author: Baker, J.

text:
    Moline Plow Company v. Lewis Anderson.

      Personal Injtiries—Action by Employe for Damages—Conflict of Evidence—Instructions—Defective Declaration—Arrest of Judgment.

    1. The court may properly refuse to give an instruction which states an abstract proposition of law.
    2. Where the declaration states a cause of action, though ambiguously and improperly, a general verdict will cure the defect therein.
    3. In an action by an employe against his employer to recover damages for a personal injury, it is held: That the questions of fact involved must be considered as settled in favor of the plaintiff by the verdict of the jury, the evidence being conflicting; that there was no error in giving and refusing instructions; and that there was no manifest error in overruling the motion in arrest of judgment.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Bock Island County; the Hon. John J. Glenn, Judge, presiding.
    Messrs. Ira O. Wilkinson and Eugene Lewis, for appellant.
    Messrs. William Jackson and M. M. Sturgeon, for appellee.
   Baker, J.

This case was before us on a former appeal. See Moline Plow Co. v. Anderson, 19 Ill. App. 417. A sufficient statement of the facts will be found in the opinion there reported. The last trial seems to have been in substantial conformity with the views of this court, as expressed in the opinion indicated. The judgment now at bar is for $1,600 damages.

Hpon the trial the evidence was quite conflicting, and we must regard the controverted questions of fact as settled by the verdict of the jury in favor of appellee.

The contention of appellee was and is, that he was in the employment of appellant as a grinder of plows, and that, as such, it was a part of his duty to his employer to assist his fellow servants in moving new grindstones, when needed, from the outside to the inside of the grinding shop; that his compensation for such labor was included in the price paid for the piecework done by him, and that Olof Erickson, foreman of the grinding shop, had control and direction of the grinders, both in the shop and in the work of moving the grindstones. The decided weight of the evidence tends to establish this view of the case, and that the labor of bringing in new grindstones, to replace such as became worn out and unfit for use, was a part of the work of a grinder, and included in his employment. We think, therefore, that the objections urged against the 2d, 3d and 5th instructions, given at the instance of the appellee, are untenable, and that those instructions were necessary and proper, as they merely stated the law that was applicable to the case in the event the jury found the facts to be as claimed by appellee.

The 18th instruction offered by appellant was refused by the court, and there was no error in so doing. If appellee, while engaged in rolling the grindstone, was the servant of the company, and if Erickson had "authority from the company to direct and control such operation, then it is wholly immaterial that the corporation did not give special authority to their foreman to order the employes to use the particular stick in question.

The 19 th instruction stated an abstract principle of law, and its tendency would have been to draw the attention of the jury from the real questions at issue, and it was properly refused.

The sixteen instructions that were asked by appellant and given by the trial court, presented the law of the case to the jury as favorably and fully for appellant as could reasonably have been desired.

Exception is also taken to the action of the court in overruling the motion in arrest of judgment. The grounds urged for the motion are, that the declaration does not allege that Erickson, the foreman, had authority to command appellee to help take in the grindstone, and that the declaration does not aver that it is the duty of appellee to help take in the grindstone when ordered by Erickson. The declaration is not as specific in these respects as it should have been. It does, however, allege, among other things, that the plaintiff was an employe of the defendant, that Erickson was foreman in the department in which plaintiff was employed, and had authority from the defendant to command the plaintiff and his fellow-servants in said department, and that plaintiff, along with other employes, was required by said Erickson to roll one of said grindstones, etc., etc. The duty of the defendant to provide a suitable stick or piece of timber for the work, and its breach of duty in that respect, are also fully stated in the declaration.

We do not regard this as a ease where the declaration fails to show that the plaintiff has any cause of action whatever, but merely as a case in which the cause of action is defectively and inaccurately stated. The rule is, that if a cause of action be stated, though ambiguously and imperfectly, a general verdict will cure the defect. Where the statements in a pleading are insufficient in themselves, and yet are of such a character as to force upon the mind of the court the conclusion that all must have been proved upon the trial which should have been stated in the pleading, then the defective pleading is aided by intendment after verdict, and the court may render judgment. 1 Chit. Pl. 712; Wann v. Harris, 2 Gil. 307; Smith v. Curry, 16 Ill. 147; Commercial Insurance Co. v. Treasury Bank, 61 Ill. 482; Heiman v. Schroeder, 74 Ill. 158.

In our opinion there was no manifest error in overruling the motion in arrest of judgment.

We may remark, in passing, that it appears, both from the evidence and from the instructions of the court, and more especially from several that were given at the instance of appellant, that the case was tried by both parties and submitted to the jury upon the theory and understanding that the declaration contained the specific averments, the want of which was afterward made the basis of the motion in arrest. So it would seem, that, as matter of fact, no possible hardship was occasioned or actual injustice done, by overruling the motion.

Finding no error in the record which should reverse, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Lacey, J.

license: Public Domain

text:
    George E. Gifford v. Charles Wilkins, Administrator.

      Action on Note by Administrator—Plea of Set-off—Evidence—Competency of Wife as Witness—Statute of Limitations—Instructions.

    In an action by an administrator on a note, it is held: That the wife of the defendant is incompetent to prove a contract between him and the deceased for the boarding of the la.tter’s parents, although she did the work and kept the defendant’s accounts; that the evidenc j does not sustain the contract alleged in the plea of set-off; and that an instruction touching the Statute of Limitations, if erroneous, could not have injured the defendant.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Kendall County; the Hon. C. W. Upton, Judge, presiding.
    Mr. Benj. F. Herrington, for appellant.
    Messrs. M. O. South worth and N. J. Aldrich, for appellee.
   Lacey, J.

This was a suit in assumpsit brought by appellee, who is the administrator of his wife, formerly Jane Spanswick, on a note for $600, given by appellant to her in her maiden name, dated January 28,1881, due in two years after date with interest at eight per cent, per annum.

The defense interposed by the appellant was that by way of the common counts in a plea of set-off in the sum of $800, and for board, lodging and attendance by appellant, who was the brother-in-law of deceased, furnished at her request to Timothy and Priscilla Spanswick, the father and mother of deceased and also of the wife of appellant. ¡Reply of the Statute of Limitations was interposed to this plea by appellee, and also failure of consideration and general replication. The cause was tried by a jury resulting in a verdict for appellee for $671.55. Hotion for new trial was made by appellant and overruled by the court and judgment rendered on the verdict from which judgment this appeal is taken.

We have examined the evidence and carefully considered it and are of the opinion that the jury were fully justified in finding that it was entirely insufficient to sustain the plea of set-off in regard to the agreement by Mrs. Wilkins to pay appellant for keeping the old people, further than the amount he received from the old man Spanswick himself.

There was no error committed by the court in refusing to allow the wife of the appellant to testify in his behalf. The statute forbids it except in certain specified cases, and this does not come within any exception provided for in the statute. It is insisted in substance that as the wife was the husband’s agent in keeping his account, that is, in doing the work in taking care of her father and mother, that therefore she was agent in making the contract with Mrs. Wilkins in regard to boarding the old people and could testify to what deceased said as to the contract she made in relation to paying for keeping them. We do not understand that such facts would constitute her such an agent as to authorize her to testify to the arrangement, if any, between her husband and Mrs. Wilkins in regard to the boarding of Mr. Spanswick and wife and this is what we suppose appellant desired to prove by his wife. If it was simply what was done by her as the agent of her husband for the old folks, it should have been so stated, so the court could have passed on the question.

It is complained that the court erred in giving the appellee’s sixth instruction, which told the jury that appellant could not £l recover any sum (on his plea of set-off) which has accrued to him more than five years prior to the commencement of this suit,” when by force of the statute in case of death of the debtor the time is extended one year.

We do not think the point is well taken. Even if the instruction was erroneous, the appellant could not have been harmed thereby. The suit could not have been commenced later than June, 1886. Mow the appellant’s claim began to accrue, as he insists, December 13, 1880. Five years would bring it to December 13, 1885. The suit was commenced April 30, 1886, less than five years and five months after the date of the commencement of appellant’s claim. Hence not five months of it was cut off by the statute according to the instruction. Mrs. Gifford, the main witness for appellant, testifies that Mrs. Wilkins told her, in regard to paying appellant for keeping her father and mother, thatCl the note was given by him so he could hold that much money and he was to pay her interest on that till father’s money was gone; after that it was to be different.” The old people had about 8600. When this money was gone Mrs. Wilkins was to commence paying. The 8600, if allowed to be charged to appellant before his claim would commence to run against Mr. Wilkins, would much more than payffor the first five months’ board. The balance, if allowed at all, could not be cut out by the instruction under the five years’ limitation act, because it accrued within five years if at all.

If the .appellant was entitled to a set-off for the full amount for the keeping of the old people for the entire time, if at all, then the jury defeated him on the merits of the claim, as it allowed him nothing, though under the sixth of plaintiff’s instructions he would have been entitled to nearly all the claim, if he could sustain it by the evidence.

In any event the sixth given instruction for appellant could do no harm. Perceiving no error in the record the judgment is affirmed.

Judgment affirmed/.


text:
    Jacob Scheik et al. v. Trustees of Schools.

      Bond, of School Treasurer—Action against Sureties—Receipt—Application of Payments—Commissions.

