author: Me. Justice Wateeman Dibell, P. J.,

text:
    Frederick Putney, Adm’r, etc., v. Martha J. Keith.
    1. Negligence — Requisites in Actions for. —Actions for negligence are based upon injuries sustained in consequence of a failure to dis? charge some legal duty, and the first requisite is to show the existence of the duty which it is alleged has not been performed.
    2. Same — General Allegations of Duty Not Sufficient — Pleading.— It is not sufficient, in a declaration in an action for negligence, to allege generally that it was the duty of the defendant to do certain things; the pleader must state facts from which the law raises the duty.
    3. Same — The Opposite of Care and Prudence. — Negligence is the opposite of care and prudence — an omission to use the means reasonably necessary to avoid injury to others.
    4. Same — Definitions of Negligence. — Negligence has been defined to be an omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the course of human affairs, would do, or doing something which a reasonable and prudent man would not do.
    5. Same — In the Performance of Household Duties — Illustration.— The daughter of the owner of a home, occupied together by him and her, invited a child to spend the day with her when she and her father were both at home and when she had full charge and control thereof, and when doing her work about the house she placed a large vessel of hot water on the floor of the kitchen, into which the child inadvertently fell and was fatally injured. Held, that the daughter was not liable for such injury. r
    6. Ordinary Care — Defined.—Ordinary care is such diligence as men of common prudence usually exercise about their own affairs, or as to property, it is such care as every prudent man takes of his own goods.

      7. Same — When Consistent ivith Slight Negligence. — Ordinary care is consistent with slight negligence, except in instances such as the work of common carriers of passengers, in which the law imposes extraordinary diligence; and whoever exercises ordinary care in the conduct of his affairs, not to injure others, is not responsible for injuries resulting from acts performed with such care.
    Trespass on the Case. — Death from negligence, etc. Appeal from the Circuit Court of Winnebago County; the Hon. John C. Garver, Judge, presiding. Heard in this court at the April term, 1900.
    Affirmed.
    Opinion filed November 15, 1901.
    Statement. — From the declaration and amendments filed in this cause it appears that on November 22, A. D. 1897, one Adam Keith was the owner of his home in Winnebago county, Illinois, and occupied the same together with his daughter, Martha J. Keith, the appellee; that on the said day said Adam Keith invited one Susan W. Putney, now deceased, to spend the following day, being November 23, 1897, at his home; that said appellee well knew said Adam Keith had so invited said Susan W. Putney, as aforesaid; that Susan W. Putney went to said home on said 23d day of November, 1897; that said Adam Keith and appellee were both at home on said day; that on said 23d day of November, 1897, appellee had full charge and control of said home and that it was in her power and line of duty to keep all the rooms in said house in proper and safe condition for the use and occupancy of the persons who were rightfully found therein; that in performing her household duties appellee did on the 23d day of November, A. D. 1897, carelessly and negligently place a large dish of hot water on the floor of the room commonly called the kitchen, and in a direct line leading through the doorway from the sitting room to said kitchen, about two feet distant therefrom, through which said door appellee well knew said Susan W. Putney was in the habit of passing in running around a circuit through said rooms; that said sitting room, kitchen and the pantry formed an attractive playground for said child; that shortly after appellee so placed said dish of hot water in said doorway Susan W. Putney did so run through said doorway and inadvertently fell into said dish of hot water and shortly thereafter died from the effects of the scalds received in falling into said hot water; that said Susan W. Putney was an infant of tw7o years of age and left her surviving next of kin who have been and are deprived of their means of support and education and for whose benefit this suit is brought by her administrator.
    The court sustained a demurrer to the declaration and the plaintiff not asking further leave to amend, the court dismissed the suit. From that judgment the plaintiff prosecutes this appeal.
    B. A. Knight, attorney for appellant.
    Wm. Latheop and Robert Latheop, attorneys for appellee.
   Me. Justice Wateeman

delivered the opinion of the court.

Actions of negligence are based upon injury sustained in consequence of failure to discharge a legal duty. In such actions the first requisite is to show the existence of the duty which it is insisted has not been performed. Shearman & Redfield on Negligence, 4th Ed., Secs. 3, 4, 5, 15; DeLavergne Machine Co. et al. v. McLeroth, 60 Ill. App. 529.

It is not sufficient in a declaration to say, generally, that it was the duty of the defendant to do certain things. The pleader must state facts from which the law raises .the duty. Ayers v. City of Chicago, 111 Ill. 406-412.

What was the duty which Martha ICeith owed to Susan Putney ? She did not invite, but knew that Susan had been invited and had come to the house; that she was in the habit of passing, in running around a circuit, through the rooms of the house, among other rooms through the kitchen of the house and a doorway leading into such kitchen; she knew that Susan was a child, two years of age. Martha owed to Susan the duty of not intentionally or willfully injuring her, or preparing for her a trap or pitfall with the intention that Susan should or might fall therein. She owed to her the duty of doing her work with ordinary care for the safety of Susan. Martha was not employed to- look after and watch out for the safety of Susan. Her duties were, primarily, to care for the house, to keep it in order, and perform such household duties as the housekeeping involved. She owed no duty to Susan, except such as arose from her knowledge of the presence and habits or ways of Susan. She did not owe to Susan the duty of ceasing to discharge her household duties in the ordinary way, and in the manner by which they are by ordinarily prudent people discharged. On the contrary, for her to have folded her hands and said she could not do her usual household duties, because Susan was upon the premises, would have been a breach of her duty to look after and care for the house. Negligence is the opposite of care and prudence; is an omission to use the means reasonably necessary to avoid injury to others. Great Western R. R. Co. v. Haworth, 39 Ill. 346; Chicago & Alton R. R. Co. v. Pennell, 94 Ill. 448.

It has been defined to be an omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the course of human affairs, would do, or doing something which a prudent and reasonable man would not do. Blythe v. Birmingham Water Works, 11 Exchq. 784; Parrott v. Wells, Fargo & Co., 15 Wallace, 524.

It has also been defined as the absence of care, according to circumstances (Vaughan v. Taff Vale Railway Co., 4 Barnwell & Adolphus, 30); and it has also been defined as a violation of the obligation that enjoins care and caution in what we do. Tonawanda R. R. Co. v. Hunger, 5 Denio, (N. Y.) 256.

Ordinary care is such diligence as men of common prudence usually exercise about their own affairs; ordinary care as to property is such care as every prudent man takes of his goods. Chicago & Alton R. R. Co. v. Scott, 42 Ill. 132-143.

Ordinary care is consistent with slight negligence, except in instances such as the work of common carriers of passengers, in' which the law imposes extraordinary diligence; whoever exercises ordinary care in the conduct of his affairs not to injure others, is not responsible for hurts that come from acts performed with such care. Shearman & Redfield on Negligence, 4th Ed., Sec. 11, Vol. 1; Parrott v. Wells, 15 Wall. (U. S.), 524-538; Inhabitants of Shrewsbury v. Smith, 12 Cush. (Mass.) 177-180; Railroad Co. v. Yeiser, 8 Penn. St. 366-374-376; Sullivan v. Scripture, 3 Allen (Mass.), 564-565; Harvey v. Dunlap, Lalor’s Supplement (Hill & Denio, N. Y.), 193; Losee v. Buchanan, 51 N. Y. 476-484; Panton v. Holland, 17 Johns. 92.

Is a housekeeper or house servant bound to respond in damages for injuries which arise from the discharge of household duties in the manner and with the care for the safety of others which prudent people exercise under like circumstances ? There are persons holding judicial office, who,as children,lived in families where the kitchen was also the dining and sitting room, the living room of the household, and there are to-day many thousand families in which such is the case.

In all households it is necessary to have fire — a dangerous thing. It is necessary to boil watér, to cook food therein. The steam escaping from the tea kettle is tempting to childish fancy. In such a household, if, while the mother’s or servant’s attention is engaged, or for a moment she is called out of the room, a little daughter, two years of age, falls into the fire or puts her hands in the boiling water, or pulls the kettle down upon her, is the person who, in the discharge of her household duties, had placed these dangerous things within reach of the child, responsible for whatever injuries may through such means have come to it? Can the discharge of household duties in the manner and with the care they are usually performed under the same circumstances by prudent people constitute actionable negligence ? In the absence of allegation to the contrary, it must be assumed against the pleader that Martha was engaged in a proper domestic occupation for which such a dish of hot water was required at the particular place in the room where it was put, and that she had a right to perform that domestic office at that particular time.

It is quite true that negligence can not be attributed to infants of tender years. The question presented in this case is not at all whether Susan exercised ordinary care. It is admitted that she exercised all the care that could be expected from a child of her years. The question is, does the declaration allege actionable negligence ? Was Martha, the defendant, in discharging her household duties in the manner which prudent people do under like circumstances, guilty of negljgence ? That is to say, as a general proposition, to avoid actionable negligence toward children of tender years, must, in the ordinary household, all fires be put out, all boiling of water suspended, all cleaning of rooms and other things, with hot suds, omitted, whenever there are such children in the house, unless some grown person is put in charge of the children or they are locked out of the room where such household duties are being performed ?

It is common knowledge that the placing of pails or tubs of hot water upon the floor of a kitchen, to which small children have access, for the purpose of cleaning the room, is an ordinary occurrence, and an act such as prudent people perform in the discharge of household duties.

