It is an appropriate exercise of the police power of the state
to regulate the use and enjoyment of mining properties, and mine
owners are not deprived of their property, privileges, or
immunities without due process of law or denied the equal
protection of the laws by the Illinois mining statute of 1899,
which requires the employment of only licensed mine managers and
mine examiners and imposes upon the mine owners liability for the
willful failure of the manager and examiner to furnish a reasonably
safe place for the workmen.
It is within the power of the state to change or modify, in
accord with its conceptions of public policy, the principles of the
common law in regard to the relation of master and servant, and in
cases within the proper scope of the police power, to impose upon
the master liability for the willful act of his employee.
As construed by the highest court of that state, under the
Mining Act of Illinois of 1899, a mine manager and mine examiner
are vice-principals of the owner and engaged in the performance of
duties which the owner cannot so delegate to others as to relieve
himself from responsibility.
Where two concurring causes contribute to an accident to an
employee, the fact that the master is not responsible for one of
them does not absolve him from liability for the other cause for
which he is responsible.
Where there is no evidence sustaining certain counts in the
declaration as to defendant's negligence, he is entitled to an
instruction that no recovery can be had under those counts, and
where. as it was in this case. the refusal to so instruct is
prejudicial error, the verdict cannot be maintained either at law
or under § 57 of the Illinois Practice Act.
The facts are stated in the opinion.
Page 205 U. S. 64
MR. JUSTICE WHITE delivered the opinion of the Court.
On January 27, 1901, Samuel Fulton, while working as a trackman
and mine laborer in a mine operated by the Wilmington Star Mining
Company, in Grundy County, Illinois, was killed by an explosion of
mine gas. Minnie Fulton, the widow, on behalf of herself and
children, brought this action against the mining company in a court
of the State of Illinois to recover damages for the death of her
husband. Because of diversity of citizenship, the case was removed
to the Circuit Court of the United States for the Northern District
of Illinois.
The counts of the petition upon which the cause was ultimately
tried were eight in number, and in each was set out a specified act
of negligence averred to have been the proximate cause of the
accident and to have constituted willful failure to perform
specified statutory duties. In count 1, it was alleged that the
mining company failed to maintain in the mine currents of fresh air
sufficient for the health and safety
Page 205 U. S. 65
of Fulton. Count 2 charged the failure to maintain cross-cuts in
the mine at proper distances apart, to secure the best ventilation
at the face of the working places. In count 3, the company was
charged with having failed to build all necessary stoppings in a
substantial manner to close cross-cuts connecting the inlet and
outlet air courses in the mine. In count 4, the negligence set up
was the failure to have the place in the mine where Fulton was
expected to pass and to work inspected before Fulton was permitted
to enter the mine, to ascertain whether there were accumulations of
gas therein. In count 5, it was charged that the mining company,
with knowledge of the existence of an accumulation of dangerous
gases in the mine and its unsafe condition when Fulton, in the
course of his employment, entered the mine on the morning of his
death, willfully failed and neglected to prevent Fulton from
entering the mine to work therein before the dangerous gases had
been removed and the conditions in the mine rendered safe, said
Fulton not being then and there under the direction of the mine
manager. In count 6, it was charged that the mining company, on the
morning of the accident, had knowledge that a valve attachment of a
certain steam pipe used to conduct steam generated for the purpose
of running a ventilating fan in the mine had become accidentally
broken or lost, whereby the air currents in the mine became
obstructed and stopped, and a large quantity of dangerous gas was
permitted to accumulate in the mine at the place where Fulton was
required to pass and to work. And it was further charged that,
although having such knowledge, the mining company willfully failed
and neglected to order the withdrawal of Fulton from the mine and
prohibit his return thereto until thorough ventilation had been
established. In count 7, the negligence charged was that the mining
company permitted Fulton to enter the mine before the mine examiner
had visited it and seen that the air current was traveling in
proper course and in proper quantity, and before the accumulation
of dangerous gas, then in the mine, had been broken up or removed
therefrom. In count 8,
Page 205 U. S. 66
it was charged that the mining company had knowledge that
accumulations of gas existed in the mine, yet it willfully failed
and neglected to place a conspicuous mark at the place in the mine
where accumulations of gas existed, as a notice to Fulton and other
employees to keep out, whereby Fulton failed to receive the
statutory notice and warning of the existence of accumulated gas,
and did not know of the dangerous condition of the mine when he
proceeded to work at and near the place in the mine where such
dangerous accumulation of gas existed.
