text:
    Alvin Bernstein, Appellant, v. School Directors of District No. 10, Jasper County, Illinois, Appellees.
    Opinion filed June 1, 1943.
    Omer Poos, of Hillsboro, for appellant.
    Craig & Craig, of Mattoon, for appellees.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from a judgment in bar of plaintiff’s cause of action and against plaintiff for costs, rendered in the circuit court of Jasper county, Illinois, September 25,1942, dismissing counts 1, 2, 4, 5, 6, 7, 8, 9,10,11, and 12 of plaintiff’s complaint. The judgment was entered in favor of School Directors of District No. 10, County of Jasper and State of Illinois, defendants appellees (hereinafter called defendants), and against Alvin Bernstein, plaintiff appellant (hereinafter called plaintiff).

The complaint, which was filed on October 21, 1941, consisted of 25 counts. The court, on a hearing, sustained a motion to dismiss the counts above enumerated. Bach of said "counts involved a school order which had been issued by the School Directors of defendant appellee. The first of said orders sued on, and which were made the subject of this motion, was -dated January 16, 1930, and the other orders were issued on various dates up to and including an order which was issued on August 2,1930. The orders sued on in counts 4, 5, 6 and 10 were for teacher’s salary, and the orders sued on in counts 1, 2, 7, 8, 9,11, and 12 were for pension fund, labor, fuel, insurance, clerk hire and board expense, painting roof, and fuel and janitor’s supplies. All of said orders appear to have been presented to the treasurer of the School District for payment on January 30, 1933, and each of said orders bears the following indorsement: “Presented for payment 1/30/33, not paid for want of. funds, (signed) Bessie Chapman, Treasurer.” In all of said counts, interest is claimed on said orders from the dates same were presented for payment to the school treasurer.

To this complaint, on January 2, 1942, the defendants made a motion to dismiss the hereinbefore enumerated counts, and based the motion on the following ground: “The cause of action stated in each of said counts of the complaint did not accrue to plaintiff at any time within ten years next before the-filing of the complaint therein, and that plaintiff’s action is therefore barred by virtue of section 17, chapter 83, Ill. Rev. Stat. 1941 Edition [Jones Ill. Stats. Ann. 107.276].”

There are two issues presented to us for determination on this appeal: First: Whether the statute of limitations begins to run against a school order from the date of the order; and (Secondly) Whether an indorsement by the township treasurer, as required by statute, on a school order indicating that it has been presented for payment and is not paid for want of funds, is a promise to pay by the School Directors that will toll the statute of limitations in connection with a cause of action against the School Directors.

The school orders sued on in this case direct the township treasurer to pay a certain sum of money to a certain payee. No date is fixed for the payment of the orders. Nor could the orders lawfully be made payable at a future date (Ill. Rev. Stat. 1941, ch. 122, secs. 124,125 [Jones Ill. Stats. Ann. 123.131, 123.132]; Newell v. School Directors Dist. No. 1, 68 Ill. 514; Clark v. School Directors Dist. No. 1, 78 Ill. 474).

The orders evidenced a debt that was due at the time the orders were issued, and that in no way changed the due date of the indebtedness. Since the school orders were not and could not be payable at a fixed date in the future, they were payable on demand (Edwards v. German-American Trust S Savings Bank, 215 Ill. App. 164, 165, 167; Knecht v. Boshold, 138 Ill. App. 430; McConnaughy v. Gage, 252 Ill. App. 17; Ill. Rev. Stat. 1941, ch. 98, sec. 27 [Jones Ill. Stats. Ann. 89.027]).

In the case of Edwards v. German-American Trust & Savings Bank, supra, the court specifically held that checks and notes, both interest bearing and noninterest bearing, which state no date for payment, fell due on the date they were made. The statute of limitations begins to. run against a cause of action on a demand instrument from the date of the execution of the instrument (Ill. Rev. Stat. 1941, ch. 83, sec. 17 [Jones Ill. Stats. Ann. 107.276]; Edwards v. German-American Trust & Savings Bank, supra; Knecht v. Boshold, supra).

The meaning of our statute of limitations is clear and admits of but one construction. The Ill. Rev. Stat. 1941, ch. 83, sec. 17 [Jones Ill. Stats. Ann. 107.276], provides,

“Actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within ten years next after the cause of action accrued ; but if any payment or new promise to pay shall have been made, in writing, on any bond, note, bill, lease, contract or other written evidence of indebtedness, within or after the said period of ten years, then an action may be commenced thereon at any time within ten years after the time of such payment or promise to pay.”

Plaintiff appellant contends that the statute of limitations is tolled, or does not begin to run against school orders, until a fund is created for their payment, or until the treasurer notifies the clerk that there are funds on hand to pay the orders. With this contention we find ourselves unable to agree, and we believe, and so hold, that a literal construction of our statute of limitations leads to but one conclusion, namely: That the ten-year statute of limitations is applicable to school orders and that the statute starts to run from the date of the orders. The law made available to the holders of the orders, on which payment was refused for lack of funds, a means to enforce payment of same (Ill. Rev. Stat. 1941, ch. 122, sec. 274 [Jones Ill. Stats. Ann. 123.343]).

Plaintiff appellant further argues that the statute of limitations has been tolled because: (1) The township treasurer is the agent of the School Directors; and (2) Because the treasurer, by indorsing on the orders in 1933 that they were presented for payment and not paid for want of funds, made what, in law, amounts to a new promise to pay by the School Directors. This indorsement by the township treasurer, we assume, was made responsive to sec. 81 of ch. 122 of the Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 123.084], which is as follows:

“The township treasurer shall pay out no funds of any school district except upon an order of the board of directors, signed by the president and clerk, or by a majority of the board. When an order issued for the wages of a teacher is presented to the treasurer and is not paid for want of funds, the treasurer shall endorse it over his signature, ‘not paid for want of funds, ’ with the date of presentation, and shall make and keep a record of such endorsement. Such order shall thereafter bear interest at the rate of .six per centum per annum, until the treasurer shall notify the clerk in writing that he has funds to pay such order, and the treasurer shall make and keep a record of such notices, and hold the funds necessary to pay such order until it is presented. Such order shall draw no interest after notice is given to the clerk.”

The indorsement would, of course, not be binding in any event and require the payment of interest upon any school orders other than those issued for the wages of a teacher, as in said section provided.

This brings us to the all-important question, as to whether or not the school treasurer was the agent of the School Directors and acted in their behalf and bound them by the indorsement made on the orders for teacher’s salary, and sued on in this case. Section 67 of chapter 122 of Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 123.070] provides, among other things: “The Trustees of schools shall elect a treasurer, who shall be Ex Officio Clerk of the Board.” It will thus be observed that the school treasurer is elected by the trustees of schools, and hot by the School Directors, and a very careful examination of the statute does not disclose the School Directors having any power or authority over the school treasurer, nor does it disclose the school treasurer as being empowered in any particular to act as the agent of the School Directors. As we read the statute it seems to us that the school treasurer has the purely ministerial duty of paying out funds on order of the School Directors. He has no discretion in connection with, or control over, the issuance of school orders by the School Directors, nor any discretion as to what orders shall be paid or not paid, if funds are available. We fail to perceive any principal agency relationship between the School Directors and the treasurer, and it seems to us that by indorsing the orders for teacher’s salary in accordance with the statute in effect, which says that the orders bear interest at 6 per cent until the clerk has been notified that the treasurer has funds with which to pay the orders, that the treasurer was being responsive to and performing a statutory duty enjoined upon him by the statute, and we cannot perceive how it could in any way be considered a promise to pay by the directors.

It is urged that the statute was tolled because the School Directors never denied the existence of the debt. We do not understand that the failure of the directors, if they did fail to deny the existence of the debt, would in any way be controlling in this case to toll the statute, for the reason that we believe that the only way the statute could have been tolled would have been by the making of a new promise to pay the debt by a person legally authorized to make said promise. Ho such promise, in our judgment, appears to have been made.

The judgment of the court being correct, the same is hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Bristow

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Maben Potter, Appellant.
    Opinion filed June 1, 1943.
    Harry E. Jackson, of Waterloo, for appellant.
    David N. Conn, State’s Attorney, for appellee.
   Mr. Justice Bristow

delivered the opinion of the court.

Maben Potter was charged in an information filed by the State’s Attorney of Randolph county with unlawfully living in an open state of adultery with Dona Caldwell, a married woman. A trial by jury was had upon this information whereupon the jury returned a verdict finding the defendant guilty. After a motion for new trial was overruled the court sentenced the defendant to the Illinois State Penal Farm at Vandalia for the period of one year. The defendant questions the correctness of this judgment on this appeal.

Maben Potter was a married man, white, about 42 years of age, whose home was located at 315 Vine street in the city of Sparta. He lived there with his two minor children, his wife having left him some time previously to live in Carbondale, Illinois.

Dona Caldwell was the woman named in the information with whom Maben is charged with living in an open state of adultery. Her husband’s name was Sam Caldwell, but she was separated from him and living in a house at the corner of Jefferson and Washington streets in Sparta.

On June 7,1942, Sam called on Homer Russell, night marshal in Sparta, and reported that his wife and Maben Potter were down at the Caldwell home. Deputy Sheriff Morrison, Mr. Russell and three men went down there, entered the house and went upstairs where they found the defendant under a bed clad only in" his B.V;D.s, and Dona Caldwell, nearby, wearing only a dress. The defendant was arrested, denied that he had ever lived with Dona, but admitted that he had had sexual intercourse with her only in the Caldwell home. It is the contention of the defendant here that the evidence wholly failed to sustain the charge “Living in an open state of adultery.” No other error is claimed.

Let us briefly consider the evidence presented on behalf of the State at the trial of this case. For many months prior to the defendant’s arrest, Dona, who happens to be a colored woman, had been spending the greater part of her time at the home of the defendant. Many neighbors testified that they would see her come to his home four or five evenings a week, they would either not see her leave at all, or on the other hand if they would see her leave it would be early the following morning.

