author: Mr. Justice Brown

text:
    John Mahoney v. The People ex rel. Margaret Patteson.
    1. Administration of Estates — Power of the Court to Examine Persons Charged with Having Assets of an Estate in Their Possession. —When an executor, administrator or other person interested in an estate, states upon oath to the County Court that he believes a person has in his possession any goods, chattels, moneys or effects, books of account, papers, or any evidence of debt whatever, or titles to lands belonging to adeceased person, it is the duty of the court to require such person to appear before it by citation, and the court may examine him on oath and hear the testimony of such executor or administrator or other person interested in the estate and other evidence offered by either party and make such order in the premises as the case may require.
    2. Same — Jury Trials in Proceedings by Citation. — In a proceeding under section 81, chaptér 3, R. S., to compel a person to answer touching assets of an estate in his possession, suóh person is not entitled to a trial by jury in such proceeding as a matter of right.
    3. Same — Discretion of the Court to Examina Persons Cited. — In proceedings under section 81, chapter 3, R. S., “ Administration of Estates,” to compel a person to answer touching his possession of assets belonging to an estate, the statute leaves it discretionary with the court to examine or not to examine the person against whom such proceedings are had.

      4. Trial by Jury — Constitutional Provisions. — Section 5, article 2, of the constitution of 1870, was not intended to introduce jury trials in special summary jurisdictions, which were unknown to the common law and which do not expressly provide for that mode of trial.
    5. Constitutional Provisions — As to Jury Trials. — The constitutional provision of 1870 giving a right to a trial by jury was designed simply to secure that right in tribunals exercising common-law jurisdiction as it had been previously enjoyed, and was not intended to confer that right in any class of cases where it had not previously existed, nor was it intended to introduce it into special summary proceedings unknown to the common law, and which make no provision for that mode of trial.
    6. Appellate Court Practice — Errors Must Be Assigned. — An objection to the action of the trial court in striking out testimony can not be raised in the Appellate Court where no error has been assigned in that regard.
    7. Judgments — Requisites of — Administration of Estates. — In a proceeding under section 81, chapter 3, R. S., against a person charged with having assets of an estate in his possession, when the finding is against such person, the judgment should specify the property to be turned over, with certainty.
    Citation, under Section 81, Chapter 3, R. S., “ Administration of Estates.” Appeal from the Circuit Court of Warren County; the Hon. .John J. Glenn, Judge, presiding. Heard in this court at the October -term, 1901.
    Reversed and remanded with directions.
    Opinion filed November 15, 1901.
    0. A. McLaughlin and Grier & Stewart, attorneys for appellant.
    Kidder & Kidder and John B. Brown, attorneys for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

Margaret Patteson, one of the heirs at law of William Mahoney, deceased, presented her petition to the County Court of Warren County, in which the estate of decedent was being administered, alleging that John Mahoney had in his possession and under his control, and refused to surrender to the administrator of said estate, two notes for $500 each, payable to the deceased and not indorsed, forty dollars in cash, one watch, one other note as well as other personal property, all of which belonged to said estate, and praying for a citation under the statute.

The citation was ordered issued and served. The defendant in that proceeding, who is the appellant here, appeared, but-failed or neglected to file an answer in the County Court.

A trial was had in the County Court resulting in a finding in favor of the defendant.

The case was taken by appeal to the Circuit Court of Warren County where the defendant filed an answer to the petition. Upon replication thereto by the petitioner, a trial was had without the intervention of a jury resulting in a finding and judgment in favor of the petitioner.

The defendant brings the case to this court by appeal and claims that the judgment of the Circuit Court should be reversed for various reasons.

It is claimed in argument by counsel for appellant'that the judgment should be reversed because the defendant was deprived of the right of trial by jury.

This proceeding was under Sec. 81, Chap. 3, B. S., which provides that if any executor or administrator, or other person interested in any estate, shall state upon oath, to any County Court, that he believes that any person has in his possession * * * any goods, chattels, moneys or effects, books of account, papers, or any evidence of debt whatever, or titles to lands belonging to any deceased person, * * * the court shall require such person to appear before it by citation, and may examine him on oath and hear the testmony of such executor or administrator, and other evidence offered by either party, and make such order in the premises as the case may require.

There is no assignment of error raising the question in this court, but notwithstanding such technical disposition of the question, the contention is without merit.

The proceeding is statutory and summary in character and makes no provision for trial by jury. It did not exist at common law. In Seavey v. Seavey, 30 Ill. App. 625. it was held that upon proceedings brought by an administratrix for the recovery of notes belonging to the estate, it is proper to refuse a trial by jury in the Circuit Court upon appeal from the County Court; that Sec. 5, Art. 2, of the Constitution of 1870, was not intended to introduce jury trials in special summary jurisdictions, which were unknown to-the common law, and which do not expressly provide for that mode of trial.

In Ward v. Farwell, 97 Ill. 593, it was held that the constitutional provision giving a right to a trial by jury was designed simply to secure that right in tribunals exercising common law jurisdiction, as it had been previously enjoyed; that it was not intended to confer that right in any class of cases where it had not theretofore existed, nor was it intended to introduce it into special summary jurisdictions, unknown to the common law, and which make no provision for that mode of trial.

The appellant was called, sworn and examined upon his own behalf and over the objection of appellee, upon' the trial in the Circuit Court, and subsequently his testimony was stricken out. It is urged that the testimony should be considered in this court. We can not agree with the contention of counsel. There is no assignment of error upon which we can review the action of the trial court in striking appellant’s testimony from the record. But if the question was properly before us we are of the opinion it would be unavailing to appellant. The statute leaves it discretionary with the court to examine or not to examine the appellant. The statute says the court may, not shall, examine the appellant. The statute is not mandatory. Where the court does not exercise discretion to examine the party he is not a competent witness in his own behalf.

It is claimed that the decedent, who was a brother of appellant, gave the property in controversjr to the latter, and that a preponderance of the evidence justifies that conclusion of fact.

Eliminating as we. must from our consideration the testimony of appellant, but one conclusion can be reached, and that is that the two five hundred dollar notes, -the watch and the forty dollars mentioned in the' petition were the property of the decedent and are now a part of his estate, and should be surrendered by appellant to the administrator.

The Circuit Court was correct in arriving at that conclusion, but the judgment entered was indefinite in that it did not specify the property to be turned over by appellant to the administrator. The cause will be reversed and remanded to the Circuit Court of Warren County with directions to enter a judgment requiring appellant to surrender to the administrator of the estate of William Mahoney, deceased, the two five hundred dollar notes, the watch and the forty dollars mentioned in the petition. Each party to pay his own costs in this court.

Eeversed and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    Willis P. Dickinson v. Fred Hahn.
    1. Judgments — To he for a Definite Amount. — A. judgment must be for a definite amount, and that amount is to be ascertainable from the judgment alone.
    2. Same— What is Not a Judgment for a Definite Amount — Dlustration. — A judgment entered in the following language, viz., “It is therefore ordered that judgment be entered on the verdict as for wages due said plaintiff, and that said plaintiff have and recover of and from said defendant the sum of three hundred and sixteen dollars and sixty-six cents, less the amount heretofore remitted by the court, and that execution issue therefor,” is not a judgment for a definite amount.
    3. Same — Requisites, When Upon a Money Demand, and Final.— Where a judgment purports to be final and given upon a money demand, the amount of the recovery must be stated in it with certainty and precision.
    4. Remittitur — Can Not be Entered over the Plaintiff’s Objection.— A trial court is powerless to remit upon its own motion a part of the verdict returned by the jury and enter without the consent of the plaintiff a judgment for a less sum than that found by such verdict.
    5. Exemptions — Wages of a Laborer or Servant — Shilled Labor Not Included. — A judgment for skilled labor does not fall within the provisions of the statute providing that no personal property shall be exempted from the levy of an execution when the debt or judgment is for the wages of a laborer or servant. What is meant by the term laborer, under the statute, is one who performs manual labor, not requiring special knowledge or skill, and a servant is understood to be one who is employed to perform an inferior or menial service, and it is only for the benefit of such persons that the statute was enacted.
    6. Statutes — Of Exemptions, When to he Strictly Construed. — The statute providing that no personal property shall be exempt from the levy of an attachment or execution when the debt or judgment is for the wages of a laborer or servant is to be strictly, construed, and one who seeks to avail himself of its benefits must bring himself within its provisions.
    Assumpsit, for wages. Appeal from the County Court of Lake County; the Hon. William C. De Wolf, Jr., Judge, presiding. Heard in this court at the Octoberterm, 1901.
    Reversed and remanded.
    Opinion filed November 15, 1901.
    W. O. Robinson, attorney for appellant.
    Benjamin H. Miller, attorney for appellee.
   Mr. Justice Brown

delivered the opinion of the court. Appellee brought suit against appellant in the County Court of Lake County to recover compensation for the services of his minor sons who had worked for appellant. The trial resulted in a verdict for appellee for $316.66. Appellant entered a motion for a new trial, whereupon the court of its own motion and over the objection of appellee entered a remittitur for a substantial reduction of the verdict, to which action of the court appellee saved an exception.

