office of counties of the second class.

The statute provides that appeals of this character shall be in the nature of appeals from justices of the peace. These provisions clearly require that the trial in the circuit court shall be de novo, upon such evidence as the parties may produce. Sufficient competent evidence must be adduced "to support the finding. No formal pleadings are required in actions of this character. However, the appellant was contesting appellee’s claim for the balance alleged by him to be due as salary, and was denying his right to same. Appellee confined his proof of claim to testimony going to establish the right to its introduction in evidence. He was present at the trial, but did not testify. His claim was not an account stated between the parties, as it had never been accepted by the defendant.. It was merely a statement of account about which the parties were in dispute. In an action on an account, the plaintiff’s account is not in its nature self-proving. Some testimony is required tending to prove its correctness and the fact that it is due and owing to the plaintiff, before such plaintiff shows a right to recovery. The plaintiff offered no testimony sufficient to demonstrate the above facts. Plaintiff’s statement of account, when contested and denied by defendant, is not within itself sufficient evidence to establish the claim. The denial put the plaintiff to other proof of the items set forth in his statement of account. We are of the opinion that this case closed without such proof. There was therefore no competent evidence to sustain the finding.

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

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. Methodist Deaconess Orphanage, Appellant, v. William L. Leech, Appellee.
    Gen. No. 9,058.

      Opinion filed April 13, 1936.
    James A. Steven, of Chicago, and Fremont M. Kaufman, of Dixon, for appellant.
    Clyde Smith, of Dixon, for appellee.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

Kate B. Stewart, a resident of Lee county, died testate. The executor nominated by the will failed to qualify and Martin D. Barnett was appointed administrator with the will annexed. The testatrix by the residuary clause of her will divided her residuary estate equally among the Methodist Deaconess Orphanage, Agard Deaconess Best Home, and the Berry Schools.

On February 6,1935, the administrator filed his petition in the county court for the fixing of an allowance to him in his accounts as such administrator, for legal services performed by his attorneys in connection with such estate. On May 13,1935, the county court entered its order finding that legal services were proper and necessary on behalf of said administrator, and ordered that he be allowed credit in his accounts as such administrator for the sum of $6,000 for attorney fees, and that the same should be taxed as costs of administration. Appellant prayed an appeal from this order to the circuit court of said county. The county court fixed the appeal bond in the penal sum of $12,000. On June 1, 1935, appellant presented to the county court an appeal bond executed by appellant as principal, and the Agard Deaconess" Rest Home as surety, in the penal sum of $12,000. With such bond, appellant presented a supporting affidavit made by the secretary of appellant corporation showing that said appellant and surety were owned and possessed of real and personal property in Lake county, Illinois, subject to levy and execution, in excess of $50,000 above all obligations and liabilities. The court refused to approve this bond. The 20-day period provided for the filing of such bonds expired on June 2, 1935. This day fell on Sunday, and upon the following day, to wit, on Monday, June 3, 1935, appellant caused to be filed with the clerk of the county court of said county another appeal bond, conditioned in the penal sum of $12,000, with appellant as principal, and James A. Steven and S. E. Leeman as sureties. This bond was duly executed and acknowledged, and is in the usual form. It was accompanied with supporting affidavits by the sureties, James A. Steven making affidavit that he was the owner of real and personal property of a fair cash market value of $40,000 over and above all of his obligations, and S. E. Leeman to the same effect to the sum of $15,000. The sureties were present in court ready to testify regarding their qualifications on such bond. It appears from the record that the bond was disapproved by the county court without hearing any testimony.

The appellant thereupon brought this petition for writ of mandamus in the circuit court of said county. Appellee filed a general demurrer to the petition, which was sustained and the petition dismissed. Appellant prosecutes this appeal from the order of the circuit court dismissing such petition.

The petition alleges that the sureties were good and sufficient, and of the financial worth and responsibility as set out in the affidavits; and charges that appellee refused to examine into the sufficiency of the sureties, and arbitrarily and without just cause refused to approve said bond.