    1.. In an action against the sureties on a school treasurer’s bond, it is held: That certain amounts objected to were properly included in the judgment; that the date of a certain receipt is not conclusive as to the time of payment; and that the liability of the principal was established by his receipt to the former treasurer.
    2. Where a creditor makes no application of a payment, part of his indebtedness being secured and part unsecured, such payment may be applied to an unsecured indebtedness at the option of the creditor, or by implication of law.
    [Opinion filed December 9, 1887.]
    Remanded from the Supreme Court.
    Messrs. C. A. Hill and Haley & O’Connell, for appellant.
    Messrs. James Frake and B. W. Ellis, for appellees.
   Lacey, J.

This cause was appealed to the Supreme Court from a decision of this court reversing the judgment of the lower court without remanding, and upon appeal to and a hearing in the Supreme Court, the judgment of this court was reversed and the cause remanded back for further proceedings not inconsistent with the decision of that court. For the opinion of this court and the Supreme Court, see 16 Ill. App. 49, and 109 Ill. 579.

In passing upon the questions involved at the former hearing, as will be seen by an examination of the opinion, we only passed on the question of liability of the sureties on the School Treasurer’s bond, and, determining there was no liability, we did not pass upon the question of its amount.

The Supreme Court having decided that there was liability, it now becomes our duty to pass upon the objections raised by appellants against the justice of a portion of the judgment.

The appellants are the sureties on the School Treasurer’s bond of appellees; Philip Reitz, never having signed such bond, is not a party to the suit. Certain amounts having gone into and made up a part of the judgment recovered against appellants, are objected to as improper, to-wit:

1. Item, §185.20, charged by Reitz as commission on the building fund of District Ho. 7.

2. Item, in not crediting him with the McGlashan note of July 21,1876, for §72.50.

3. Item, in not crediting him with $616.10 excess of loans over collections prior to the date of the. bond in suit.

4. Item, in charging those securities with $600 received by Reitz from Martin after his re-appointment, April 11,1887, and also §11.75 received by Reitz after such appointment.

As to the item of $185.20 claimed to be due the treasurer for commissions, we can say we think there is evidence sufficient to justify the court in finding it was an afterthought on the part of Reitz, and that he made the charge just before he gave up the books, notwithstanding his evidence to the contrary.

The $600 received by Reitz .we will next notice. The evidence of Reitz shoxvs that this was not received as of the date of the receipt, and hence the date of the receipt should not govern as to the time of its reception, and we think the court was justified in finding that the money was received before Reitz was re-appointed, and if not, the $1,000 payment made by Reitz to his successor might be applied on this indebtedness of Reitz to appellees till it was extinguished, this amount being unsecured, at the option of appellees or by implication of law, and that the principle announced in Trustees of Schools v. Smith, 88 Ill. 181, is not authority against this being done. In the Smith case the entire claim was in a judgment, and it could not be regarded as two claims, one secured and the other unsecured. In this case there were two claims, one for $611 unsecured, and the other a large sum, secured by Reitz’s bond.

We are satisfied that the court was justified in finding, from the evidence, that there was no second McGlashan note.

As to the claim of $616.10, loans over collections, we think the question of collections had little to do with the matter, as the receipt to Bock, the- former treasurer, for notes' and money to the amount of §13,076.49, was sufficient to establish Reitz’s liability, and his collections need not be taken into account. He must show that amount remaining in his hands in some form, or how he disposed of it. Trustees v. Smith, supra. W e find no material error committed on the part of the court against the appellants in the admission of evidence.

Finding the judgment substantially correct, the judgment of the court below is affirmed.

Judgment affirmed.


text:
    Jesse Gitchell v. Mollie Ryan.

      Negotiable Instruments—Action on Promissory Note—Forgery—Practice—Evidence—Expert Witnesses—Comparison of Signatures—Instructions.

    1. In an action on a promissory note, the defense being that the note was forged by the plaintiff, it is held: That, in view of the special circumstances presented, the court should have allowed great latitude in the cross-examination of the plaintiff as a witness; that it was proper to ask her how often she had written the defendant's name, and whether she had offered to sell the note at a large discount; that evidence tending to impeach the consideration, although not admissible for that purpose under the pleadings, was admissible as tending to show that the defendant did not execute the note; that it was error to allow expert witnesses to compare the signature to the note with certain other signatures of the defendant, and then state their opinions as to the identity of the handwriting; and that there was no error in giving and refusing instructions.
    2. Where proffered testimony tends to prove any of the issues on trial, it should not be excluded, even though it tends to establish a defense not interposed.
    3. The genuineness of a signature can not be proved or disproved on the trial of a cause by comparing it with other signatures admitted to be genuine.
    4. The trial court may properly refuse to give an instruction which is argumentative, and the substance of which is given in another instruction.
    [Opinion filed December 9, 1887.]

      In error to the Circuit Court of Ogle County; the Hon. John V. Eustace, Judge, presiding.
    Mr. E. F. Dutcher, for plaintiff in error.
    Mr. J. H. Cartwright, for defendant in error.
   Baker, J.

This suit was hy Hollie By an, defendant in error, against Jesse Gitchell, plaintiff in error, on a promissory note for §800, dated February 1, 1884. A plea was filed putting in issue the execution of the note. The finding of the jury and judgment of the court were in favor of defendant in error for §983.10 damages.

Several errors were committed by the trial court in its rulings upon the admissibility of testimony.

Upon the cross-examination of defendant in error, the court sustained an objection to this question: How often have yon written Jesse Gitchell’s name?” The claim of Gitchell was that the note was a forgery. Defendant in error was a graduate of a business college and an expert penman, and was being cross-examined after her examination in chief as a witness in her own behalf; she had already testified in positive terms that Gitchell signed the note in her presence and that no one else was present at the time and place this was done. In view of the defense that was being interposed to the suit the fraud that was claimed, the interest of the witness in the result of the litigation, and of the circumstances surrounding the supposed signing of the instrument, we think a very great latitude of cross-examination should have been given plaintiff in error, and that it was- manifestly erroneous to allow the objection to this question to prevail. Defendant in error was intimately acquainted with Gitchell and had received many letters from him, and if the fact was that she had written his name frequently, it would tend to prove her ability to counterfeit his handwriting and signature.

The court also refused to permit plaintiff in error to ask the same witness whether she had taken the note in controversy to Bockford and offered to sell it to a Hr. French at §100 discount. It is a suspicious circumstance if unexplained, that one would offer to sell a note at so large a discount, and moreover, the fact sought to be established would have been in contradiction of statements she had made on the witness stand with reference to where the note had been kept from the time of its date. In our opinion the question should have been allowed.

Plaintiff in error denied the execution of the note and all the circumstances stated by defendant in error; but the court refused to permit him to testify whether or not, on the first day of February, 1884, or at any other time, he was indebted to Mollie Pyan. The ground upon which this evidence was excluded was, that there was no plea of want of consideration on file. The evidence was clearly not admissible, under the pleadings, for the purpose of impeaching the consideration of the note; but it was not sought to be introduced for that purpose and was expressly offered as tending to prove that Gitchell did not execute the note. It is improbable that any one would sign and deliver a promissory note for $800 to a person to whom he was not and never had been indebted, and the fact in question would have been a circumstance tending, at least in some degree, to prove the plea that was on file. If proffered testimony tends to prove any of the issues on trial, it should not be excluded, even though it might also, in case proper plea had been filed, have been competent evidence in establishing a defense that was not interposed. There would have been no difficulty in instructing the jury to regard such testimony solely and only for the purposes for which it was offered and admitted. Gridley v. Bingham, 51 Ill. 153, is not an authority here in point; in that case the statements of the vendor made after sale were wholly incompetent as evidence against the vendee for any purpose and did not tend to prove any fact in issue; here the proffered testimony tended to prove the defense made by the pleadings.

The ruling of the court in the premises was erroneous.

On the trial of the case, George E. King, Stephen Pankliurst and Peter Hastings were called as experts by defendant in error, and shown the signature to the note in suit, and also the signatures to two affidavits made by defendants in error and on file in the cause, and asked to state whether the signatures to the two papers and the note were in the same handwriting. The court refused to admit this testimony. There was no error in this action of the court. The doctrine of this State is, that the genuineness of a signature can not he proved or disproved on the trial of a cause by comparing it with another signature admitted to be genuine. Kernin v. Hill, 37 Ill. 209 ; Snow v. Wiggin, 19 Ill. App. 542; Jumpertz v. People, 21 Ill. 375; Melvin v. Hodges, 71 Ill. 422; Massey v. Farmers’ Nat. Bank, 104 Ill. 327.

It was, however, manifest error to permit the two first mentioned of said witnesses to compare the signature to the note with the signatures of Gitcliell in two autograph albums, and then, over the objections of defendant in error, state their opinions with reference to the identity of the handwriting of the several signatures.

In Kelvin v. Hodges, above cited, it was held that on cross-examination, where the object is not to prove a signature by comparison, but merely to test the accuracy of the observation and memory of the witness, it is competent to show him a signature as to the genuineness of which there, is no question, and examine him in respect to the genuineness of such signature. The witnesses Quinn, Ackerman, Gusta Plantz and Eose and Ellen Gitcliell, had all testified in chief that they were acquainted with the handwriting of defendant in error, and also, in terms more or less positive, that the signature of the note was not in his handwriting. Under the rule announced above the court properly permitted them to be cross-examined upon the papers “C” and “D,” which had been admitted by defendant in error to be in his own writing.