Upon the court overruling the motion for a new trial the following order was made: It is therefore ordered that judgment be entered on the verdict as for wages due said plaintiff and that said plaintiff have and recover of and from the defendant the sum of $316.66, less the amount heretofore remitted by the court, and that execution issue therefor.

This is not a judgment for a definite sum of money. From the judgment itself the clerk could not determine for what amount to issue an execution; nor could the sheriff know from the execution, if it followed the judgment, as it should, for what amount to make demand or levy. A judgment must be for a definite amount, and that amount be ascertainable from the judgment alone.

If a judgment purports to be final and is given upon a money demand, the amount of the recovery must be stated in it with certainty and precision. Fitzsimmons v. Munch, 74 Ill. App. 259.

It was error for the court of its motion and over plaintiff’s objection to remit any amount from the verdict. The court could have directed that unless the plaintiff remitted a certain sum it would grant a new trial. If the plaintiff then elected to remit and did remit a sum certain, the court could then enter a judgment for the remainder of the verdict, specifying the amount. If the plaintiff refused to remit, the court could grant a new trial. But the court could not render a judgment for a less sum than the verdict without the plaintiff’s consent. (McCausland v. Wonderley, 56 Ill. 410; Albin v. Kinney, 96 Ill. 214.) This question arises upon assignment of cross-error by the appellee.

It is contended by appellant that the court erred in making the judgment one for wages. Were the judgment otherwise valid the effect of making it for wages of a laborer or servant would be to deprive the appellant of his statutory exemption upon execution. The statute provides that, no personal property shall be exempted from levy of attachment or execution when the debt or judgment is for the wages of any laborer or servant. Provided, the court rendering judgment shall find that the demand so sued for is for wages due such person as laborer or servant; which finding shall be expressed in the . record of said judgment and indorsed upon the execution when issued.

Assuming, as both parties do in their arguments, that the judgment is in proper form and contains all the recitals necessary to bring it within the operation of the statute so as to deprive the appellant of his exemptions, it was error to render judgment under-the statute for wages of laborer or servant upon the facts in the record of this case. The finding was unauthorized by the evidence.

Skilled labor does not fall within the provisions of the statute. A traveling salesman or bookkeeper can not obtain judgment under the, statute for his wages. What is meant by laborer, under the statute, is one who performs manual labor, not requiring special knowledge or skill, and a servant is understood to be one who is employed to perform an inferior and menial service. It was only for the benefit of such persons, that the statute was enacted. But it is to be strictly construed. (Epps v. Epps, 17 Ill. App. 196.) One who seeks to avail himself of the benefits of the statute must bring himself within its provisions.

We have examined the entire record and it fails to show the nature of the services rendered for appellant by the sons of appellee. We are therefore of the opinion that upon this record the court should not have made the finding or rendered judgment in favor of appellee under the statute. It is also claimed by appellant that he gave appellee certain checks containing statements upon their face that they were to be applied on account of the services of the boys, but that the appellee misapplied the same by crediting them upon some other account. Inasmuch as the parties have not taken the pains to incorporate the checks in the bill of exceptions we can not construe them. Reversed and remanded.


author: Mr. Justice Brown,

text:
    Isabella Neish, Adm’x, etc., v. Margaret Gannon.
    1. Witnesses — Competency of Heirs Under the Statute. — The heirs of a deceased person when called upon to testify by a party in opposition to and against their own interests are competént witnesses under the statute.
    2. Presumptions— Where a Child Remains with Its Parents After Its Majority. — The presumption that the law implies no obligation to make compensation for the services of a person who remains with his parents, or with one standing in the relation of a parent, after arriving at his majority, may be overthrown and the reverse established by proof of an express or implied contract, and the implied contract may be proven by facts and circumstances which show that compensation other than such as naturally arises out of the relation of parent and child was intended.
    3. Limitations — Promise to Pay Takes the Case from the Statute.— Where the undisputed testimony shows that a deceased person made payments in his lifetime to a claimant upon an account, and at the same time promised to pay the balance at a subsequent date, these facts relieve the claim from the operation of the statute.
    4. Instructions — Not Error to Refuse, When Others Containing the Same Principles Are Given. — It is not error to refuse instructions, where others containing the same principles are given.
    Claim in Probate, for services. Appeal from the Circuit Court of McHenry County; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 15, 1901.
    D. T. Smiley, attorney for appellant.
    O. P. Barnes and A. B. Coon, attorneys for appellee.
   Mr. Justice Brown,

delivered the opinion of the court. This was a claim of $1,500 presented by Margaret Gannon against the estate of Jeanette Heaney, deceased. The claim was allowed in the County Court for $1,403. On appeal by the administratrix to the Circuit Court a trial was had by a jury resulting in a verdict and judgment in favor of appellee for $1,300.

The administratrix brings the case to this court by appeal from the judgment of the Circuit Court.

Jeanette Heaney departed this life intestate, leaving, among other heirs at law, two sisters of the appellee, who testified for the latter upon the trial of the cause in the Circuit Court. Appellee was the niece of decedent and at her request lived with and worked for her from 1880 to 1891.

The claim is based upon the services rendered during that period. It is contended by appellant by proper assignment of errors and in argument, that the judgment should be reversed for various reasons.

The first contention is that the court erred in admitting the testimony of the sisters of appellee, because they were heirs of decedent and interested parties. ' The witnesses were called by and testified for the party in opposition to and against their own interest. They were competent witnesses under the statute. The court did not err in admitting their testimony, but would have committed reversible error in sustaining the objection of appellant to their competency.

The second contention is that the claim should not have been allowed because it arose from the relation of parent and child, and that the law implies no obligation to make compensation for the services in the absence of an agreement to pay. Where one remains with a parent, or with a person standing in the relation of parent, after arriving at majority, and remains in the same apparent relation as when a minor, the presumption is that the parties do not conteinplate payment of wages for services. This presumption may be overthrown and the reverse established, by proof of an express or implied contract, and the implied contract may be proven by facts and circumstances which show that both at the time the services were performed, contemplated or intended pecuniary recompense other than such as naturally arises out of the relation of parent and child. Miller v. Miller, 16 Ill. 298,

The material inquiry therefore is, does the testimony justify the conclusion that the claimant and decedent contemplated and intended that wages should be paid for the services. We think it does, and that the jury and trial court were warranted in arriving at the conclusions they reached, respectively, upon this question of fact, by the rendition of the verdict by the former and the overruling of the motion for a new trial by the latter.

When appellee, while a minor, left her home and began the rendition of the services for which the claim is made, her aunt said “she would take her and do for her and see that she was recompensed for her work.” She paid the claimant different sums of money and stated that “it was for work she had done for her — for pay.” When appellee attained the age of eighteen she passed an examination for a certificate to teach school and evidently intended leaving her aunt and taking up the work of a teacher in the public schools. Her aunt, however, dissuaded her, and prevailed upon her to remain in her service, promising at that time that she would do better by her than she could by teaching. The evidence also shows that at one time the deceased executed a deed to appellee of twelve hundred dollars’ worth of real estate and stated that it was to pay her for her services. Though for some reason the deed was not delivered, it's execution, taken in connection with the attending statements, tend to show that decedent understood and intended appellee to be paid for her services. Sherman v. Whiteside, 190 Ill. 581.

The record is replete with expressed intentions of the decedent to pay appellee for her services. A reversal of this finding would be a reversal of the -manifest intention and desire of the dead.

The contention that the verdict is excessive is unwarranted. While, presumptively, the wages of appellee belonged to her parents during her minority, yet there is sufficient evidence in this case to justify the finding of the jury upon the basis of the value of services rendered by appellee after she attained her majority. The evidence shows that appellee, in addition to doing the ordinary household work, milked cows, cleaned the barn, and did other out-door work upon the premises, besides nursing her aunt, who was an aged lady, and for a considerable length of time was confined- to her bed by reason of injuries resulting from a fall.

The intention of the aunt to convey appellee twelve hundred dollars’ worth of real estate some time prior to the close of the services and as compensation therefor, shows her estimate of their value was in substantial accord with the finding of the jury.

It is also contended that the claim of appellee is barred by the statute of limitations. The undisputed testimony, shows that decedent made payments to appellee upon account in 1891 and 1898, and on both of said occasions promised to pay the residue of the indebtedness at a subsequent date. These facts relieve the claim from the operation of the statute.