W. F. LaRowe, a witness for the People, testified that during the months of March, April and May, 1942, he was living as a neighbor to Maben Potter. He stated that he saw her come to his house in the evening and that she would not leave at all during the night, and that Maben Potter was known by him to be there at the time. He said that he went over to Maben’s house one Sunday night during that period, that the children, the boy and girl were sleeping in the south room, and the defendant was sleeping in the next room. That upon calling, the defendant came out clad only in his pants. Then defendant told him that “he wanted to show him something”; then defendant brought the colored girl out from his bed, hugged and kissed her and said that “she was the sweetest thing that ever lived. ”

Juanita Potter-, the 14 year old daughter of the defendant, testified that Dona came frequently to her father’s house, from January to June; that Dona several nights each week would go into his bedroom and' remain all night; that Dona would shave the defendant, cut his toe nails and caress him, and that her father frequently stated in her presence that she was the sweetest thing in all the world and that he would not give her up.

Mary Williamson and several other neighbors testified that they would see this woman come to Maben’s home almost every night in the week and stay indefinitely. ,

Sam Caldwell testified for the State and said that his separation from his wife was due to the continued absence of Dona and her affair with the defendant. He said that this relationship began in October 1942, and that she was away from home “just as many days and nights as there are days and nights in the week. ’ ’ One night in April 1942, Sam went to defendant’s home, looking for his wife. Pie knocked on the door and the defendant shot'at him twice. Later he saw his wife flee from the back door.

The State introduced several exhibits, being letters which were admitted to be in the handwriting of Dona and Maben. Decency prevents a publication of any part of these letters but a reading of them would forbid any thought that their relationship was at all platonic.

The foregoing gives a pretty complete picture of the conduct of the two parties involved in this matter.

Counsel for defendant, while /admitting that the conduct of his client was indefensible, sordid, and demoralizing, still he was not guilty as a matter of law of living in an open state of adultery. He strenuously presses upon the court’s attention the fact that these two parties had their respective domiciles and lived a major portion of the time therein, and that simply because they enjoyed frequent sexual interviews such is insufficient in law to warrant the above charge.

The statute under consideration reads as follows: “A. If any man and woman shall live together in an open state of adultery, or fornication or adultery and fornication, every such person shall be fined not exceeding $500 or confined in the county jail not exceeding one year.” Ill. Rev. Stat. ch. 38, sec. 46 [Jones Ill. Stats. Ann. 37.022], “B. The offense of adultery shall be sufficiently proved by circumstances which raise the presumption of cohabitation and unlawful intimacy.” Ill. Rev. Stat. ch. 38, sec. 47 [Jones Ill. Stats. Ann. 37.023].

The defendant’s counsel in support of his contention relies principally upon the case of Lyman v. People, 198 Ill. 544. Quoting therefrom at page 550, “The conclusion from all the facts is irresistible that Lyman and Alice lived openly as husband and wife live together ; occupied the same room and bed at night; rode about the country together, and generally followed the course of conduct toward each other which husband and wife are accustomed to for about four weeks. No one was deceived into thinking they were husband and wife, for those whom they met knew Lyman had a wife, the mother of his children, living in Kewanee. But it was not necessary to the crime that the public should believe they were husband and wife.” The defendant reasons from the above' citation that the open, notorious relationship of adulterers must be conjugal in many other respects than that of unlawful intimacy. The question for this court to determine therefore, is whether the above narrowed construction is legally sustainable.

Illinois is surprisingly barren of law on the subject of what does constitute living in open adultery. The only other Illinois case than the one cited above that is at all enlightening is Searls v. People, 13 Ill. 597. The court having under consideration the same statute as the one that occupies our attention here, has this to say; “In order to constitute this crime, the parties must dwell together openly and notoriously, upon terms as if the conjugal relation existed between them. In other words, they must cohabit together. There must be an habitual illicit intercourse between them. The object of the statute was to prohibit the public scandal and disgrace of the living together of persons of opposite sexes notoriously in illicit intimacy, which outrages public decency, having a demoralizing and debasing influence upon society.”

Turning to other jurisdictions for assistance in'the solution of this problem, we find that many other States have statutes identical with the Illinois enactment. In Am. Jur. vol. 1, p. 688, there is a discussion of the various adjudication of questions arising under such statutory provisions. Quoting therefrom at page 688: “In a number of jurisdictions, the legislatures have created the offense of living in adultery or. fornication, founded somewhat on the common law idea that while the act of illicit intercourse should not be punishable, nevertheless, where it is accompanied by circumstances which render it otherwise objectionable, it should be prohibited by law. These statutes in other words do not attempt to control the private immoral indulgence of the individual or affix a penalty to the furtive illicit intercourse between the sexes, but only to conserve the public morals by the prevention of indecent and evil examples tending to debase and demoralize society and degrade the institution of marriage.” Further quoting from the same volume at page 689: “It is unnecessary that the parties should profess to be husband and wife, but usually the notoriety is as material in making out the offense as is the fact of adultery committed. It is the publicity of the offense, the demoralizing and debasing influence of the example, that the law attempts to prevent.” Richey v. State, 172 Ind. 134, 74 A. L. R. 1363, L. R. A. 1916C ; Bird v. State, 27 Tex. App. 635; Bodiford v. State, 86 Ala. 67; Lawson v. State, 20 Ala. 65, 74 A. L. R. 1357; Smith v. State, 86 Ala. 57.

The leading and most thoroughly considered case upon the subject is that of State v. Chandler, 132 Mo. 155. There one Chandler was charged with living in open and notorious adultery with Kitty Coyle. Kitty’s husband, becoming somewhat suspicious of his wife’s misconduct, employed a detective to watch his residence and Chandler during his absence. The detective hid himself in Coyle’s basement, and there saw on the evening following Coyle’s departure the defendant enter the front door without being admitted by another. This occurred during each succeeding night from the 13th to the 23rd of March, 1895. He was seen to enter the home between 7:30 and 11:30 and depart therefrom the following morning between 5 and 5:30. Kitty and two servant girls were the only occupants of the home. Mr. Coyle returned home unexpectedly and in company with his detective and others went to his home at nighttime, proceeded stealthily to the bed chambers of Mrs. Coyle and there found the defendant in bed with her, each being arrayed in their nightgowns. Upon trial by jury, the defendant was convicted and this judgment was reversed.

The court in his exhaustive opinion analyzed about every leading authority in the United States on the subject of adultery. The cases of Commonwealth v. Calef, 10 Mass. 153; Jones v. Com., 80 Va. 18; Luster v. State, 23 Fla. 339; Carotti v. State, 42 Miss. 334; Kinard v. State, 57 Miss. 132, have as their underlying principle, quoting from the last mentioned case, "The decision is that on continuance of illicit intercourse makes out the crime so long as it is secret or attempted to be made so, but that, whenever secrecy is abandoned and the concubinage is open, the offense is complete.”

The court in its opinion in reversing the judgment of conviction, made the following pertinent observation: "In the present instance there is an entire absence of any evidence tending to show cohabitation between the parties implicated, in the sense and meaning of the word as declared by the standards of our language and as settled by frequent adjudications. It is not the object of the statute to establish a censorship over the morals of the people, nor to forbid the violation of the seventh commandment. . . . Its evident object was not to forbid and punish furtive illicit interviews between sexes, however frequent and habitual their occurrence; but only to make such acts punishable as it plainly designates; acts which necessarily tend by their openness and notoriety, or by their publicity to debase and lower the standard of public morals.” The court further observed, rather significantly, in support of his conclusions reached that the interviews between the defendant and Kitty were so secretive and well protected that even the maid servants, living in the same home, were entirely unaware of this clandestine relationship.

In line with the same thought as announced above is the case of People v. Salmon, 148 Cal. 303, — A man and woman who come into a community, when the facts are unknown, and live quietly as husband and wife, with nothing to 'excite suspicion that their intercourse is adulterous, cannot be convicted of living in a state of open and notorious adultery.

We are of the opinion that the conduct of the parties, as the record discloses the same on this appeal, answers the tests as pronounced- in most every jurisdiction. Their immoral life was so brazen and notorious that every neighbor was cognizant of it. Their lustful and clandestine impulses had attained such an arrogant stage that the two parties implicated defied the law and order, and decency of the village of Sparta, and the defendant himself was so devoid of moral scruples that he flaunted the charms and virtues of his paramour in the very presence of his 14 year old daughter. Their relationship had broken two homes, it caused Dona’s husband to abandon her, and the defendant’s wife to leave him. The conclusion is irresistible that the statute upon which this prosecution is predicated was designed to prohibit such public scandal, and disgraceful living together of persons of opposite sexes in such notoriously illicit intimacy; that which outrages public decency and has a debasing and demoralizing influence upon society. The jury’s verdict is justified by the law and the evidence, and the maximum sentence imposed by the trial judge meets with the approval of this court.

Judgment affirmed.


author: Mr. Justice Bristow Mr. Justice Stone

text:
    Edward H. Gardner et al., Appellees, v. International Shoe Company, Appellant.

      Opinion filed June 1, 1943.
    Chapman & Thomas, of Alton, Richard O. Rumer, of St. Louis, Mo., Charles E. Rendlen, of Hannibal, Mo. and Baker, Lesemann, Kagy & Wagner, of East St. Louis, for appellant.
    Manuel M. Wiseman, Philip G. Listeman and Ralph D. Walker, all of East St. Louis, for appellees.
   Mr. Justice Bristow

delivered the opinion of the court.

This is an appeal from eight' judgments of $1,200 each and one judgment of $1,000 entered in the same case by the circuit court of Madison county, in favor of the plaintiffs in the trial court and against the International Shoe Company, appellant. The suit was brought jointly by eight husbands and wives and one individual to recover damages, charging appellant, who will be hereinafter referred to as defendant, with improper conduct in the operation of its tannery and a settling basin used in connection therewith, in the village of Hartford, Illinois, and alleging that as a result of such alleged improper conduct, the defendant necessarily caused odors which interfered with the plaintiffs’ use, occupation, and wholesome enjoyment of their respective homes, and caused plaintiffs substantial damages peculiar to them.