To the various counts, the defendant pleaded the general issue.
The case was twice tried by a jury. On the first trial, at the
close of the evidence for the plaintiff, the jury was instructed to
find for the defendant. This judgment was reversed by the Circuit
Court of Appeals for the Seventh Circuit. 133 Fed.193. The second
trial resulted in a verdict for the plaintiff and an entry of the
judgment which is here assailed.
On the trial, it was testified that the sinking of the shaft in
the mine where Fulton met his death was commenced in the month of
April or May, 1900. Fulton worked for several months at the mine
before the accident, at first assisting in sinking the shaft. The
mine is what is known as a long wall mine, in which, it was
testified, cross-cuts were not employed. Cross-cuts are used in
what is known as a room and pillar mine. In that class of mines,
parallel entries are run, and after proceeding a certain distance
-- usually sixty feet -- a road is cut across, connecting the
parallel entries, to permit of a circulation of air. After going
another sixty feet, a new cross-cut is made and the openings of the
prior cross-cut are stopped up, thus carrying the circulation of
air to the new cross-cut. The mine in question was not thus
intended to be constructed. From the bottom of the main or hoisting
shaft towards the north, south, east, and west radiated four main
headings or roadways, and it was contemplated to construct a
circular road connecting the outer ends of these four main roads so
as to cause a complete circulation of air around the mine and
through the
Page 205 U. S. 67
roadways. About three hundred feet to the eastward of the main
shaft was situated an air or escapement shaft. At the time of the
accident, the roads radiating north, east, and west had been
completed, but the circular roadway had only been completed between
the outer edges of the east and north roads. Gas usually made its
presence known in the west roadway after going fifty or sixty feet
from the bottom of the main shaft. For some time before the
accident, men were employed at or near the end of this road,
continuing the circular road towards the northeast, and Fulton
performed the work of track laying. In consequence of the
noncompletion of the circular roadway and the absence of natural
ventilation in the west roadway, a ventilating fan was used to
force air through air boxes to the places where the men were
working in that roadway, "so as to give them air and keep the gases
out." Whilst there is some confusion in the description of the
situation and operation of the ventilating fan, we take it that it
was as follows: the fan was situated at the bottom of the shaft and
was operated by a small engine in close proximity to the fan. The
steam to work this engine was carried down from the boilers above,
the steam pipe passing down the main shaft to the fan engine at the
bottom. To turn on the steam to this engine and set it in motion,
there was a valve controlled by a wheel. There was another valve by
which the accumulation of condensed water could be let off so as to
enable the apparatus to be reached by live steam. This valve was
intended also to be moved by a wheel, but that appliance had not
been put on, and therefore, in order to turn the valve, the use of
a wrench was necessary. A wrench used for this purpose was kept
near the fan.
The mine manager stopped the fan about four o'clock on Saturday
afternoon. On the next day (Sunday), Fulton and the mine manager
descended the shaft together. The fan had not started when they
reached the bottom of the shaft. The mine manager attempted to
start the fan, but could not find the wrench, and there was a delay
of a minute or two
Page 205 U. S. 68
while he went up the shaft and secured a wrench. When the fan
was started, the mine examiner and several other employees who had
descended the mine just ahead of Fulton and the mine manager were
with the latter in the immediate vicinity of the fan. At that time,
as testified to by the mine manager, he believed there was gas in
the west roadway. Soon after the starting of the fan, Fulton and a
helper proceeded along the west roadway with pit lamps -- naked
lights -- on their caps, pushing a car loaded with track material.