Some complaint is made against the action of the court in passing upon the instructions. We have examined them at length and find no error in those given. Every correct proposition of law contained in appellant’s refused instructions is elsewhere given. It is not error to refuse instructions when others containing the same principles are given. (City of Rock Island v. Deis, 38 Ill. App. 409; McMahon et al. v. Sankey, 133 Ill. G36.) Finding no error in the record and substantial justice having been done, the judgment of the Circuit Court is affirmed.


author: Mr. Justice Higbee

text:
    Chicago & Alton R. R. Co. v. Fred Kuckkuck.
    1. Dogs — Liability of a Railroad Company for Injury Resulting from the Bites of.— A railroad company is liable for damages resulting from the bite of a dog kept by its servant in general charge of its yards with its knowledge and consent, for the purpose of protection against tramps and to prevent thefts of the personal property of its employes.
    2. Contributory Negligence — As a Defense to an Action for Injuries Sustained from the Bite of a Vicious Dog. — Contributory negligence in its ordinary meaning is not a good defense in an action to recover damages for injuries resulting from the bite of a vicious dog, but if a person with knowledge of the evil propensities of the dog wantonly excites him or voluntarily and unnecessarily puts himself in his way, he will be adjudged to have brought the injury upon himself and will not be entitled to recover.
    3. Injuries — By Dogs — Scienter May Be Established by Attendant Circumstances. — In an action to recover damages resulting from the bite of a dog, the scienter may be established without the necessity in all cases of proving prior injuries by him. Where watch dogs are kept for protection, their dangerous character and knowledge may be inferred from the admitted purpose for which they are kept and the care exercised in their custody.
    4. Damages — Where $850 is Not Excessive for Injuries Resulting from the Bite of a Dog. — Where a person was bitten by a vicious dog and confined to his house for something like two months with painful wounds, a verdict for $850 is not to be considered excessive.
    Trespass on the Case. — Personal injuries resulting from the bite of a dog. Appeal from the Circuit Court of Will County; the Hon. Robert W. Hilscher. Judge, presiding. Heard in this court at the April term, 1901.
    Affirmed.
    Opinion filed November 15, 1901.
    James B. Flanders, attorney for appellant.
    Donahoe & McEaughton, attorneys for appellee. ■
   Mr. Justice Higbee

delivered the opinion of the court.

This was an action brought by Fred Kuckkuck, through Louise Kuckkuck, his next friend, against the Chicago and Alton Railroad Company, to recover damages for injuries received by him from being bitten by two dogs upon the premises of said company, on July 13,1899. The declaration charges appellant with wrongfully and knowingly keeping, harboring and controlling the dogs upon its premises, well knowing that they were of a vicious and ferocious nature and accustomed to attack and bite mankind. The general issue was pleaded, the case tried before a jury and there was a judgment and verdict for $850;

About 10 o’clock in the morning of the day in question, appellee, in company with one Parsons, went to the yard office of appellant in the city of Joliet. Parsons was a telegraph operator seeking employment, and not being acquainted with the location of appellant’s offices, asked appellee, with whose mother he boarded, to show him the way. The offices in question were in a two-story building, facing east. The ground sloped toward the back of the building so that while the front of the building was upon the ground the back rested upon brick piers some four or five feet in height, thus leaving an open space under a considerable portion of the building. Appellant’s yard in which the office was located, and the employes about the same, except the telegraph operators on the second floor of the office, were in charge of O. H. Haskell, who was both yardmaster and freight agent. For several months prior to the time of the injury complained of, James Corcoran, who was yard clerk under Haskell, had kept about the yard, with the knowledge of Haskell, two bull dogs, a male and a female. The female dog at the time in question was loose about the yard, while the male was tied by a heavy chain in the space, under the office, the chain being attached to a telegraph wire, so that it could slide along the same and permit the dog to go a short distance from under the building. The dogs appear to have been kept there to protect the property of appellant and especially for the purpose of keeping away tramps. Upon their arrival at the office, Parsons went upstairs to the telegraph office while appellee sat down upon a bench on the east side of the building near the northeast corner. After remaining there about ten minutes, appellee, to get out of the sun, as he claims, went around on the north side of the building and sat down with his back against the building, or one of the brick piers. Almost immediately he was attacked by one of the dogs, which seized him by the arm, and soon afterward the other joined in the attack. Haskell and other employes came to his rescue and drove the dogs away. Appellee’s clothes were torn from him and he was badly bitten upon the arms and legs, many of the wounds being quite deep. He was at once taken to a physician, by whom the wounds were cauterized and dressed, and he was then removed to his home, where he claims he was compelled to remain about two months. At the time of the accident appellee was in the omplov of the Elgin, Joliet & Eastern Railway Company, working about the roundhouse and acting in the capacity of extra fireman on engines, earning from $1.25 to $2.60 per day.

Appellant claims that the dogs were kept upon the premises by Corcoran; that in so doing he was not acting within the scope of his employment and that therefore the company should not be held liable for the injuries inflicted by the dogs. The dogs, however, were kept there for the purpose of protecting the premises of appellant from obnoxious trespass on the part of tramps and to prevent the theft of the personal property of the employes. The proof conclusively shows that the dogs were kept on the premises with the knowledge and consent of Haskell. Appellee testified that Haskell, on coming to his rescue, said, “ You are badly bitten, ain’t you?” and on receiving an affirmative answer continued, “ I will tell you what we keep the dogs for, the hoboes went under there;” and farther said, “We got the dogs to keep the hoboes away.” Haskell not.only did not deny saying these things but testified himself that prior to the occurrence he had inquired why the dogs were there and was told that the public had been committing nuisances under the office and the property of the switchman had been stolen; that the dogs were kept there to keep away men who might commit such depredations; that he made no more comments on it; that he saw a good reason for it and so didn’t say anything. Haskell, being in general charge of the yard and the office employes, except the telegraph operators, represented the company, consequently his knowledge of the fact that the dogs were there, must be charged to the company, and his consent that they should be there must also be held to be the consent of the company. Buswell, in his work on Personal Injuries, section 128, states the rule as follows:

“ Since the liability for injuries committed by animals rests wholly upon the ground of actual or assumed negligence the actual ownership of the animal is immaterial. * * * Generally, if one permits his servants or agents to keep an animal upon his premises he will himself be responsible as a keeper of such animal; and if he knows that it is so kept, his assent to the keeping will be implied.”

In Ray on ¡Negligence of Imposed Duties, at page 621, under the head of duties imposed on owners and harborers of dogs, the following statements are made:

“The duty to protect others against vicious animals is imposed upon the keeper, irrespective of ownership. If a person harbors a dog accustomed to bite, or allows it to frequent his premises, he is liable under the same conditions as if he were the owner. * * * A corporation will be liable if it permits a servant to keep such an animal knowingly.”

In the case of Barrett v. Malden & Melrose R. R. Co., 3 Allen (Mass.), 101, a verdict against a horse railroad company for damages incurred by the bite of a dog kept by its servants, was sustained, under a statute rendering the keeper as well as the owner of a dog liable to any person injured by him. It was there said by the court:

“ There was evidence at the trial that the dog which inflicted the injury on the plaintiff was kept on the premises of the defendants for several weeks by a person in their employment, who had the charge and superintendence of their stables; and there was also evidence which tended to show that this was done with the knowledge and implied assent of their general agent or superintendent. This was clearly sufficient to warrant the jury in finding that the dog was kept by the defendants. * * * It was. urged by the counsel for the defendants, that they, being a corporation, created for specific purpose, can not, through their officers and agents, be made liable as keepers of a dog, to the penalty prescribed by the statutes. But it is impossible for us to determine, as a matter of law, that a corporation established for the purpose of building and running a railroad by horse power, would be going ultra vires in either owning or keeping a dog. On the contrary it would seem to come quite within the scope of the power and authority granted to them to keep dogs to protect their stables and property from incendiaries and thieves.”

We are of opinion, therefore, that appellant is, under the circumstances of this case, responsible, in law for the action of its servants in keeping the dogs in question upon its premises.

Appellant further claims that appellee is not entitled to recover because he was guilty of contributory negligence in bringing about the attack made upon him by the dogs. In 2 Am. & Eng. Ency. of Law, 2d Ed., page 372, it is said in speaking of contributory negligence as a defense in cases of attack by animals :

“ The better view is that contributory negligence in its ordinary meaning is not a good defense in an action to recover damages for injuries sustained from a vicious dog. But if a person with knowledge of the evil propensities of a vicious dog, wantonly excites him or voluntarily and unnecessarily puts himself in the way of such an animal, he will be adjudged to have brought the injury upon himself and will not be entitled to recover.”

In this case the proofs show that appellee knew nothing of the presence of the dogs, and did not himself voluntarily bring about the attack made upon him. Indeed, even if contributory negligence could have been shown under the law as a defense, there was sufficient evidence to justify the jury in finding that appellee was guilty of no such negligence on the occasion of the attack made upon him by the dogs.

It is next contended by-appellant that “the proof fails entirely to show either that the dogs were of a ferocious and savage disposition and accustomed to attack and bite mankind, or that the appellant had any knowledge of it, were it so.” In 2 Am. & Eng. Ency. of Law, 2d Ed., page 369, it is said in speaking of the liability of owners or keepers of dogs for injuries occasioned by them, “ The sci-enter may be established by attendant circumstances without the necessity in all cases of proving prior cases of injury.”

In the note following it is further said:

“ Where watch dogs are kept for protection, the dangerous character and knowledge thereof may be inferred from their size, their actual conduct, the admitted purpose for which they are kept, and the care exercised in their custody. Where it appeared that it was the custom to chain up the dogs every morning at daylight and loosen them only at night, this was held to establish the scienter. And in Jones v. Perry, 2 Esp. 482, it is held that where the owner keeps his dog tied and does not permit him to run at large, it must be presumed that the dog is vicious, unruly, and not safe to be permitted to go abroad.”

In this case there was ample proof that both the dogs were actually vicious and savage and that they had made attacks upon other persons.- W e are of opinion that all the attendant circumstances were sufficient to notify Haskell of their ferocious disposition.