The complaint consisted of nine counts, all of which were identical with the exception of names, description of property owned by the respective plaintiffs, and like matters. Bach count alleged that the defendant, in the operation of its tannery, maintained a certain open sewage pond and that waste materials and chemicals used in the tannery, as well as raw sewage from the cafeteria and toilets were emptied into said pond and thereafter carried into the Mississippi river. It was further alleged that in the process of operation of said sewage pond by defendant, large quantities of chemicals, gases, odors, fumes and other unwholesome, noisome, unclean and irritating matters were emitted into the air from said pond and pervaded the air around plaintiffs’ residences, and because of this, plaintiffs’ us3, occupation and wholesome and healthful enjoyment of their homes had been disturbed and denied them.

Defendant’s answer admitted operation of the tannery, and the control and maintenance of the pond into which waste materials containing some chemicals and some sewage was discharged, but averred that the cafeteria and toilet sewage comprised less than 5 per cent of the effluent drained into the pond and that 95 per cent thereof was water used to wash hides from which foreign substances had been removed; that the pond was necessary to the operation of the tannery, and denied that large quantities of gases, odors, fumes and other unwholesome matters were emitted into the air from the pond. The answer further alleged that the community where plaintiffs resided was an industrial community-containing other plants -and factories, all of which emitted odors.

Amendment was made to the complaints charging that defendant maintained a pond which constituted a public nuisance and the odors from which interfered with the wholesome use of plaintiffs’ premises,

o Upon a trial of the issues before a jury, nine verdicts were returned finding defendant guilty and assessing the damages of the plaintiffs in each of the counts at $1,800. The trial court required a remittitur as to each verdict in the sum of $600, except as to the verdict in favor of plaintiffs Ealph and Pauline McBeynolds, as to which latter verdict, it required a remittitur of $800. Motion for new trial was overruled, and the court entered judgment in favor of the plaintiffs named in each count in the sum of $1,200, except as to plaintiffs Ealph and Pauline McBeynolds for whom judgment was entered in the sum of $1,000, from which judgments, defendant prosecutes its appeal to this court.

It is relied upon as error for the reversal of these judgments, that plaintiffs failed to plead or prove any cause of action at law which would entitle them to a judgment for damages against defendant. It is also contended on behalf of defendant that, because the evidence did not show any damage from the odor to the health of plaintiffs, and because of the fact that no smoke, soot, hides, hair or any substance of any kind was cast upon plaintiffs’ premises, no action for damages can lie. It is also strenuously urged in that regard that private actions at law may not be maintained by a citizen against a person or corporation for the maintenance of a public nuisance unless he has shown personal damage peculiar to himself which is different from that suffered by the general public.

The village of Hartford, in which plaintiffs and witnesses live, has a population of about 1,600 people, and is situated in the very heart of a great industrial area which extends for many miles along the east bank of the Mississippi river and opposite the metropolis of St. Louis, Missouri. In and near the village were a large number of oil refineries, lead works, and a fertilizer plant, numerous pig pens and outdoor toilets. In close proximity to the village is a Standard Oil Company refinery, the Wood River Oil and Refinery Company, a fertilizer plant, the White Star Refinery property, and also railroad tracks used extensively by the Alton, the Big Four, the Illinois Terminal, and the Litchfield and Madison.

The defendant has operated its tannery business within the city limits of Hartford for more than 24 years. During 1938-1940, it employed 850 to 900 persons, and was engaged in tanning cattle hides and preparing leather for use in the upper portion of shoes. In the tanning process between 1,225,000 and 1,305,000 gallons of water are used daily in washing, soaking, and treating the “green salted” cattle hides which have been cured with salt for a period of about 30 days after the hides have been removed from the animal and before they are received at the defendant’s tannery.

The hides are washed approximately eight times. The first washing takes off the loose dirt that may be hanging on the hides plus the salt that they contain. The next operation is what is called “soaking” and is done in clear water, and removes practically nothing from the hide, but is for the purpose of wetting the hide. The third washing is a chemical treatment which has for its purpose the loosening of the hair. The fourth washing has for its purpose the dissolving of the lime which the hides have absorbed. The fifth washing is to remove the remainder of the lime, and the sixth is a treatment in a solution of salt and sulphuric acid in the tanning process. The seventh treatment is with a chemical known as basic chromium sulphate and salt which tans the hide. The next operation has two parts, one of which is the retanning of the hide with chromium sulphate and salt and then an operation in which the stock is dyed and in which oils and fats are introduced.

Tests made by the Illinois department of Health showed that of the daily discharge of approximately 1,300,000 gallons of waste, there was approximately 9,480 pounds of suspended solid matter, most of which was finely divided, it having passed through a large self-cleaning rotary screen with a %q to % inch mesh.

Until 1938 this effluvia or waste material was discharged into the Mississippi river. In 1936, the Illinois Department of Health made a study of the industrial waste problem in the Hartford-Wood-River industrial district. They found that the solids contained in the industrial waste of these industries and others interfered with the water supply of the cities along the Mississippi river to the south of Hartford. This study included a survey as ,to the volume and content of the wastes of the International Shoe Company tannery. As a direct result of this survey, the Sanitary Water Board of the State of Illinois required the International Shoe Company, as one of the industries contributing to the Hartford-Wood-River industrial waste problem, to dispose of its waste in some manner for the purpose of removing the solids therefrom before passing the water into the Mississippi river.

The defendant, pursuant to the above order constructed a settling tank or basin about 1,200 feet long, 275 feet wide and 5 feet deep. This reservoir was constructed and located under the direction of the Illinois State Department of Health. It was built to meet their requirements after they had made an extensive study and comprehensive survey of the problem.

It also appears from the evidence that in addition to the waste passing into the settling tanks from the tannery, there was the passage of human waste from the toilets of the tannery and from a few small homes near by. Mr. Black, the senior sanitary engineer of the Illinois Department of Health, testified from actual tests made by him that only about 50 pounds of solid fecal matter was discharged into this basin per day, and at the 'same time there accompanied this flow, some 10,000,000 pounds of water. For every pound of solid fecal matter there was 200,000 pounds of water. It also appears in evidence that the tannery employs .large quantities of lime in and about the processing and tanning of hides. It was estimated that there was approximately 5 tons of lime used daily. It is a matter of common knowledge that lime will aid materially in the killing of bacteria, and thus prevent decay and decomposition of. solids which settle to the bottom of the tank. The foregoing is a rather comprehensive picture of the physical surroundings that beset the plaintiffs and defendant, at and during the time the controversy between them arose, and which is now presented to us for decision.

Many witnesses testified on the hearing of this cause before the lower court, 17 of which appeared for the plaintiffs and 23 for the defendant. They were all residents of the village, some living near and others farther away from the settling basin.

Plaintiffs ’ witnesses testified that the odors were offensive to smell, and at times produced-nausea and a headache. The extent of the annoyance varied with the weather conditions and with the direction of the wind. Some testified that the odors were always noticeable, others that it was intermittent. Many were of the view that the smells were typical of those that prevailed in the tannery itself. Then there were a few of the plaintiffs that said the odors flowing from the basin in question were “sickening,” “like something dead,” “foul and vile like some decomposed animal,” “worse than decayed and rotten eggs.” They further testified that sometimes the fumes were "so vile that it became necessary for some of the plaintiffs to leave home and seek fresh air elsewhere, and further that they suffered considerable embarrassment when having friends call their attention to the smells that this factor made their visits to their homes less frequent. Of the two disinterested witnesses who supported the claims of the plaintiffs, one, Percy Chapman, said, “I don’t think it hurt me. I haven’t lost any time because of it.” The other, Connie Johnson, said, “The odor didn’t bother me except it wasn’t pleasant.'”

On behalf of the defendant, there appeared 23 witnesses most of whom were disinterested with the exception of those who were either employed by or had relatives working for the defendant company. It appears from the testimony of these witnesses that there were unpleasant odors arising occasionally from the-settling basin in question. The extent of such varied with the breezes and humidity. These witnesses all agreed that they were not bothered thereby; that the smells were noticeable to the point of being disagreeable not more than 8 or 10 times a year; that the smells and odors were comparable to those found in a tannery. There was evidence that there is a public school situated within one and one-half blocks of the basin, which distance was closer than any of the plaintiffs. Orville 0. Brunjas, the principal of the school, and Myrtle Fisher, the school nurse for this school, both testified that the odors emanating from the basin were unpleasant and noticeable at the school not more than 8 to 12 times during a school year; that such did not interfere with the conduct of the school, nor had school authorities experienced any difficulties on account of sickness of pupils. It would appear that Mr. Brunjas and Miss Fisher were both entirely disinterested, and from their testimony, the court arrives at a pretty accurate picture of what the true situation has been in the village of Hartford with reference to disagreeable and unpleasant odors coining from the effluvia deposited in defendant’s basin.

Mr. Gardner, who appears to be one of the champions of the rights of the plaintiffs, admits that he had erected, 2 years- after the genesis of the basin, a new residence on the same lot where his home is situated. Into this new domicile, he moved his father-in-law, mother-in-law, his mother-in-law’s half brother and wife and two children to enjoy the constantly nauseating odor's coming from the defendant’s “Rose Bowl.” We wonder if this is the proverbial treatment of “in-laws.” Mrs. Gardner said her husband became sick at his stomach frequently, had an extremely delicate and sensitive stomach, but he never missed a meal.

The testimony showed that there are no vacant properties in the village of Hartford, and that new homes have been erected since the defendant’s new scheme of waste disposal went into effect. It further appeared from defense witnesses that there were many pig pens and open toilets near the homes of several of the plaintiffs; that plaintiff, Morris L. Schupback sold his home and a house adjoining it to Mrs. Haley in August 1940; that Mrs. Haley testified that she continues to live in the premises, suffering no discomfort whatsoever; and that Ralph McReynolds, a plaintiff, bought his home and moved into it 6 months after the inception of the basin, when odors, if especially objectionable, would have been well known to him. The proof further revealed conclusively that the odors were not dangerous to life nor harmful to public health; that the activities of the village business, social, and economic life continued on just the same now in Hartford as before the building of the basin.