It is not the case, that having about a house things that attract childish attention and by which they may be injured is necessarily negligence. If such things be the ordinary utensils and appliances made use of by prudent people, and they be kept and used in such manner as they ordinarily are by prudent péople, such keeping and use is not negligence as regards adults or infants. Sullivan v. Scripture, 3 Allen (Mass.), 564-565; Railroad Co. v. Veiser, supra; Brown v. Collins, 53 N. H. 442; Brown v. Kendall, 6 Cush. 292; Crofton v. Metropolitan Ry. Co., L. R. 16 C. P. 300.

The exceptions in favor of infants of tender years, discussed and recognized in City of Pekin v. McMahon, 154 Ill. 141, and Siddall v. Jansen, 168 Ill. 43, are not applicable to the present case. The pond allowed to exist within the city of Pekin, was neither a necessary, customary, nor usual thing in such cities, and attention had been called to its danger. The elevator kept in the store of Jansen was not only accessible to children, but the child injured by crawling into the shaft" thereof, was the son of one of the employes of the firm and permitted by the defendants to visit its father at the store and run about in the vicinity of the elevator shaft.

Undoubtedly that which is ordinary care as respects adults, may not be as regards children; nevertheless, as regards children as well as adults, the care of persons hav- ¡ ing no special relation to them, required by law, is that^ which prudent people exercise under like circumstances.

We are not aware of any case in which a person engaged in the discharge of ordinary household duties in the usual manner and with the care and circumspection which prudent people usually give to such affairs, has been held liable for an injury to either adult or infant, resulting from such conduct on the part of such housekeeper or servant.

The judgment of the Circuit Court is affirmed.

Dibell, P. J.,

dissenting:

The following "are some of the general rules of law involved in this case. Where one visits the private house of another as a social guest, the owner is bound to take the same care of the guest that he takes of himself and the other members of his household, and no more, except that the owner also assumes the duty toward his guest of exercising reasonable care that such premises shall not contain dangerous obstructions, pitfalls, and the like, which may result in his injury, and if the guest is injured without his fault by reason of the failure of the owner to exercise reasonable care to have his premises free from such dangerous pitfalls, or the like, the owner will be liable to the guest for the injury, and also with the exception hereafter stated as to infants. The owner or occupant of premises is not bound to keep them safe or in any particular condition for the benefit of trespassers, intruders, mere volunteers or mere licensees, coming upon them without his invitation, express or implied. The exception as to children in both cases is that if the owner or occupant erects, creates, brings or leaves upon his premises any dangerous "thing or condition attractive to young children, or which attracts the childish instincts of young children to play with it, he is bound to use reasonable precautions to protect them from injury while playing with it or coming in its vicinity, and if he does not and they are attracted to it to-their hurt, he is liable. (1 Thompson’s Commentaries on Negligence, sections 944, 971, 1024, 1050.) These exceptions in favor of infants of tender years are fully discussed and recognized in City of Pekin v. McMahon, 154 Ill. 141, and Siddall v. Jansen, 168 Ill. 43.

According to the allegations of the third count Susan was but two years old, an age at which a child is incapable of exercising discretion for her own protection; the rooms were a,n attractive playground for the child; she was accustomed to use them as such and to run around the rooms of the house and through the kitchen door, and Martha knew these facts, and knew the child was there by Adam Keith’s invitation. In the direct course of Susan’s customary play Martha placed a dish of hot water, which was not only itself dangerous to an undiscriminating child, but which (it was averred) made it unsafe for any person to pass into the kitchen through that door. The facts averred imply that the dish was low enough so that a little child could' fall into it, and that Martha took no precaution to protect the child, as she might have done by placing the dish on a chair or bench. Martha’s acts and omissions were each charged to have been negligent. The child fell into the dish and thereby lost her life, and left next of kin for whose benefit an action is provided by law. The dish of hot water was, as to so young a child, in the nature of a dangerous pitfall. The fact that it was there for a proper domestic purpose did not excuse Martha for her failure so to guard it as to protect the child. I am of opinion the amended third count brought the case within the exceptions in favor of tender infant children, and stated a breach of the duty owing to such a child, and that the demurrer thereto should have been overruled.


source: Caselaw Access Project

author: Mr. Justice Waterman

license: Public Domain

text:
    Edward Thompson et al. v. The County of Jo Daviess.
    1. Counties — Liability for Expenses Attending the Burial of Indigent Veterans of the Civil War. — Uader the statute (Laws, 1901, p. 200) providing that it shall be the duty of the board of supervisors in counties under township organization and of the county commissioners in counties not under township organization to designate suitable persons, whose duty it shall be to cause to be properly interred the bodies of honorably discharged soldiers who served in the army of the United States during the late civil war, only such persons as have been designated by the board of supervisors are authorized to put a county to expense for such burials.
    Assumpsit, for services in burying an indigent veteran of the civil war. Appeal from the Circuit Court of Jo Daviess County: the Hon. James Shaw, Judge, presiding. Heard in this court at the April term, 1901.
    Affirmed.
    Opinion filed July 12, 1901.
    Rehearing denied October 8, 1901.
    M. H. Oleary, attorney for appellants.
    J. G. Boevers, State’s Attorney, and W. Spensley, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

Hover Oleson, an indigent veteran of the civil war, died in the town of Guilford, county of Jo Daviess.

The county board of Jo Daviess county had previously appointed a committee of one for each town in the county to attend to the burial of indigent soldiers. The committeeman appointed for Guilford, one C. Duerstine, was dead at the time of the death of Oleson, and no successor bad been appointed. On November 2d, William Fleming, being informed of Oleson’s death, and also of the death of Duerstine, committeeman for Guilford, came to Galena, went to the undertaking rooms of appellants, selected a casket, coffin box, burial robe and underwear, and took them out to the residence of the deceased, Oleson, and under the instructions and by the directions of the coroner buried the deceased on the following day in the burying ground on the county poor farm.

Fifteen or twenty minutes after Mr. Fleming left the business place of appellants with the above mentioned articles, Frank J. Sullivan, one of appellants, acquainted William Ehrler, supervisor of Guilford, with what had been done, and said Ehrler did not disapprove of what had then been done.

William Vincent, indigent veteran committeeman for East Galena, a town adjacent to Guilford, received notice of Oleson’s death during the forenoon of November 2d, and with a number of civil war veterans, on November 4th, proceeded to the county farm, disinterred the remains of Oleson and interred the same in Greenwood cemetery, in the city of Galena, using the above mentioned articles furnished by appellants.

Appellants regularly- filed their claim for the articles furnished at the December, 1899, meeting of the county board.

Action was deferred to the following February meeting, when the claim was rejected.

At the December, 1899, meeting of the county board, William Vincent filed a bill for $35 for burying said Oleson as an indigent veteran of the civil war, which bill was allowed in full by the county board.

At the February, 1900, meeting of the county board said William Vincent reported that he had tendered $15 to appellants in payment for their claim, which they refused .to receive in full payment. Whereupon he returned said $15 into the county treasury; which report was received and approved by said board.

Appellants tendered their hearse to committeeman William Vincent and to the veteran committee, without charge, to re-inter the remains of Oleson, deceased. The verdict and judgment were for appellee.

By a statute in force July 1, 1891, it was enacted as follows:

“ Be it enacted by the People of the State of Illinois, represented in the General Assembly, that it shall be the duty of the board of supervisors in counties under township organization, and of the county commissioners in counties not under township organization, to designate some suitable person or persons.who shall serve without compensation, whose duty it shall be to cause to be properly interred the body of any honorably discharged soldier, sailor or marine who served in the army or navy of the United States during the late war, who may hereafter die in such county without having sufficient means to defray funeral expenses.
“ The expense of such burial shall not exceed the sum of $35; such burial shall not be made in any cemetery or burial ground used exclusively for the burial of the pauper dead, or in that portion of any burial ground so used.
“ The expense of such burial and headstone shall be paid by the county in which such soldier, sailor or marine resided at the time of his death; and the board of supervisors in such counties under township organization, or county commissioners in such counties not under township' organization, are authorized and directed to audit the amount and pay the said expenses in a similar manner as other accounts against such county are audited and paid.”

Under this statute only such person or persons as had been designated by the board of supervisors was or Avere authorized to put the county to expense for the burial of an honorably discharged soldier.

Mo such person obtained any article or service from appellants.

Is the county liable'to appellants for articles furnished for the burial of a pauper, “or person not coming within the definition of a pauper” mentioned in section 24 of chapter 107 of the B. S. ?

Hr. Fleming, by whom the goods furnished were obtained, had no authority to bind the county. Hr. William Ehrler, supervisor, did not order or obtain any of the articles supplied to Hr. Fleming. His conversation with one of appellants after Hr. Fleming had taken the coffin, etc., away, was not a recognition of any authority by Hr. Fleming to bind the county or any promise that the county would pay appellants. He seems to have thought that he had nothing to do with the matter and to have understood that the old soldiers were attending to the burial.

Mor did appellants understand that any one authorized to see that a pauper or other person was “decently buried ” at the expense of the county had procured or sanctioned the procuring of mortuary supplies from them.

Appellants acted, as did Hr. Fleming, hastily, and a mistake was made.

The proper indigent soldiers’ committee took the matter up and saw that the honorably discharged soldier was buried in a place not set apart for paupers.