The objections urged against the instructions given at the request of the plaintiff below are untenable.

There was no error in refusing the fourth instruction in the series asked by the defendant below; the substance of it was given in the sixth instruction, and, moreover, it was argumentative and otherwise objectionable.

It seems to us that the verdict of the jury was palpably against the weight of the evidence, but as the issue joined must be submitted to another jury, we refrain from discussing it.

For the errors indicated in this opinion, the judgment is reversed, and the cause remanded.

Reversed and remanded.


author: Lacey J.

text:
    The Chicago, Rock Island & Pacific Railway Company v. E. W. Felton, Administrator.

      Railroads—Action for Damages for Causing Death of Passenger-Apparent Danger—False Signals—Negligence—Proximate Cause—Variance—-Instructions.

    1. In an action against a railroad company by an administrator to recover damages for causing the death of the plaintiff’s intestate, while a passenger on one of the defendant’s trains, it is held: That it was negligence on the part of the engineer to give false signals which induced the deceased to jump in the way of a snow-plow on another track, there being no danger of a collision ; that the deceased was not guilty of contributory negligence in going upon the platform; that the proximate cause of his death was the negligence of the engineer; that there was no variance between the plaintiff’s evidence and the declaration ; and that there was no error in giving and refusing instructions.
    2. The officers of a railroad undertake to have knowledge of all facts of which the diligence of good railroad men could have possessed them.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Will County; the Hon. George W. Stipp, Judge, presiding.
    Messrs. Thomas F. Withrow, James C. Hutchins and Snapp & Snapp, for appellant.
    Assuming that the danger, which puts upon another the alternative of a dangerous leap, rather than to remain at a certain peril, need not be a real danger, which becomes apparent, but simply an apparent danger—a danger which did not exist—the judgment in the court below is erroneous.
    The deceased was not placed by the negligence of the defendant in such a situation as rendered a leap necessary.
    The leading case is Jones v. Boyce, 1 Starkie, 189. This case was followed by the Supreme Court of the United States in Stokes v. Saltonstall, 13 Peters, 181.
    In each of these cases, which are leading cases upon the subject, and upon which the rules, as announced in the text books, are based, the plaintiff was in a condition of real peril, which peril became apparent to him. We have examined quite a number of cases and find that in each case that condition also appeared. It may well be doubted whether the word “apparent,” as used in the statement of the rule, is not used in the sense of a thing which becomes evident rather than in the sense of a thing which is unreal. The fact that the rule is held to apply, notwithstanding the actual danger did not result," in any of the cases, does not militate against this.
    The proper place for the passenger is in his seat, and a voluntary abandonment thereof subjects him, and not the carrier, to the responsibility for the consequences. Pennsylvania Company v. Zebe, 33 Pa. St. 318 ; S. C., 37 Pa. St. 420 ; Stiles v. Atlantic & W. P. R. Co., 8 Am. & Eng. Ry. Cas. 195 (Geo.); R. R. Co. v. Clemmons, 8 Am. & Eng. Ry. Cas. 396 (Texas) ; Little Rock & Ft. S. Ry. v. Miles, 13 Am. & Eng. Ry. Cas. 10 (Ark.); Ala. & Gt. S. Ry. v. Hawk, 18 Am. & Eng. 194 (Ala.), citing with approval Quinn v. I. C. R. R., 51 Ill. 495, also Merrill v. Eastern R. R. Co., 139 Mass. 238 ; P. & R. I. R. R. Co. v. Lane, 83 Ill. 448 ; Abend v. T. H. & I. R. R. Co., 111 Ill. 202; I. C. R. R. Co. v. Slatton, 54 Ill. 133 ; Taylor v. D. O. & O. R. R. R. Co., 10 Ill. App. 311; C. & N. W. Ry. Co. v. Scates, 90 Ill. 586; State v. Grand Trunk Ry. Co., 58 Me. 176.
    There is no evidence tending to show what danger or whose danger the signal was intended to avert, simply that a passenger construed them as danger signals. The company had the legal right to sound these whistles, upon the assumption that Goodrich was inside the car. I. C. R. R. Co. v. Green, 81 Ill. 19; Ky. Cent. R. Co. v. Thomas, 79 Ken. 160.
    The deceased was, under the evidence adduced, afllnnativcly guilty of a want of ordinary care, which contributed proximately to the injury which he received. Railway Co. v. Jones, 95 U. S. 439; Doggett v. I. C. R. R. Co., 34 Iowa, 284; Camden & A. R. R. Co. v. Hoosey, 99 Pa. St. 492. P. & R. I. R. R. Co. v. Lane, 83 Ill. 448 ; Quinn v. I. C. R. R. Co., 51 Ill. 495; Abend v. T. H. & I. R. R. Co., 111 Ill. 202.
    The defendants could not have foreseen by the aid of the known results of human experience or knowledge that the negligence alleged could have proximately contributed to the injury received.
    Messrs. G. D. A. Parks and C. W. Brown, for appellee.
    He who, by wrongful act, neglect or default produces a sudden appearance of danger, such as may be presumed to impress the mind of a person of ordinary intelligence and judgment with the belief that it was real, and thus impel him to take instantaneous measures of escape, is liable for the injuries that ensue in the same manner and to the same extent as if the danger actually existed. T., W. & W. Ry. Co. v. Muthersbaugh, 71 Ill. 572; Wharton’s Neg., Sec. 304; Coulter v. Am. H. Ex. Co., 56 N. Y. 585; Galena & C. U. R. R. Co. v. Yarwood, 15 Ill. 471; I. C. R. R. Co. v. Able, 59 Ill. 131; Ind. R. R. Co. v. Carr, 35 Ind. 510; Stokes v. Saltonstall, 13 Pet. 191; Schultz v. Chicago & N. W. Ry. Co., 44 Wis. 644-5; Gumz, Adm’r v. C., St. P. & M. R. R. Co., 52 Wis. 672; C. & A. R. R Co. v. Becker, 76 Ill. 25; Lund v. Inhabitants, etc., 11 Cushing, 567; Caswell v. B. & W. R. R. Co., 98 Mass. 204; Trowley v. R. R. Co., 69 N. Y. 158; Buell v. N. Y. C. R. R. Co., 31 N. Y. 318; Iron Co. v. Mowery, 36 Ohio, 418; Southwestern R. R. v. Pault, 24 Ga. 356; Filer v. N. Y. C. & H. R. R. R., 68 N. Y. 124; Am. Law Reg., Vol. 25, p. 620; Baley v. Eastern R. R., 125 Mass. 63; Sweeney v. R. R. Co., 10 Allen, (Mass.) 376; Copley v. N. H. & N. R. R. Co., 136 Mass. 9; Warren v. Fitchburg R. R. Co., 8 Alien, 233; C., B. & Q. R. R. Co. v. Sykes, 96 Ill. 162, 175; T., W. & W. R. R. Co. v. Harmon, 47 Ill. 298, 307.
   Lacey J.

This was an action on the ease by appellee against appellant to recover damage to the moans of support to the children and next of kin of Luke H. Goodrich, deceased.

According to charges in the declaration the deceased was killed while being carried as a passenger on appellant’s railroad to the city of Joliet, on the 20th day of March, 1881, through the negligence of the employes of the appellant. The facts and circumstances of the killing of the deceased are in substance, that between two and three o’clock on Sunday morning of March 20,1881, deceased, in company with William Maltby, boarded the appellant’s passenger train as a passenger, at Ottawa, Illinois, bound for Joliet, in Will County of the same State; that the passenger train was composed of two engines, a baggage car, regular passenger car and a sleeping car, and of the two railroad tracks of the appellant was on the north one, or on the left hand one if you face Joliet. It was storming violently at the time of the accident, and had been for several days, and the snow was drifting badly. The last stop of the train immediately before the stoppage at the place of the accident was at Morris, in Grundy County, about twenty miles west from Joliet.

Mr. Maltby and deceased were located in the passenger coach, on the north side, four or five feet from the hind end of the coach. At about five to seven miles from Morris, a short distance before reaching Minooka, the passenger train was stopped by a snowdrift. The deceased, Mr. Maltby and Mr. House went to the back end of the train and got onto the platform to look out at the snowdrift, and there being a solid snowdrift on the north side of the car, the three went to the other side of the car onto the steps.

Mr. House passed over to the other side and went down the steps on that side, and deceased went down the steps on the passenger car on the south side, and Mr. Maltby looked over to the back of Mr. Goodrich. Mr. House made the observation : My God, gentlemen, the snow plow is coming into us.” House then immediately turned around and went back into the car. Mr. Goodrich, the deceased, and Mr. Maltby remained, and could see the red light behind swinging and the exhaust distinctly, two exhaust fires coming out of the smoke stack of the approaching train, and apparently pretty close to the standing train, and the question was whether to jump off the train to save themselves or to remain on, and it had to be decided quickly. The decision was to jump, and Maltby and the deceased jumped, deceased first and Maltby immediately after. At that instant the heavy snow plow with its two engines, which turned out to be on the south track, rushed by, throwing Maltby beneath the car he was on, packing him in the snow, but injuring him seriously, and he got out and got back on the car, but the deceased was caught by the passing snow plow, and so seriously hurt from contact with it that he died the next Monday night or Tuesday morning in Joliet, on account of internal injuries received from his contact with the snow plow.