The defendant on this appeal makes the contention first, that the trial court erred in not having entered judgment notwithstanding the verdict, and second, that in the event such view is not entertained by the court, that the case should be remanded for new trial because the verdicts were against the manifest weight of the evidence, and there was error in the exclusion of evidence and in the giving and refusing of instructions. If the first contention made by defendant is sustained, it obviously becomes unnecessary to give attention to the second.

To justify recovery, the plaintiffs rely upon a line of cases which appears in their brief under the following: “This court has heretofore settled all substantial questions of law raised in this case,” citing Cook v. City of Du Quoin, 256 Ill. App. 452; Wineland ex rel. Abeln v. M. Huber, Inc., 275 Ill. App. 264; Feder v. Perry Coal Co., 279 Ill. App. 314; Echart v. City of Belleville, 294 Ill. App. 144.

Let us briefly analyze those cases to determine their applicability here. The Cook v. City of Du Quoin case was a suit in equity for an injunction enjoining the defendant from polluting a natural watercourse which flowed through the plaintiff’s farm lands and which natural watercourse he had used for watering his stock. The defendant, a city of 10,000 inhabitants, emptied its sewage into this natural watercourse, and by reason of this use of the stream it became contaminated, the water in the stream was filled with sediment and sewage and other deleterious elem’ents which killed the fish and rendered the water unfit for use. The contaminated stream gave off noxious and baneful gases and odors which affected the health of members of the plaintiff’s family and made them sick. A decree enjoining the pollution of the natural watercourse and assessing plaintiff’s damages at the sum of $1,200 was affirmed by this court.

. The next case, Wineland v. Huber, supra, was a suit for an injunction brought by the State’s Attorney of Clay county, on the relation of a number of farmers through whose farms flowed a natural watercourse known as Dismal Creek. The defendants deposited upon a farm which they owned in a remote and sparsely inhabited portion of Clay county vast mounds and heaps of garbage, carcasses of dogs and other animals and decomposed and decomposing vegetable and animal matter which they obtained in and hauled from the City of Chicago. The garbage and refuse were deposited on the banks of Dismal Creek, which as a result became polluted and poisoned and the stench and odors ■ from the pile of garbage and carcasses and the polluted creek affected and impaired the health of the relators and their families. Eats of an uncommon species abounded in the pile of rubbish and carcasses and infested the barns and dwellings of the relators. The evidence further showed that the dump was a breeding place of and ideal for the spread of germs injurious to health and affecting human and animal life,, such as hemorrhagic septicemia, influenza, trichinae, anthrax and black leg. An injunction granted by the lower court was modified upon a hearing so as to provide that no carcasses or putrescible matter be dumped on the land, and that no refuse be placed within 300 yards of the channel of the creek, a,nd, as modified, was affirmed by this court.

The Feder v. Perry Coal Company case was a case where the defendant operated a coal mine out in the country upon land adjacent to plaintiff’s farm and maintained on its own land a large dump and pile of refuse, composed of dirt or fire clay, rock, sulphur and slate, with a trace of oil. The slag pile became ignited in 1931 aiid burned intermittently from June until the latter part of November. The slag pile gave off unhealthful and noxious sulphuric gases and smoke, which came over onto the plaintiff’s land, settled upon and killed the crops, grass and other vegetation, killed part of his live stock and poultry, and made plaintiff ill. This court reversed a judgment for the plaintiff and found that there was no evidence on which a finding could be based that the smoke, dust or sediment from the fire was in sufficient quantities to cause the death of plaintiff’s hogs, and also for errors in the in-' struetions given by the lower court, which ignored the question whether the defendant used due and reasonable diligence in the piling of the slag so that spontaneous combustion would not occur and whether or not it used due care in the extinguishing of the fire, which this court held were issues which should have been considered by the jury.

In the last case, Eckart v. City of Belleville, supra, the City of Belleville had for many years overloaded its septic tanks through which passed the sewage of the city, to as much as eight times their capacity, over the objections of the State Department of Public Health, and had negligently allowed the plant to get out of repair, resulting in a leak in the intercepter whereby 150,000 pounds per day of raw, contaminated and untreated sewage was emptied into a natural watercourse known as Richland Creek, which ran through the farms of the plaintiffs about 20 miles south of Belleville. As a result Richland Creek, where it ran through plaintiffs’ farms, some 20 miles south of Belleville, was covered with a soapy scum, was full of suspended matter and teemed with sludge deposits and was lined with tubifex worms and fungus growths, which live only in polluted streams. Plaintiffs had been accustomed to use the water from the creek until it became polluted, contaminated and unfit for use. The polluted creek affected the live stock on their farms and constituted an unwholesome and unhealthy condition which this court described as “most shocking.” The condition so characterized by the court was wholly unnecessary and unreasonable and was directly caused by the wilful overloading of the sewage disposal plant and the failure to keep the plant in proper repair. A decree requiring the citv to abate the condition within 18 months and awarding damages to the farmers was affirmed.

We do not believe any one of these cases is analogous to the case at bar or is helpful in determining the question of liability as presented by the pleadings and facts in this case. Uniformly, in those cases an industrial community was not involved and they presented conditions that were baneful, unhealthy, noxious, poisonous and destructive of human, animal, and vegetable life. In the instant case, we have nothing more than unpleasant and disagreeable odors, and those only occasionally perhaps sickening to a few who seem to be unduly sensitive or might we say allergic to such smells. These gases come from a tank built under the supervision of the Illinois State Department of Health, and have been produced by a factory that is conducted in an approved and standard manner. It might be recited here that the defendant made an offer of proof on the trial that the defendant tannery was operated according to approved methods and recognized standards; that its method of taking care of the waste was the most prudent, careful, and proper one. The court sustained an objection to the proffered proof. A tannery cannot successfully and reasonably operate without smells that may annoy people any more than a stock yards can operate without producing offensive odors that are frequently very annoying and sickening.

Another case relied upon by the plaintiffs which seems to be more nearly in point, is that of Wylie v. Elwood, 134 Ill. 281. We quote from the opinion at page 283: ‘ ‘ This is an action on the case, brought in the Circuit Court of Will County, by the appellee, Elwood, against the appellants, Wylie and Sutherland, and also against the Michigan Central Railroad Company and the Joliet and Northern Indiana Railroad Company, to recover damages sustained by the plaintiff below during the month from June 4 to July 5, 1888, in the use, occupation and enjoyment of his dwelling-house, caused by the erection and operation by the appellants of a large coal-shed adjoining said dwelling-house in the city of Joliet, and the handling herein of large quantities of coal' by means of machinery driven by steam power, whereby intolerable noises were produced, and great quantities of coal dust and dirt were cast upon and into said house, which dust and dirt continually settled down in large quantities upon the furniture, books, food, clothing and other things in the house, to the great annoyance of the plaintiff, and so as to be destructive of the comfort and health of himself and his family and cause material injury to his possession, use and enjoyment of his home. Under the instructions of the court, the jury, upon the trial below, found the two Eailroad Companies not guilty, and returned a verdict of guilty against the other defendants, the two appellants here. Judgment was entered upon the verdict. The Appellate Court has affirmed the judgment, and the case comes here by reason of á certificate of importance granted by that court. ’ ’ And we quote at page 285: “The coal-shed is about 610 feet long, 28 feet high and from 54 to 56 feet wide, built of lumber with a stone foundation and a roof covered with tarred paper. It is open at the west end and on the south side, and has an open space on the north side between the siding and roof, so that the coal dust escapes upon the adjoining premises. Cars are switched from the railroad tracks into the shed upon a raised platform. The coal is thrown into an iron hopper by means of an iron scraper operated by steam power, and is then received into an iron conveyer run by steam, and lifted from 20 to 28 feet high and emptied into a chute or trough plated with iron, and conveyed through the same, and dumped upon the floor through openings in the chute. The shed will store 24,000 tons of coal. In June, 1888, from 15 to 23 car-loads of coal per day were delivered into it, each car-load holding from 12 to 20 tons; about 23 cars would be unloaded in one day. This process of lifting, conveying and dumping the coal by means of machinery from the top of the shed to the floor below, in large masses, causes the coal to break and grind upon coming- in contact with the iron conveyer, etc., and produces not only deafening noises, but clouds of coal dust. The evidence tends to show that the locality in question is in a thickly settled portion of the city, and that there are many houses and stores near plaintiff’s residence on Jefferson street, and also south of Washington street, and east and west of the other streets above named. Many of the owners and occupants of these houses and stores were put upon the witness stand, and swore that they also were annoyed and injured by the noises and coal dust in question in the use and enjoyment of their respective properties.” . . . “It is urged, however, by the appellants, that, by the testimony thus admitted, the nuisance was shown to have been a public one, and that a private action will not lie for injuries suffered from a public nuisance. Counsel for appellants thus state their position: 'the annoyance complained of by the plaintiff is only such as he in common with the public is subjected to, and, therefore, he cannot have a private action to redress his supposed injury. ’ ”

The court affirmed a judgment recovered by the plaintiff in the trial court, and held that such recovery was justified, even though the nuisance was a public one and that other members of the public were similarly disturbed or affected. The opinion uses what we think rightly may be termed dicta that gives some support to the plaintiffs’ contention in this case, but a careful reading of the case discloses at least three fundamental distinctions. (1) In the Wylie case there was an actual destruction of health and property from clouds of coal dust developed by the defendant’s vast and extensive loading and unloading of coal. (2) The defendants located their large plant in a thickly populated residential area (nonindustrial). (3) Significantly, the court held that there could be no recovery if the defendant operated his plant in a “prudent, careful and proper manner.” In other words, the coal dust was not found to be a necessary concomitant of the industry. However, the proof "in the case at bar shows conclusively that the smells and odors in question were necessary concomitants of the defendant’s tannery: This case appears to be authority for our holding that it is proper to consider the proof offered by the defendant that its plant was operated properly, prudently, and according to recognized methods.