The court refused to permit questions concerning the character of the dogs prior to the time of their attack upon appellee, to be answered by certain witnesses. Answers to some of these questions might properly have been permitted but we think appellant got the benefit of such of this evidence as was proper in answers to other questions propounded and answered.

Appellant questions appellee’s second instruction because it told the jury that under certain circumstances therein set forth, appellee was entitled to recover, failing, however, to mention the requirement of care or caution on his part. Even if care and caution on the part of appellee were necessary, under the circumstances of this case, the jury were repeatedly told in other instructions that appellee could not recover if he was guilty of any negligence or carelessness that materially contributed to his injury. The jury, therefore, could not have been misled -upon this subject.

The last contention of appellant is that the damages awarded are excessive. We do not think, however, that the verdict is subject to this objection. The attack made upon appellee was a very vicious one and he was severely bitten. His wounds were very painful and he was confined to his house for something like two months. Considering the nature of the wounds and the manner in which they were inflicted, together with the consequences following, we are of opinion that the verdict was fully justified by the facts. We find no reversible error in the record and the judgment of the court below is therefore affirmed.


text:
    Coal Valley Mining Company v. Thomas Haywood.
    1. Mines and Mining — Negligence in Failing to Use Reasonable Care to Keep Entries Safe. — Where the general mine manager of a coal mining company fails to do that which he knows to be necessary to support the roof of an entry in the mine, a jury will be justified in finding that the company has failed to use reasonable care and diligence to keep the entries of its mine safe for the use of its employes.
    2. Practice — General Verdict When the Declaration Contains Several Counts. — In an action for personal injuries, where the declaration contains several counts, a general vercpct will be sustained if the proofs are sufficient to sustain any one of such counts.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Rock Island County; the Hon. William H. Gest, Judge, presiding. Heard in this court at the April term, 1901.
    Affirmed.
    Opinion filed October 8, 1901.
    Jackson & Hurst, attornej's for appellant.
    Weld & Olmsted, attorneys for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

Thomas Haywood, a minor, by Jane Haywood, his mother and next friend, brought this action to recover damages for injuries alleged to have been sustained by him while in the employ of appellant in its mine. There were four counts in the declaration. The first charged that appellee was employed to drive a mule harnessed to a cart along a certain passage-way in the mine known as number 50, to haul out coal; that it was then appellant’s duty to use reasonable care and diligence to keep the entry safe for its employes to work in, and particularly to prop and timber the roof to prevent rock and earth from falling; that appellant neglected to timber, prop and support said roof, though it Avell knew the same to be unsafe and in a dangerous condition; that appellant negligently removed a certain crosspiece of timber from under the roof of said entry knoiving the same to be necessary for the proper support of the roof; that it negligently and carelessly failed and neglected to cause proper and necessary examinations, soundings and tests to be made of the condition of said roof to determine the condition thereof, and carelessly and negligently permitted the same to be and remain in a dangerous and unsafe condition; that by reason of said negligence and carelessness of appellant, a large rock, clod or mass of earth detached itself and fell off and down from the roof of said entry upon appellee, causing the injury complained of. The second count charged that it was the duty of appellant to cause said mine, including said entry Eo. 50, to be examined by its duly authorized agent every morning to determine whether there were any dangerous accumulations of gas or lack of proper ventilation or obstruction to roadAvays or any other dangerous conditions there, and that appellee ought not to have been allowed to enter the mine until the examiner had reported all conditions safe for beginning work; that appellant negligently and Avillfully failed and refused to have the mine examined on the morning of the accident by its authorized agent, and that by reason thereof appellee incurred the injuries mentioned.

The third count Avas substantially the same as the second, but alleged in addition that appellant Avillfully failed and neglected to cause the examiner to make a daily record of the condition of the mine in a book accessible for examination, whereby it was possible for appellee to become advised as to the report of the examiner in reference to the true condition of the mine. The proof wholly failed to support the charges contained in the fourth count and the jury were instructed by the court, upon its own motion, to disregard the same. A plea of not guilty was filed by appellant. There was a verdict and judgment for appellee for .$1,800, from which defendant below appeals. The accident by which appellee received the injuries complained of, occurred on June 11, 1897, at which time he was in his eighteenth year. On the da.y in question appellee had been working in the mine from seven until ten o’clock a. m., when the accident occurred, driving a mule along a track in entry Ho. 50. It was his duty to hitch the mule to a car, in a room where the miners had loaded it, and haul the same for some distance down a main entry, where several cars would be collected and joined together, and taken out by other persons. Appellee would then take an empty car back to a room where coal was being mined, to be re-loaded. At the time of the accident appellee was coming out with a loaded car. A short distance from the room where the car started the track had a down grade and curved to the right into a main entry known as entry Ho. 50. There were no lines to guide the mule and the speed of the car was regulated by a brake and a sprag, the latter being a short piece of wood which was thrown or put into the wheel- of the car to check it. As he started with his load down the incline, appellee attempted to throw his sprag between the iron spokes of the wheel, but he is not certain whether it went into the wheel or not. He then jumped on the rear end of the car and placed his foot on the brake. He had gone but a short distance when a large rock fell from the roof upon him, pinning him down to the floor of the passage-way, breaking his thigh and otherwise injuring him. The rock was so large and heavy that it took seven men to lift it so that appellee could be removed. Just how the rock happened to fall from the roof at that time, is not clearly shown. Appellant claims that appellee was negligent in his manner of conducting the car and that he failed to properly put the sprag in the wheel; that as a result the car left the track and knocked out a prop which was standing under one end of the rock. This prop stood about seven inches from the car as it passed upon the track. There was no direct evidence, however, that the car ran off the track at that point. Appellee contends that the accident resulted from appellant’s negligence in failing to prop and support the roof at the place in question as it should have been, and the willful neglect of the duly authorized agent of the company to examine entry No. 50 that morning, by reason whereof the dangerous condition of the roof was not discovered. At the place where the accident occurred there was a break or opening through the wall of the entry, causing additional pressure on the props supporting the roof at that point. There had formerly been a cross-piece supported by a prop at the place in question. The floor of the passage, however, had heaved or raised up under the cross-piece, until there was not sufficient room for the mule drawing the car to pass between the floor and the cross-piece. About two weeks before the time in question, the crosspiece had been taken out to make the passage-way higher, leaving only a prop at the side of the track to keep the rock in place. The weight on this prop was so great that it was caused to bend toward the track. Some three or four days before the accident, both appellee and one of the miners informed Charles Eosine, -who was track-layer and also the agent of appellant to examine the mine, of the unsafe condition of the roof, and two days before, Haddock, the mine manager, sent Eosine to the place to timber up if it required it.” Eosine testified he could see when he went in that there ought to have been cross-bars there to have made it safe, but that he did not put in a cross-bar because he was alone and could not do it himself. He, however, put in another prop and turned the one that was there so that the bend in it stood away from the track. There was a loose rock extending out over the track, part of which rested on the prop. The place where appellee was injured was a dangerous one and known to appellant to be so, and while it took some steps to support the loose rock it wholly failed to do that which its agent in charge of the matter saw to be necessary to support the roof. We are therefore of opinion that the proofs were sufficient to justify the jury in finding that appellant had failed to use reasonable care and diligence to keep the entry safe for its employes and to timber, prop and support the roof, as charged in the first count of the declaration, and that the injury was caused by such negligence.

There was evidence tending to support the allegation of the second and third counts of the declaration, but whether or not it was sufficient to establish appellee’s case under those counts, it is not necessary for us to consider here, as plaintiff was entitled to recover under the first count.

Where a declaration contains several counts, a general verdict will be sustained if the proofs are sufficient to sustain any one of the counts. The Pennsylvania Co. v. Backes, 133 Ill. 255; L. & St. L. Con. R. R. Co. v. Gobin, 52 Ill. App. 565.

The judgment of the court below will therefore be affirmed.


author: Mb. Justice Hig-bee

text:
    Chase Fowler v. Charles H. Robinson.
    1. Settlements — When Conclusive upon the Parties. — Where parties have a running account between them, and a settlement is fairly made, at which all the items entering into it are fully considered by both the parties, so far as" the items of the account named therein are concerned, both parties are concluded by the settlement.
    Assumpsit, upon a running account, etc. Appeal from the County Court of La Salle County; the Hon. H. W. Johnson, Judge, presiding. Heai'd in this court at the April term, 1901.
    Reversed and remanded.
    Opinion filed October 8, 1901.
    Brewer & Straws, attorneys for appellant.

      H. M. Kelly, attorney for appellee.
   Mb. Justice Hig-bee

delivered the opinion of the court.