In a few minutes, the explosion occurred which caused the death of
Fulton and seriously injured the helper. There was contradictory
evidence as to the instructions given by the mine manager to Fulton
at the time he started into the west roadway. One version was that
Fulton was told to wait awhile, until an examination had been made
by the mine manager with a safety lamp. Another version implied
from the evidence was that Fulton, entirely of his own volition,
proceeded to the place where he was injured, and still another
hypothesis was that Fulton was directed to proceed with the work
without any caution. At the time of the explosion, the mine
manager, mine examiner, and others were in the south roadway.
After the entry of judgment, the cause was brought direct to
this Court on the ground that a constitutional right was claimed in
the court below and denied.
The errors assigned which have been argued at bar present for
consideration the following question:
First, the constitutionality of the Illinois Mining Act of 1899,
upon which this action was founded.
Second, the correctness of instructions to the jury on the
subject of the proximate cause of the accident in the event Fulton
went into the west roadway by direction of the mine manager.
Third, the correctness of a refusal to instruct the jury to
return a verdict for the defendant if they found that
"Fulton, at the time he was killed, was engaged in a willful act
which endangered the lives or health of persons working in the
mine
Page 205 U. S. 69
with him or the security of the mine or its machinery, and that
such willful act on his part contributed to his death."
Fourth, the correctness of a refusal to instruct the jury that,
if the death of Fulton resulted in part from his reckless disregard
of consequences, in view of his own surroundings, the plaintiff
could not recover.
Fifth, the correctness of the overruling of motions to strike
out the second and third counts of the declaration, and of the
refusal to instruct the jury that no recovery could be had on these
counts, because no evidence had been introduced to support the
same.
Sixth, the correctness of the refusal to give the following
instructions:
"If you believe from the evidence that the decedent, Fulton,
just before the time of his death, entered the mine to work therein
under the direction of the mine manager, Wilson, then you are
directed to find the defendant 'not guilty,' even though you may
further believe from the evidence that all the conditions of the
mine had not been made safe at such time, as charged in the
declaration."
Seventh, the correctness of the overruling of a motion to strike
out the fifth count of the declaration, and in refusing to instruct
the jury that no recovery could be had under said count because no
basis existed in the evidence for the asserted liability.
Eighth, the correctness of the overruling of a motion to strike
out the sixth count of the declaration and a request for an
instruction that no evidence had been introduced of any neglect as
to the fan or machinery whereby the air currents of the mine became
obstructed and stopped.
Before considering these alleged errors, however, we must
dispose of a motion to dismiss. It is urged that, as the direct
appeal to this Court rests alone upon the assertion of the
repugnancy of the Illinois Mining Act to the Constitution of the
United States, and as the claim of repugnancy is alone based upon
certain provisions of that act providing for licensing
Page 205 U. S. 70
mine managers and examiners, defining their duties, and
compelling mine owners to employ only licensed managers and
examiners, the writ of error should be dismissed, because there is
ground broad enough to sustain the judgment wholly irrespective of
the provisions of the Illinois act just referred to, which are
asserted to be repugnant to the Constitution of the United States.
This proposition is based upon the contention that the first count
of the declaration charges a violation of duty imposed by the
statute directly upon the mine owner, irrespective of the
requirements of the statute as to licensed employees. But issue is
taken on behalf of the plaintiff in error in respect to the
correctness of this contention, and it is insisted that the first
count is open to the same objections which are urged against the
others. We think the motion to dismiss is without merit, because
there is color for the contention as to the unconstitutionality of
the statute as well in respect to the first as to the other counts
of the declaration.
We come, then, to consider the first assigned error,
viz., the constitutionality of the Illinois Mining Act,
approved April 18, 1899, in force July 1, 1899, entitled, "An Act
to Revise the Laws in Relation to Coal Mines and Subjects Relating
Thereto, and Providing for the Health and Safety of Persons
Employed Therein." Chap. 93, Rev.Stat. of Illinois.