The court in the Elwood case quotes two Illinois cases, a consideration of which may furnish some enlightenment. The first, Cooper v. Randall, 59 Ill. 317, was an action for damages to plaintiff’s premises arising from a flouring mill on a lot near such premises which threw upon them chaff, dust, dirt and other impurities. The second, Rlinois Cent. R. Co. v. Grabill, 50 Ill. 241, was an action by the plaintiff to recover damages for the disturbance of her enjoyment of certain premises, caused by the negligent, careless, and improper manner in which the defendant kept and .maintained a certain cattle pen. The evidence showed that the Illinois Central Railroad had erected a cattle pen near her premises in the heart of the city of Urbana, a quiet, university, nonindustrial center. The railroad was charged with leaving dead hogs and cattle lying in the pen to decay and rot until rotten and poisonous smells were generated. It was further charged that the defendant permitted foul and poisonous water to stand in the pen, thus causing noxious vapors to spread and to be deposited on the plaintiff’s premises. Recovery was had in the lower court. The appellant, to reverse that judgment, made the contention that the railroad could not be held liable because it was following its legitimate and lawful business, and that the annoyances suffered by the plaintiff were only such as individuals are frequently obliged to suffer. The court in its opinion said, ‘1 There is no complaint in the declaration of annoyance by the funning of engines, the escape of steam or otherwise, near her premises. Such consequences of the construction and use of railroads must be borne by all living near them, without complaint and without hope of redress for they are inseparable from the purposes and objects of such structures.” The court goes ahead to declare that recovery should be had for such damages as arise out of the careless and negligent acts of a railroad company .in regard to any usual and necessary operation of its business. This early pronouncement of the law on the subject that confronts us recognized the principle that industry has its necessary concomitants which must be borne by the public “without complaint and without hope of redress.”

Bearing in mind what has been'held in the foregoing cases, and comparing the facts appearing therein with the record in this case, we do not feel justified in saying that they constitute authority for holding that the plaintiffs are entitled to recover.

A more helpful and pertinent and closely analogous line of cases is found in the defendant’s brief, most of which are from foreign jurisdiction, namely; City of Pana v. Central Washed Coal Co., 260 Ill. 111; Strachan v. Beacon Oil Co., 251 Mass. 479, 146 N. E. 787; Ebur v. Alloy Metal Wire Co., 304 Pa. 1.77, 155 Atl. 280, 282; Prest v. Ross, 245 Mass. 342, 139 N. E. 792; Higgins v. Decorah Produce Co., 214 Iowa 276, 242 N. W. 109. The Supreme Court of Massachusetts, in Strachan v. Beacon Oil Company, supra, said, “It is a matter of common knowledge that in thickly settled manufacturing communities, the atmosphere is inevitably impregnated with disagreeable odors and impurities. This is one of the annoyances and inconveniences which everyone in such a neighborhood must endure.” The same court said at page 789, “The defendant is engaged in a lawful business in the conduct of which it is found that odors necessarily will escape into the air; but it also appears that the defendant has adopted the most improved methods and devices to control and confine such odors. . . . It also is further found that such odors would not be unbearable or injurious to the health of normal persons. . . . The district where the defendant’s plant is situated has, for many years been increasingly developed to manufacturing purposes; some of the plants were there located many years ago and from some of them odors are thrown off at times which are offensive and disagreeable, but as those discharged by the defendant are not injurious to the lives or health of normal persons, it cannot be held that a nuisance exists . . . .”

Other holdings and principles announced in the cases cited above are that interference restraining normal industrial activities is contrary to public policy, and that the only protection that the public is entitled to is against unreasonable and unnecessary odors, noises and smoke. “The term nuisance is applied to that class of wrongs which arise from the unreasonable, unwarrantable or unlawful use by a person of his own property and produces such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage.” 39 Am. Jur. 280, sec. 2. These cases discuss principles applicable to the operation of business which unavoidably and reasonably discharge odors and scents. They consider the burdens necessarily incident to life in urban and industrial communities where the air is filled with unpleasant odors which are inevitable and unavoidable in the conduct of factories and industries in such a district, and are a necessary incident of life therein.

To permit the judgment to stand in this case and to countenance recovery in this class of cases, would expose the industrial world to litigation, the extent of which one’s imagination toils in vain to comprehend. Conceive, if you can, the thousands of delicate stomachs and sensitive olfactory organs that would be grievously disturbed and offended by odors that are unavoidably induced by stockyards and chemical plants that abound in every metropolitan area.

Counsel for both plaintiffs and defendant have fav-. ored this court with ably prepared briefs and arguments. Occasionally they waxed a little literary and eloquent, for instance the plaintiff says, “The rich man in his. mansion on the hill, could with the same intellectual honesty, say that he must abandon and destroy his home if he is not allowed to let his sewage run down the hill into the backyards of his poor neighbors who live in the valley. ’ ’ The defendant, not to be outdone says, “If plaintiffs are successful in this suit, not only will the defendant’s plant have to suspend operations, but so will industrial plants all over this State. The hum of industry and the whir of busy wheels so vital at this time to our national defense and in repelling the unjust and treacherous attacks which have been made upon us and our liberty and institutions will cease, with consequences to this country too terrible to contemplate.” It is needless to say that this argument is interesting if not helpful.

This court, therefore, in view of what has been observed in this opinion, holds that the judgment entered herein should be reversed and judgment entered here for the defendant in bar of action, and for costs.

Reversed.

Mr. Justice Stone

dissenting: I am not in harmony with the majority opinion in this case, and, therefore, I feel called upon to dissent from said opinion.

In the majority opinion much time is given to the question of whether the verdicts are warranted by the evidence. To me that question is not now of importance. All such questions were submitted to the jury on enough evidence, it seems to me, to warrant the case going to the jury, and, therefore, those questions are decided and leave nothing but the one question as to whether the plaintiffs in these cases had a legal cause of action. We are all agreed that there is no reversible error in the record unless the court erred in not directing a verdict for the defendants.

The record discloses that the village of Hartford where the plaintiffs live and where the tannery and settling basin of the defendant is situated is an industrial village of approximately 1,600 people, located along the east bank of the Mississippi river. Plaintiffs were homeowners, living in the northeast outskirts of the village and in varying short distances from the sewage pond or settling basin complained of, which is several thousand feet from the tannery proper. Plaintiffs live between the basin and the tannery. The plant of defendant is used to process green hides into leather.

The settling basin is uncovered, and is 275 feet wide, 1,200 feet long and 5 feet deep. It was constructed in 1938, and into it is piped tannery waste and human waste. The complaint of plaintiffs was not directed at the operation of the tannery itself, but the settling basin, from which it was alleged that these unpleasant odors arose, whereby it is urged, on the part of plaintiffs, that a nuisance was created, interfering with the wholesome, healthful and ordinary enjoyment by plaintiffs of their property.

It is relied upon as error for the reversal of these judgments, that plaintiffs failed to plead or prove any cause of action at law, which would entitle them to a judgment fpr damages against defendant, and it is contended on behalf of defendant that because the evidence did not show any damage from the odor to the health of plaintiffs, and because of the fact that no smoke, soot, hides, hair or any substance of any kind was cast upon plaintiffs’ premises, no action for damages can lie. It is also strenuously urged in that regard that private actions at law may not be maintained by a citizen against a person or corporation for the maintenance of a public nuisance unless 'hé has shown personal damage peculiar to himself which is different from that suffered by the general public.

To live comfortably is the chief and most reasonable object of men acquiring property and establishing homes for themselves and families and any interference in that comfortable enjoyment of life is a wrong which the law will redress. Wahle v. Reinbach, 76 Ill. 322; Seacord v. People, 22 Ill. App. 279; Iliff v. School Directors, 45 Ill. App. 419; Cook v. City of Du Quoin, 256 Ill. App. 452; Wineland ex rel. Abeln v. M. Huber, Inc., 275 Ill. App. 264; Feder v. Perry Coal Co., 279 Ill. App. 314; Eckart v. City of Belleville, 294 Ill. App. 144; Menolascino .v. Superior Felt & Bedding Co., 313 Ill. App. 557. Whatever is offensive, physically, to the senses, and by such offensiveness makes life uncomfortable, is a nuisance and any business, however lawful which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence is a nuisance. Wahle v. Reinbach, supra; Seacord v. People, supra; Cooper v. Randall, 53 Ill. 24. The creation of stenches and noisome odors has been recognized always as a nuisance. 46 C. J. 687. Following the rule laid down in the above cited cases, it was not necessary, in order for there to be a cause of action in favor of plaintiff, that there be an injury to health on their part, or that smoke, soot, hides, hair or any other substance be cast upon their premises. In the case of Wahle v. Beinbach, supra, the court adopting the language of a New Jersey case, Cleveland v. Citizens Gaslight Co., 5 C. E. Greene (20 N. J. Eq. 201) page 205, said, “Any business, however lawful, which causes annoyances that materially interfere with the ordinary comfort, physically, of human existence, is a nuisance, that should be restrained; and smoke, noise and bad odors, even when not injurious to health, may render a dwelling so uncomfortable as to drive from it any one not compelled by poverty to remain. Unpleasant odors, from the very constitution of our nature, render us uncomfortable, and when continued or repeated, make life uncomfortable.”

Plaintiffs herein had the natural right to have the air diffused over their premises reasonably free from noxious odors and other impurities, so as not to materially interfere with plaintiffs’ use and enjoyment of their homes. Cooper v. Randall, supra; Chicago-Virden Coal Co. v. Wilson, 67 Ill. App. 443; Matthiessen & Hegeler Zinc Co. v. Ferris, 72 Ill. App. 684; Feder v. Perry Coal Co., 279 Ill. App. 314.