This was an action of assumpsit brought by appellee against appellant to recover the balance claimed to be due on a running account and also a certain amount claimed by appellee to be due him, by agreement between him and appellant, upon the surrender of a contract for the purchase of certain real estate. There was a verdict and judgment in favor of appellee for $758.62. Appellant seeks to reverse this judgment, the main ground relied upon by him being that it is not sustained by the evidence. It appears from the proofs that there has been a running account between the parties, extending something over a year, when, on December 8, 1899, appellee presented to appellant an itemized bill of his account for settlement. Afterward appellant presented his counter-claim to appellee, and on January 15, 1900, the parties met and balanced their accounts. The statements made by the parties to each other were introduced in evidence byappellee and bore the following indorsement: “Jany. 15, 1900. Bal. due C. F. 78.38.” This •indorsement seems to have been made at the time by the consent of both parties, and the meaning of it is shown by the testimony to have been that there was then a balance of $78.38 shown by the accounts to be due to appellant from appellee. It also appears from the evidence that on April 17, 1899, appellant and his wife had made an agreement in writing to convey to appellee certain real estate in Ottawa, Illinois, for which the latter was then to pay $650 and assume a mortgage for $2,100; that appellee was to pay $326 of the amount agreed upon, on May 1, 1899, and the balance in one year from that time; that afterward appellee surrendered the contract to appellant and the same was canceled. Appellee claims that he had placed certain improvements upon the premises and that appellant agreed to pay him $400 as a consideration for the surrender of the contract, and this amount constitutes part of the claim for which he brings this suit. Appellant, however, denies that he made any promise to pay said amount for the surrender of the contract, but says that he promised to pay appellee whatever amount the property would bring in excess of the mortgage indebtedness when he should sell it; and that it is not yet sold.

The evidence in support of the claim of appellee upon this question was by no means conclusive in his favor but rather tended to corroborate the claim of appellant that for the surrender of the contract, he was only to give appellee the excess over the indebtedness when the property should be sold.

It appears from the evidence the settlement of January 15, 1900, was fairly, made, and that all the items entering into it were fully considered by both parties. We are of opinion, therefore, that so far as the items named therein are concerned, the parties are concluded. Appellee, however, claims that he had certain items of account against appellant, which by mistake he neglected to bring forward at the time of the settlement. These items are included in the bill of particulars and amendment thereto, filed in this case. The items for which he now claims and which were not included in the original account, upon which the settle-' ment was based, amount to $369.49. These additional items, so near as we can determine from the confusing evidence, include charges amounting to .$83.02, concerning which there is no proof at all. There is also an item of $100 cash, claimed by appellee to have been paid to appellant on January 6, 1899, which the preponderance of the evidence conclusively shows to be an error. The proof as to a number of other items also, is very imperfect and unsatisfactory. If, however, the two sums last named, amounting to $183.02, be deducted from the total of the new items, amounting to $369.49, as above stated, there will be a balance left of $186.47. Deducting from this amount $78.38, shown to have been the balance due appellant upon the items included in the settlement, and there remains the sum of $108.09. Even it the proof showed clearly, which it does not, that appellee was entitled to 'the $400 for the surrender of the real estate contract, that amount added to the balance last above named, would only make $508.09. The verdict of the jury, however, was for $758.62, and was therefore, according to our understanding of the evidence, erroneous.

Appellant also complains that instruction So. 15, offered by him, was refused by the court. That instruction was as follows:

“ The jury are instructed that the contract offered in evidence in this case was binding between the parties until surrendered by the plaintiff to J. H. Fowler, as shown by the evidence. It is contended by the plaintiff that he surrendered said contract to J. H. Fowler, as the agent of defendant, upon an agreement made with J. H. Fowler that the defendant should receive the property mentioned in the contract back, and pay plaintiff $400. This alleged agreement is denied by the defendant. Upon this branch of the case the court instructs the jury that the burden of proof is upon the plaintiff to establish such alleged agreement by a preponderance of the evidence, and if upon this point the jury believe from all the evidence that the evidence is evenly balanced or preponderates in favor of the defendant, then the jury should find for the defendant upon that point.”

Appellee says that this instruction is vicious because it singles out particular evidence in the case. The objection, however, is not well taken. There were two branches to the case, one founded on a running account between the parties and the other upon the alleged promise to pay $400 for the surrender of the real estate contract. The effect of the instruction in question was simply to inform the jury as to the law governing the burden of proof in reference to the question involved in the latter branch, and as there was no other instruction fully covering this question, it was entirely proper and should have been given.

For the reasons above given the judgment of the court below will be reversed and the cause remanded.


author: Mr. Justice Waterman

text:
    Eliza Denhard v. Charles E. Dunbar.
    1. Courts of Record — Speak Only by Their Record. — The evidence of what a court of record has done does not reside in the recollection of the judge but in the record which the law requires its clerk to keep. Although the judge may remember that the clerk’s record of a judgment entered by him at a previous term is not in accordance with the judgment which he delivered and the order he actually made, he has no power to amend or correct such record unless there is something in the minutes kept by him other than the entries of the same record, by which he is able to see clearly that the record as made by the clerk does not correctly represent his action.
    2. Same — Powers of the Court at Subsequent Terms. — Where, in a court of record, a mistake has been made in the entry of a judgment, and there is a minute, entry, pleading or files in the cause, by which the court is able to see that the record, as made, does not correctly represent his actions, he has the power, at a subsequent term, to amend and correct such record in accordance with the facts so as to sustain the rights of the parties.
    3. Same — Power to Correct Records — Rlustration.—Where, in a proceeding by distress for rent in a court of record, the clerk, by inadvertence, wrote up the record of the judgment against two. persons as defendants, while the minutes of the judge and the docket entry of the clerk showed a judgment against one person as defendant. On a motion to correct the record it was held proper to amend it so as to make it conform to the minutes of the trial judge and the docket entry made by the clerk.
    4. Same — Amendments at Subsequent Terms — Status of Third Parties Not to be Affected. — The power of amendment at a subsequent term by the judges of courts of general jurisdiction is not to be exercised so as to change the status of a third party who has acted upon the faith of the record.
    Distress for Rent. — Appeal from the County Court of La Salle County; the Hon. H. W. Johnson, Judge, presiding. Heard in this court at the April term, 1901.
    Revered and remanded with directions.
    Opinion filed July 12, 1901.
    Rehearing denied October 8, 1901.
    Armstrong & Hanna and H. M. Kelly, attorneys for appellant.
    Butters & Care, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court. Appellant and plaintiff below, Eliza Denhard, filed her distress warrant in the County Court of La Salle County, against Charles E. Dunbar, her tenant, and Engel Rude, as her sub-tenant, on the ninth day of December, A. D. 1893. Due service of process was had on both Charles E. Dunbar and Engel Rude on December 16, 1893. The defendants appeared, by attorney, upon a hearing of said cause before the court. A jury was waived, and the court, after hearing, entered in his minutes under the title of the above cause, in his own handwriting, a memorandum of his finding and action upon the issues, as follows:

“ January 11,1894, jury waived, and by agreement cause submitted to court for trial. Hearing by court and finding for plaintiff in the sum of $294; judgment therefor against defendant, Charles E. Dunbar. Special execution against property distrained ordered.”

Upon the same date, the clerk of the said County Court, entered in judgment docket Ho. 4 of the said court, in his own handwriting, a minute of the said judgment as follows:

"Term, January, 1894, date of judgment, January 11, 1894, against Charles E. Dunbar in favor of Eliza Denhard. Amount of judgment, $294; Ho. of case, 2733. Execution issued January 11, 1894. Execution returned January 10, 1901. ' Alias execution issued Jan. 10, 1901.”

The said minute is the only minute appearing in the above cause in any of the judgment dockets of the said court.

The County Court record book Ho. 6, page 488, and that part thereof which purports to be a record of the above suit, Ho. 2733, shows in substance, under the above date, the appearance of the plaintiff by her attorneys, the defendants by their attorney.

. “ Trial by jury waived by agreement, and a finding by the court in favor of the plaintiff, assessing her damages at $294; also a further order by the court that the plaintiff have and recover from the said defendants the sum of $294 for her damages herein, together with all costs, and that she have execution therefor against said defendants, Charles E. Dunbar and Engel Rude.”

A special and general execution against Charles E. Dunbar was issued January 11, 1894, and returned January 10, 1901,. upon which $69 was made.

An alias execution was issued against Charles E. Dunbar, January 10, 1901, and a levy thereunder, made upon the FT. E. £ pf section 19, excepting the south forty (40) acres, and the FT. W. fractional ¿ of section 19, township 34 FT., E. 4 E. of the 3d P. M.

On the 16th day of January, A. D. 1901, the defendant, Charles E. Dunbar, by his attorneys, Butters & Carr, moved in said cause that the court first redocket said cause; second, vacate the levy made under the execution issued in said cause; third, quash the said execution and fee bill.

On January 23, 1901, the plaintiff, by her attorneys, entered a cross-motion in said cause, and therein moved that the court amend and correct the record of the judgment entered therein, by causing the word “defendants,” where it appeared in said record, to be stricken out and the words “defendant, Charles E. Dunbar,” to be therein inserted; and also the words “Engel Bude” to be erased and stricken out of said record, so that the said record might conform to the judgment entered therein.

On February 1, 1901, the court, upon a hearing of said motion and cross-motion, overruled said cross-motion and sustained the said motion entered herein by said defendant. From this order of the court, appellant, Eliza Denhard, perfected her appeal to this court.