It is conceded that the statute in question has been
authoritatively interpreted by the Supreme Court of Illinois as
imposing upon mine owners responsibility for the defaults of mine
managers and mine examiners, employees who are required by the
statute to be selected by the mine owners from those holding
licenses issued by the state mining board created by the statute.
And it is an alleged incompatibility between such responsibility of
the mine owner and the obligation imposed upon the mine owner to
employ only persons licensed by the state, and the nature and
character of the duties which the statute imposes upon them, upon
which is based the asserted repugnancy of the statute to the
Fourteenth Amendment.
Page 205 U. S. 71
Section 29 of Article 4 of the Illinois Constitution of 1870 is
as follows:
"It shall be the duty of the general assembly to pass such laws
as may be necessary for the protection of operative miners by
providing for ventilation when the same may be required and the
construction of escapement shafts, with such other appliances as
may secure safety in all coal mines, and to provide for the
enforcement of said laws by such penalties and punishments as may
be deemed proper."
In carrying out this constitutional requirement, the General
Assembly of Illinois has, from time to time, legislated for the
protection of miners. The act of 1899, here assailed as repugnant
to the Constitution of the United States, as said by the Court of
Appeals for the Seventh Circuit, 133 Fed.197, grew out of the
desire
"that every precaution should be taken against the unusual
hazards and dangers incident to the inhabitancy of mines. It was
intended, and intended rightly, to protect with all known
expedients every person whose occupation required him to labor in
these subterranean rooms and roadways."
The act is lengthy, covering 47 pages of print in the appendix
to one of the briefs. In substance, it created a state mining
board, authorized that body to examine candidates for the position
of state inspector of mines, and to certify the names of the
successful candidates to the governor, in whom was vested the power
of appointment. Moreover, the statute fixed the qualifications of
mine managers, hoisting engineers, and mine examiners, required
candidates for such positions to be examined by the state board,
and certificates to be furnished to those found competent, and made
it unlawful in the operation of a coal mine to employ or suffer any
person, other than one possessing the proper certificate, to serve
as a mine manager, hoisting engineer, or mine examiner. Section 16
prescribed in detail the duties of mine managers and miners;
section 17 set forth the duties of hoisting engineers, and by
section 18 the duties of mine examiners are prescribed.
Interspersed,
Page 205 U. S. 72
however, throughout the remainder of the act are found, in
sections relating to the subject of ventilation, powder and blast,
place of refuge, etc., requirements to be observed in effect
supplementing the sections prescribing in detail the duties to be
performed by the employees above mentioned. We think the omissions
of duty charged in the various counts in the declaration are
embraced in those in terms laid upon the mine manager or mine
examiner. Considering this act, the Supreme Court of Illinois, in
Henrietta Coal Co. v. Martin, 221 Ill. 460, first
commented upon the decisions in
Durkin v. Kingston Coal
Co., 171 Pa.193, and
Williams v. Thacker Coal & Coke
Co., 44 W.Va. 599, which cases dealt with statutes which, in
their general purpose, were similar to the Illinois act. The
Illinois court declined, however, to hold, as was done in the cases
referred to, that, where a statute directly imposed duties upon a
mine manager, the negligence of such mine manager could not be
imputed to the owner, and, indeed, that the owner could not be made
responsible for the act of such employee without causing the
statute to be unconstitutional. The Illinois court expressly held
that, under the Illinois Mining Act, a mine manager and mine
examiner were vice principals of the owner, and were engaged in the
performance of duties which the owner could not delegate to others
in such manner as to relieve himself from responsibility. Observing
that, in a number of its former decisions, the Illinois court had
assumed the law to mean what it expressly decided in the
Henrietta case it did mean,
viz., that, in
respect to the duties devolved upon the mine manager and mine
examiner, those persons stood for the mine owner and were vice
principals, performing those duties. The court said:
"The fact that the proprietor, if he employs men to act in these
capacities, is required to employ those who have obtained the
certificate from the state mining board is without significance.