The expense thus incurred the county has paid.

The judgment of the Circuit Court is affirmed.


author: Mr. Justice Higbee

text:
    Illinois Steel Co. v. John McFadden, Adm’r.
    Master and Servant — Injuries to Employes While Obeying Orders. — Where, in ajilas* furnace, when removing a defective “bosh plate” for the purpose of replacing it with anew one, it was customary for the superintendent of the furnace to direct the. blast to be entirely stopped at the time, and such superintendent having ordered an employe to assist in removing the plate without directing the blast to be so stopped, and as a consequence of his neglect, the removal of the plate was accompanied by a torrent of fire, coke and gas, inflicting fatal injuries upon the employe, it was held that in failing to direct the blast to be stopped the superintendent was guilty of negligence, for which his principal was liable.
    Trespass oil the Case. — Death from negligence. Appeal from the Circuit Court of Will County; the Hon. Dorrance Dibell, Judge, presiding. Heard in this court at the April term, 1901.
    Affirmed.
    Opinion filed October 8, 1901.
    Garnsey & Knox, attorneys for appellant.
    J. W. Downey, attorney for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was an action on the case brought by appellee against the Illinois Steel Company, charging the latter with negligently causing the death of appellee’s intestate, Harry Walsh, on May 22, 1899. The first count of the declaration charged that the defendant ordered said Harry Walsh to go upon a certain platform at a blast furnace in one of its buildings, and loosen a certain bronze plate or casting commonly called a “ bosh plate ” set in the wall of said furnace; that said Walsh and other agents and servants of appellant, in obedience to said order, went upon said platform and were engaged in loosening said plate, at a time when there was a blast in said furnace which caused a great amount of pressure upon the walls of the furnace and upon the bosh plate; that it was the duty of defendant to remove the pressure from said furnace, caused by said blast, so that said bosh plate would not, by said pressure, be forced out of the wall of the furnace; that appellant carelessly and negligently failed and neglected to cause the pressure on said furnace and bosh plate, caused by said blast, to be removed; that said blast forced said bosh plate from the wall of the furnace and permitted the flame and fire to escape, inflicting injuries upon said Walsh from which he afterward died. The second count was the same as the -first, except that the injuries are alleged to have been caused by the negligence of Patrick Oonlon, an employe of appellant, who was superintendent of the blast furnace. The general issue was pleaded and there was a verdict and judgment in favor of appellee for $5,000, from which the company appeals.

Walsh was employed in the steel mills of appellant at Joliet as a pipe fitter, and worked under the direction of Conlon, an assistant superintendent of appellant, who had charge of all the men about the furnace room where deceased was employed. It was one of the duties of deceased to assist in removing bosh plates from the furnace when necessary. A bosh plate is a hollow metal casting inserted in the walls of a blast furnace, constructed so that a stream of water may be kept running through it, designed to keep the wall of the furnace cool. When a plate becomes injured'so that it leaks, it must be removed and a new plate inserted. The plate in question was about twenty-two inches wide, twenty-eight inches long and about two and one-half inches thick on the side that was exposed to the heat of the furnace and about five inches thick on the outside. Such a plate weighs from 280 to 307 pounds. When it is necessary to remove a bosh plate, a bar of iron, which in this case was about thirteen feet long, is inserted, into an ear on the plate made for. the purpose. At the end ..of the bar farthest from the furnace a pin is inserted, projecting through the bar. A heavy ball which slides upon the bar is thrown forcibly against the pin and the bosh plate thus loosened. It was the custom to first loosen the bosh plate so that it could be taken out quickly, but to defer the final removal until a time when the casting of metal was being run out of the furnace. These castings were taken off about every three hours. When the casting is being taken off the blast upon the furnace is gradually lowered under the direction of the superintendent, or his assistant, until its entire removal, at which time the outlet from which the melted iron flows is stopped with a large lump of clay and the blast immediately turned on again with full force. It was the custom to remove the defective bosh plate and insert the new one while the blast was off. It is claimed by appellee that at the time of the accident in question Conlon, the superintendent, failed to direct the blast to be entirely stopped at the time he ordered Walsh and the men with him to remove the bosh plate; that as a consequence of such neglect the removal of the plate was accompanied by a torrent of fire, coke and gas, which inflicted fatal injuries upon Walsh.

Appellant contends that the verdict is not sustained by the evidence. Prior to the occurrence of the accident the bosh plate in question had been loosened, preparatory to its removal during the time when the cast should be drawn from the furnace. While the cast was being taken off, Conlon ordered Walsh and the men who worked with him in that business to go upon the platform where the work was to be done and proceed to take out the plate. While there is some controversy upon the subject in the evidence, the weight of the proof is, that after ordering the plate to be removed, Conlon neglected to direct the blast to be entirely taken off and that as a consequence the injuries resulted to Walsh. Walsh was acting under the direction of Conlon and had a right to expect that he would order the blast to be taken off while the bosh plate was being removed. In failing to do this Conlon was guilty of negligence for which appellant, his principal, is responsible.

Appellant offered twenty instructions, eighteen of which, fully covering the case, were given. The first of the two refused instructions told the jury that if Walsh was apprised or notified by the blowing out of the nipple on the side of the bosh plate, that it would or might be dangerous to proceed with the work, it was his duty to notify the men who had charge of the weight on the bar to stop striking, and that if he failed to do so, he did not exercise the care for his own safety which the law requires. The instruction apparently assumes that the nipple on one side of the bosh plate was blown out. This was improper, as it was not an admitted fact that the nipple was blown out and it was therefore a question for the jury to determine.

But even if the nipple was blown out, the question as to whether it was therefore dangerous to proceed, and whether if he did. proceed, expecting, as he had a right to, that Conlon would cause the blast to be taken off, he was himself guilty of negligence, were also questions of fact for the jury.

The second of appellant’s refused instructions informed the jury that if they found that Conlon superintended the removal of the bosh plate, and that he exercised all the care which in his judgment, as superintendent, it was necessary to exercise at that time, and that notwithstanding such exercise of care by him, the plate was forced out and Walsh injured, they should find for appellant. This instruction was also properly refused. There appears to have been a safe plan to follow in the removal of defective bosh plates, and that plan was the one used by Conlon and those under his direction prior to the time Walsh was injured. This instruction would have permitted Conlon, without notice to Walsh or the other employes, to depart from the usual custom which had been found to be safe, and experiment with a new and untried plan which might subject the employes to additional hazard, in case Conlon thought at the time he was exercising all the care that was necessary. Such experiments can not be permitted at the expense of employes. We find no error in the record and the judgment of the court below is accordingly affirmed.

Mr. Presiding Justice Dibell took no part in the consideration or decision of this case.


text:
    Illinois Steel Co. v. Stephen Sitar.
    ^ Evidence — Questions Calling for the Conclusions of the Witness.— is not erl‘or to sustain an objection to a question calling for the opinion or conclusion of the witness.
    3. Damages— Where $1,700 is Not Excessive. — Where an employe in a blast furnace while assisting in the removal of a “ bosh plate ” was severely burned in the face and his left ear so injured that his hearing was permanently affected and the sight of one if not both of his eyes impaired, a verdict for $1,700 is not excessive.

      3. Negligence — Reference to Former Decisions. — For a statement of the views of the court as to whether the facts in this case were sufficient to warrant the jury in finding the defendant guilty under the evidence, reference is made to the case of Illinois Steel Co. v. McFadden, Adm., etc., 98 111. App. 296, ante.

    Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Will County; the Hon. John Small, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 15, 1901.
    Garnsey & Knox and Wm. Duff. Haynie, attorneys for appellant.
    Donahoe & McHaughton, attorneys for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit brought by appellee, Stephen Sitar, against the Illinois Steel Company, appellant, to recoverdamages for personal injuries claimed by appellee to have been received by him while in the employ of appellant, on May 23, 1899.

Appellee was a workman employed at a blast furnace of appellant in Joliet, Illinois, and at the time in question was engaged in assisting Harry Walsh, a pipe fitter, and others, in removing what is known as a bosh plate” from the furnace. The removal of the plate in question was followed by a stream of fire, coke and gas, through the aperture so caused, which inflicted the injuries upon appellee complained of. Walsh, who stood in front of appellee., received injuries at the same time from which he subsequently died. His administrator brought suit against appellant in the Circuit Court of Will County, and the same was afterward brought by appellant to this court under the title of Illinois Steel Company v. John McFadden, administrator, etc., supra, page 296. An opinion was filed in that case October 8, 1901, and as the injuries to Walsh and appellee were received at the same time and under the ' same circumstances, we refer to that case for a full statement of the facts.

There was a verdict and judgment in this case in favor of appellee for $1,700. Appellant claims that the negligence charged against it was not proven. We are of opinion, however, that the facts were sufficient to warrant the jury in finding appellant guilty of such negligence, and as the case in that particular is identical with the case of the Illinois Steel Company v. McFadden, supra, we also refer to that case for a statement of our views upon this question.

Upon the trial a witness, John James, who was present at the time appellee was injured, was asked upon cross-examination, by counsel for appellant, whether he expected and believed that the plate would remain in the furnace until the blast was finally taken off. Appellant insists that in sustaining an objection to this question the court erred. We do not think so, for the reason that the question called for an opinion or conclusion of the witness, which could have no bearing upon the case. But even if it were competent, substantially the same question had been previously asked and answered by the witness without objection.