A court of record speaks only by its record. The evidence of what a court has done does not reside in the recollection of the judge but in the record which ,tlie law requires the clerk to keep. Although a judge may remember that the record of a judgment entered by him at a previous term is not in accordance with the judgment which he actually delivered and the order he actually made, nevertheless he has no power to amend or correct the record unless there is something in the minutes kept by him, other entries of the same record, or pleading or files in the case; something, as is said, to amend by; that is, some written memoranda or record to amend by, from which the court is able to see clearly that the record as made by the clerk does not correctly represent its action. But where there is such minute, entry, pleading or files in the cause, the court has power, at a subsequent term, thereby to amend the record and will not hesitate under such circumstances to make such amendment in accordance therewith as will advance justice and sustain the rights of the parties. Forquer et al. v. Forquer, 19 Ill. 68; McCormick v. Wheeler, 36 Ill. 124; Church v. English, 81 Ill. 442; Stitt v. Kurtenbach, 85 Ill. App. 38.

In the present case it clearly appears from the minutes kept by the judge of his action at the trial, as well as by the judgment docket made by the clerk of the court, that the record entry made by the clerk is not in accordance with the finding and judgment of the court at the trial. The clerk, in the record book, wrote up a judgment against Charles E. Dunbar and Engel Rude, whereas the minutes of the judge and the docket entry of the clerk show a judgment against Charles E. Dunbar only. The court, therefore, had power, when its attention was called six years thereafter to the mistake made by the clerk, to correct the record entry of judgment to make it conform to what the court actually did and adjudged.

It is urged by appellee that the proceeding under which judgment was rendered, being a distress for rent, was in effect an action ex contractu against each of the persons against whom said proceeding was, viz., Charles E. Dunbar and Engel Rude, and that the invariable rule is that in actions ex contractu a judgment. must be rendered against all or none of the defendants.

The question submitted to the court upon the motions made for a correction of its record was not whether its action in entering judgment was proper or improper, but simply whether the record made by the clerk correctly represented what the court did. ¡Nor is the question now before this court whether the record of the judgment as written up by the clerk or the judgment record as it will stand when 'amended is a valid or proper judgment or whether it can be reversed on appeal or writ of error. It was simply the duty of the court below, having sufficient memoranda to amend by, to make the record of the judgment correspond to what it actually did; and this, upon the most obvious principle that all parties thereto have a right to have the record truthfully represent the action of the court.

The defendant, upon the motion for the correction of the record, offered and had admitted in evidence a warranty deed from Charles E. Dunbar and Helen E. Dunbar, his wife, to Moab B. Trumbo, for the expressed consideration of $14,500, of the following described property, to-wit: The northeast quarter of section 19, town 34 R., R. 4 east of the third P. M., excepting the south 40 acres thereof; also the R. W. fractional quarter of said section 19 in said township 34 R., R. 4 east aforesaid, containing in all 162.60 acres of land situated in the county of La Salle in the State of Illinois; filed for record on the 21st day of December, A. D. 1900.

Appellee urges that the amendment of the judgment will prejudice the rights of a third party, viz., said Moab B. Trumbo, to whom, since the trial of said cause and the erroneous record made by the clerk, certain real estate in La Salle county has been conveyed by- Charles E. Dunbar.

The power of amendment at a subsequent term by judges, existing as it does in all courts of general jurisdiction, can never be exercised to - change the status of a third party who has acted upon the faith of the record. Moab B. Trumbo was not a party to the trial of the cause, nor to any of the motions made therein six years thereafter, and his rights can not be affected by any-amendment of the judgment record upon the faith of which he has acted. American Exchange Rational Bank of Chicago v. Moxley, 50 Ill. App. 314.

Reither the court below nor this court was or is attempting, or asked to pass upon the rights of any person save the parties to the cause under consideration. What the effect of the judgment record as amended will be upon the rights of Moab B. Trumbo, or any person other than the parties to the cause, was not before the court below, nor is it presented to this court. Before the rights of any person other than the parties to the cause can be affected, either by the judgment as originally recorded or as amended, such parties will be entitled to a hearing and their day in court.

The County Court should have amended the record as asked, so as to make the same conform to the minutes of the trial judge and the docket entry made by the clerk.

The order of the County Court is reversed and the cause remanded with directions to amend the record of the entry of judgment by striking the word defendants ” therefrom and inserting in place thereof “ defendant;” also by striking therefrom the words Engel Rude,” and also with directions to deny the motion to quash the execution and vacate the levy.

Reversed and remanded with directions.


text:
    Frank E. McEwan v. George Baker.
    1. Conveyances — Where a Right of Access is Incident to the Grant. —Where a person sells land, which is wholly surrounded by his own lands, to another, the purchaser is entitled to a right of way over the lands of the vendor in order to reach the lands purchased, as a necessary incident to the grant.
    2. Same — When the Right of Way is Not Relinquished. — A right of way and necessity for access to premises of a grantor remaining in him after his conveyance of a portion of such premises, will not be presudied to have been relinquished by general covenants in a warranty deed.
    3. Easements — Relinquishment of a Right of Access. — A right of access may be relinquished by express words, clearly indicating an intention to do so, but general covenants which do not indicate that such relinquishment was intended by the covenantor will not be construed as a waiver of such easements.
    4. Same— When a Servitude Passes with a Conveyance. — Where a person owns and uses two tracts of land so that the value of one is enhanced and derives a benefit from a right of way over the other, and such right of way and enhanced value are apparent to the ordinary observation of a purchaser of the servient tract, such purchaser will be presumed, in the absence of stipulations to the contrary, to have purchased the servient tract with notice of the servitude.
    5. Nuisances — Bight to Remove Obstructions to Right of Way. — If the owner of a right of access over the lands of another is able to break down a barrier or obstruction wrongfully erected therein by the owner of the lands over which such right exists, without in so doing bringing about a personal encounter with the owner or his servant, he has a legal right to do so.
    Trespass, to real estate. Appeal from the Circuit Court of Kane County; the Hon. Charles A. Bishop, Judge, presiding. Heard in this court at the April term, 1901.
    Affirmed.
    Opinion filed July 12, 1901.
    Rehearing denied October 8, 1901.
    Statement. — This was an action of trespass begun before a justice of the peace, removed by appeal to the.Circuit Court, where a trial was had before the court, a jury being waived, with the result of a finding and judgment for the defendant.
    On April 20, 1892, appellee owned two eighty-acre tracts of land, one fronting on a highway punning north and south. This eighty extended back from the highway 160 rods, where was located the second or back eighty. This second or back eighty had no connection with any highway or road, either public or private, the back eighty being entirely surrounded by the land of strangers, except where it joined on to the front eighty owned by appellee as aforesaid. The following map shows the position-of -such eighty with relation to a highway, and . the ownership of adjoining lands:

    Upon the date mentioned appellee entered into an agreement by which he contracted to sell to Robert MeEwan the front eighty for the sum of $2,800, and gave to him the right of immediate possession of said front eighty. Upon the same day Robert MeEwan executed to appellee a lease of a strip of land one rod in width along the south line of the section of land in which said front eighty was situated, recited in said lease as “ being a strip one rod wide off the south side of land this day sold by George Baker to Robert MeEwan.” The lease contained also the following recital: “Said second party, in consideration thereof, as rent therefor, pays first party one dollar, receipt whereof is hereby acknowledged. Said premises are to be held by second party and heirs as long as he or his heirs own the land or any part thereof next -west of and adjoining the eighty-acre lot this day bought by first party from second party.” Robeit McEwan being the first party in said lease and George Baker, appellee, the second party.
    On March 23, 1883, appellee executed a warranty deed of the front eighty-acre tract, contracted to be sold, as hereinbefore mentioned. The original articles of agreement between appellee and Robert McEwan were recorded April 20, 1882. The lease of the one-rod strip was not recorded until January 10, 1900. On September 30, 1898, Robert McEwan conveyed the same eighty-acre tract to the appellant, Frank E. McEwan. Each of the before-mentioned conveyances was a warranty deed.
    During the time that Robert McEwan owned said front eighty-acre tract he purchased a strip of land two rods wide, adjoining the south line of said eighty acres, and moved his fences so as to include said strip. This was done about ten years before- the institution of the suit under consideration; and this was the condition of the property at the time Frank E. McEwan, the plaintiff, purchased said front eighty acres and also said two-rod strip. During the time that Robert McEwan owned the said front eighty acres, and up to a very short period prior to the alleged trespass complained of by the plaintiff, appellee (Baker) has been in the habit of driving his cattle through Robert McEwan’s barnyard while he owned said eighty acres, and Frank McEwan’s barnyard when he became its owner. In ■other words, to drive his cattle across the front eighty to reach his, appellee’s, back eighty, following a lane, of which ■said strip of land one rod in width, leased by Robert McEwan to George Baker, as aforesaid, constituted a part. This continued up to January 3, 1900, when appellant notified appellee'in writing to stop crossing said front eighty-acre tract. Appellee then sought appellant and asked him what it meant. Appellant replied:' “You are barred out.” Appellee then said:' “ Frank, I have got a lease of the right of way here.” To which appellant replied: “It is no good; there is a deed given two years after the lease was given.”