At Morris the passenger train switched from the south track to the north one for the purpose of letting the snow plow get on the south track, which it did. and immediately followed up the passenger train, all of which was known to the conductor of the passenger train. On account of the big curve in the railroad at the point just behind the passenger train where it came to a stop, and the light, it would naturally appear to Mr. Goodrich, deceased, at the time, as though the snow plow was coining on the same track with the passenger train, that is, immediately behind it.

The snow drift on the north side of the train being as high as the cars there was no way of getting off on that side. Just as the snow plow was approaching, one of the engines on the passenger train gave signals of danger by giving short, sharp quick signals, one following another right off, two, three or four. Heady all the engineers and firemen and perhaps the brakemen, jumped from the cars and ran from their train across the track to escape the supposed impending collision.

The negligence averred in the declaration was the giving of the signals of danger on which deceased acted, and that the servants so negligently, ignorantly and unskillfully managed the said engines, and with sncli want of concert and knowledge between the servants of said appellants managing said respective trains, that the deceased was struck and killed as aforesaid, while in the exercise of due care.

The question is, were these signals of danger given by appellant’s servants in order to warn the passengers of the danger of a supposed collision about immediately to take place ? We think that there was ample evidence in the case from which the jury might so find. If so, we think that it was negligence in the engineer under the circumstances to give such signals, when, in fact, there was no danger of a collision, and the engineer who gave the signal should have known it. If this be so, then, was there any ground for the claim that deceased was guilty of contributory negligence in obeying the signals and making the leap? All the appearances corroborated the intelligence communicated by the signals, that there was danger. The approaching train appeared to deceased and others to be coming directly into the train on which they were riding.

What person under the circumstances would not have done the same as did the deceased? House did not, but he probably did not hear the danger signal until he had gone back into the car, when he had no time. The main cause relied on for reversal by appellants, is the charge of contributory negligence against the appellee. It is that the deceased left his seat in the passenger car and went out onto the platform, where he had no right to be, and in so doing was guilty of such negligence as to preclude recovery; for it is argued by appellant, if he had remained in the car he could not have jumped out in time to have been injured.

The I. C. R. Co. v. Green, 81 Ill. 19, is relied on as conclusive authority on this point, as well as other similar cases cited in the brief. But we think the cases cited are not applicable to.the facts here. In those cases the injury was caused by deceased going into a more dangerous part of the ear which proximately contributed to the injury. In this case the going out on the platform may have been a remote canse of the injury in the same sense as his being on the cars as a passenger was the cause. If he had not been on the cars he would not have been hurt. If he had not been on the platform he would not have received any injury if he had remained there. In itself it was not dangerous to be there, so the only proximate cause of the injury was the jump and the collision. It could not have been within the reasonable contemplation of deceased when he went on the platform that' the snow plow would approach in an apparently so dangerous a manner, or that the engineer would give so false and exciting an alarm. If the danger had been real his position on the platform might have been most fortunate. He might have been able to have saved himself from the wreck which no doubt would have followed.

As the train was standing still, the deceased had no reasonable grounds to apprehend danger from going on the platform. Then, the being on the platform can not stand for the proximate or contributory cause of the injury. It was the peculiar surroundings brought about by negligence, in great part at least, by the servants of the appellant, that caused the injury, and not any negligence of the deceased. As illustrating this question of remote and proximate agency we cite C. & A. R. R. Co. v. Ewing, 72 Ill. 25.

The appellant is responsible for the acts of the engineer in giving false alarms. C., B. & Q. R. R. Co. v. Sykes, 96 Ill. 162; T., W. & W. R. W. Co. v. Harman, 47 Ill. 298 ; C., B. & Q. R. R. Co. v. Dickson, 63 Ill. 151; also Wesley City Coal Co. v. Healer, 84 Ill. 126. Had the engineer been in possession of the knowledge that the law holds him to, he could not have been deceived by appearances as he was deceived, and would not have given the false signals which he did. If he gave them wilfully it would be worse than inexcusable in any light it could be looked at. The jury may have thought it was wilful. Ho engineer was put on the stand to explain the matter, and one of the engineers, he who did not desert his engine, was in the court room at the time of the trial and was not called to the stand.

He may have been the one who gave the alarm signals and the fact, if he did so, that he remained on the train, would give color to the thought that he did it wilfully, though it may be with no intention to do harm. But certainly it would be negligence to alarm passengers under such circumstances-If the signals were given in good faith, believing there was danger, then good railroading required that he should have been in possession of such facts in regard to the circumstances as would have rendered such a mistake impossible.

The two trains started from Morris nearljr together, the passenger train on which deceased took passage a few minutes ahead. It was in a dark, stormy night. It was essential that the conductor and engineer of each train should know on which track the other designed to or was running, in order to guard against accident. The rule of law is “that the officers of a railroad undertake to have a knowledge of all facts of which the diligence of good railroad men could have possessed them.” Wharton on Negligence, Secs. 157, 158, 387 and 415; Warren v. Fitchburg R. R. Co., 8 Allen, 231.

If they do not have such knowledge they are held to be answerable the same as though they had it; as the law will conclusively presume they had it. If the engineer had either actual or constructive knowledge that the snow plow was on the south track it was negligence in him to blow the alarm whistle. He ought to have been acquainted with the curve in the track immediately west of his train and the tendency to optical illusion in reference to the following train appearing on the same track with his own. , With such a knowledge it would have been impossible for a good railroad man to have made such a mistake.

On the trial the appellant made no effort to explain or rebut the strong proof of negligence offered by appellee, though one of the engineers was at hand. See C., B. & Q. R. R. Co. v. McLallen, 84 Ill. 109.

We find no error in the giving of appellee’s instructions by the court, or in refusing those offered by appellant that were refused.

There was also no error in the court below refusing to ex-chide appellee’s evidence on the grounds of variance between it and the declaration, or to instruct that there was a variance. As to the first count in the declaration no cause for variance is attempted to be shown and as to the "second count no variance is claimed except the proof shows that the injuries were received while appellee was not on the cars, while the declaration charges it was received while a passenger on its train. It is true enough that when he received the injury he was off the train, but under the circumstances we are unable to hold that he had lost his rights as a passenger while off. The law would regard him as still a passenger on the train and in that particular there would be no variance between the proof and declaration.

There is no error in the instruction given on behalf of appellee to the effect that it was the duty of the jury to give certain damages. The damages mentioned in the instruction were those actual in their character and not exemplary, as they were in the Chisholm case, cited in 79 Ill. 584.

Perceiving no error in the record the judgment of the court below is affirmed.

Judgment affirmed.


text:
    Roberts C. Griswold v. Gregg, Son & Company.

      Negotiable Instruments—Notes—Gaming Contracts—Option Deals on Board of Trade—Instructions.

    In an action on a promissory note, where the defense is that it was given by the defendant to the plaintiff as a commission merchant in settlement of differences arising under a contract to deal in options on a board of trade for the defendant’s account, it is improper to instruct the jury that the plaintiff can recover if he intended at the time of the purchase or sale to receive or deliver the grain bought or sold, the test of the character of the contract being the intention of the parties thereto.
    [Opinion filed December 9, 1887.]

      In error to the Circuit Court of Livingston County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Strawn & Patton, for plaintiff in error.
    Messrs. McIlduff & Torrance, for defendant in error.
   Lacey, J.

This suit was brought by defendants in error against plaintiff in error to recover on certain promissory notes amounting in the aggregate to §2,192.34, given by plaintiff in error to defendants in error. Mo general issue was pleaded, but the defense set up by special plea by plaintiff in error was, in substance, that defendants in error were commission merchants dealing on the board of trade at Chicago, and made arrangements with defendants to ostensibly buy and sell grain on the board, but that all losses and gains be settled between them by the mere payment of differences in money, it being understood that no delivery of grain was to be made by either party, and that the notes sued on were given to cover plaintiff in error’s losses under said gambling contract.

According to the plaintiff in error’s testimony, prior to the time he commenced to deal with the defendants in error on the board of trade, he had an express agreement with them that he would deal in options, buy grain on the board of trade where the grain would not have to be taken, and if the price was more, when the time arrived to take it the difference was paid in money, and if plaintiff in error sold and the price was less, defendants in error paid the money, no grain to be delivered. Upon this agreement the defendants in error were to be paid one-eighth of a cent per bushel for commission. The deal in substance was between plaintiff in error and defendants in error, the ■ former selling with the latter on account of such deals, not knowing with whom the defendants in error dealt on the board of trade. According to the evidence of plaintiff in error, the contract was essentially a gambling contract, in its nature the same as that in Pearce v. Foote, 113 Ill., 228, and, as decided in that ease by the court, obnoxious to the provisions of the statute against option contracts. As between the plaintiff in error and defendants in error, if this was a gambling contract, they were both principals and stood to' each other in the relation of principals. As is said in Pearce v. Foote, supra, “ There is and can be no such thing as agency in the perpetration of crime or misdemeanor, or indeed, of doing any unlawful act. All persons actively participating] are principals.”

The defendants in error testified that the deals were not to be and were not fictitious but bona fide, and the intention was to deliver the grain, and they acted merely as plaintiff in error’s agent.