Appellant further claims that the proximate cause of the injury was the negligence of Walsh, the pipe fitter, and that as Walsh and appellee were fellow-servants, the latter can not recover. It appears from the proof, however, that Walsh was not guilty of negligence in regard to any matter connected with the removal of the plate, but that the trouble was occasioned by the negligence of Conlon, who was in charge of the furnace in question.

Appellant also assigns as error that the damages are excessive. It appeared from the evidence that appellee was severely burned in the face; that his left ear was injured so that the hearing was permanently affected; that the sight of one, if not both, of his eyes was impaired by the injuries he received and that he sufféred severe pain. Under such circumstances we can not say that the judgment for $1,700 was excessive.

The judgment of the court below is affirmed.


author: Mr. Justice Brown

text:
    Chicago, B. & Q. Ry. Co. v. Warren Presbrey.
    1. Real Estate — Damages to, by Railroads — Questions of Fact.— The question as to whether real property has been damaged by the construction and operation of a switch track by a railroad company, and if damaged, to what extent, are questions of fact for the determination of a jury.

      2. Verdicts — On Conflicting Evidence. — Courts of review uniformly hold in cases where there is an irreconcilable conflict of evidence, that unless the verdict is manifestly against the weight of the evidence the judgment based upon it will not be set aside.
    3. Testimony — To be Weighed, not Counted. — In the determination of questions at issue, the testimony submitted is to be weighed, not counted.
    Trespass on the Case. — Damages by the construction of a switch. Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 15, 1901.
    A. A. Wolfersperger and Sweeney & Walker, attorneys for appellant.
    J. L. MoPherran, attorney for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This was an action on the case by appellee against appellant to recover damages to real estate.

Appellee owned and occupied a residence in the city of Bock Falls. Appellant constructed and operated a switch track on Park street in said city along the east side of appellee’s premises and in such close proximity thereto and in such a manner as to impair, if not destroy, the access to the premises from said street.

The trial resulted in a verdict and judgment in favor of appellee for $550. It is not contended that 'there was any error in giving, refusing or modifying instructions, or that the jury was not fully and fairly instructed as to the law, nor is it claimed that the court erred in admitting or rejecting testimony.

The only error relied upon in argument to reverse the judgment is that the evidence does not sustain the verdict.

Each party called and examined eight witnesses upon tlie question of damages. Those produced by the appellee estimated the damages at various amounts, from $750 to $1,500, while those called by appellant testified that in their opinion the property had sustained no damage whatever.

Whether the property was damaged, and if damaged, to what extent, were questions of fact for the jury to determine from the evidence, guided by proper instructions as to the law."

The jury and trial judge saw witnesses and had superior advantages for judging of their credibility and the weight to be given to their testimony. It can not be held as a proposition of law that simply because an equal number of witnesses testify in opposition to each other upon a given question of fact that therefore the evidence is evenly balanced. Testimony is to be weighed, not counted. The intelligence and integrity of the witnesses, their means of information, as well as many other things, are to be considered in determining upon which side is the preponderance or greater weight of the evidence.

This verdict received the approval of the trial judge.

Courts of review have uniformly held, in cases in which there was an irreconcilable conflict in the evidence, that unless the verdict was manifestly against the weight of the evidence the judgment should not be set aside.

We can not say that the verdict is against the weight of the evidence.

The judgment of the Circuit Court will be affirmed.


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    William Coffman v. John C. Burkhalter et al.
    1. Trespasses — Innocent Intentions Not a Defense. — Persons committing a trespass are liable for actual damages, no matter how good, proper or innocent their intentions may have been.
    3. Instructions — In Trespass Against Joint Defendants. — In an action of trespass to real estate against several defendants jointly, an instruction which states that the plaintiff can not recover against them, or either of them, for any act or damage done by any one or two of them separately, unconnected with and independent of the other defendant or defendants and with which all the defendants jointly were in no way or manner connected or concerned, does not state the law correctly.
    Trespass, to real estate. Appeal from the Circuit Court of Knox County; the Hon. John J. Glenn, Judge, presiding. Heard in this court at the April term, 1901.
    Reversed and remanded.
    Opinion filed October 8, 1901.
    J. A. McKenzie and P. S. Post, attorneys for appellant.
    Fletcher Carnet, James W. Carnet and Shumwat & Bice, attorneys for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

It appears from the proofs in this case that appellant owned lands south and west of the farm of appellee Burk-halter. The land south of Burkhalter was used by appellant as a pasture, while that on the west was rented to one ICinzer, who had it in corn. In the pasture appellant had 169 head of cattle. It further appears that more than two years prior to the time of the occurrence of the acts complained of in this suit, proceedings had been completed by appellees, as commissioners of highways, to open a public road running north and south between the tract rented by-appellant to ICinzer and Burkhalter’s land, to the north line of appellant’s pasture. The records in reference to the road were not in evidence, but it appears probable that it was provided that the road should extend south through appellant’s pasture. It is admitted that the road was not opened within two years by appellants and no attempt was ever made to open it through the pasture, the north line of the same remaining completely fenced. Burkhalter had completed a fence along the east side of the proposed road across his land and had removed the north half of the former division fence between himself and the lands rented by appellant to Kinzer, which was his half of the fence and amounted to eighty rods. The south eighty rods of the old north and south division fence, belonging to appellant,, remained standing in what would be the middle of the proposed mad. On October 16, 1899, appellees, acting as road: commissioners, for the purpose of opening the road, removed that portion of the north pasture fence, extending from the southwest corner of Burkhalter’sland, west to the north and south division fence, belonging to appellant, which 'still remained standing as above set forth. The length of the fence so removed was about twTenty-five feet. As a result of the removal of this fence, 160 head of appellant’s cattle escaped from his pasture and 116 head of them went into Kinzer’s corn field, where they remained all night. This corn had been planted late and was still soft. The next day appellant, with the assistance of the man who worked for him on the place, drove the cattle out of the corn, back into the pasture and replaced the fence. About two weeks later appellees again tore down the fence so rebuilt and also the eighty rods of the division fence running north and south along the center of the proposed road as above referred to. At this time the cattle did not escape, but appellant was compelled to make a new fence around the gap made in his pasture to keep them in. On October 22, 1900, appellant brought this suit against appellees to recover damages for the injuries occasioned by the trespasses alleged to have been committed by them as above set forth.

Appellant claimed the right to recover for the cost of rebuilding the fences removed, the expense of getting his cattle back into the pasture, and the injury to 160 steers from the effect of the corn eaten by them in Kinzer’s field. The case was tried by a jury and there was a verdict and judgment against appellees, appellant’s damages being assessed at one cent.»

Appellant urges as reasons why the judgment should be reversed that the evidence clearly showed he sustained actual damages far in excess of the amount of the verdict and judgment, that improper instructions were given for appellees and proper instructions offered by appellant refused. Upon the trial it was admitted that appellees, at the time of committing the acts complained of, were commissioners of highways, and that said acts were done without malice and under the belief that they were, in so doing, acting as such commissioners. Plaintiff therefore sought to recover only the actual damages claimed to have been sustained by him. These actual damages, whatever the}r might be, plaintiff was, under the evidence, undoubtedly entitled to recover. A large amount of the evidence was directed to the question whether appellee’s cattle actually suffered materially in market value by reason of the corn eaten by them while in Kinzer’s field. But leaving this question, upon which the evidence was conflicting, out of consideration, it was nevertheless clearly shown that appellant was put to the trouble and expense of getting the cattle back into his pasture and of - rebuilding the fence at the gap on two different occasions. He was also entitled to recover Avhat it would have cost to replace the eighty rods of the division fence torn down by appellees. These expenses were proven to have been largely in excess of the amount allowed appellant for damages.

Instruction Ho. 3-§- offered by appellant and refused by the court told the jury in effect that in case they found the defendants committed the trespasses complained of they would be bound for actual damages, no matter how good, proper or innocent their intentions may have been. The instruction was not carefully worded, but it declared a correct principle of law which was not covered by other instructions and should have been given.

Instruction Ho. 4 given for appellees informed the jury that as plaintiff had brought his suit against the defendants jointly, he could not recover against them, or either of them, for any act or damage done by any one or two of them separately, “ unconnected with and independent of the other defendants or defendant, and with which all the defendants jointly, were in noway or manner connected or concerned.” It is true the jury found a verdict against all of the defendants so that possibly no injury was done by this instruction. It, however, failed to state the law correctly and should not have been given.

For the reasons above indicated the judgment of the court below is reversed and the cause remanded.