      Thereafter appellant barred up the passage-way across said front eighty-acre tract, and appellee, finding access from the aforesaid highway to his eighty-acre tract obstructed, broke down the gate erected by appellant, which action upon the part of appellee resulted in the bringing of the action of trespass before mentioned.
    Russell & Hazelhürst and W. R. S. Hunter, attorneys for appellant.
    C. H. Wayne and Cliffs & Cliffe, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

Appellant relies upon the covenant in the warranty deed made by appellee to Robert McEwan and the similar covenant in the deed from Robert McEwan to him, Frank McEwan, especially the covenant that the land, namely, the said front eighty-acre tract, is free and clear from incumbrance.

If a man sells land to another, which is wholly surrounded by his own land, the purchaser is entitled to a right of way over the other’s ground to arrive at his own. Such a way is a necessary incident to the grant. Kent’s Com., 6th Ed., Vol. 3, pp. 420-3; Brigham v. Smith, 4 Gray (Mass.), 297; Washburn on Easements and Servitudes, 3d Ed., p. 235; Uhl v. Ohio River R. R. Co., 34 S. E. Rep. 934; Rock Island & Peoria Ry. Co. v. Dimick, 144 Ill. 628; Jones on Easements, Sec. 319.

Nor will a right of necessity for access to the premises of a grantor, remaining in him after a conveyance of a portion of what he once owned, be presumed to have been relinquished by general covenants in a warranty deed. Necessity for and right of access may, indeed, be relinquished by express words, clearly indicating an intention to do so, but general covenants, which do not indicate that such relinquishment was in the mind of the covenantor, will not be construed as a waiver of such necessary easements. Chappell v. N. Y. & H. Ry. Co., 24 Atlantic Rep. 997.

So too, where a party so owns and so uses two tracts of land that the value of one is enhanced and it derives a benefit from a right of way over the other, and such right-of-way-benefits and enhanced value are apparent and open to the ordinary observation of a purchaser of the servient tract, such purchaser will be presumed, in the absence of stipulations to the contrary, to have purchased the servient tract with notice of the servitude. Cihak v. Klekr, 117 Ill. 658; Vol. 10, 2d Ed. Am. & Eng. Ency. of Law, 420-2; John Hancock Hut. Life Ins. Co. v. Patterson, 103 Ind. 582; Horrison v. King, 62 Ill. 30; Ingals v. Plamondon, 75 Ill. 118; Tinker v. Forbes, 136 Ill. 221.

The use made by appellee of the front eighty acres, after the conveyance of the same to Robert HcEwan, was obvious to ordinary observation; and the lease given by Robert HcEwan to appellee, under which appellee was making use of said front eighty acres, was a thing which appellant would easily have ascertained had he inquired by what right appellee was driving his cattle over said front eighty acres, as at the time of and for many years after the purchase of the same by appellant, appellee continued to do.

Appellant is chargeable with knowledge of that which in this regard he had notice. Crawford v. C., B. & Q. Ry. Co., 112 Ill. 314; Harris v. Mclntyre, 118 Ill. 275; Jones Law of Real Property, Vol. 2, p. 1524.

Being able to break down the barrier interposed by appellant, without in so doing bringing about a personal encounter with appellee or his servants, i. e., being able to break down said barrier peaceably, appellee had a right to remove the obstruction which appellant had wrongfully erected. Ostatag v. Taylor, 44 Ill. App. 469; Hoots v. Graham, 23 Ill. 81; Marcy v. Taylor, 19 Ill. 634; Frazier v. Caruthers, 44 Ill. App. 61; White v. Noerup, 57 Ill. App. 114; Lee et al. v. Town of Mound Station, 118 Ill. 304; Cooley on Torts, 2d Ed. 438.

The judgment of the Circuit Court is affirmed.


author: Me. Justice Brown

text:
    City of Savanna v. Adelbert Trusty.
    1. Sidewalks — Rights of Persons Upon. — Notwithstanding the fact that a person has knowledge that a sidewalk is out of repair, he still has the right to travel upon it, if in so doing, under all the circumstances, he exercises the care of a reasonably prudent person, and although in passing over it he may know that it is out of repair, he may, notwithstanding such knowledge, recover for a personal injury occasioned by such defects, if he has used ordinary and reasonable care while upon it.
    2. Same — Rights of Pedestrians to Assume that a Municipality has Discharged Its Duty in Relation to Its Sidewalks. — In the absence of knowledge or notice of the defective condition of a sidewalk, a pedestrian has the right to assume that the municipality has discharged its duty with reference to keeping its walks in a reasonably safe condition.
    3. Notice — A Question for the Jury — Sidewalks.—The jury, under proper instructions as to the law, must be left to determine from the evidence what lapse of time is necessary to charge a city with constructive notice of a defective condition of its sidewalks, and an instruction which takes this question from them, is erroneous.
    4. Same — To Officers whose Duties in No Way Relate to the Care of Streets. — Notice of the defective condition of sidewalks to a city treasurer, police magistrate or other municipal officer whose duties in no way relate to the care of streets, is not notice to the city so as to charge it with liability.
    5. Instructions — Which Take from the Jury the Right to Determine All Questions from the Evidence.- — In an action against a city for personal injuries resulting from a defective sidewalk, an instruction which takes from the jury the right and duty to determine from all the evidence whether the city has exercised reasonable care to keep the sidewalk under consideration in a reasonably safe condition, and assumes that if the street commissioner inspected it from three to ten days before the accident and from such inspection it appeared to him to be reasonably safe, that the city had discharged its duty, is erroneous.
    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Carroll County; the Hon. John S. Bauhe, Judge, presiding. Heard in this court at the October term, 1901,
    Affirmed.
    Opinion filed November 15, 1901.
    D. S. Beret and B. F. Lichtenbeegeb, attorneys for appellant.
    D. & T. and J. M. Sheean, attorneys for appellee.
   Me. Justice Brown

delivered the opinion of the court.

Adelbert Trusty brought an action on the case against the city of Savanna to recover compensation for personal injuries alleged to have been received by him on May 20, 1899, in consequence'of a defective sidewalk.

The case is before this court a second time. Upon the former hearing the cause was reversed and remanded. The opinion is reported in 93 Ill. App. 487. Upon the first trial the plaintiff recovered a judgment for $4,000 and upon the second for $1,000.

Additional evidence was introduced upon the second trial and while there is a conflict in the evidence as to the condition of the sidewalk at the time in question, yet there is sufficient to sustain the jury in finding that it was defective and that the city had actual notice of its condition, or could have ascertained the condition, by the exercise of ordinary care, in time to have repaired it before the accident and injury to the plaintiff.

The plaintiff was a laboring man earning a dollar and a half a day at the time of the accident. There is evidence tending to show that he was totally disabled to work for months; that there was an injury to the spine from which he may never recover, and that he will never be able to again perform the work he was able to do before he was injured.

We find no error in the rulings of the court on the admission or rejection of evidence.

Defendant’s eighteenth instruction was properly refused. The jury, under proper instructions as to the law, must be left to determine from the evidence what lapse of time is necessary to charge the city with constructive notice of a defective condition of its sidewalks.

This instruction would have taken that question from the consideration of the jury. Village of Coffeen v. Lang, 67 Ill. App. 359.

The instruction also stated that if the sidewalk in question was inspected by the street commissioner from three to ten days prior to the date of the accident and then appeared to him to be reasonably safe and secure, the city would not be liable for damages sustained by the plaintiff by reason of any defect therein, unless the jury believed from, the evidence that the city or some of its officers, had. actual notice of the defect and failed to report the same, or that by the exercise of reasonable care and diligence the city might have ascertained the defect.

The instruction takes from the jury the right and duty to determine from all the evidence whether the city exercised reasonable care to keep the sidewalk in. a reasonably safe condition. It assumes that if the street commissioner inspected the sidewalk from three to ten days before the accident and from such inspection it appeared to him to be reasonably safe, the city had discharged its duty. This was error. The jury must determine whether the city discharged its duty in this respect. In so doing it is proper for the jury to take into consideration the degree of care, or want of care, exercised by the street commissioner in making the inspection. The jury might properly, under, a given state of facts, hold that the inspection was so carelessly or indifferently made as to be of no aid in determining the actual condition of the walk, whereas had the inspection been carefully made it might have disclosed the very defect overlooked, and which subsequently resulted in injury to the party using the walk.

But the question is for the jury, and not the street commissioner, to determine whether the city used the required degree of care to keep the walk in a reasonably safe condition.

The instruction is erroneous in assuming that notice of the defective condition of a sidewalk, given to any city officer, is notice to the city. Manifestly a notice to the city treasurer, police magistrate or other city officer whose duties in no way relate to the care of streets, would not be notice to the city. However, this error militates most strongly against the defendant, and it could not have harmed the plaintiff had the instruction been given, if this were the only objection, but it was not.

The defendant’s twenty-first and twenty-fifth instructions were properly refused because they told the jury that it might have been the duty of the plaintiff to use more than ordinary care and caution for his own safety.

. The defendant’s twenty second and twenty-third instructions are upon the theory that if the plaintiff might have ascertained that the walk was unsafe he should not have used it, or if the city provided another safe route (in this case the street in question which was macadamized) and the plaintiff knew or had notice the walk was defective, he should have walked upon the macadam road and not attempted to use the sidewalk.