The right of appellant to prosecute an appeal herein was fixed by statute. The proceeding having* been finally disposed of in the county court, the appellant was therefore entitled to take an appeal to the circuit court in the manner provided by statute. We are of the opinion that the bond filed on June 3, 1935, was filed within contemplation of the statute, that such bonds must be filed within 20 days. Ill. State Bar Stats. 1935, ch. 131, If 1 (11th Cl.) (ch. 131, sec. 1, If 11, Smith-Hurd 1935)'. The above chapter on statutes by said paragraph provides: ‘ ‘ The time within which any act provided by law is to be done shall be computed by excluding* the first day and including* the last, unless the last day is Sunday, and then it shall also be excluded.” It is not within the province of courts of review to overrule the discretionary acts of inferior tribunals unless a clear duty to act exists with an accompanying arbitrary refusal to perform the duty. As above stated, the statute gave to appellant the right of appeal from the order of the county court. We are of the opinion from the allegations appearing* in the petition herein that the same were sufficient as against a general demurrer. If the bond is filed within the time prescribed by statute, and in the amount fixed by the court, with sufficient sureties thereto, then the duty of the county court to approve the bond becomes ministerial in character, the performance of which may be compelled by writ of mandamus, upon sufficient facts going to show a clear right thereto.

Ill. State Bar Stats. 1935, ch. 3, if 69 (sec. 69, ch. 3, Administration Act, Smith-Hurd 1935), now provides that appeals from the county to the circuit court such as of this nature, shall be granted, “by appellant giving a good and sufficient bond, for costs only, . . . ” This change was brought about by an amendment of May 3,1935, and was obviously intended to correct the burden in many instances placed upon the appellant in appeals of this character. The administrator who procured the order for the allowance to himself of the attorney fee was in no way endangered in the loss of the money involved because of this appeal. He had the money in his hands. Under no circumstances could appellant be liable for more than the costs.

We are compelled to pass upon this case upon the record as before us. We are of the opinion that the petition filed was good as against a general demurrer. The order and judgment of the circuit court is therefore reversed and this cause remanded with directions that the circuit court overrule appellee’s demurrer to the petition, which was designated as a-motion to dismiss.

Reversed and remanded with directions.


author: Mr. Presiding Justice McSurelt

text:
    Thelma Schampon, Administratrix of the Estate of Frank Schampon, Deceased, Appellee, v. Louis Speis and Kipps Express and Van Company, Appellants.
    Gen. No. 38,703.

      Opinion filed April 20, 1936.
    John A. Bloomingston, of Chicago, for appellants.
    Charles C. Spencer and Bichard M. Spencer, both of Chicago, for appellee; Jefferson D. Burrus, of Milwaukee, Wis., and Howard G-. Deming, of Chicago, of counsel.
   Mr. Presiding Justice McSurelt

delivered the opinion of the court.

On the evening of August 25,1932, Frank Schampon, hereafter called plaintiff, was killed in an accident involving his own Chevrolet automobile and a truck belonging to defendant Kipps Express and Van Company, a corporation, driven by defendant Louis Speis. Plaintiff’s administratrix brought suit and upon trial had a verdict for $2,500, and from the judgment thereon defendants appeal.

The accident happened about 6:45 o’clock p. m. daylight saving time, underneath a viaduct which passes over Ashland avenue, a street running north and south, between 40th and 41st streets. The viaduct is approximately 125 feet from north to south, the roadway approximately 40 feet wide, running to a sidewalk elevated about six feet above the roadway on either side; in the center of the roadway running from north to south are 10 steel posts or pillars standing about 13 feet apart; north- and south-bound street car tracks run under the viaduct near the row of pillars.

Plaintiff was driving a new Chevrolet which he had acquired that day and was driving for the first time; his widow testified he had had some previous experience driving automobiles of friends. He was going south on Ashland, passing under the viaduct; the roadway was wet and he seemed to lose control of his car and, turning toward the left, going about 35 miles an hour, it crashed into the fourth pillar from the south of the viaduct; the bumper and the entire frame were bent back; when it struck the pillar the rear end swung around toward the west so that the Chevrolet was standing at an angle across the street car tracks. Defendants’ truck also was going southward under the viaduct and crashed into the standing Chevrolet, pushing it about 15 feet to the south; plaintiff was found lying near this pillar unconscious and so severely injured that he died shortly thereafter.