The purpose of that provision was, so far as possible, to guard
against the possibility of the proprietor's employing
Page 205 U. S. 73
incompetent, intemperate, negligent, or disreputable persons,
and not to enable the operator to shift to his employees his
responsibility for the management of the mine."
"The object of the mining act, as we gather from its various
provisions, is to protect, so far as legislative enactment may, the
health and persons of men employed in the mines of the state while
they are in the mines. The principal measures prescribed for this
purpose require the exercise of greater precaution and care on the
part of the mine owner for the safety of the miners than was
required by the common law. To hold that he may shift his liability
to any person employed by him as examiner or manager who holds the
certificate of the state mining board is to lessen his
responsibilities, and defeat in great part the beneficent purposes
of the act. To hold him liable for a willful violation of the act,
or a willful failure to comply with its provisions on the part of
his examiner or manager, is to give force and effect to the statute
according to the intent of its makers, and to prolong the lives and
promote the safety and wellbeing of the miners."
Accepting this interpretation of the Illinois statute, and in
view of the ruling in
Consolidated Coal Co. v. Seniger,
179 Ill. 370, 374-375, that it is not obligatory upon a mine owner
to select a particular individual, or to retain one when selected
if found incompetent, we think the act is not repugnant to the
Fourteenth Amendment in any particular. In legal effect, duties are
imposed upon the mine owner, customarily performed for him by
certain employees -- duties which substantially relate to the
furnishing of a reasonably safe place for the workmen. The subject
was one peculiarly within the police power of the state, and the
enactment of the regulations counted upon we think was an
appropriate exercise of such power. The use and enjoyment of mining
property being subject to the reasonable exercise of the police
power of the state, certainly the rights, privileges, and
immunities of a mine owner as a citizen of the United States were
not invaded by the regulations in question, and the
Page 205 U. S. 74
imposition of liability upon the owner for the violation of such
regulations, being an appropriate exercise of the police power, was
not wanting in due process. And even although the liability imposed
upon the mine owner to respond in damages for the willful failure
of the mine manager and mine examiner to comply with the
requirements of the statute was not in harmony with the principles
of the common law applicable to the relation of master and servant,
it being competent for the state to change and modify those
principles in accord with its conceptions of public policy, we
cannot infer that the selection of mine owners as a class upon
which to impose the liability in question was purely arbitrary and
without reason. And the views just expressed also adequately
dispose of the contention that, by the statute, the mine owner was
denied the equal protection of the laws.
The asserted error next to be considered relates to instructions
to the jury on the subject of the proximate cause of the accident
in the event Fulton went into the west roadway by direction of the
mine manager. In the course of the charge to the jury, the court
said:
"If you believe from the evidence that Wilson, the mine manager,
directed Fulton to go into the west roadway, and that said Fulton
did so in obedience to such order, and such order was the proximate
cause of Fulton's death, without the giving of which Fulton would
not have been killed, then the jury is instructed that the
plaintiff cannot recover in this case, and the verdict should be
for the defendant. You will note there that it follows, if you
believe that this instruction, if there was one, to Fulton, was the
proximate cause of his death, note that in passing upon that
question you must determinate whether, first, if there was gas
there at that time, and whether, if there was, that was or was not
the proximate cause of his death. Now, by proximate cause is meant
efficient cause. In other words, if the gas had not been there,
would his death have followed? And was gas being there necessary to
his death? Or was the instruction, if there was
Page 205 U. S. 75
one there, willfully sending him there, the thing which caused
his death; which was the greater cause? That is a question of fact
for you to determine."
"
* * * *"
"I said it was for them to determine what was the proximate
cause if there was an order for this deceased to go into the mine,
or whether it was the gas being there. Let the instruction be what
I stated now, the last time; that covers it."