The contentions are untenable and in conflict with the well settled law of this State. It was held in Village of Coffeen v. Lang, supra, that notwithstanding the fact that a person has knowledge that a sidewalk is out of repair, he still has the right to travel upon it, if, in so doing, and under all the circumstances, he exercises the care of a reasonably prudent person. In City of Streator v. Chrisman, 82 Ill. App. 24, relying upon City of Flora v. Naney, 136 Ill. 45, and upon Village of Cullom v. Justice, 161 Ill. 372, we said : Although a person passing along a sidewalk may know it is out" of repair, he may, notwithstanding such knowledge, recover for a personal injury occasioned by the defective walk, if he uses ordinary and reasonable care. To the same effect is City of Streator v. Chrisman, 182 Ill. 215.

The fact that the city had another safe route which the plaintiff might have used does not bar his right of recovery. (City of Danville v. Makemson, 32 Ill. App. 112.) We have considered all of the defendant’s refused instructions to which our attention has been called in argument. The reasons assigned for sustaining the trial court in rejecting defendant’s refused instructions justify the giving of the plaintiff’s eleventh instruction, the only one as to which objection is made by the defendant.

In the absence of knowledge or notice of the defective condition of the sidewalk the plaintiff had a right to assume that the city had discharged its duty with reference to keeping the walk in reasonably safe condition.

The verdict is not excessive. Finding no error in the record the judgment of the Circuit Court will be affirmed.


author: Mr. Justice Higbeé

text:
    Jerome Gilbert et al. v. M. S. Morgan et al.
    1. Statutes — Ara Established Rule of Construction. — It is an established rule in the construction of statutes that the intention of the lawmakers is to be ascertained from a view of the whole and every part of the statute taken together and compared.
    2. Same — Intention Prevails Over the Terms. — The real intention of the law-makers when accurately ascertained will always prevail over the literal sense of the terms of a statute.
    3. Same — Construction of the Statute Providing for the Disconnection of Territory from Cities and Villages. — The provisions of the statute enabling the owners representing a majority of the area of any territory within an incorporated city or village, being upon the border and within the limits of the same and not laid out into city or village lots or blocks, to petition the city council of such city, or the president and trustees of such village, for the disconnection of such territory, was not intended to be restricted so as to benefit the owners of those tracts of land which actually touch upon the borders of the corporation, but to include any territory composed of contiguous tracts, a portion of which touches the border although the several parts of it may be owned by different persons.
    4. Cities and Villages — Effect of Platting Lands for Taxation.— The platting of tracts of land lying within an incorporated city or village for the purpose of taxation is not such a laying out into city or village lots or blocks as is contemplated by the statute authorizing the disconnection of territory, but is simply for the purpose of affording the assessor an opportunity to describe it without difficulty.
    Mandamus, to disconnect territory, etc. Appeal from the Circuit Court of Kane County; the Hon. Henky B. Willis, Judge, presiding. Heard in this court at the April term, 1901.
    Affirmed.
    Opinion filed October 8, 1901.
    J. J. Kirby and John A. Bussell, attorneys for appellants.
    Botsford, Wayne & Botsford, attorneys for appellees.
   Mr. Justice Higbeé

delivered the opinion of the court.

The village of South Elgin is a municipal corporation, duly incorporated under the general laws of the State, providing for the incorporation of cities and villages. On April 12,1900,appellee M.S. Morgan and about twenty-five others, claiming to be the owners representing a majority of the area of certain land upon the border and within the boundary of said village, which was not laid out into city or village lots, filed their petition with the village clerk asking that the land of said petitioners, together with other lands in said petition described, be disconnected from said village in accordance with the statute in such case made and provided. The petition was accompanied by a certificate of the county clerk, showing that all village taxes or assessments due upon said lands, up to the time of the presentation of such petition, -were fully paid. This petition was on August 20, 1900, rejected by the president and board of trustees of said village, whereupon appellees filed their petition in the Circuit Court for a writ of mandamus to compel appellants, as the president and trustees of said village, to disconnect said territory from the village. Appellants answered said petition admitting the incorporation of the village, the filing of the petition with the village clerk and the action taken thereon by the village board. They averred, however, that only a portion of the petitioners were the owners of land upon the border and within the boundary of said village, and that the premises owned by the other petitioners were not upon the border, for the reason that the lands of the first named petitioners, which actually touched tire border of the corporation, intervened between the premises of the last mentioned petitioners and the border. The answer also alleged that the petitioners were attempting to disconnect certain lots of assessor’s addition to said village, contrary to law. The other allegations of the petition were admitted. Appellees replied that while it was true that the lands of certain of the signers of the petition did not actually touch upon the borders of the corporation, for the reason that lands of other of said petitioners intervened between their lands and the boundary line of the corporation, yet notwithstanding that fact, appellees were entitled to the relief asked for in their petition. They further replied, admitting that certain of said lots were in assessor’s addition to said village, but stated that said lots and blocks were simply assessor’s plats made for the purpose of assessment; that they did not include any streets or alleys, and that, notwithstanding such platting, they should be disconnected from said village with the other lands mentioned in the petition. Appellants filed a general demurrer to the replication, which was overruled by the court and they abided by the same. A jury was waived and the proofs submitted to the court. The court found in favor of appellees and awarded a peremptory writ of mandamus to issue, commanding appellants to grant the prayer of the petition and to pass an ordinance disconnecting the territory described in the same. From this judgment the village and its officers appealed.

It is admitted that the signers of the petition were the owners of a majority of the area of the territory sought to be disconnected and the only questions submitted for our consideration are whether those tracts of land included in the petition which do not actually touch upon the border or corporate limits of the village, can be legally disconnected under the petition; and whether a platting of lands for assessment purposes under the revenue act is such a division into village lots or blocks, as is contemplated by the statute under consideration.

1. By their petition, appellees sought to avail themselves of the provisions of paragraph 206, chapter 24, Rev. Stat. (Hurd 1899, p. 294), which provides :

“ That whenever owners representing a majorfiy of the area of land of any territory within any city or village, and being upon the border and within the boundary thereof, and not laid out into city or village lots or blocks, shall petition the city council of such city or the trustees of such village praying the disconnection of such territory therefrom * * * the city council of such city or trustees of such village may, by ordinance to be passed by a majority of the members elected to such city council or board of village trustees, disconnect the territory described in such petition from such city or village,” etc.

In the case of Young v. Carey, 184 Ill. 613, it was held that in such case the village board had no discretion, and that its only function was to see to it that the territory was located and the petition signed as the statute requires; that if the petition states the proper facts and these facts are found to exist, the board must disconnect the territory. We do not think the provisions of the statute are intended' to be restricted so as to benefit the owners of those several tracts of land which actually touch the borders of the corporation, but rather that it is intended to include any territory composed of contiguous tracts, a portion of which touches the border, although the several parts of it may be owned by different owners. To hold otherwise would be to hold that the territory could be disconnected if it was owned by one owner so that it would constitute a single tract, but that it could not be disconnected if owned by several owners and the holdings of all did not actually touch the border. For example, if A owned ten acres in a square form adjoining the border, his land could be disconnected from the village by proper petition; but if he had divided it into two five-acre tracts, one of which did not touch the border at all, and sold the latter to B, then he and B could not join in a petition together and cause the ten-acre tract to be disconnected. The language of the statute is not that the tracts of the several owners shall each be upon the border of the corporation, but that the “ territory,” a majority of the area of which is owned by the petitioners, shall be upon .the border. Again, if the construction insisted upon by appellants should be given the statute, the benefits "intended to be conferred could only be obtained by successive suits. First, those owning land adjoining the border could obtain their release by petition, and when that had been accomplished, parties owning next to them could be disconnected, and so on until all the owners of the territory of adjoining lands should obtain relief. But the law does not encourage a multiplicity of suits when the same object can be as satisfactorily attained in one suit,

“ It is an established rule in the construction of statutes that the intention of the laxv-giver is to be deduced from a view of the whole and every part of a statute, taken and compared together. The real intention when accurately ascertained will always prevail over the literal sense of terms.” Hamilton v. The State, 102 Ill. 367.

We are of opinion that the intention of the statute is to give relief upon the petition of the owners representing a majority of the area of land of any territory within the city or village upon the border and within the boundary thereof, regardless of the question as to whether the several tracts composing the territory each touch the border or not.

2. Is the platting of tracts of land for the purpose of taxation, such a laying out into city or village lots or blocks as is contemplated by the statute in question % We are of opinion that the object of the statute in pro viding for the platting of lands into lots, for taxation purposes, by the owner or proper officer, is simply for the purpose of affording the assessor an opportunity to describe it without difficulty. Such seems to be the plain reading of the statute. The requisites necessary to legalize the division of tracts of land into city lots and blocks are not attached to surveyor’s lots, nor are they shown to have been complied "with in making the subdivision in question. Our holding in reference to such subdivision, as above indicated, is not in conflict with the opinion of the Supreme Court in the case of The People v. Palmer, 113 Ill. 346, referred to by appellant, which holds that certain lots in assessor’s Subdivision should be treated as city lots under the revenue law, for the purposes of taxation. We think the. statute relied upon by appellees relates tó lots and blocks regularly laid out according to law.

We are therefore of the opinion that the prayer of the petition for the mandamus was properly allowed and the judgment of the court below is accordingly affirmed.