The theory of plaintiff’s counsel is that plaintiff got out of his car uninjured, when the truck came upon him and crushed him against the side of the Chevrolet. Counsel for defendants asserts that plaintiff was injured by the collision of his car with the pillar, and that in any event the evidence shows that plaintiff’s car turned across the pathway in front of the truck and so near it that a collision was unavoidable.

Two vital questions are presented: (1) What interval of time elapsed between the striking of the pillar by the Chevrolet and the striking of the Chevrolet by the truck? (2) Was the plaintiff injured by the collision of his car with the pillar or by the truck when it ran into the Chevrolet?

The man who could best answer these questions, as he had the best opportunity to see the details of the occurrence, was defendant Speis. He was placed upon the witness stand but plaintiff objected to his competency, which objection the court properly sustained under section 2, ch. 51, Evidence (Ill. State Bar Stats. 1935). This is sometimes called the “Dead Man’s Statute.” Wigmore on Evidence (2nd ed.), sec. 578, p. 1005, says that this rule of incompetency rests on “some vague metaphor in place of a reason” and aptly asks, can it be more important to save dead men’s estates “than to save living men’s estates from loss by lack of proof?” The meagreness of testimony as to the instant occurrence emphasizes this criticism.

These observations are pertinent with relation to the ruling of the trial court denying defendants’ motion for a continuance of the trial in order to obtain the testimony of Raymond Davies, said to be an eyewitness of the occurrence. In the motion for a continuance is incorporated a statement by Davies to the effect that upon this occasion he was driving his car south on Ashland avenue when, about 100 feet north of the railroad viaduct, he saw a new car pass on his right going about 50 miles an hour: that when it reached the viaduct it started to pass on the right of a large truck going under the viaduct; that when the car struck the wet pavement it started to sway and finally shot to the left in "the path of the truck, struck a pillar “and the driver fell out to the pavement.” Davies said in the statement that at all times he had a very clear view of the occurrence.

It may be that the affidavit for a continuance did not show necessary diligence in attempting to procure in apt time the testimony of Davies, who was said to be in Denver, Colorado. We are of the opinion, however, that the circumstances called for a liberal interpretation of defendants’ motion, leaning toward that construction which would further justice by giving a jury opportunity to consider all the obtainable evidence bearing on the occurrence.

A witness, William Parker, testified on behalf of plaintiff that he was standing at the northeast corner of 41st street and Ashland avenue, south of the viaduct; that he heard the crash as the Chevrolet struck the pillar; that at this time he saw defendants’ truck about 150 to 175 feet from the north end of the viaduct; that he walked 40 or 50 feet toward the Chevrolet when the truck coming southward crashed into it; his statement was that there were two crashes — that made by the Chevrolet striking the pillar and a subsequent crash when the truck struck the Chevrolet; he testified that after the Chevrolet struck the pillar he saw a per-' son get out of it from the left side. This tends to support the theory of plaintiff’s counsel.

Defendants’ counsel very earnestly attacks in many details the testimony of Parker, and in many points the witness seems to have taken inconsistent positions. But an examination of his testimony rather tends to make uncertain any statement or inference that plaintiff, intentionally and uninjured, got out of the Chevrolet and stood by its side momentarily before the truck came. Parker also repeatedly said he could not say whether the person “walked out, jumped out, fell out, or what happened, ’ ’ that all he could say was that a person came out of the left-hand door.

Defendants say the collision of the Chevrolet with the pillar and the truck striking the Chevrolet were virtually simultaneous. Two witnesses heard a crash; one witness was just emerging from under the north end of the viaduct, and the other, driving in the opposite direction, was just emerging from under the south end of the viaduct; they both testified that they heard but one crash, that there were not two crashes, and on investigating saw a truck, as one of them said, “piled into a Chevrolet,” and saw plaintiff lying on the roadway.

Two other men were driving a truck northward under the viaduct and were about opposite the colliding vehicles; they saw the truck running in the street car tracks and the Chevrolet to its right; saw the Chevrolet swing in front of the truck with about two feet of clearance, the Chevrolet going about 35 miles an hour; it crashed into a pillar of the viaduct and at the same time the truck struck the Chevrolet; there was but one crash — “It all happened like one.” Without further detailing the stories of these witnesses, their testimony by its greater weight supports the theory of the defendants that the collision of the Chevrolet with the pillar and the collision of the truck with the Chevrolet were virtually simultaneous.