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    Frost Manufacturing Co. v. Samuel H. Smith.
    1. Master and Servant —Duty of the Master to Furnish His Servant a Reasonably Safe Place to Wwh is a Positive Obligation. — The duty of the master to use reasonable care in furnishing his servant a reasonably safe place in which to do his work, is a positive obligation resting upon the master, and he is liable for the negligent performance of such duty, whether he undertakes its performance personally or through another servant.
    2. Same — The Master is Not Exonerated by the Neglect of a Fellow-servant.— Care in supplying safe instrumentalities in the doing of the work undertaken by his servant is a duty which the master owes to the servant, and when the performance is delegated to a fellow-servant the responsibility of the master still remains, and the negligence of such fellow-servant is in law the negligence of the master. '
    8. Same — Liability of the Master for the Negligence of His Servant.— Where the servants of a common master are not associated in the discharge of their duties, or where their employment does not require co-operation, and does not bring them together, or into such relations that they can exercise an influence upon each other promotive of proper caution, the reason of the rule holding the master responsible for damages resulting from the negligence of his servants seems reasonably to apply with as great force as if a stranger were the party injured.
    4. Instructions — Where a Party Can Not Complain. — A party litigant can not be heard to complain of instructions similar to those given at his own request.
    Trespass on the Case, for personal injuries. Error to the Circuit Court of Knox County; the Hon. George W. Thompson, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 15, 1901.
    Williams, Lawrence & Welsh and J. A. McKenzie, attorneys for plaintiff in error.
    Shumway & Bice, Fletcher Carney and James W. Carney, attorneys for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This was an action on the case by Samuel H. Smith against the Frost Manufacturing Company to recover damages for an injury received by the plaintiff while in the employ of the defendant.

The company was constructing new buildings for its business in the city of Galesburg and erected a scaffold upon which several of its servants were to work and certain material was to be placed. Smith was at work under or nearly under the scaffold.

On June 19, 1900, while five or six men and certain materials were on the scaffold, one of its timbers broke and the scaffold fell and struck Smith, inflicting serious injuries.

The first count of the declaration charges negligence in the construction, and the second count negligence in the use of the scaffold by overloading.

There was a plea of not guilty and a verdict and judgment in favor of the plaintiff for one thousand dollars.

Certain timbers upon which the body of the scaffold rested were 2x6. It was one of these that broke and let the scaffold fall. The record shows that the superintendent of construction was urged to use larger timbers for these supports but refused to do so.

The plaintiff was engaged in framing timbers to be used in the construction of the building. After certain work had been done on the scaffold it was taken down and moved a short distance, rebuilt and used again.

On the morning in question the scaffold was moved up to where the plaintiff was at work. He proposed to the superintendent to move the place of work away from the scaffold. The latter told him to continue his work at the place he was then occupying. He did so. Thirty minutes later the scaffold fell and plaintiff received the injuries, as compensation for which he recovered the judgment in this case.

It is the duty of the master to use reasonable care to furnish his servant a reasonably safe place in which to perform his work. This is a positive obligation resting upon the master and he is liable for the negligent performance of such duty, whether he undertakes its performance personally or through another servant. Kewanee Boiler Co. v. Erickson, 78 Ill. App. 35.

Care in supplying safe instrumentalities in the doing of the work undertaken by the servant is a duty the master owes to the servant, and when the performance of that duty is devolved upon a fellow-servant, the master’s responsibility in respect to that still remains. In such case the negligence of the fellow-servant is the master’s neglect of duty. C. B. & Q. R. R. Co. v. Avery, 109 Ill. 314.

Whether the company performed this duty and whether it overloaded the scaffold, thereby rendering it unsafe, were questions for the jury to determine under proper instructions as to the law. There was a conflict in the evidence upon all of the material issues of fact, and we perceive no reason to disturb the conclusions reached by the jury.

It is urged by the company that the judgment must be reversed because of the action of the trial court in passing upon the instructions. The first objection is that instructions given at the instance of the plaintiff overstate the duty the company owed to Smith as its employe. We agree with counsel, but the same propositions were contained in instructions the company asked the court to give to the jury and which the court gave the jury. The defendant below, the plaintiff in error here, can not be heard to complain of instructions similar to those given at its own request.

Objection is also made to plaintiff’s instructions because they authorized the jury to find the defendant guilty, notwithstanding the injury to the plaintiff might have been caused by the negligence of a fellow-servant of the plaintiff.

We are of the opinion that there is no evidence in the record upon which to predicate the theory that those who either negligently constructed or negligently used the scaffold were fellow-servants of the plaintiff.

The plaintiff had absolutely nothing to do with the selection of the materials for the scaffold, its mode of construction or its use. His work was entirely independent of, and different in character from that of the employes who used the scaffold. There was nothing in the nature of the work to cause any co-operation of the plaintiff with those who either constructed or used the scaffold.

Where servants of a common master are not associated in the discharge of their duties — where their employment does not require co-operation, and does not bring them together, or into such relations that they can exercise an influence upon each other promotive of proper, caution — in such case, the reason of the rule holding the master responsible for damages resulting from the negligence of one of his servants seems reasonably to apply with as great force as if a stranger were the party injured. C. & N. W. R. R. Co. v. Moranda, 93 Ill. 315.

There was no error committed by the trial court in giving, refusing or modifying instructions. The judgment of the Circuit Court will be affirmed.


author: Me. Justice Beown

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    Elgin, Joliet & E. Ry. Co. v. Bates Machine Co.
    1. Common Carriers — Power to Limit Their Liability — Through Freight. — It is lawful for a railroad company as a common carrier to contract with a shipper of freight to points beyond its terminus, to limit its liabilities to injuries occurring upon its own line of road, but in the absence of such limitation its liability will extend to injuries occurring upon the lines of other roads beyond the terminus of its own.
    2. Same — Acceptance of Through Freight. —The acceptance by a common carrier, for transportation, of freight to a place beyond the terminus of its own line, and its receipt given for the same, constitute a prima facie contract to carry and deliver such freight to the place of its destination.
    3. When the Receipt by the Shipper of a Bill of Lading Does Not Constitute a Contract. — The mere receiving of a bill of lading without notice of restrictions upon the common law liability of the carrier, therein contained, does not amount to an assent to such restrictions so as to make them binding upon the consignor.
    4. Same — Burden of Showing that the Consignor Assented to the Limitations. — A carrier seeking to avoid liability under a clause contained in a bill of lading limiting its liability, has the burden of showing that such restrictions were assented to by the consignor.
    5. Same — May Refuse to Receive Freight Not Properly Prepared for Shipment. — When freight offered to a common carrier is not properly prepared for shipment, such carrier may decline to accept it, or may properly prepare it for shipment, itself.

      Action to recover the value of freight ruined in transportation. Appeal from the Circuit Court of Will County; the Hon. John Small, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 15, 1901.
    J. L. O’Donnell, attorney for appellant.
    G-aknsey & Knox, attorneys for appellee.
   Me. Justice Beown

delivered the opinion of the court.

This was a suit by appellee against appellant to recover the value of a fly-wheel shipped on appellant’s road from Joliet, Blinois, and consigned to Louisville, Kentucky. The wheel was ruined in transit.

A jury was waived. There was a finding and judgment for plaintiff for $1,200. The appellant interposes two defenses. The first is that by the terms of the contract of shipment its liability ivas limited to the time the fly-wheel was on appellant’s own line of road; the second is that the wheel was broken by reason of the negligent and unskillful manner in which it is alleged to have been loaded, supported and fastened upon the car by the appellee.

The fly-wheel weighed twenty tons. It was loaded upon a flat car of appellant. At Dyer, Indiana, the car was delivered by appellant to the Mon on road, by which company it was taken to its destination at Louisville, Kentucky, where it was discovered that the wheel was broken and totally destroyed in value. ■

We are of the opinion from the evidence that the injury to the wheel did not occur while the car was upon the line of the appellant’s railroad.

It was lawful for appellant to contract with appellee to limit its liability to injury occurring upon its own line of road.

In the absence of such limitation its liability would extend to injuries occurring upon the lines of the Monon.

The material inquiry upon this branch of the case therefore is, did the contract of shipment make such limitation? We hold .that it did not.

The bill of lading is the contract. It is as follows:

¡í Joliet, III., July II, 1899.
Received from Bates Machine Company, by the E. J. & E. C., G. & L. R. R. in apparent good order, except as noted, the packages described below (contents and value unknown), marked and consigned as indicated, which said company agrees to transport with as reasonable dispatch as its general business will permit, to destination, if on.its road, or otherwise to the place on its road where same is to be delivered to any connecting carrier. Through rate of freight as designated below is hereby guaranteed by this company. Rate fifteen cents per cwt., Joliet, Ill., to Joliet via Louisville, Kv.
Consignee. Destination and Marks. Description. Weight
Subject to Correction.
Hope Worsted Mills Co. E. J. & E.
Louisville, Ky., Stat’y Eng’s O. & L. s! L. & C. P. L. McManus, Agent.”

An examination of the bill of lading issued by appellant discloses the fa’ct that the destination was Louisville, Kentucky, not Dyer, Indiana; that the rate was an entire one from the place of shipment to the destination. When we consider the great weight of the wheel, the difficulty as well as danger of unloading, together with the fact that it ■was delivered at Louisville on the car of appellant on which it was loaded at Joliet, we are impelled to the conclusion that it was the intention and understanding of the parties that the wheel should not be unloaded at Dyer, Indiana, and transferred to a car of the Monon or any other connecting line at that point. The bill of lading contains no specified rate beyond the line of the appellant. When the car left Joliet over appellant’s road the appellee had no further control over it, nor voice in determining to what railroad it should be delivered. That was all under the control of, and to be determined by, the appellant.

We are unable to find any language in the bill of lading limiting the liability of the appellant to injuries occurring upon its own lines.