A long course of dealing was had on the board of trade by defendants in error for plaintiff in error and all the deals were settled on difference; no grain was actually delivered. The jury found a verdict for defendants in error on the notes, and judgment was rendered thereon, from which this writ of error is issued out.

One of the main causes for error assigned by plaintiff in error is the giving of defendants in error’s 13th instruction. The objectionable part of the instruction reads as follows: “And in this case, if you find from the evidence that Gregg & Son, as the agents or commission merchants of defendant, Griswold, either bought or sold, or both bought and sold, all the grain for the defendant in good faith, intending at the time of the purchase or sale, as the case may have been, to receive or deliver the grain, yon will find for the plaintiffs, although you may further believe from the evidence that at the time or times of such purchase or sale the defendant had no grain and did not intend to receive or deliver any actual grain.”

This puts the test of the character of the contract on what was done or intended by and between the appellees in their transactions on the board of trade with their customers, and not on what was the agreement between plaintiff in error and defendants in error. The plaintiff in error Griswold testifies that the only agreement between him and defendants in error, was that the latter were to deal with him as agents in strictly option deals on the board of trade. So as between plaintiff in error and defendants in error the former was not to be called on to actually deliver any grain and in fact he never was requested to deliver grain or notified he had to do so, or to receive any. He was not concerned as to how the defendants in error dealt with their customers; for as between him and them it was strictly an “ option” deal as he swears.

In what manner they made up their books with their board of trade customers he was not concerned, and in fact he did not, nor could he know with whom appellees dealt. This case in its facts and the principle governing it is much like the ease of Pearce v. Foote, supra. As is said in the case cited in reference to the facts therein, and which applies equally well in this case, plaintiff in error “ contracted to give ” defendants in error, “the privilege to deal in options and settle with him upon differences, as indicated or determined by the fluctuations of the market.” This was testified to by the plaintiff in error. How the instruction complained of raises an immaterial issue and virtually takes from the jury all consideration as to what the contract was, between plaintiff in error and defendants in error, which was the vital issue in the case. If the defendants in error dealt on the board of trade in a bona fide manner, free from the charge of “ gambling,” they must have undertaken to receive and deliver the grain on their own account, for they were not authorized to make absolute contracts, as claimed by plaintiffs in error, on his account, and if they were not so authorized he was not bound to fill such contracts and indeed never was called on to do so.

It seems to us that where the evidence, as in this case, so strongly tends to show that the transactions on the board of trade were intended, as between the plaintiff in error and defendants in error, to be “ gaming ” contracts, the instruction complained of must have confused the minds of the jury and produced the result attained.

There are other minor objections to the record urged by plaintiff in error but they not being of great importance we will not notice them in detail further than to say that in themselves, if error, they would not be of sufficient importance to reverse.

For the error above indicated the judgment in the court below is reversed and the cause remanded.

jReversed and remanded.


text:
    Frederick Kamman v. The People of the State of Illinois.

      Sale of Liquors to Person in Habit of Getting Intoxicated—Indictment— Instruction s—Question for Jwry.

    1. In a prosecution for selling liquors to a person in the habit of getting intoxicated it is improper to instruct the jury that, when a person gets intoxicated from three to five times within two years, he is in law a person who is in the habit of getting intoxicated.
    2. Whether a person is in the habit of getting intoxicated is a question of fact for the jury.
    [Opinion filed December 9, 1887.]
    Appeal from the County Court of Kankakee County; the Hon. Thomas S. Sawyeb, Judge, presiding.
    Compare the following case of Birr v. People.

    Messrs. Barnum, Rubens & Ames, for appellant.
    Mr. H. L. Richardson, State’s Attorney, for appellee.
   Baker, J.

Frederick Kamman was convicted in the County-Court of Kankakee County, upon three counts of an indictment, two of which were for selling intoxicating liquors to Chauncey Donbridge, a person in the habit of getting intoxicated, and the other for selling such liquors to said Donbridge when he was intoxicated.

There was no evidence in the record of any sale by Kamman of liquor to Donbridge at a time when the latter was intoxicated, and therefore the conviction upon the third count of the indictment can not be sustained.

The fifth instruction for the people was as follows: “Ton are instructed that when a person gets intoxicated from three to five times in two years, then in law he is a person who is in the habit of getting intoxicated.” The instruction was erroneous, as there is no such .rule of law as that therein stated.

Whether or not a man is a person in the habit of getting intoxicated, is a question of fact for the jury to determine from the evidence in the particular case.

The sjxth instruction for the people, as well as that above mentioned, plainly usurped the province of the jury, and was erroneous. It assumed to tell the jury that if Donbridge was drunk on several particular occasions that were specified in the instruction, “then that evidence proves that he was at the time of the sales a person in the habit of getting intoxicated.”

Several of the other instructions given at the request of the prosecution were inaccurate, uncertain and ambiguous, but their defects can readily be remedied at another trial, and there is no necessity for particularly pointing them out.

For the errors mentioned, the judgment is reversed, and the cause remanded.

Heversed a/nd remanded.


text:
    Herman Birr v. The People of the State of Illinois.

      Sale of Liquors to Habitual Drunkard—Indictment—Instructions.

    1. In a prosecution for malting sales of intoxicating liquors to a person in the habit of getting intoxicated, it is error to instruct the jury that a man who gets intoxicated from three to five times in two years is a person who is in the habit of getting intoxicated.

      2. There is no rule of law fixing the number of times a person must become intoxicated within a stated period in order to constitute him “ a person in the habit of getting intoxicated.’' It must be shown that he has been frequently intoxicated, and has thereby acquired an involuntary tendency to become so, and that, at the time of the sale complained of, he is in the habit of getting intoxicated.
    [Opinion filed December 9, 1887.]
    Appeal from the County Court of Kankakee County; the Hon. Thomas S. Sawyer, Judge, presiding.
    Compare the preceding case of Kamman v. People.

    Messrs. Barnum, Rubens & Ames, for appellant.
    Mr. H. L. Richardson, State’s Attorney, for appellee.
   Baker, J.

Herman Birr was tried in the County Court of Kankakee County upon an indictment which contained three counts charging him with making sales of intoxicating liquors to Herman Tracy, a person in the hahit of getting intoxicated. He was acquitted upon all of the counts except the first, and upon that he was convicted and judgment rendered against him for a fine of $30 and for costs.

At the request of the prosecution the court instructed the jury that “ when a man gets intoxicated from three to five times in two years he is a person in the habit of getting intoxicated, and you should so find.” This instruction was very clearly erroneous. There is no rule of law fixing the number of times a person must become intoxicated within a stated period in order to constitute him or her “ a person in the habit of getting intoxicated.” The only rule the law prescribes in that regard is this, that it must be shown and that it is sufficient to show, that the person claimed to be a person in the hahit of getting intoxicated ” has been frequently intoxicated,- and has thereby acquired an involuntary tendency to become intoxicated. Murphy v. The People, 90 Ill. 59. The law goes no farther than this; and it then becomes a question of fact for the jury, to be determined from the evidence, whether or not such person is “ a person in the habit of getting intoxicated. True it is, that in Murphy v. The People the evidence was Leahy had been drunk from three to five times within two years, and from such evidence the jury found as a fact that he was in the habit of getting intoxicated, and that the Supreme Court refused to disturb the verdict. But in so doing the court was merely considering the matter from an evidential point of view, and held that from the evidence they were unaVe to say the jury was unauthorized to find that Leahy was in the habit of getting intoxicated.

The fourth instruction for the prosecution was ambiguous, inaccurate and misleading. It is essential to the statutory offense in question that the person to whom the liquor is sold is, at the time of the sale, in the habit of getting intoxicated. Weidemann v. The People, 92 Ill. 314. Under the instruction, as we understand it, the jury might have found the defendant guilty of the offense charged, even if the evidence was that Tracy had contracted the habit of becoming intoxicated a year or more after the defendant made any sales of intoxicating liquors to him.

For the errors in the instructions the judgment is reversed, and the cause remanded.

Reversed and remanded.


text:
    Robert Hill v. Lorenz Reitz.
    Lis Pendens—Privity hetween Plaintiff and Defendant in Execution— Action against Sheriff.

    1. The plaintiff and defendant in an execution issued, pending a trial of the right of property between the latter as claimant and the judgment creditors of a third person, in goods levied on as the property of such third person, are in such privity of relation that both will be alike bound by a judgment finding the rights of property against the claimant.
    2. An action does not lie against the Sheriff for failure to levy an exeeution issued pending the trial of the right of property under the former levy-on the property as that of a third person.
    [Opinion filed December 9, 1887.]
    Appeal from the Will County Circuit Court; the Hon. Georg® W. Stipp, Judge, presiding.
    Messrs. Olin & Phelps, for appellant.
    Mr. C. W. Brown, for appellee.
   Lacey, J.

This was an action in case commenced by appellant against appellee, who was Sheriff, to recover damages against him for failure to levy certain executions issued out of the Circuit Court on transcripts from a Justice of the Peace in favor of appellant and against one Hannah Floxman, amounting to about §314.56.