Defendants’ counsel forcefully argues that the nature of plaintiff’s injuries demonstrates that they were caused by impact with the steering wheel of the Chevrolet when it collided with the pillar. A doctor testified that the “chest was caved in” and the pubic bones in front broken, but no injury to the illii on the sides. There is no convincing evidence as to how plaintiff received these injuries. If he fell out of his Chevrolet, as seems to be indicated, he probably was injured by his car running into the pillar. However, the present state of the record leaves this point largely a matter of conjecture.

The amount of the verdict, $2,500, suggests that the jury compromised on the question of liability. Plaintiff at the time of the accident was 37 years old, in normal health, married and earning about $40 a week. Under such circumstances if his death was caused solely by the negligence of the defendants a much larger verdict would be justified.

We hold that the greater weight of the evidence shows that plaintiff, having lost control of his car, turned in front of defendants’ truck when so near to it that, when his car ran into the pillar, it was unavoidably struck by the truck. The finding of the jury that defendants were guilty of the negligence charged and that plaintiff was free from contributing negligence is against the manifest weight of the evidence. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.

Hatchett and O’Connor, JJ., concur.


author: Mr. Presiding Justice McSurely

text:
    In re Estate of Virginia R. Apsey, Deceased. Robert Cousin, Appellee, v. Chicago Home for Incurables, Appellant.
    Gen. No. 38,746.
    Opinion filed April 20, 1936.
    Rehearing denied May 4,
    Chapman & Cutler, of Chicago, for appellant; Dayton Ogden, of Chicago, of counsel.
    George D. Kimball, of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This appeal presents the question whether a certain document is a valid codicil to the will of Virginia E. Apsey, bequeathing personal property to the Chicago Home for Incurables, or whether, as the executor argues, the document was an attempt to make a contract. It is as follows:

“February 1, 1933

“It is understood by the Home and agreed to by me that any moneys remaining in my personal account at the time of my decease shall become the sole property of the Home, it being understood that the Home will carry out all the provisions outlined in our original agreement.

Virginia E. Apsey

“The Chicago Home for

Incurables Witnesses :

Howard Groodsmith Clara Pitts

Director 5535 Ellis Ave.

Hora Sullivan

5535 Ellis Ave.”

It is necessary to narrate certain previous events leading up to the execution of this document. Virginia E. Apsey, a spinster, was blind; January 22, 1924, she became an inmate of the Chicago Home for Incurables, which is a charitable corporation not for pecuniary profit, organized under the laws of Illinois and having its principal place of business in Chicago; on that date a contract was executed by Miss Apsey and the Home which recites that in consideration of $1 the Home undertook to care for her and provide medical attention when necessary; she agreed to turn over to the Home a first mortgage note for $3,000, drawing interest at 6 per cent. Apparently Miss Apsey, because of her blindness, was receiving a pension, and in this contract she agreed to take care of her clothing and incidental expenses from the money which she received from her “Blind pension.” It was further agreed that upon her death while a resident of the Home the Home would take charge of the funeral, providing a suitable burial in Cook county, Illinois.

It was stipulated that she delivered to the Home the $3,000 mortgage note mentioned in the agreement; that the contract remained in full force during her lifetime; that from the time she was admitted to the Home in 1924 up to the date of her death the Home cared for her and provided such medical attention as was necessary; she died November 4, 1933, and the Home provided a suitable burial for her, as provided in the contract; at the time of the execution of the document of February 1, 1933, she had in her personal account with the Home, unexpended, money accumulated from her Blind pension, which at the time of her death amounted to $1,818.33.