In the case of T. P. & W. R. R. Co. v. Merriman, 52 Ill. 123, Mr. Chief Justice Breese, speaking for the court, said :

“ This was an action of assumpsit, brought to the Peoria Circuit Court by Amos L. Merriman against the Toledo, Peoria & Warsaw Eaihvay Company, for failing to deliver certain goods and chattels of the plaintiff, to be carried by the defendants to the city of Washington.
The goods delivered to the defendants’ agents at Peoria, were placed in a box marked to the plaintiff in Washington, in the District of Columbia, and for which a receipt or bill of lading was made out and.delivered to the plaintiff’s agent at Peoria. The goods failed to reach their destination.
The defense was, that they were not liable as common carriers beyond the terminus of the defendants’ road,which was at the State line, and, as it was not shown that the loss happened on defendants’ road, the plaintiff could not recover.
This defense is utterly groundless, as the receipt, or bill of lading, offered in evidence, shows upon its face it was a ‘ through freight contract,’ and it was in proof bjr the defendants’ agent that freight received by this company as through freight, was never unloaded or delivered at their terminus, but forwarded on to its place of destination in the cars in which it was received. It is idle, then, for the defendants to claim this was not a through contract, and that their liability did not extend beyond the terminus of their own road.”

In C. & N. W. Ry. Co. v. Simon, 160 Ill. 648, it was held that the acceptance by a common carrier, for transportation, of goods marked to a place beyond the terminus of its own line, and its giving a receipt therefor, constitute a prima facie contract to carry and deliver at the point so marked; that the mere receiving of a bill of Jading without notice of restrictions upon the common law liability of the carrier therein contained does not amount to an assent to such restrictions, making them binding upon the consignor; that a carrier seeking to avoid liability under a clause limiting its liability, contained in a bill of lading, which constitutes a contract, has the burden of showing the restrictions of its common law liability were assented to by the consignor.

If the bill of lading in this case contained the limitation claimed it would be unavailing, as the evidence fails to establish any assent on the part of appellee to release appellant from, its common law liability to deliver the wheel safely at Louisville.

The second defense relied upon was an issue of fact. It is claimed by appellant that the injury to the wheel was caused by the negligent manner in which it is alleged to have been loaded, supported and fastened upon the car by appellee. There is a conflict in the evidence upon this issue and we can not say that the finding of the trial court, which was adverse to the appellant, was not supported by the preponderance of the evidence. Moreover, if the wheel was not properly prepared for shipment, it was apparent to appellant and it should have refused to accept it or prepared it itself. R. R. Co. v. Swift, 12 Wall. (U. S.) 262.

There is no contention that the damages are excessive. Finding the record free from error the judgment of the Circuit Court will be affirmed.


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    City of Geneva v. People ex rel.
    1. Mandamus — When an Order for the Writ is Not Defective. — An order for a writ of mandamus is not defective in not specifically stating the act to be performed by a city council, where the prayer of the petition is clear and specific and asks only for a writ of mandamus directed to the city council commanding them to pass an ordinance disconnecting the territory therein described.
    2. Same — Construction of tlie Statute. — The provision of the statute (Laws of 1879, p. 77), requiring a city council to disconnect territory when the matter is properly presented to it, is mandatory. Under that act the council had no discretion in the matter, its only function being to see that the territory was located as the statute prescribed and the petition signed as the statute directed.
    3. Same — The Fact that the Petitioner May Have Received Benefits from the City is Not a Defense. — A city council is not excused from acting favorably upon a petition to disconnect territory by the fact that the petitioner may have received benefits from the city while such lands were within the corporate limits.
    4. Disconnection of Territory — Effect of Amending the Statute After the Entry of the Order Granting a Writ of Mandamus. —Where a judgment directing a writ of mandamus to issue commanding a city council to pass an ordinance disconnecting certain lands is entered, and subsequently the statute authorizing such judgment is amended so as to vest discretion in the council, if the court at the time the judgment was entered proceeded in conformity with the law as it existed at the time, its judgment must be sustained.
    5. Execution — Gan Not Legally Issue Against a City. — A judgment awarding an execution against a city, so far as the award of the execution is concerned, is improper.
    Mandamus, to disconnect territory, etc. Appeal from the Circuit Court of Kane County: the Hon. Henry B. Willis, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 15, 1901.
    W. J. Brown, City Attorney, for appellant; Botsford, Wayne & Botsford, of counsel.
    Munn & Wheeler, attorneys for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a proceeding instituted under the act of 1879 in relation to the disconnection of territory from cities and villages, Chap. 24, Par. 206, Rev. Stat. (Hurd, 1899), for the purpose of disconnecting certain lands from the city of Geneva.

The amended petition of appellee, Hiram McChesney, after the usual allegations, prays for a writ of mandamus directed to the city council of said city, commanding them to pass an ordinance disconnecting his premises. The answer denies that appellee is entitled to the relief sought for the reason that, although said lands were for many years within the limits and on the boundaries of the city, yet during said time the petitioner had received and was still receiving benefits from the city in the way of certain improvements made by the city, adjacent to said lands; that the improvements consist in the filling, grading and otherwise fitting for public travel, certain streets adjoining said lands and by extending electric wires of the city upon said streets to the premises of appellee for his special use and benefit; that by reason of said improvements made by said city and the use of the public moneys of the city as aforesaid, said lands have lost their character of farm lands and are not entitled to be disconnected from the city. A demurrer was filed to the answer which was sustained by the court.

Appellant elected to stand by its answer and the court ordered “that the plaintiff have his peremptory writ of mandamus as prayed for in his petition aforesaid forthwith, together with judgment for his costs and charges by him about his suit in this behalf expended, to be taxed, and that said plaintiff have execution therefor.”

It is contended by appellant that the order for the writ of mandamus is defective in not specifically stating the act to be performed by the city council. By a reading of the order alone, appellant would not be informed as to what it was commanded to do. The order simply grants the writ as prayed for in the petition, requiring a reference to the petition to understand what was to be done. The prayer of the petition, however, was clear and specific, asking only for a writ of mandamus directed to the city council commanding them to pass an ordinance disconnecting the territory therein described from said city. A reference to the petition, therefore, readily determines what was ordered by the court to be done. While this form of order is not to be commended, and might, in some cases, result in confusion, yet under the circumstances of this case, we can not hold that it is such error as to warrant a reversal of the judgment.

The provision of the statute requiring a city council to disconnect territory situated as that described in the petition in this case, when the matter is properly presented, is mandatory. In such case no discretion is vested in the council, its only function being to see to it that the territory is located as the statute prescribes and the petition signed as the statute directs. Young v. Carey, 184 Ill. 613.

The council is not excused from acting favorably upon the petition by the fact that the lands of the petitioner may have received benefits from the acts of thó city while such lands were within the corporate limits. The answer, therefore, did not present a good defense to the petition and the court properly sustained a demurrer to it.

The judgment directing the mandamus to issue was entered on May 6, 1901. On May 10th following, an act of the legislature went into effect, amending the law above referred to, so as to vest discretion in the corporate authorities of cities and villages in the matter of disconnecting territory. Session Laws, 1901, p. 96.

By a provision of this act it is made to “ apply to and affect all cases where property has not been disconnected by such city council or trustees of such village, whether application has been made for disconnection or not.” Appellant claims that as the order of the court had not been complied with and the property in question disconnected from the city before said act went into effect, the provisions thereof must apply to this case and that consequently this cause should be reversed and remanded with directions to the Circuit Court to modify its order.

We are of the opinion, however, that the only question we can consider is whether the order was good in law at the time it was entered. The court below at the time the order was made proceeded in entire conformity with the law as it then existed and we therefore conclude that its judgment should be sustained.

The question whether the city council would be absolved from complying with the order by reason of the amendment to the law is a question which does not arise here and can not affect the decision of the case in this court. That provision of the order which awards an execution against the city for costs, was improper, but as no -exception was taken or error assigned upon it, the error must be taken as waived. The judgment of the court below is accordingly affirmed.


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    John Nelson v. Coal Valley Mining Co.
    1, Negligence— When the Absence of, Precludes a Recovery. — In an action against a coal mining company for personal injuries resulting from an accident, where the evidence shows that the accident was not the result of any negligence on the part of the company or its servants, there can be no recovery.

      Trespass on the Case, for personal injuries. Error to the Circuit Court of Rock Island County; the Hon. William H. G-est, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 15, 1901.
    W. B. Moore, attorney for plaintiff in error.
    Jackson & Hurst, attorneys for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This case is before us for the second time. It is an action on the case by plaintiff in error against defendant in error, to recover damages for an injury received while employed in the coal mine of defendant in error, in Sherrard, Mercer county, Illinois.

The case was tried at the May term, 1899, of the Circuit Court of Bock Island County, and a judgment rendered in favor of plaintiff in error for $1,500. The case was brought to this court by appeal and was reversed and remanded at the October term, 1899. The case was retried in the Circuit Court, where, at the close of the plaintiff’s evidence, the court directed a verdict of not guilty and entered judgment against the plaintiff for cost. He brings the case to this court by writ of error to reverse the judgment of the Circuit Court.

The question is, was the Circuit Court justified in directing a verdict of not guilty ? The opinion in this case upon the former hearing in this court is reported in 87 Ill. App. 180, and reference will be had to that opinion for a statement of the case.