The facts are about as follows: The appellee held in his hands an execution in favor of Sherwin & Co., against Simon Floxman, husband of Hannah, and one Eunstein, and had levied on certain goods as the property of said Simon to satisfy said execution. Hannah Floxman served a notice in writing on the appellee that she claimed the goods as her property, and the case was tried in the County Court on proper issues formed, and the rights of property decided to be in the said Hannah. Thereupon Sherwin & Co. appealed the case to the Circuit Court. Subsequently to this time certain transcripts in favor of appellants on judgments from a Justice of the Peace, against said Hannah, were filed in the Circuit Court, and executions issued thereon and placed in the hands of the appellee as Sheriff, and he notified by appellants in writing to levy the same on the said goods as the property of said Hannah. Subsequently to this, while the suit for the trial of the right of property was pending in the Circuit Court, the said Hannah, the plaintiff therein, waived a jury and submitted the case to be tried by the court, which trial resulted in favor of Sherwin & Co., and judgment was rendered against her, the court finding the title to be in her husband. The goods were afterward all sold and the proceeds of the sale applied on the said execution of said Slierwin & Go. against Simon Floxman et aln so far as they would go. Had the proceeds of sale been applied to the payment of the appellant’s executions, they would have more than satisfied them. Appellant’s executions were never levied and were afterward returned Ct nulla bona.” It is claimed that a liability exists against the Sheriff to recover for refusal to levy appellant’s executions on the goods, the proof tending to show that they belonged in fact to Hannah Floxman. It will be conceded that this would be so unless the judgment in the case of Hannah Floxman v. Slierwin & Go., trial of the rights of property, was a bar to appellant’s right to claim the goods as the property of said Hannah, she being insolvent except for these goods.

The court below held that the judgment in the rights of property case was a bar and gave judgment against appellant for costs, from which this appeal is taken.

This is the question to be settled by this court:

Does the plaintiff in an execution issued against the claimant in a suit for the trial of the rights of property, while such suit is pending, wherein the Sheriff had levied an execution issued against a third person on certain goods claimed both by the judgment creditors of the defendant in the execution and said claimant, occupy the relation of privy to such claimant in such manner as to be bound by a judgment of the court finding the rights of property in the defendants in the execution? We think it does. And applying the law to this case we are satisfied that the appellant must be bound by the result of the suit in which Mrs. Floxman was claimant. The trial of the rights of property was pending when his executions were issued, and Mrs. Floxman claimed the goods in the manner pointed out by the statute. If she succeeded, then Slierwin & Go. could have no claim in the goods and the appellant’s execution would immediately attach. She was fighting the battle for appellant. Before she instituted her suit claiming the goods appellant had no standing in court whatever and without his execution he could have none. So he must be regarded as having acquired his .rights pendente lite and is bound by the result of the litigation.

It is insisted by counsel for appellant that the plaintiff and defendant in an execution as to defendant’s property, stand in a situation of antagonism and for that reason there is no privity. We think such suggestions misleading. If sale takes place under execution the purchaser at the sale must necessarily derive title through the defendant in the execution. Before any liens are acquired the title to the property must be controlled by the owner and by the result of the litigation by the owner concerning his property in case there be no fraud.

These goods were already in the custody of the law and Mrs. Floxman in litigation with the party for whose benefit they were sold to determine the title. The appellant cites for authority Watts’ Appeal, 35 Pa. St. 523, cited in Bigelow on Estoppels, page 280, 281. In the citation it is said that no privity exists between a judgment creditor and his debtor, but their relation is one of antagonism. According to the peculiar facts in Watts’ Appeal, supra, the application of that rule of law may have been proper. Judgment creditors, in that case, were entitled to the money arising from a sale of the land of their judgment debtor under the judgment as against another judgment creditor, who, while his judgment was in existence, had deeded the land on which his judgment was a lien for the purchase money to the common judgment debtor. The subsequent judgment debtors were not held to notice that as between the common judgment debtors and the prior owner of the land, and at the same time judgment debtor, there was a secret agreement between them that the lien of the judgment debtor on the land for the purchase money should still exist. The prior owner and judgment creditor was estopped by his deed to the common judgment debtor; and the court in that case held that the subsequent judgment creditors were not in such privity with the common judgment de tor as to the land sold under their execution that they would be held to notice of this secret agreement to keep above the judgment lien of the prior judgment creditor contrary to the purport of his deed. The court further held that in such case there was such antagonism between those creditors and the common judgment debtor, as to relieve them from being chargeable with such notice.

In other words, those judgment creditors were regarded as standing in the light of innocent purchasers as far as their judgment lien was concerned, on account of being misled by the deed executed before their judgment was entered. It is doubtful whether that would be held to be the law in this State. But conceding it, the case is quite different from the one at bar, and could have no application here, where Sherwin & Co. had done nothing to mislead the appellant in regard to their claim that the goods belonged to Simon Floxman, but on the contrary they pushed their claim to final success in establishing the title to the goods in their judgment debtor and procured the sale of the goods under execution against him, while the appellant stood idly by and made no effort other than to put his execution against Mrs. Floxman in the hands of the Sheriff and notifying him to levy on them as the property of Mrs. Floxman, while at the same time he held them on a prior levy as the goods of her husband. We think under the facts of this case the doctrine of Ms pendens will apply in its full force to appellant. Mrs. Floxman had come in under the statute before the issuing of appellant’s execution against her and was contesting the title with her husband’s creditors, and appellant was not in antagonism as to'her claim of title in the goods; his interest and hers were the same. The law would not presume that she would fraudulently assist to defeat her own title. However, if she and her husband’s creditors, with the knowledge of the appellee, fraudulently colluded to defeat her title in order to defraud her creditors and to fraudulently allow the suit to go against her, then the antagonism should be held to exist, and the appellant be allowed to show those facts and that the title to the goods was in Mrs. Floxman, and thereby defeat the bar of the judgment, otherwise not. There was no attempt to do so. The doctrine of Ms pendens applies to rights acquired under sale under judgment executions and sales and pendente Mte incumbrances. Cooley v. Bayton, 16 Ia. 19; Steele v. Taylor et al., 1 Minn. 273; Jackson v. Warren, 32 Ill 331, 341.

The judgment must be affirmed. Judgment affirmed.


text:
    Valentine Dewein v. The City of Peoria.

      Municipal Corporations—Street Improvements—Drainage—Percolation of Water—Action for Damages.

    .1. In an action against a municipal corporation to recover damages to the premises of the plaintiff alleged to have resulted from the percolation of ■water from a trench dug in the street for a water pipe and filled up with soft, porous and spongy material without any sufficient outlet for the water accumulating therein, it is held'. That the plaintiff was not injured by the errors, if any, of the court below in giving instructions or touching the admission of evidence; that the evidence does not sustain the alleged cause of action; that evidence that.there was more water in the plaintiff’s cellar and premises after than before the completion of the improvement, was but slight proof and was entirely overcome by other evidence.
    2. It seems that a municipal corporation is not liable for damages for supposed injuries where it has dug a ditch in a street and filled it with the same soil, although the soil therein is somewhat more porous than before.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Peoria County; the Hon. T. M. Shaw, Judge, presiding.
    The appellant was the owner of block 1 in Armstrong’s Addition to Peoria, which he divided into four lots and at and before the time of the alleged injury to the same by the means hereafter mentioned, owned and occupied the same.
    He had built a residence on lot 4 (the northeast quarter of the block), costing some §15,000. Appellant’s premises are bounded by the Knoxville road on the east, Lynn Street on the west, Armstrong Avenue on the north and Chambers Avenue on the south. There was a deep ravine cutting appellant’s premises from the northwest corner to the southeast corner, leaving the house on the northeast side of it. This ravine in a somewhat flattened shape extends from the northwest corner of appellant’s premises diagonally across Armstrong Avenue and extended up toward the bluff into the block lying immediately west and north of appellant’s block, past the house known as Odell’s, for some distance.
    This ravine was originally fifteen or more feet deep where it ran through appellant’s block. At the place where the appellant built his house there was a little knoll projecting from the main bluff from which the water drained in a southerly direction.
    Jacob Guyer had a residence just opposite appellant’s on the block just north across Armstrong Avenue, though being thirty to fifty feet further east and fronting south on said last named avenue.
    Prior to the time appellee graded Armstrong Avenue, in 3 883, the water on Armstrong Avenue between appellant’s premises and Guyer’s, and also from appellant’s premises, ran toward the Knoxville road. The ground sloped toward the city. The Knoxville road runs directly north to the bluff about two blocks from appellant’s southeast corner and has quite a steep grade rising toward the north about thirty-four feet. From the Knoxville road to Lynn Street on Armstrong Avenue, one block directly west, the ascent is some three and one-half feet, and from Lynn on the same avenue to Bigelow St eet, one block further west, the ascent is still more rapid till the summit of the bluff is reached, a short distance further west. Punning in a meandering line from the intersection of Bigelow Street and Armstrong Avenue to a point a little to the north of the intersection of the Knoxville road and Pennsylvania Avenue, would represent the summit of the bluff.
    The drainage from the summit of the bluff south was in a general southeasterly direction over the blocks that Guyer and Odell were on, to the appellant’s block and across over that. Considerable of the water coming from east of Bigelow Street and west of the ravine across appellant’s lot drained down through that ravine.
    In the fall of 1883 appellee graded Armstrong Avenue all the way going east from Perth Street up to the west side of the Knoxville road. This improvement required the excavation of the earth from eighteen to twenty-two inches in Armstrong Avenue, the replacing it with eighteen inches in the center and twelve inches at the sides and the setting of curb stones, the upper edge of which was to be ten inches above the gravel at Lynn Street; they were of the same height on the upper and lower side of Armstrong Avenue. That at the lower side extended along the depression at appellant’s northwest corner. The curb stone was set twenty feet' from the line of the lot and the space between appellant’s lot and the curb stone was filled up with earth at appellant’s request. A part of the earth taken from the street was used by him to fill up to the grade of the sidewalk. A portion of this sidewalk next the curb was used as a grass plat.
    At the Knoxville road the curb on the upper side of Armstrong Avenue is one foot and six inches higher than the lower side, giving a fall of two feet on the upper side and three feet six inches on the lower side, between Lynn Street and the Knoxville road. The curb stones and the graveling are well laid and the street is in good condition to outward appearances at least. After the excavation of this earth in Armstrong Avenue, winter came on and stopped the work before the gravel was filled in, and considerable water gathered therein and laid there all winter, but this is not the injury complained of, as the street was completed before any damage was shown to have been done by it.
    The damages complained of and for which recovery is sought in the declaration, resulted from the causes now to be mentioned. As a part of the improvements made, appellee laid a water pipe on Armstrong Avenue all the way from Korth Street to the Knoxville road, a distance of three blocks. The trench dug for the water pipe was some five feet deep and two feet wide, the water pipe was laid at the bottom, and the ditch was then again filled with the same dirt taken out of it, and the gravel put over it and the street rolled.
    The declaration avers that the ditch was filled up with soft, porous earth and thereby changed the drainage along the course of the said drain so filled up, of water below the surface of the ground, from its natural course; that by the reason thereof, the water falling in time of rain or collecting from melting snows and ice upon higher lands north and west of the premises of the appellant and upon said street, so in possession and under the control of appellee, were caused to flow over and percolate through the ground out of their natural course in and upon and along Lynn Street and in and upon Armstrong Avenue and in and along said ditch or trench so tilled up with soft porous and spongy material, and without any sufficient outlet for the water collecting therein, and thereby the said waters were caused to collect, stand and accumulate in, upon and beneath the surface of the ground along the said Armstrong Avenue where the same runs along Lynn Street and the Knoxville road and opposite the premises of the appellant, and that the same were caused to flow over and percolate the soil and clay etc., of the plaintiff, in and upon his premises, and to enter and fill the cellars and boiler room of his dwelling house and to saturate the brick walls and to soak into the siding, floors and woodwork of the same, etc., and to crush in the walls of his cistern, etc., and rendered the appellant’s lands swampy, etc., and injured his buildings and rendered the house untit for use. The appellant declares for damages in a large sum.
    The cause was tried by a jury and resulted in a verdict for the appellee and judgment rendered against the appellant for costs, from which this appeal is taken.
    Attached is a substantial drawing of the appellant’s premises and all the surroundings, which will make it easier to understand the situation of affairs.