The well considered opinion in the case of Wylie v. Elwood, 134 Ill. 281, seems to me to be conclusive on the question raised by defendant, as to the right of a citizen to maintain an action for damages resulting from a public nuisance, unless he shows personal damages peculiar to himself, which is different from that suffered by the general public. In that case, plaintiff, who was injured in the enjoyment of his home by the noise and dust growing out of the erection and maintenance of a large coal shed by defendant, was allowed a recovery. There the 4efendant, as here, contended that since the nuisance affected the public, plaintiff should not be permitted to maintain- his action. The court, as to that proposition of law at page 287, said, “The doctrine, that Special damage must be shown in order to justify a private action for injury growing out of a public nuisance, had its origin in the consideration of nuisances grooving out of obstructions to highways and navigable streams. For instance, if a man dug a ditch across a public highway, the traveler would have no action for the inconvenience which he suffered from the interruption in common with the rest of the public, but, if his horse fell into the ditch and was killed, he would thereby suffer a special damage not common to others.

“The strictness of the original rule has been greatly modified since the days of Lord Coke. Recovery may be had for damages which are consequential as well as direct (Wood’s Law of Nuisances, Sec. 620 and 621). An individual who receives actual damage from a nuisance,- may maintain a private., skit for his own injury, although there may be many others in the same situ-, ation (Lansing v. Smith, 4 Wend. 10). The doctrine now is, that a nuisance may be at the same time both public and private. The use-of a steam engine in a crowded street may be a public nuisance, but, in a case where the smoke from it also injured the goods in a man’s shop and made his dwelling uncomfortable, it was held to be such a private nuisance as would give him a right of action (Idem. Sec. 649). In Francis v. Schoellkopf, 53 N. Y. 152, it was held that, although the stench -from a tannery injured a large number of houses, yet the plaintiff * whose dwelling was made uncomfortable and almost uninhabitable, was entitled to sue for her particular injury.”

In the case at bar, if the homes of the- plaintiffs were rendered uncomfortable and urilivable by the noxious odors emitted from the settling basin of defendant, they suffered a special damage, even though the homes of their neighbors were rendered uncomfortable in varying degrees from the same cause. As was said in the case of Francis v. Schoellkopf, 53 N. Y. 152, where plaintiff sued for damages sustained from the stench of á tannery and a large number of other houses were rendered almost uninhabitable, “it is no defense for a wrong doer when called upon to compensate for damages sustained by his wrongful act to show that he, by the same act, inflicted a like injury upon numerous other persons.”

And here now, may be disposed of, the claim of defendant that odors from other industries may have contributed to the discomfort and damage of plaintiffs. Where the acts of several persons, although separate arid distinct as to time and place, culminate in producing .a public nuisance, which' injures the person or property of another, they .are jointly and severally liable. Fox v. City of Joliet, 150 Ill. App. 491; Cook v. City of Du Quoin, 256 Ill. App. 452. I am of the opinion that on the pleading and proof, plaintiffs established, prima facie, a legal cause of action. ■

It is contended by defendant that plaintiffs failed to prove that any discomforts which were suffered by plaintiff were the result of any unnecessary and unreasonable conduct on the part of defendant in the operation of its tannery and settling basin. Proceeding upon this theory, defendant offered to prove that the tannery was operated in accordance with the recognized method of the operation of a tannery and that such operation was consistent with the generally accepted method, to which objection was made, and objection sustained by the court. It has been held many times by our courts when damage is predicated upon nuisance and where no punitive damages are sought, the question of negligence is not involved. Randall v. Cooper, supra; Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322; Menolascino v. Superior Felt & Bedding Co., supra; Feder v. Perry Coal Co., supra. The trial court did not err in the rejection of this testimony, as the question of the- unnecessary and unreasonable conduct on the part of defendant was not an issue.

Defendant further offered in evidence testimony tending to show that there were other industries in and about East St. Louis, and between Hartford and East St. Louis, which gave off odors, and that these odors had a greater intensity and were less pleasant than odors in and about Hartford, and that the witness had observed that there were many people who had their houses there where such conditions prevailed. It was further offered to prove that the largest sole-leather tannery in the United States was located at Elkland, Pennsylvania, and that there were settling basins there and that the odor there was as bad or worse than it was at Hartford, and that many residences were located there. This preferred evidence was clearly improper, irrelevant, and immaterial and only calculated to create a secondary and false issue, not involved in the trial of the cause, and the court did not err in refusing these witnesses to testify.

It is urged on behalf of défendant that the court erred in failing to direct the jury to return a verdict for defendant as to eaéh couht in the complaint; that the verdicts are against the manifest weight of the evidence and that the court erred in denying defendant’s motion for a new trial. Eighteen witnesses, including plaintiffs, testified on behalf of plaintiffs. The substance of their testimony was to the effect that shortly after the establishment of the settling basin, foul odors began to emanate therefrom, that such odors continued from that time, until the filing of the suit and were always present at all times, of the day and night. This odor was variously described as being like, “fertilizer scraps,” “decomposed animal, only worse,” “foul and vile, like decomposed flesh,” “something dead and decayed,” “dead animal or packed fresh hides,” “worse than rotten eggs and decayed flesh.”

In the summer when the windows were up, it was worse than in the winter. It would awaken one from sleep, spoil appetites, and cause vomiting. Some witnesses described a burning sensation in their throats, and nausea when the stench was at its worst. It would be necessary to turn electric fans on to drive the smell from their homes. Freshly washed clothes would smell of it.

Twenty-four witnesses testified on behalf of defendant, the most of whom testified to the effect that there were other odors, other than those from the settling basin, prevalent in that community; that whether the odors from the settling basin were noticeable depended upon the wind directioh and were worse when the humidity .was high, and that the odor was somewhat similar to that of the tannery proper. The most of them testified that they and their families had not been rendered uncomfortable by the odors. Milton E. Kronenberg, called on behalf of defendant testified that he was Chief of the Division of Industrial Hygiene of the Illinois State Department of Public Health, and a physician and surgeon, that under his supervision a study of the atmospheric conditions of Hartford and in the vicinity of the settling basin was conducted. He found, so he stated, that the odors from the basin were characteristic tannery odors, that were was nothing of a suffocating nature in the air, nothing to wake them up, .or disturb their sleep; nothing that could or might objectively cause nausea. He further testified that tests were conducted by means of an instrument, and that his observations were not based upon his reactions from his nose but from the instrument used. To offset this more or less negative testimony, many witnesses testified positively that they were awakened by the smell, that it disturbed their sleep, and that they were nauseated, and had a feeling of suffocation. •

It was the province of. the jury, as the triers of fact to determine whether these odors complained of were attributable to the operation of the settling basin and whether they caused the damage complained of. 46 C. J. 813. They saw and heard the witnesses testify, and could weigh their credibility, their powers and opportunity for observing the matters about which they testified, and their interest, if any, in the result of the suit. Where a fair question of fact is raised by the proof, a court of review will not set aside the jury’s finding as being against the manifest weight of the evidence. Armster v. American Steel Foundries, 313 Ill. App. 378, at 385; Summers v. Hendricks, 300 Ill. App. 498; Jones v. Esenberg, 229 Ill. App. 551; Gregory v. Merriam, 294 Ill. App. 483.

While it is the general rule that defendant has a right to use its property as it sees fit, still, if in doing so, regardless of whether1 it is negligent or not, or whether its factory is properly operated, it creates and maintains a nuisance and thereby deprives neighbors of the use and enjoyment of their homes and injures their health, it is liable. Menolascino v. Superior Felt & Bedding Co., 313 Ill. App. 557, 40 N. E. (2d) 813; Francis v. Schoellkopf, 53 N. Y. 152.

In McFarlane v. City of Niagara Falls, 247 N. Y. 340, Justice Cardozo, in expounding the theory of nuisance, said, “Nuisance as a concept of law, has- more meanings than one. The primary meaning does not involve the element of negligence as one of its essential factors. .. . . One acts sometimes at one’s peril. In such circumstances the duty to desist is absolute whenever conduct, if persisted in, brings damage to another .... Illustrations are abundant. One who emits noxious fumes or gases day by day in the running of his factory may be liable to his neighbor though he has taken all available precautions .... He is not to do such things at all, whether he is negligent or careful. ’ ’

Also if a person keeps his hogs or other- noisome animals, so near the house of another that the stench of them incommodes him and makes the air unwholesome, this is an injurious nuisance, as it tends to deprive him of the use and benefit of his house. 3 Blackstone 216.

Defendant, in the case of Bohan v. Port Jervis Gaslight Co., 122 N. Y. 18, was engaged in the manufacture of gas and plaintiff owned the adjoining property. There the trial court instructed the jury that, to constitute a nuisance, it was essential that the smells and odors from defendant’s works should be sufficient, “to contaminate and-pollute the air, and substantially interfere with the plaintiff’s enjoyment of her property,” and that the question for them to determine was, “Did the odor pollute the air so as to substantially render plaintiff’s property unfit for comfortable enjoyment,” to which the defendant excepted. There the court said: ‘‘ The rule stated by the learned judge was in accordance with all the authorities. If one carry on a lawful trade or business in such a manner as to prove a nuisance to his neighbor, he must answer in damages, and it is not necessary to a right of action that the owner should be driven from his dwelling; it is enough that the enjoyment of life and property be rendered uncomfortable. . . .

“It may be confidently asserted that no authority can be produced holding that negligence is essential to establish a cause of action for injuries of such a character.”

. I am very strongly of the opinion that the trial court did not err in refusing to direct a verdict and that the judgment should be affirmed.

If the majority opinion is correct, then there is such a thing as a wrong without a remedy.


author: Mr. Justice Stone

text:
    Wilbur C. Shipman et al., Appellants, v. Laura F. Moseley et al., Appellees.

      Opinion filed June 1, 1943.
    Rehearing denied July 8, 1943.
    Chas. E. Jones, of Robinson, for appellants.
    Ralph G. Meyer, of Flora, and Tolliver & Tillema, of Louisville, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

This is a suit brought in equity, to set aside a deed alleged to have been obtained by fraud and duress, and for an accounting. The appellants, Wilbur C. Shipman, Frances S. Coulter and Pearl Coulter, hér husband, who will hereinafter be referred to as plaintiffs, brought the suit against appellees, Laura F. Moseley, and Aden L. Moseley, her husband, the Pure Oil Company, and Clarence T. Smith, trustee of Syndicate “C,” but by agreement of counsel the rights of the Pure Oil Company and Clarence T. Smith, trustee, in the property involved, are recognized, and for that reason the last two named appellees are not parties to this appeal. Laura F. Moseley, and Aden L. Moseley, appellees will hereinafter be referred' to as defendants.