Upon an examination of the present record we find no substantial change in plaintiff’s case. The record discloses the same state of facts that were set forth in the former opinion by this court. We found then and find now that the accident was not the result of any negligence on the part of the defendant in error.

It follows that the trial court properly directed the verdict and that the judgment of the Circuit Court must be affirmed.


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    August Rochey v. Clark Downey and Jacob Strawn, Executors.
    L Appeals — Where They IAe from the County Court to the Circuit Court in Matters Pertaining to the Administration of Estates. — An appeal from the action of the County Court in sustaining a demurrer to a petition of a legatee praying that the executors of a last will and testament be cited to make a full accounting of the assets of the estate collected by them, and of the portion of the residuary fund in their hands for distribution, lies to the Circuit Court of the county.
    Petition for a Citalion. — Appeal from the Circuit Court of Marshall County; the Hon. Theodore N. Green, Judge, presiding. Heard in this court at the October term, 1901.
    Reversed and remanded.
    Opinion filed November 15, 1901.
    Winslow Evans, attorney for appellant.
    E. D. Richmond, attorney for appellees.
   Mr. Justice Higbee

delivered the opinion of the court.

Appellees are the executors of the last will and testament of Francis H. Bond, who died at his home in Marshall county, December 9, 1897. The will was admitted to probate in said county on January 10, 1898, and appellees qualified and entered upon their duties as such executors. Appellant, who was designated by Bond in his will as ‘‘a tenant of mine,” was devised eighty acres of land, but received no specific gift, of personal property. He alone, of the beneficiaries named in the will, received a specific gift of real estate only. After making provisions for numerous other persons named in the will the testator gave the following direction:

“ I wish to have my executors sell all my land not conveyed in this will and all my personal property, except moneys, notes, mortgages and accounts, for the best price they will bring, and all moneys collected that is due me, and the sum arising from these sources equally distributed in accordance with the terms of this will among all the legatees named, except I want enough reserved to pay the executors of this will well.”

Appellees having proceeded to administer said estate, appellant afterward filed his petition in the County Court, in which he represented, among other things, that appellees had in their hands a large sum of money collected by them as executors, subject to distribution; that by virtue of the terms of said will appellant was one of the legatees, and as such was entitled to a portion of the residuary fund therein mentioned; that appellees denied he was entitled to a distributive share of said residuary fund and refused to pay him any part thereof. He therefore' prayed that said executors be cited to make a full accounting of the assets of the estate collected by them, and of the portion of the residuary fund in their hands to be distributed, and that they be required to pay him his distributive share of such fund.

To this petition a demurrer was interposed by appellees in the County Court, which was sustained. The cause was appealed by appellant Eochey to the Circuit Court, where, upon motion of appellees, the appeal was dismissed on the ground that an appeal did not lie from the County Court to the Circuit Court in this cause.

■The only error assigned is the dismissing of the appeal by the Circuit Court. Section 124 of the administration act provides:

“ Appeals shall be allowed from all judgments, orders or decrees of the County Court in all matters arising under this act to the Circuit Court in favor of any person who mav consider himself .aggrieved by any judgment, order or decree of such court, and from the Circuit Court to the Supreme Court, as in other cases, and bonds with security to be fixed by the county or circuit courts, as the case may be.”

Bv section 122 and 123 of the act in relation to county courts, it is provided that appeals may be taken from the final orders, judgments and decrees of the county courts to the circuit courts of their respective counties, except in proceedings for the confirmation of special assessments, in proceedings for the sale of lands for taxes and special assessments and iii all common law and attachment cases, and cases of forcible detainer and forcible entry and detainer. Under these provisions of the. law, appeals, such as the one before us, could be unquestionably taken directly form the County to the Circuit Court.

It was afterward provided, however, by section 8 of the act establishing Appellate Courts :

The said appellate courts created by this act, shall exercise appellate jurisdiction only, and have jurisdiction of all matters of appeal or writs of error from the final judgments, orders or decrees of any of the circuit courts or the Superior Court of Cook County, or county courts, or from the city courts in any suit or proceeding at law or in chancery, other than criminal cases, not misdemeanors, and cases involving a franchise or freehold, or the validity of a statute.” Hurd’s Stat. 1899, Chap. 37, Par. 25.

Ho doubt the section last referred to repeals by implication such portions of the former sections in relation to the subject of appeals from the County Court, as are directly in conflict with it. Lynn v. Lynn, 160 Ill. 307; Union Trust Co. v. Trumbull, 137 Ill. 146.

The question presented is, therefore, whether the proceeding instituted by appellant in the County Court is a “ suit or proceeding at law or in chancery.” If it is," an appeal lies directly to this court; if not, the appeal should go to the Circuit Court.

In the case of Grier v. Cable, 159 Ill. 29, which involved a claim against an estate, an appeal had been taken from the County to the Circuit Court and from the latter to the Appellate Court, where a motion was made to dismiss the cause upon the ground that the appeal should have been taken directly from the County to the Appellate Court. The court, however, denied the motion to dismiss, saying:

We are of thó opinion that the proceedings provided by law in this State, for the. presentation and allowance of claims against the-estates of decedents, are in no proper sense suits or proceedings at law .or in chancery, but purely statutory proceedings provided for the prompt and summary presentation, allowance and classification of all just claims against such estates. * * * The mere fact that when a claim is contested so as to necessitate a trial, the trial is to be conducted in the same way in which suits at law are tried, can not of itself have the effect of converting a purely statutory proceeding into a suit or proceeding at law. * * A suit or proceeding at law, as those terms are used in section 8 ot‘ the Appellate Court act, must be understood to mean a suit or proceeding instituted and carried on in substantial conformity with the forms and modes prescribed by the common law, and that proceedings for the presentation and allowance of claims against the estates of deceased persons do not come within that definition seems to us too plain for serious discussion.”

This proceeding was instituted under sections 114 and 116 of the administration act, which provides for the enforcement of the settlement of estates and for the payment of legacies. Under these provisions of the statute the parties alleged to be in default are cited to appear, and the' whole proceeding is purely statutory in the manner in which it is conducted. It is not instituted or carried on in the manner of an ordinary common law suit.

It is said by counsel for appellees, however, that the relief sought for, requires the exercise of chancery powers. It does not follow that where the proceeding instituted under the statute involves the settlement of certain equitable matters to give the relief contemplated by the statute, that it therefore becomes a proceeding in chancery. There are a number of cases in our Supreme Court reports where the proceedings instituted in the County Court called for equitable relief, and yet the fact that the appeals were taken, in the first instance, from the County to the Circuit Court and not directly to the Appellate Court, is passed unnoticed. Among the many cases which could be cited are: Bliss v. Seaman, 165 Ill. 422; Ramsey v. Whitbeck, 183 Ill. 550; Martin v. Martin, 170-Ill. 18.

These cases can not be considered as authorities settling the right of appeal in such cases from the County to the Circuit Court, because the question does not appear to have arisen in them; but are cited simply for the purpose of showing that the practice has been followed without incurring comment.

In the case of Schenk v. Schenk, 80 Ill. App. 614, where the question presented was whether an appeal from an order of the County Court admitting a will to probate should be talcen to the Circuit Court or directly to the Appellate Court, it was said :

It can not be justly said that the jurisdiction conferred by the statute in regard to wills is in any proper sense a suit or proceeding at law or in chancery, but is purely and merely a statutory proceeding provided for the prompt and summary method of probating and giving effect to wills in testate estates.”

We are therefore of opinion that while this proceeding may have called for some relief which was equitable in its nature, yet it was a summary statutory proceeding and was not a proceeding at law or in chancery within the meaning of section 8 of the Appellate Court act. The appeal was therefore improperly dismissed by the Circuit Court and its judgment will be reversed and the cause remanded.


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    S. B. Schofield v. Village of Tampico.
    1. Ordinances — Essentials of Their Validity. — It is essential to the validity of a village ordinance that the vote upon its passage be taken and recorded.
    2. Same— What is Compliance with the Statute. — A record of the proceedings of a village board reciting that all the members were present and that the ordinance in question was passed unanimously, is sufficient to show that the ordinance was legally passed.
    3. Same — What is Sufficient Proof that it was Deposited with the Clerk. — Upon the trial of a suit for the violation of an ordinance, the production by the village clerk of the original ordinance is sufficient proof, when uncontradicted, to show that it was deposited with such clerk upon its passage.
    4. Same— Passage of, at Special Meetings. — An ordinance is not invalid because passed at a special meeting, where it appears that the president and all the trustees were present and participated in the proceedings.
    5. Same — When Too Comprehensive in Its Provisions. — The fact that an ordinance is too comprehensive in its provisions and covers cases which the village has no power to control, is no re.ason why courts should refuse to enforce it in cases over which the power of the village is unquestionable.

      Suits for the Violation of an Ordinance. — Appeal from the Circuit Court of Whiteside County; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the October term, 1901.
    Affirmed.
    Opinion filed November 15, 1901.
    C. L. Sheldon, attorney for appellant.
    White & Sheldon, attorneys for appellee.
   Me. Justice Beown

delivered the opinion of the court.

This is an appeal from a judgment of conviction upon a liquor ordinance of the village of • Tampico.

The appellant was convicted first upon a trial before a justice of the peace, and upon appeal to the Circuit Court of Whiteside County a trial in that court resulted in a second conviction.