      Messrs. McCulloch & McCulloch, for appellant.
    Appellee, in the improvement of its streets, is, in respect to the control of surface water, to be governed by the same rules as are private persons. Nevins v. City of Peoria, 41 Ill. 502; Rigney v. Chicago, 102 Ill. 64; Aurora v. Gillett, 58 Ill. 132; Aurora v. Reed, 57 Ill. 29; Gillison v. Charleston, 16 W. Va. 303; Inman v. Tripp, 11 R. I. 520; O’Brien v. St. Paul, 25 Minn. 331.
    Surface water is that wdiich falls upon the ground in times of rain, or which accumulates from melting snow and ice, whether the same lies upon or flows over the surface or percolates through it, and so continues to be surface water until it has reached some defined channel. Wheatley v. Baugh, 25 Pa. St. 528; Haldeman v. Bruckheart, 45 Pa. St. 514; Cooper v. Barber, 3 Taunt. 99; Broadhent v. Ramsbotham, 11 Exch. 602; Rawson v. Taylor, 11 Exch. 369; Livingston v. McDonald, 21 Iowa, 160; Chatfield v. Wilson, 28. Vt. 49.
    The liability is the same when it causes injury by the division of surface water as it would if it diverted a running stream and caused it to flow upon appellant’s premises. Peck v. Herrington, 109 Ill. 611; Pixley v. Clark, 35 N. Y. 520; Gillham v. Madison Co. R. R. Co., 49 Ill. 484; Gormly v. Sanford, 52 Ill. 158.
    The owner of the dominant heritage can not impose upon a servient any burden which the latter was not obliged by nature to bear. Hicks v. Silliman, 93 Ill. 255; Peck v. Herrington, 109 Ill. 611; Mellor v. Pilgrim, 3 Ill. App. 476; Same v. Same, 7 Ill. App. 306; Pixley v. Clark, 35 N. Y. 520.
    Messrs. I. C. Pinckney and H. W. Wells, for appellee.
    Ho action lies against the owner for interfering with or destroying, percolating or circulating water under the earth’s surface. Pixley v. Clark, 35 N. Y. 527; Acton v. Blundell, 12 Mees. & Wels. 324.
    An owner may dig upon or cultivate his own land at pleasure though he cut off or open water, circulating or dead, under the earth, to his neighbor’s injury. Such water is not different from the earth itself. He owns it. He does not own the water of a surface stream, and can not set it back to another’s injury Avithout liability. Pixley v. Clark, 35 N. Y. 531.
    It is a well recognized principle that when a thing not malxom in se is authorized to be done by a A'alid act of the Legislature and is performed with due skill and care in strict conformity to the provisions of the act, its performance can not, by the common law, be made a ground of action, however much one may be injured by it. Rigney v. Chicago, 102 Ill. 64.
    We submit the city had an unquestioned right to improve the street as it did. The improvement was a public work of great utility and the work was done in a most skillful manner. Such being the case we submit the city can not, under the authority last cited, be liable for such consequences, which could not have been anticipated when the Avork Avas done.
   Lacey, J.

The grounds upon which appellant seeks a reversal in this case are that the court below gave improper instructions for appellee and admitted improper evidence on the part of appellee and refused to allow certain evidence on the part of appellant.

We have examined the evidence in the case with much care and have come to the conclusion that there is such a lack of evidence on the part of appellant that the jury ought not to have found in his favor under any state of instructions and Avithout reference to the request of appellant to the City Council to put in the sewer complained of. The main burden of the appellant’s proof goes to show that there was more water in his cellar and premises after the completion of the grading of the street and the putting in the water pipe than there had been before, and the jury was asked to infer from this fact that the putting in the water pipe by appellee was the cause of the trouble.

This kind of evidence at best is only slight proof, but when we come to consider the other evidence in the case, that all or nearly all the other property that laid west and north and higher than the surface of the street along and north of appellant’s residence was similarly affected by water Avith his, even the force of that eAddonce is destroyed.

It seems that the soil along the side of the bluff in the neighborhood was of such a nature that in times of excessive rainfall it would fill with water and fill the cisterns and cellars in that neighborhood notwithstanding the great fail there was to the south.

To such an extent did this take place that cisterns would be broken in by the great pressure and the weight of the water gathered around them and cellars would be filled. Of course water was all the time making its way down grade and the lower it went the more water would accumulate.

Mr. Guyer, a witness introduced by the appellant, shows that the soil on each side is common clay and was full of water. He says: “ On one part of my lot I dug a cess pool and found water four feet from the surface.” Four feet would not be as low as the surface of the street, saying nothing about the water-pipe ditch. UI had water in my cellar before the improvements were made but not so much as since.” “ The bottom of my cellar is two or three feet higher than the surface of the street. Dewein’s place is a little lower than mine. From the Knoxville road on that high land clear over to Elizabeth Street there is a great deal of water in the ground and a good many cellars and cisterns have water in them; cisterns have been broken in with the surface water and privy vaults have been filled by surface water. My cistern that was broken was full. The surface water was then ten feet above the level of the street.” The theory is advanced that the water rose from below in the ditch into Guyer’s cellar by means of the law of capillary attraction. Such a theory as that is wholly inadmissible. His cellar was over ninety feet from the place where the water pipe was buried and there are no known laws of nature that would justify the belief in such result. The street in front of appellant’s house had a good fall to the east to the Knoxville road, and had a good level grade to that road, and does not appear to have been overflowed by water on the surface and none could possibly reach appellant’s premises from the surface on account of the intervening curb stone. Appellant’s house was ninety feet from the water-pipe ditch and evidently water percolated through the intervening clay if it reached there from the street at all, which it is likely it did.

The tests showed that the street beneath the gravel was full of water as well as the intervening clay soil between it and plaintiff’s house, and all on about the same level. But other tests showed that in the water pipe ditch, at the Knoxville road, it was much lower. This shows that water did not run down along the water pipe very readily at that point, otherwise the water would have been as high at that point as above, barring the descent in the grade.

It is more than likely that the filling up of the ravine west of appellant’s house, which he did very considerably, had a tendency to cause water to accumulate in his cellar. The ravine was sixteen feet deep, and would have a strong tendency to draw the water out of appellant’s lot for a considerable distance back toward his house, and perhaps drain it below the bottom of his cellar, and that may account for his cellar being dry theretofore.