It is contended that the effect of the definitions of proximate
cause, made as above, was to hopelessly confuse the jury. While it
must be conceded that the instruction was greatly wanting in
clearness, yet we think no prejudicial error was committed. Looking
at the criticized instructions in connection with the context of
the charge, it is clear that it was understood by all as importing
that the mining company was at fault for the existence of the
accumulated gas, resulting in the explosion which caused the death
of Fulton, since to have allowed the gas to accumulate was a
disregard of the positive duty towards Fulton imposed by the
statute. Now conceding that the mine manager ordered Fulton into
the west roadway, and conceding further that such order of the
manager was one of the causes of the accident, for which no
recovery could be had because not counted on in the declaration,
what follows? Simply this -- that two concurring causes contributed
to the death of Fulton -- one, the order of the mine manager, for
which recovery could not be had under the declaration, and the
other the neglect by the mine owner to perform his statutory duty
to prevent the accumulation of the dangerous gases which led to the
accident. But because one of the efficient causes, the order of the
mine manager, under the pleadings, did not give rise to a right of
recovery, it did not follow that therefore the owner was absolved
from responsibility for the cause of the accident for which he was
liable.
Washington & G. R. Co. v. Hickey, 166 U.
S. 521.
We next consider two contentions:
a. that the trial
court erred in refusing to instruct the jury to return a verdict
for
Page 205 U. S. 76
the defendant if they found that Fulton at the time he was
killed, was engaged in a violation of the statute which contributed
to his death -- that is, the doing of a willful act which
endangered his life and the lives or health of persons working in
the mine with him, and which jeopardized the security of the mine
or its machinery; and
b. that the court also erred in
refusing to instruct that, if the death of Fulton resulted in part
from his reckless disregard of consequences in view of his known
surroundings, the plaintiff could not recover.
Leaving out of view the contention that the first requested
instruction was rightly refused because too general, and bearing in
mind that, in an action to recover damages under the Illinois
Mining Act, a mine owner is deprived of the defense of contributory
negligence,
Carterville Coal Co. v. Abbott, 181 Ill. 495,
502-503, and assuming that the refused instruction might properly
have been given if the tendency of the proof justified it, we think
the instruction was rightly refused, because we are of opinion that
there was no evidence tending to show the doing by Fulton of a
willful act of the character contemplated by the statute, or a
reckless disregard by him of his personal safety. While the
evidence might have justified the inference that Fulton, before
entering the west roadway, knew that it had not been cleared of
gas, yet it cannot be inferred that Fulton and his helper suspected
that gas had so permeated the roadway as to render it perilous to
life to go to the point where the explosion occurred. The jury had
been instructed that there could be no recovery if the proof
established the contention of the mining company that Fulton
entered the part of the mine in which he was killed against or
contrary to caution given him by the mine manager, and, if Fulton
was permitted to enter the west roadway without caution, it is
impossible on this record to infer that the jury would have been
justified in finding that it was obvious that to enter the west
roadway was so hazardous as to give support to the conclusion that
Fulton willfully and recklessly went to his destruction.
Page 205 U. S. 77
It is asserted that the court erred in refusing to give the
following instructions:
"If you believe from the evidence that the decedent Fulton, just
before the time of his death, entered the mine to work therein
under the direction of the mine manager, Wilson, then you are
directed to find the defendant, 'not guilty,' even though you may
further believe from the evidence that all the conditions of the
mine had not been made safe at such time, as charged in the
declaration."
The requested charge was based upon the last paragraph of that
portion of § 18(
b) of the Illinois Mining Act, dealing
with the duties of mine examiners, reading as follows:
"To post danger notices. (
b) When working places are
discovered in which accumulations of gas, or recent falls, or any
dangerous conditions exist, he shall place a conspicuous mark
thereat as notice to all men to keep out, and at once report his
finding to the mine manager."