The case comes to this court by appeal from the Circuit Court.

There is no controversy upon the facts. Appellant sold intoxicating liquor within the corporate limits of the village of Tampico, in violation of the ordinance.

The only questions are, was the ordinance under which the conviction was had enacted according to law, and if so, was it void upon its face because it is not in express terms limited in its operation to the municipality in which it is alleged to have been adopted.

Barring the official signatures and certificate of passage and publication the ordinance reads as follows :

“ State of Illinois, Whiteside county, ss. Ordinance No. 89. In relation to the sale of intoxicating liquors. Be it ordained by the president and board of trustees of the village of Tampico; That whoever not having a license to keep a dram-shop, shall, by himself or another, either as principal, clerk, or servant, directly or indirectly, sell any intoxicating liquors in any quantity, shall be fined not less than twenty dollars nor more than one hundred dollars for each and every offense.”

It is claimed that the yeas and nays were not taken upon the passage of the ordinance.

It was essential to its validity that they should be taken and recorded. The statute in force at the time of the alleged passage of the ordinance provided that village boards should consist of a president and five trustees, The evidence shows that the village kept two books containing the record of the proceedings of the village board. The two were used in conjunction with each other. The ordinances, together with the vote adopting them, were recorded in one of these books and the ordinary proceedings in the other. The record contained in 'these two books shows that when the ordinance was under consideration for passage that the president presided at the meeting and that five trustees voted for the adoption of the ordinance. The record in that respect is as follows: Ayes—Kimball, Dennison, Smith, Brown, Booth. Nays—none. This was a compliance with the statute. It was held in Village of Gilberts v. Rabe, 49 Ill. App. 418, that where the record of the proceedings of a village board, which recited that all the members were present and that the ordinance in question ivas passed unanimously, shows that the ordinance ivas legally passed.

It is also urged that the ordinance was not deposited with the clerk or signed by the president. The statute requires both to be done. The record shows that the original ordinance was produced by the clerk upon the trial in the Circuit Court and that it AAras introduced in evidence, bearing the signature of the president. Its production by the clerk, the statutory custodian of the instrument, is sufficient proof, when uncontradicted, to show that it was deposited with that official.

The proposition that the ordinance is invalid because passed at a special meeting, is equally untenable in view of the fact that the president and all the trustees were present and participated in the proceedings.

The only remaining objection to the ordinance is that it is void upon its face because it is not limited in its scope and operation to the territorial boundaries of the village of Tampico.

This prosecution is for a sale of intoxicating liquor conceded to have been made within the corporate limits of the village of Tampico. In Kettering v. City of Jacksonville, 50 Ill. 41, the court said: This was a prosecution by the city of Jacksonville to recover a penalty for violation of an ordinance of the city prohibiting the sale of liquor and beer. The ordinance may be too comprehensive in its provisions, and cover cases which the city has no power to control, but that is no reason why we should refuse to enforce it in cases over which the power of the city is unquestionable.

Finding no error in the record the judgment of the Circuit Court will be affirmed.


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    John C. Vannatta et al. v. Frank Lindley et al.
    1. Jurisdiction — Objection to, in Equity, When to be Taken by Answer. — An objection to the jurisdiction of a court of equity on the ground that the complainant has an adequate remedy at law may always be taken by answer.
    2. Equity — Jurisdiction to Compel the Surrender of a Promissory Note, Where the Maker Has a Defense at Daw. — Equity can not take jurisdiction to compel the surrender and cancellation of a promissory note, where the facts alleged in the bill are such as will establish a complete defense to a suit at law on the note.
    3. Promissory Notes — Effects of Powers of Attorney to Confess Judgment in. — The fact that a promissory note contains a power of attorney to confess a judgment upon it,- in any-court of record in this State, does not take the case out of the rule laid down in Black v. Miller, 173 111. 489.
    4. Same — Fraud and Circumvention as a Defense to Note in the Hands of an Innocent Holder. — If fraud and circumvention are used in obtaining the execution of a promissory note it will constitute a good defense to the note in the hands of an innocent holder.
    Bill for an Injunction. — Appeal from the Circuit Court of La Salle County; the Hon. Harvey M. Trimble, Judge, presiding. Heard in this court at the October term, 1901.
    Reversed and remanded with directions.
    Opinion filed November 15, 1901.
    Brewer & Strawn and Butters & Carr, attorneys for appellants.
    H. M. Steely and McDougall & Chapman, attorneys for appellee Frank Lindley.

      J. W. Creeiimur and 'McDougall & Chapman, attorneys for appellee J. W. S. Howell.
   Mr. Justice Brown

delivered the opinion of the court.

This was a bill in chancery, and alleges that a certain promissory note purporting to have been executed by complainants and payable to the order of J. W. S. Howell and indorsed after its maturity to Frank Lindley was a forger}', and that its execution was obtained by fraud and circumvention.

The bill prayed for an injunction against the transfer of the note, and that it be delivered up and canceled. The .bill was filed after the maturity of the note.

Upon reference, the master in chancery found, from the evidence taken by him, that the note was a forgery and that its execution was obtained by fraud and circumvention.

The court sustained an exception to the finding of the master that the note, was a forgery, but sustained the finding that the execution of the note was obtained by fraud and circumvention.

The answers of the defendants alleged that the complainants had a complete and adequate remedy at law and denied the jurisdiction of a court of equity.

The decree found that the execution of the note was obtained by fraud and circumvention and that the complainants had a complete and adequate remedy at law, and dismissed the bill for want of equity.

The statute relating to negotiable instruments provides that if any fraud or circumvention be used in obtaining the making or execution of a promissory note, such fraud or circumvention maybe pleaded in bar to any action brought upon such instrument so obtained, whether the action be brought by the party committing the fraud or circumvention, or by any assignee of the note.

An objection as to the jurisdiction of a court of equity on the ground of an adequate remedy at law may always be taken by answer.1 Equity can not take jurisdiction to compel the surrender and cancellation of a promissory note, where the facts alleged in the bill, if true, are such as will establish a complete defense to a suit at law on the note in the hands of any party. Black v. Miller, 173 Ill. 489.

It is contended by complainants that because the note contains a power of attorney authorizing the confession of judgment in any county of the State, and that if judgment should, by virtue thereof, be entered in a remote part of the State, thereby rendering it more expensive to them to interpose their defense there than it would to make the same defense where they reside, it would for that reason be the duty of the court to grant equitable relief. Mo authorities are cited supporting the contention. If the note did not contain the power of attorney to confess judgment, the complainants could not be sued thereupon except in the county in which they reside, so long as they remain therein. But if they were found and lawfully served with process in another county, though it might be more expensive for them to make their defense there, a court of equity could not relieve them by enjoining the prosecution of the suit.

The fact that the note contains a power of attorney to confess judgment in any court of record in this State does not take the case out of the rule as laid down in Black v. Miller.

The Circuit Court properly found that it was without jurisdiction and should therefore have dismissed the bill for that reason and upon that ground;

It was error for the court, after' properly determining that it had no jurisdiction in the premises, to incorporate in its decree a finding of fact which might prejudice the holder of the note in an action at law to recover thereon. Appellees having assigned cross-errors upon this portion of the decree it becomes necessary to reverse.

The decree of the Circuit Court is reversed and remanded, with directions to that court to enter a decree dismissing the bill for want of jurisdiction and with directions to omit from said decree the finding that the execution of the note was obtained by fraud or circumvention. The costs of this suit will be adjudged against appellants.

Reversed and remanded with directions.


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    Solomon J. Smith v. John McEvoy.
    1. Leases — Evidence Tending to Vary the Terms of, Inadmissible.— In a suit between a landlord and his tenant, evidence which tends to vary the terms of the written lease or contract between them is inadmissible.
    Assumpsit, on an account between a landlord and his tenant. Appeal from the Circuit Court of Ogle County; the Hon. James Shaw, Judge, presiding. Heard in this court at the October term, 1901.
    Reversed and remanded.
    Opinion filed November 15, 1901.
    O’Brien & McHenry, attorneys for appellant.
    Franc Bacon, attorney for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This was an appeal from a judgment in a suit upon an open account brought by McEvoy against Smith. McEvoy was a tenant of Smith’s. The premises rented were farm lands in Ogle county.

Among other items in the account of McEvoy against Smith and for which judgment was rendered were charges for corn and oats, used by McEvoy, the tenant, for seed upon the demised premises, and also a charge for cash expended or assumed by Smith for threshing the small grain grown upon the farm during his tenancy.

The defendant, who is the appellant here, objected to the testimony in relation to these items. The objections were all overruled and exceptions duly taken.

The ruling of the Circuit Court upon the admission of this testimony is assigned for error. It is claimed that it was inadmissible because it tended to vary the terms of the written contract or lease between the parties.

The lease provided that McEvoy was to pay Smith as rent for the premises one-half of all grain raised on the farm, to be delivered by McEvoy to Smith at Davis Junction, Illinois; and that McEvoy should farm the premises with good husbandry, in due time and season, at his cost and charge.

The foregoing are all the provisions of the lease which are material to the issues in this case.

0 nder the lease it was the duty of McEvoy to furnish the seed grains and pay for the threshing.

The objections to the testimony should have been sustained. Its admission was error.

The judgment of the trial court must therefore be reversed and the cause remanded.