George C. Shipman died intestate December 12,1918, leaving surviving him Laura F. Shipman, now Laura F. Moseley, defendant, his widow, and Wilbur C. Ship-man, a plaintiff, Frances S. Shipman, now Frances S. Coulter, a plaintiff, both minor children, and several other children, not parties to this litigation, as his only heirs-at-law; that at the time of his death decedent owned 67 acres in fee, also an undivided one-half interest in the 40 acres involved in this .lawsuit, the other one half being owned by the then Laura F. Shipman. The said Laura F. Shipman administered upon the estate and was duly discharged and the estate closed. On July 8, 1921, she was appointed guardian of the four children, and never filed any final report and was never discharged as such guardian. She was married to Aden L. Moseley, defendant, on November 23, 1922. Wilbur C. Shipman became of age on August 22,1923, and Frances S. Shipman, who married Pearl Coulter, became of age July 31, 1922.

Wilbur C. Shipman, Frances S. Coulter, as heirs of George Shipman, deceased, and Pearl Coulter, her husband, executed a quitclaim deed to Laura F. Moseley, date of September 1,1923, conveying all their interest in the 40 acres, the consideration of which was six hundred dollars. Wilbur C. Shipman and Frances S. Coulter were each paid three hundred dollars. It is claimed by both Wilbur C. Shipman and Frances S. Coulter that their mother, Laura F. Moseley, represented to them, when the said deed was executed, that they were only conveying 10 acres apiece. Oil came in, on land in the vicinity of the lands in question, in February 1937, and the following summer Frances S. Coulter, Pearl Coulter, Laura Moseley and others drove to Louisville, Illinois, and went to the recorder’s office, looked at the deed and found that it conveyed all of the interest of Wilbur C. Shipman and Frances S. Coulter in said property. Suit was filed on April 17, 1941, claiming that the deed in question was secured by fraud and duress. Defendants in their answer denied the:.allegations of fraud, and alleged that plaintiffs and defendants had jointly sought advice as to the interests of the parties and the value thereof, before the execution of the instrument, that the consideration paid was full and adequate, and that plaintiffs were satisfied with the sale and consideration thereof, until after oil was discovered in the vicinity of the property about 17 years after the execution of the deed. The answer further set forth that plaintiffs were guilty of laches.

At request of plaintiffs, an issue as to whether the .deed was procured by fraud, was submitted to a jury. At the conclusion of plaintiff’s testimony, defendants filed a motion in writing for a directed verdict, which motion the court denied. Evidence was thereupon offered by defendants, and the jury returned a verdict in the affirmative on the framed issue. Thereupon, defendants filed a motion to disregard and set aside the verdict of the jury and to enter a decree for defendants. Motion was filed by plaintiffs to strike this motion, and upon a hearing by the court, an amended decree was entered, allowing the motion to disregard and set aside the verdict of the jury. The court further found that plaintiffs had failed to prove fraud as charged in the complaint and that plaintiffs had been guilty of laches, and were not entitled to relief. From this amended decree, plaintiffs prosecute their appeal to this court.

In support of his contention that the execution of the deed was obtained by fraud and duress, Wilbur 0. Shipman testified that his mother, Laura F. Moseley, told him on one occasion, before the signing of the deed, when he had business in Flora, to see an attorney about some papers which the attorney would explain to him; that he went to the office and saw the attorney whom he believed to be Judge Reaugh, who explained to him that plaintiff’s mother owned 40-acres of latid and 10 acres were part in the bottom, and that she wortld give him $30 an acre for it, and that this was a good price. That his mother and step-father told him that if he did not sign the deed, they would také it to court, and he would get nothing, and rather than go to court, he signed the deed.,

He further testified that defendant, Laura F. Moseley, representéd to him that the deed was for 10. acres of land. He claims that he did not read the deed before he executed it.’ It was signed in the office of Elmer Easley. Witness testified to threats of violence made by his step-father against him, but these were after the execution of the deed and seem to have no- connection with that transaction. Witness stated that after he discovered in 1937 that the deed was different from what he thought it was, the delay was because he- thought they could settle the matter out of court.

Frances S. Coulter testified and in many details is corroborated by her husband, Pearl Coulter, that her mother asked her to sign a piece of paper at Mr. Easley’s office; that she told her that she was buying 10 acres at $30 an acre, or $300. That witness and her husband signed the deed, which she did not read, and that prior thereto her mother had told her that she had better sign the deed, or she would take it to court and witness would get nothing, and that she signed because she was afraid that her mother would take it to court.,

Mrs. Coulter further testified to a visit made to the recorder’s office in Louisville the summer of 1937, with her husband, Mrs. Moseley and others, where it was ascertained that she had conveyed away her whole interest in the property. She testified that the delay in taking any legal- action in the matter, after the discovery - of what the deed contained, was because they thought it might be settled out of court.

Laura F. Moseley, testifying in her own behalf, stated that before the execution of the deed, she and Wilbur C. Shipman and Frances S. Coulter went to the office of Mr. Sprig Eeaugh, attorney, in Flora and upon stating the status of the parties to him, they were advised by him that Mrs. Moseley had a homestead and dower, as well as a one-half interest in the property and that the land could not be divided, but would have to be sold to the highest bidder by the court, that later Wilbur said he would take $300 for his share and that Frances agreed to accept the same amount; that she paid them the agreed amounts, that there was nothing said about 10 acres and that they sold her whatever interest they had; that in 1937 she and Pearl Coulter, his wife, Frances, and others went to the recorder’s office in Louisville and checked on the deed with Mr. Eeaugh. She further testified that plaintiffs had never talked to her and did not bring up the subject of their interests until oil was discovered in the vicinity of the land in question.

Mrs. Moseley is corroborated in the main by her husband and codefendant, Aden Moseley, who gives a more detailed statement of what happened at the time of the execution of the deed, than any other witness. He stated that in company with Frances S.Coulter, Pearl Coulter, and Wilbur C. Shipman, he and his wife, Laura F. Moseley, went to Easley’s furniture store, where his wife told Easley that they wanted to make a deed and when Easley asked if they had a description of the property, Mrs. Moseley replied that they did not and that he got the description from a plat book and prepared the deed on a typewriter, and after the deed was so prepared, read it to them.

Elmer Easley called as a witness testified that he did not remember anything in particular about the execution of the instrument, that it was merely a routine matter, that he did not remember whether or not the grantors read the deed, and that he did not tell them what it contained and that witness did not cover up the part of the deed describing the land.

Several witnesses were offered on behalf of defendants, who testified, that the value of the property involved, exclusive of improvements, at the time of the sale, would be about $25 an acre.

It is urged among other things, that the trial court erred in finding that plaintiffs failed to prove that defendants or either of them committed fraud, as charged in the complaint; that the court erred in finding plaintiffs have been guilty of laches; that the court erred in setting aside the verdict of the jury in favor of plaintiffs and that there was error in granting the motion of defendants for judgment notwithstanding the verdict.

It is the theory of plaintiffs, that the motion presented to the court, after verdict of the jury, finding affirmatively upon the issue of fraud made up for them, was a motion for judgment notwithstanding the verdict, and that under such a motion the court could only decide whether or not there was evidence in the record with all legitimate inferences drawn therefrom, standing alone and considered true, with all explanatory and contradictory circumstances rejected, which would reasonably sustain a finding for the party against whom the motion was directed. In other words the court would not be authorized to determine the weight of the evidence or determine controverted questions of fact. Rule 22 of the- Supreme Court is" cited in support of this theory.

Supreme Court Rule 22, Ill. Rev. Stat. 1937, ch. 110, sec. 259.22 [Jones Ill. Stats. Ann. 105.25] is as follows: ‘ ‘ The power of the court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the court to direct a verdict without submitting the case to the jury.”

The motion filed by defendants, after the verdict of the jury, was a motion to disregard and to set aside the verdict of the jury and to enter a decree for the defendants, inasmuch as the verdict of the jury was only advisory and asked that said verdict be disregarded by the court for the errors set forth in the motion.

This is strictly not a motion for judgment notwithstanding the verdict as contemplated by rule 22 and as applicable to suits at law, and in equity to those cases, such as will contests cases, wherein an issue of fact is made up for a jury and the verdict of a jury is not advisory, but is as conclusive as-the verdict of a jury in an action at law.

The most radical change made- in the practice by rule 22, is to permit either party to file a motion for judgment notwithstanding the verdict. We do not understand that this change is calculated to change the long established rule in Illinois, that the verdict of a jury in a chancery case, where the issue is not required by statute to be submitted to a jury, is -merely advisory and it is discretionary with the chancellor to accept or reject the verdict as he believes justice requires. Biggerstaff v. Biggerstaff, 180 Ill. 407; Oswald v. New-banks, 336 Ill. 490; Cook v. City of Du Quoin, 256 Ill. App. 452; Meeker v. Meeker, 75 Ill. 260; Ennesser v. Hudek, 169 Ill. 494, aff’g 66 Ill. App. 609; Phillips v. Edsall, 127 Ill. 535; Titcomb v. Vantyle, 84 Ill. 371; Sibert v. McAvoy, 15 Ill. 106.

’ On the trial of a feigned issue in chancery the chancellor may adopt the verdict of the jury, or set it aside and enter such a decree as in his judgment equity demands, or if his conscience is satisfied from the evidence as to where the equities lie, he may enter a decree without setting aside the verdict, since the parties are entitled to his independent judgment as derived from his consideration of the evidence regardless of the verdict. Weakley v. Misell, 193 Ill. App. 494.