The deceased left her surviving Fred H. Apsey, her brother, residing in New York City, her only heir at law. She made a will — the time not disclosed by the record — in which her brother was named as the only legatee and devisee. After her death this will was admitted to probate in the probate court’ of Cook county and letters testamentary were issued under the will to Robert Cousin as executor; subsequently the Home filed its petition in the probate court setting out the above matters and asserting that in addition to her last will she had left a codicil to her will, namely, the instrument dated February 1, 1933, quoted above; the petition asked that the codicil be admitted to probate; after hearing evidence the codicil was admitted to probate; the executor appealed from that order to the circuit court; the Home filed its appearance in the circuit court, and upon trial the circuit court found that the document dated February 1, 1933, was not a will or a codicil of a will of Virginia R. Apsey, and decreed that the order of the probate court admitting it to probate be set aside and held for naught; the Home has appealed to this court from that order.

The circumstances under which the questioned document was executed are not in dispute. Both witnesses to the document, Clara Pitts and Nora" Sullivan, were nurses in the Home; they both testified substantially to the same facts; that on the date of the instrument Miss Apsey, the two nurses and a Mr. Parker were present; that Mr. Parker asked Miss Apsey about the money which had accumulated from her pension fund and asked her if she was willing that the Home should have this money at the time of her death; that Miss Apsey expressed appreciation of the treatment. she had received from the Home and expressed her desire that the Home should have this money at her death; the document was read to her and she was asked if she fully understood it, to which she replied in the affirmative; that Mr. Parker placed a pen in her hand and indicated the place on the document for her to sign; the two witnesses signed as witnesses and saw Miss Apsey and each other sign; they testified she was of sound mind and memory at the time. She was about 70 years old at this time; the nurses and the physician who had her in charge testified that Miss Apsey was mentally alert and of a cheerful disposition; although blind she would recognize the voice of anyone coming into her room. She died the following November of acute nephritis.

Under section 2 of our statute on Wills, ch. 148, Ill. State Bar Stats. 1935, all wills and codicils, to be entitled to probate, must (1) Be in writing and signed by the testator, or by some person under his direction; (2) Must be attested by at least two or more credible witnesses; (3) Two witnesses must give proof that they saw the testator sign the will in their presence or that he acknowledged the same to be his act or deed; and (4) The witnesses must swear that the testator was of sound mind and memory at the time of signing or acknowledging the will. Proof of the foregoing* facts, in the absence of proof of any fraud, compulsion, or other improper conduct, will make a prima facie case entitling the will to probate. This is virtually a quotation from the° opinion in Noble v. Fickes, 230 Ill. 594. That opinion further says, “There is no prescribed form for a will, either under our statute or by the common law. If the intention of the maker to dispose of his estate after death is sufficiently manifested, and this intention be lawful in itself, and the instrument be executed in conformity to the statute, it will operate as a will regardless of its form.” These rules are so well established as to require no further citation of decided cases.

In Robinson v. Brewster, 140 Ill. 649, the document under consideration briefly stated that, “I, Joseph Robinson, for the consideration of one dollar, to me in hand paid, as well as my affection, do hereby assign and set over to my daughter ... all of my property, both personal and real, to have the same after my death”; this was signed by Robinson and attested by two witnesses. It was held to be a valid will. In Page on Wills (2nd ed.), vol. 1, sec. 71, it is said that where it appears that no interest is to pass until the death of the promisor, the instrument is a will as distinguished from a contract, citing numerous decisions from different States. In Austin v. First Trust & Savings Bank, 343 Ill. 406, a document addressed to a certain person requested him to ‘ ‘ deliver to my husband, F. C. Austin,” all jewelry and property “as his own and to do with as he sees fit”; there was also a reference to a will which had been made and handed to the person several years before for safe-keeping; this was signed by Mrs. Austin, with two attesting witnesses. It was held to be a valid codicil. Gump v. Gowans, 226 Ill. 635, also says that the law does not prescribe any particular form for a will but only requires that it shall be reduced to writing, signed and attested in the presence of the testator by two or more credible witnesses.

Tested by these regulations, it is clear that the document of February 1, 1933, contains all the necessary requirements. It is in writing, signed by Miss Apsey, attested by two credible witnesses who testified that they saw her sign the document in their presence, and they swore that she was of sound mind and memory at the time; it also contains the provision that it shall take effect upon her death.

The only provision which gives color to the claim of the executor that it is an attempted contract and not a codicil, is the latter clause of the document, which reads, “it being understood that the Home will carry out all the provisions outlined in our original agreement” — -evidently referring .to the agreement of January 22, 1924, when Miss Apsey became an inmate of the Home.