"No one shall be allowed to remain in any part of the mine
through which gas is being carried into the ventilating current,
nor to enter the mine to work therein, except under the direction
of the mine manager, until all conditions shall have been made
safe."
We construe this provision of the statute as relating to steps
to be taken when a mine or a portion thereof is discovered to be
unsafe, and as relating to the necessary work to be done in the
mine under the immediate supervision and direction of the mine
manager to remedy the unsafe condition. As, however, there is no
proof tending to show that Fulton, in entering and working in the
mine, came under any of these conditions, we think the instruction
was rightly refused.
The remaining assignments assert the commission of error by the
trial court in overruling motions to strike out the second third
and sixth counts of the declaration, and in refusing to instruct
the jury that no recovery could be had under any of those counts,
because no evidence had been introduced tending to establish the
commission of the particular
Page 205 U. S. 78
acts of negligence charged in those counts. Such counts, as we
have seen, related to the failure to construct cross-cuts and
stoppings in the mine, and to an alleged defect resulting from the
absence of a wheel, and the consequent necessity of using a wrench
for the purpose of opening a valve to allow condensed steam to
escape as a prerequisite to the movement of the ventilating fan. We
are constrained to the conclusion that prejudicial error was
committed in these particulars. We think it is extremely doubtful
whether there was any evidence in the record even tending to
establish that, in a long wall mine of the character of the one
here in question, cross-cuts and stoppings thereof were essential.
But be this as it may, certain is it that there is no evidence
whatever in the record tending to support the claim that the
absence of cross-cuts and stoppings in the mine in question was in
any wise the cause of the accumulations of gas or the retention of
the accumulated gas from the explosion of which Fulton was killed.
We are also of opinion that there was nothing in the evidence which
would have justified the inference that the absence of the wheel
from the valve, forming part of the mechanism to operate the
ventilating fan, was the proximate cause of the presence of the gas
in the west roadway where Fulton was killed. The uncontradicted
testimony showed that but a very brief interval, a minute or two,
elapsed before a wrench was obtained, and the distance to the point
where the gas had accumulated precludes the possibility of saying
that the evidence tended to show that the absence of the wheel
could have been the proximate cause of the accident. Under this
condition of things, we find it impossible to say that prejudicial
error did not result.
Maryland v. Baldwin, 112 U.
S. 490,
112 U. S. 493.
And, of course, in a case like the one we are considering, we
cannot maintain the verdict, as might be done in a criminal case,
upon a general verdict of guilty upon all the counts of an
indictment.
Goode v. United States, 159 U.
S. 663. Nor does section 57 of the Illinois Practice
Act, c. 110, Rev.Stat. Illinois, support
Page 205 U. S. 79
the contention that errors of the character of those we have
just been considering must be treated as not prejudicial. The
section relied upon is as follows:
"Whenever an entire verdict shall be given on several counts,
the same shall not be set aside or reversed on the ground of any
defective count, if one or more of the counts . . . be sufficient
to sustain the verdict."
This section has been held not to relate to counts which are
vitally defective, but as only providing that, where a declaration
consists of several counts, and some of the counts contain defects
not vital, and yet subject to be assailed by demurrer, a party
cannot wait until after the close of the evidence at the trial,
and,
a fortiori, after verdict, and then for the first
time question the sufficiency of the counts.
Chicago v.
Lonergan, 196 Ill. 518;
Consolidated Coal Co. v.
Scheiber, 167 Ill. 539. This statute, of course, lends no
support to the contention here made that, where a jury is
wrongfully permitted, over the objection of the opposing party, to
take into consideration in reaching a verdict counts of a
declaration which have not been supported by any evidence, and
where it is impossible from the record to say upon which of the
counts of the declaration the verdict was based, that the judgment
entered under such circumstances can be sustained upon the theory
that substantial rights of the objecting party had not been
invaded.
The judgment of the Circuit Court is therefore reversed, and
the case remanded to that court for further proceedings consistent
with this opinion.