But when the ravine is filled up to the extent it was, it no doubt stopped the heavy drainage that it had before. The water did not appear in appellant’s cellar till 1S85, a year after this water pipe was put'in. The substance of the appellant’s complaint is that appellee, in making the ne.eded improvements along the street, necessarily loosened up the soil in its excavation by first digging it out and then restoring it, and made it a little easier for water to pass through it, and in consequence he has been damaged.

We are of the opinion that the appellant has no remedy for such an injury as that. There has been no ditch left open; no drain • has been cut. The cases of Livingston v. McDonald, v. Ia. 160, and Mellor v. Pilgrim, 3 Ill. App. 476, in their facts, are not like those in this case. In each of these cases water had been collected by means of tile drains and flowed onto the lands of the plaintiff by that means. But suppose a ditch had once been dug and then filled up with the same soil, would the law notice any claim for damages for supposed injuries resulting from the fact that the soil, in the excavated and filled-up ditch, was a 'little more porous than before and allowed a little more water to percolate through it?

Public policy and the good of society would preclude such rule. The rule announced in the two cases above, we understand to have been considerably modified by the case of Peck v. Herrington, 109 Ill. 611, the principles announced in which, if carried out to legitimate inference, would prevent recovery in this case. It will not be necessary to notice the other point in regard to appellee showing that appellant requested and promoted the laying of the water-pipe, damages to recover for which act he now sues.

The evidence, we think, would not justify a jury in rendering a verdict in favor of appellant. The instructions given for the appellee, as applied to the evidence in the case, were not erroneous. The judgment is therefore affirmed.

Judgment affirmed.


text:
    John Tanton v. John E. Van Alstine.

      Landlord and, Tenant—Tenancy from Year to Year—Termination of— Hotice—Instructions.

    1. A tenancy from year to year, although commenced under a parol agreement, can only be determined by the statutory notice of sixty days, in writing.
    2. In an action to recover rent under a tenancy from year to year, in the absence of the required notice to determine the tenancy, it is error to instruct the jury tint the defendant is not liable unless he actually used and occupied the premises for the year in question.
    [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Woodford County; the Hon. H. W. Green, Judge, presiding.
    Mr. W. L. Ellwood, for appellant.
    No brief was filed for appellee.
   Baker, J.

Tanton, appellant, was the owner of a forty-acre tract of land that was surrounded on all sides by lands owned and occupied by Yan Alstine, appellee. In 1878 or 1879, the witnesses are uncertain which, the parties entered into a verbal contract by which appellant rented said forty acres to appellee at $50 a year, no length of time the lease was to continue being agreed upon, and the arrangement being that either party should give the other notice of his intention to end the lease. It seems the land was occupied by the tenant and the rent settled for at $50 a-year down to March 1, 1884. This suit was for the recovery of $50 for rent for the year ending March 1, 1885. On appeal from a Justice of the Peace, a trial in the Woodford Circuit Court resulted in a verdict and judgment for appellee.

Tanton contends that he is entitled to recover the $50 under the terms of his express contract; while the position of Yan Alstine seems to be that as that contract was verbal and made in 1878 or 1879 he is not responsible for the rent of 1884 unless he used and occupied the land that year. While he insists he did not use the land in 1884, the evidence tends to show that he that season pastured Gould’s cattle thereon, as well as on his own land. We do not, however, regard this matter as very material in the settlement of the present controversy.

In-the view we take of the case we may.wholly ignore the terms of the special agreement, and all consideration of the provisions of the Statute of Frauds. It is an admitted fact that, appellee took possession of the premises as tenant of Tanton in 1878 or 1879, and continued in the use and occupation of them until 1884, and each year paid or settled $50 a year as rent therefor. The tenancy thereby became a tenancy from year to year, and each party was bound to give the other at least sixty days’ notice in writing in order to terminate the ten mcy at the end of the year. Sec. 5, Statute of Landlord and Tenant-As tenant from year to year, Yan Alstine was entitled to the statutory notice to quit, and could not have been evicted from the land by his landlord without such notice. Prickett v. Ritter, 16 Ill. 96; Creighton v. Sanders, 89 Ill. 543. The rights of the parties in this respect were reciprocal,, 4 Kent’s Com. 111 and 112. The evidence shows that no notice to terminate the estate was given by either party. Appellee, then, had the right to use and occupy the land during 1884, and if he did not do so it was his own fault, and whether he used the land or not, he was liable for the rent of that year. In all cases' of a renting from year to year or month to month the holding will be construed to be at the same rent unless there be some act of one or both of the parties to rebut such an implication. Prickett v. Ritter, 16 Ill. 96; Clapp v. Noble, 84 Ill. 62; Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151. Our conclusion is, that the verdict of the jury should have been for appellant for $50.

At the trial, the court, at the instance of appellee, instructed the jury that he, appellee, was not legally bound to use the land for the year 1884, and was not liable to pay rent for the same for the year 1884, unless the jury believed from the evidence that he used and occupied the same for that year. Such instruction was in conflict with the views we have herein expressed, and was erroneous, and, without doubt, it induced the jury to return the verdict they did.

The judgment is reversed, and the cause remanded for further proceedings in conformity with this opinion.

Reversed and remanded.


text:
    Randall Smith v. Josephine Mohler.

      Replevin—Chattel Mortgage—Fraudulent Intent—Evidence—Instructions.

    In an action of replevin to recover the possession of a piano held by the defendant under an execution against a third person, it is held: That evidence touching the validity of a certain chattel mortgage on the piano was properly excluded, the genuineness of said mortgage not being in issue; that the verdict is not so manifestly against the weight of evidence as to require a reversal; and that there was no error in the instructions.

      [Opinion filed December 9, 1887.]
    Appeal from the Circuit Court of Bureau County; the Hon. Geokge W. Stipe, Judge, presiding.
    Messrs. Eckels & Kyle, for appellant.
    Messrs. Gibons & Gibons, for appellee.
   Lacey, J.

This was a suit of replevin brought, before a Justice of the Peace, by appellee, to recover the possession of a piano which she claimed- as her property. The appellant was a Constable and had taken it on execution in favor of Isaac Conant against Frank and Samuel Mohler, claiming and levying on the property as that of Frank Mohler. The'trial taking place in the Circuit Court, resulted in favor of appellee.

The issue in the case was, as to whether the piano was the property of Frank Mohler or appellee. The appellee testified that she purchased the piano of Frank Mohler, December 24,1885, for $100 cash, paid to, or to the use of, Frank Mohler-

In order to contradict the appellee in regard to her claim of ownership of the piano, several witnesses were put on the stand who testified to statements claimed to have been made by her subsequently to the time of the alleged purchase contradictory to her claim of property in the piano, and also to show that a certain chattel mortgage taken by her for $3,100, from said Frank and her husband, on the piano and other property on December 18, 1885, was fraudulent.

Appellant attempted to prove by one Steele, that Frank Mohler, out of the presence of appellee and before the mortgage was executed, stated he intended to make a bogus chattel mortgage to appellee. The court ruled out this proposed proof, and, we think, correctly. The question of the genuineness of the chattel mortgage was not in issue, nor was Frank Mohler a party to this suit. If such evidence could be allowed to show that the mortgage was fraudulent, then appellee might have gone into that question and have shown that the mortgage was genuine.

This would have involved the trial of an issue not involved and the time of the court have been consumed uselessly. Even if such issue had been determined in appellant’s favor it settled nothing, as the question whether there was a genuine sale of the piano to appellee, as she claimed, would still remain unsettled and undetermined. The execution of the chattel mortgage and the alleged purchase of the piano were entirely separate transactions, the sale not at all depending on the validity of the mortgage. It does not necessarily follow that because an intended fraud was committed in the one case that the sale in the other was fraudulent. It would only have established that appellee was fraudulently inclined. But such evidence could not be allowed to show guilt in another matter not invalid either in a civil or criminal case. The whole matter of the chattel mortgage having been fraudulent should have been rejected.

As to the question of the weight of evidence not supporting the verdict, we can only say that while this court' might have been better pleased with a verdict the other way, yet it is not so manifestly against the weight of the evidence as requires that the judgment should be set aside. The jury had the undoubted right to believe the testimony of the appellee to be true, notwithstanding her contradictory statements, and this court would not be authorized to interfere.

We see no serious error in the appellee’s first and second instructions. The first appears to be without fault, and the second, so far as assuming that there had been sale of the piano to appellee, we think is not open to the criticism made. It only referred to the sale to fix a period of time in regard to the alleged fraud in the transaction, and evidently did not assume that there was a valid sale. Nor do we think it could be fairly understood that there was a sale at all. The main issue, as is shown by defendant’s instructions, appeared to be the questions of fraud in the sale of the piano, and not whether there was a sale of some kind.

Complaint is also made that the court modified the appellant’s insti'uctions so as to hold her to be a party to the supposed fraudulent intent of Frank Mohler in making the sale of the piano to lier, only in case the appellee had knowledge of such fraudulent intent, or had such knowledge of such transactions as “ could reasonably and necessarily lead a reasonably cautious person to infer that said sale was made with intent to hinder and delay creditors.”

The objection is made that the court erred in striking out the word “naturally” as the instruction was offered, and inserting the word “necessarily” as it was given. This was a proper modification as will be seen by reference to the decision of the Supreme Court in the case of Boies v. Henney, 32 Ill. 130, 145.

Seeing no sufficient error in the record to reverse the judgment it is therefore affirmed.

Judgment affirmed.