Conditional bequests are frequent, and a legacy or devise thus conditioned is uniformly recognized as proper. In LaRocque v. Martin, 344 Ill. 522, the will bequeathed certain property, provided the devisee should take care of the devisor until she died, and provided that neither the devisee nor her husband made any claim against the estate; it was shown that the conditions were complied with and the will was upheld. In the instant case it is stipulated that all the provisions outlined in the agreement of January 22, 1924, were fully complied with by the Home. In Keeler v. Merchants Loan & Trust Co., 253 Ill. 528, the will referred to other instruments. It was held that such reference was proper. In Page on Wills, section 50, is a discussion with reference to a confusion between a will and other instruments referred to; the author says:

“The important distinction between the will and the other instruments with which it may be confused is that the will does not take effect until the death of the testator, and no interest of any kind passes under it until the death of the testator; while under the other instruments, which must be distinguished from the will, some interest is intended to pass, and the instrument is intended, to take effect during the lifetime of the parties.” And again (sec. 52): “An instrument which purports to be a contract may, in legal effect be a will.”

It should be noted that counsel for the executor does not assert that the document under consideration is a binding contract, but says it is only an attempt to make a contract. It is reasonable to suppose that it would be contended that as a contract there was no sufficient consideration, as the Home was already under contract, for a valid consideration, namely, the $3,000 mortgage note, to carry out the original agreement. Reduced to the last analysis, the argument is that the document of February 1, 1935, is not effective either as a testamenr tary bequest or a binding contract. To hold that it is merely a scrap of paper would defeat the manifest intention of Miss Apsey when she executed the document. The language of the document clearly indicates her intention to leave to the Home at her death any balance remaining in her personal account. The circumstances surrounding the execution of the document support this. As her intention is clear and the document contains all the legal requirements to make it a valid codicil, it would be illogical to hold that it was not this because it contains a reference to a previous writing. We are lead irresistibly to the conclusion that the instrument in question is a valid codicil to the will of Virginia R. Apsey, deceased, and that the order of the probate court admitting it to probate'was proper.

The order of the circuit court appealed from is reversed and the cause is remanded for further proceedings consistent with what we have said in this opinion.

Reversed and remanded.

Matchett and O’Connor, JJ., concur.


author: Mr. Justice Matchett delivered McSurely, P. J.,

text:
    John Neeson, Appellee, v. Lake View Dairy Company, Appellant.
    Gen. No. 38,664.
    McSurely, P. J., dissenting.
    Opinion filed April 20, 1936.
    Rehearing denied May 4, 1936.
    'Schein & Schein, of Chicago, for appellant; Leo D. Schein, of counsel.
    Julius H. Selinger, of Chicago, for appellee.
   Mr. Justice Matchett delivered

the opinion of the court.

In an action on the case for malicious prosecution brought by Neeson against Siegfried Weiss and the Lake View Dairy Company and upon trial by jury, there was a verdict for plaintiff with damages assessed at $1,000. The court, overruling a motion for a new trial, entered judgment on the verdict, from which the dairy company alone prosecutes this appeal.

There was evidence tending to show that in August, 1933, Neeson, a native of Assyria and well and favorably known in the Assyrian community in Chicago, applied to the dairy company for employment. He saw the president of the company, Mr. Palmer, who suggested that if the applicant would obtain customers to the number of 120 he would be employed by the dairy company to deliver milk to them. Neeson canvassed the Assyrian community and obtained the necessary number of customers. He was then given a route, which was designated No. 9, and Mr. Palmer told him. he would have to see Mr. Weiss, who was a director of the corporation, the route foreman, and thereafter the secretary of the defendant dairy company. In conference with Weiss the wages of plaintiff were fixed at $30 a week. The dairy company employed a number of such drivers who were accustomed to go to the plant each morning at five o’clock with their trucks, where they received their supply of milk, which upon that day they were to distribute upon their several routes. In January, 1934, there was a farmers’ milk strike resulting in a shortage. The amount of milk furnished to each route was curtailed on that account.