In the case of Milk v. Moore, 39 Ill. 584 in which case a feigned issue was made up the court said, “Our statute has, however, authorized an issue in chancery to .be formed and to be tried by a jury. Under this statute, it has been the practice to make an issue without using the common law forms of pleadings. . . . But the issue in chancery, or if there be more than one, should be distinct and explicit, presenting in each a single question, so clearly that it could not but be understood by the jury, and their verdict. should be responsive to each. But the submission of the entire case to a jury is contrary to the practice, and is believed not to be calculated to promote justice, and should be discouraged, even when the parties desire such a trial.”

In the instant case, the specific question submitted to the jury was whether the defendant, Laura F. Moseley procured the deed of September 1, 1923, from the plaintiffs, by fraud. There still remained as a question involved in the determination of the whole case, the question of laches. The court saw fit to disregard the verdict of the jury, and to find the issues himself, as he is empowered to do under the decisions above quoted.

There seems to be a conflict in the testimony as to whether or not all the parties sought independent advice and relied upon that. There seems to be no doubt, but that, under the evidence the consideration paid was adequate, at the time of the execution of the deed. Both Wilbur 0. Shipman and Frances S. Coulter testified that they did not read the deed. However, they both could read, and while it is claimed that they both had but little schooling and no business experience, they did not ask that the deed be read to them. One who is illiterate and unable to read cannot avoid a deed on this ground, where he did not require that it be read to him. 18 C. J. 226. In the instant case there was no evidence that anything was done by the grantee to prevent the grantors from familiarizing themselves with the provisions of the deed. There is a conflict in the evidence as to whether or not Mrs. Moseley told the son and daughter that this deed was for 10 acres.

The only circumstance that might be construed as duress is the claim that the grantors were told that if they did not sign, Mrs. Moseley would take it to court and they would get nothing. There was apparently no threat of criminal prosecution therein involved. A threat to sue on a good cause of action does not constitute such duress as will avoid a deed. Harris v. Tyson, 24 Pa. 347, 64 Am. Dec. 661; Dunfee v. Childs, 59 W. Va. 225, 53 S. E. 209. And there evidently was a good cause of action, as they had been told in substance about a partition suit by Judge Reaugh. The interests of the parties in the land was such that a partition suit would lie. All of the threats made by defendant Aden L. Moseley against Wilbur C. Shipman were after the execution of the deed, and could not have induced it.

On the issue of laches, "all the evidence in the record is to the effect that after the deed was executed in September 1923, no complaint was made to the grantee until 14 years later, in 1937, when oil was discovered in the vicinity, and suit was not started until four more years, and the only excuse offered was that they had hoped to settle the matter out of court. No details are given to enlighten the court as to what effort was made along this line. During all this time the deed was on record, having been filed for record on September 4, 1923, in the recorder’s office of Olay county.

The chancellor is the sole judge of the evidence and its weight. He saw and heard the witnesses and their manner of testifying, and is the better judge of the weight to be given to the testimony of each. The law is well'established in this State and where the cause is heard by the chancellor, and the evidence is all or partly oral, it must appear that there is clear an'd palpable error before a reversal will be had. Coari v. Olsen, 91 Ill. 273; Baker v. Rockabrand, 118 Ill. 365; Johnson v. Johnson, 125 Ill. 510; Ellis v. Ward, 137 Ill. 509; Allen v. Hickey, 158 Ill. 362; Biggerstaff v. Biggerstaff, supra.

We are not inclined to hold that the court erred in setting aside the verdict of the jury, as to the issue of fact, and finding in its amended decree that the plaintiffs had failed to prove that defendants or either of them had committed fraud as charged in the complaint, or that the court committed error in finding that plaintiffs had been guilty of laches, and were not entitled to recover in equity.

A careful reading of this record does not convince us that there was such palpable error as would require a reversal of this decree, or a submission of this issue of fraud to another jury, and for these reasons the amended decree of the circuit court is affirmed.

Affirmed.


author: Mr. Presiding Justice Matchett

text:
    Herschel H. Campbell, Appellee, v. Chicago, Burlington and Quincy Railroad Company, Appellant.
    Gen. No. 42,491.

      Opinion filed June 21, 1943.
    Martin, Ullmann & Brown, of Chicago, and Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant; S. R. Prince and H. G. Hedrick, of counsel.
    Leo. G. Hanna, of Chicago, for appellee; Samuel Cohen, of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

For the third time this case is before this court on an appeal by defendant from a judgment entered on the verdict of a jury. Twice this court held the verdict was against the manifest weight of the evidence and reversed the judgment for that reason. Twice we held the evidence sufficient to require its submission to a jury by remanding the cause. We are now asked to hold either that the judgment should be reversed as a matter of law, or again for a third time hold the verdict and judgment to be manifestly against the evidence, reverse it and remand the cause for trial. If we reverse and remand for another trial, we think it improbable a different verdict would be returned by a fourth jury. Thirty-six jurors and three judges at nisi prius, who saw and heard the witness, have decided plaintiff ought to have a judgment practically for the amount of the present judgment. The parties are entitled to have this litigation end some time and some place. Stoll v. Gottlieb, 305 U. S. 165; Trustees of Schools of Township No. 38 v. City of Chicago, 308 Ill. App. 391.

Our former opinions are found in 305 Ill. App. 264 and 314 Ill. App. 384.

The physical facts existing at the time when and the circumstances under which plaintiff was injured are set forth with accuracy and in detail in the first opinion and need not be repeated. The present judgment is for $20,000, the same amount given on the first trial. On the second trial the jury allowed $15,000. As a result of the occurrence plaintiff lost his left hand and a part of his left arm; the left leg was permanently crippled. He suffered much pain. We at no time have been disposed to hold the verdict of any one of the juries excessive.

Plaintiff argues earnestly for the proposition that the third of three similar jury verdicts on a question of fact is final. He cites Meier v. Cleveland, C., C. & St. L. Ry. Co., 206 Ill. App. 285; Williams v. Southern Ry. Co., 258 Ill. App. 34; Silsbe v. Lucas, 53 Ill. 479; Norkevich v. Atchison, T. & S. F. Ry., 263 Ill. App. 1; Hinchliff v. Budnik, 212 Ill. 569, 573; Bates v. Danville St. Ry. & L. Co., 190 Ill. App. 486; Bosomburg v. Birk Bros. Brewing Co., 312 Ill. App. 262; Lamar v. Collins, 252 Ill. App. 238 ;.Parmly v. Farrar, 105 Ill. App. 394; and Mills & Co. v. Duke, 232 Ill. App. 277. Defendant undertakes to distinguish these cases and says of some of the ideas expressed in the opinions: “These notions are of comparatively recent origin; and seem to have arisen concurrently' with the decision of the case of Mirich v. Forschner, 312 Ill. 343.” This court is obligated to follow the law as stated by the Supreme Court in that and other cases.

Defendant also says: “On this, the third appeal, the record shows that exactly the same witnesses testified for the plaintiff as on the second trial, and none other, no new fact was even attempted to be proved. The only difference so far as plaintiff’s case is concerned, is an attempt to show why all of plaintiff’s witnesses actually saw the train when it was from more than 63.8 feet to 200 feet away from them; to do this he proved that there were lights, in the Illinois Central switchyard to the east of the train, which enabled the four colored witnesses in the house to see it, and lights up at the Illinois Central station, and in the main part of the City of Centralia, northeast of the train which to use the language of counsel for plaintiff, ‘silhouetted this train. ’ Plaintiff also produced his wife as a witness who testified the doctors procured her consent before operating on her husband. Defendant produced all the witnesses who testified at the second trial, except David Harder, the engineer who had died, whose testimony taken at the second trial was read to the jury at the third trial by agreement; and O. T. Bounds, a police officer who testified on the second trial that he arrived at the scene of the accident just after they put plaintiff in the ambulance, and saw blood on the track north of Fifth street, indicating where the accident occurred. With the exceptions above noted, the evidence at the third trial was almost identical with that of the second trial. There certainly was no other material difference.”

Referring to this statement .the brief of plaintiff states: “We agree with defendant in this regard and that the testimony was practically the same as is con-. tained in the record on the former trials.”

None .of the cases cited by plaintiff lay down the precise rule that similar verdicts having been rendered by three juries, this court will not again reverse on the ground that the verdict and judgment are clearly and manifestly contrary to the evidence. True under such circumstances a court would be- reluctant to do so. However, we will not undertake to apply to legal rights of parties the rule applicable on the diamond and hold “three strikes are out.” The rights of men and women cannot be settled by the application of any mathematical formula. We do say ordinarily in any such case we would be reluctant to reverse on the facts and that under the particular circumstances here we are of the opinion we ought not to do so.

The defendant complains of instructions given by the court at the request of plaintiff. In particular, complaint is made that No. 17 for the plaintiff was erroneous in that it stated a mere abstract proposition of law, citing Chicago B. & Q. R. Co. v. VanPatten, 64 Ill. 510; West Chicago Street R. Co. v. Dougherty, 170 Ill. 379, and Chicago Union Traction Co. v. Miller, 212 Ill. 49. On the former appeal we hold this instruction (also No. 27 for plaintiff, now complained of) was not erroneous. We are bound by that holding.

Complaint is made “The court erred in refusing to give eight instructions tendered by the defendant.” This is defendant’s fourteenth point. The record shows eight instructions were given at the request of plaintiff, and that one instruction requested was refused. Twenty instructions requested by defendant were given. On the first appeal this court said:

“The court gave 41" instructions to the jury, 11 offered by plaintiff and 30 by defendant — too many. So far as the record discloses, no instruction was refused. We have considered the instructions and the objections made to certain of them by defendant but are of opinion there was no substantial error in the instructions.”

The instructions given fully and accurately state the law applicable. We do not reverse a trial court for following our suggestions. Defendant says the instructions refused were all stock instructions. The law does not require a jury to be twice instructed on the same proposition of law. Such a practice tends to mislead and confuse the jury. We hold there was no error in instructions given at plaintiff’s request and that correct instructions requested by defendant and denied- were covered by other instructions.

The judgment will be affirmed.

Affirmed.

O’Connor, J., concurs.

' Mr. Justice McSurely participated in the decision, of this case but passed away before the opinion was filed.