On January 12, 1934, Neeson was informed by the head watchman of the plant that some one had accused him of stealing some milk the day before. Neeson denied the charge and then talked with Mr. Palmer about the matter. Mr. Palmer said, “It’s all right, John, forget about it.” On Saturday, January 13th, when plaintiff, as was his custom, turned in his collections and received his pay for the week, he was told that Weiss wanted to see him in the office. He went to the office and was at that time discharged by Weiss for the reason, as stated by Weiss, that the company was losing money on him. However, at the same time he was informed that if he would bring in $120 the company would sell him milk and he could deliver it, but that he would be required thereafter to furnish his own truck and be responsible for any milk that was left over. Neeson refused to accede to these terms, and on the following Monday, January 15th, obtained milk from another company and went out to serve his customers on Eoute 9. Weiss hired a former helper of Neeson and undertook to deliver milk to the customers usually served by Neeson. While on the route that day they met each other.

On January 17th Weiss went before a judge of the municipal court and filed an information charging that plaintiff on January 11th had stolen four cases of milk of the value of $5. Plaintiff was arrested between 11 and 12 o ’clock in the nighttime at his home and taken to the police station where he was confined until the following day, when he was released on bail. Apparently, no evidence was submitted against him at the hearing, and he was discharged. In the meantime defendant seems to have appropriated the customers formerly served by plaintiff.

An extended discussion of the facts seems quite unnecessary. So far as Weiss is concerned, the evidence tends to show every element of a case of malicious prosecution as set forth in Glenn v. Lawrence, 280 Ill. 581, a leading case which has been consistently followed. This was the verdict of the jury, who saw and heard the witnesses testify, and also the opinion of the judge who also saw the witnesses and heard them testify and directed that judgment should be entered upon the verdict. This, too, is the opinion of this court after a careful review of all the evidence.

The controlling question in the case, and the only debatable one in our opinion, is raised by defendant’s contention that Weiss acted without authority in filing the criminal information against Neeson. That the accusation was made and the criminal process obtained by Weiss in furtherance of the interests and business of defendant, rather than for any legitimate purpose of enforcing the criminal law, is hardly open to dispute, but defendant argues that this is not enough and cites Oberne v. O’Donnell, 35 Ill. App. 180; Cleveland Co-operative Stove Co. v. Koch, 37 Ill. App. 595; Singer Mfg. Co. v. Hancock, 74 Ill. App. 556, affirmed in 174 Ill. 503, which hold that even though the intention of the agent is to derive for his principal a benefit by abuse of criminal process, the principal is not by that fact alone charged as a matter of law.

It is true in this case that Weiss was not, so far as the evidence discloses, expressly authorized either by the president of the corporation or its board of directors to cause the arrest of plaintiff; but even if it is conceded that the tortious act of Weiss was not in the first instance the act of the corporation, the corporation would become liable therefor by ratification. Schramko v. Boston Store of Chicago, 243 Ill. App. 251; Ellsworth v. Peoples Life Ins. Co., 247 Ill. App. 161. The evidence shows that defendant’s dairy business was carried on by Weiss and Palmer in close association with each other. There was evidence from which the jury could infer that Palmer knew of the plan to arrest Neeson prior to the issuing of the warrant. The jury was justified in drawing the inference that Palmer had knowledge that the criminal process was to be invoked, had the power to prevent it, and that if he had so willed it would have been prevented. In the last analysis, the questions of fact of whether Weiss in beginning the criminal prosecution acted in behalf of the corporation and as its agent, or the corporation thereafter approved with knowledge, were for the jury. The rule to that effect was well stated by Presiding Justice McSurely in Schramko v. Boston Store of Chicago, 243 Ill. App. 251, and has been followed since consistently by this court. Ellsworth v. Peoples Life Ins. Co., 247 Ill. App. 161; King v. Automobile Bonding Co., 283 Ill. App. 107.

The jury was justified in its inference that there had been an abuse of the criminal process for motives of private gain and advantage. McElroy v. Catholic Press Co., 254 Ill. 290.

The judgment is just and is affirmed.

Affirmed.

O’Connor, J., concurs.

McSurely, P. J.,

dissenting: In my opinion the record does not support a judgment against the corporation.