text:
    George Trumbull Woodbury, Appellant, v. Ocean Accident & Guarantee Corporation, Ltd., Appellee.
    Gen. No. 21,800.
    1. Insurance, § 488*—when evidence is insufficient to show justification for dispute as to right of recovery under accident policy. Evidence held to tend strongly to show that at the time of plaintiff’s accident, on account of which he brought action to recover under his accident insurance policy with the defendant, and at the time of his settlement under such policy and executing a release, there was no justification for any dispute concerning his occupation nór the amount of indemnity to which he was entitled under the policy.
    2. Trial, § 196*—when direction of verdict is proper. If either at the close of plaintiff’s evidence or of all the evidence there is no evidence, or but a scintilla of evidence, tending to prove the material averments of the declaration, the jury should be directed to return a verdict for the defendant.
    3. Trial, § 195

      —when case should be submitted to jury. If there is in the record any evidence from which, if it stood alone, the jury could, without acting unreasonably in the eye of the law, find that all the material averments of the declaration have been proven, the cause should be submitted to the jury, even though a verdict for the plaintiff would have to be set aside on a motion for a new trial because of the manifest preponderance of all the evidence.
    4. Insurance, § 490*—when fraud and duress in procurement of release is question for jury. Evidence of fraud and duress in the procurement by defendant’s adjuster of plaintiff’s release of defendant’s liability under its policy of insurance issued to plaintiff, held ample to justify its submission to the jury, in an action to recover the amount of the policy.
    5. Insurance, § 488*—when incapacity of insured to make settlement is question for jury. Evidence bearing upon the physical and mental condition of plaintiff at the time he made settlement under his accident insurance policy-for the results of an accident tending to show he was then incapacitated for making such settlement, held to be for the jury to pass upon.
    6. Insurance, § 488*—when extent of influence of injuries on will in making settlement is for jury. The extent of the influence of plaintiff’s injuries upon his will and judgment in making a settlement under his accident insurance policy, held to be for the jury. 7. Evidence, § 33*—when presumed that common lab) is in force. In the absence of evidence as to the law of another State, it will be assumed the common law prevailed there at the time in question.
    8. Seals, § 2*—what is not instrument under seal. An instrument executed with a scroll, held to be, at common law, not one under seal.
    9. Seals, § 6*—what is effect of seal. A seal, generally speaking, merely adds “factitious dignity” to a document; more conclusiveness, as mere evidence of the agreement of the parties.
    10. Conflict of laws, § 12*—what law governs as to release. Where a release is presented as a defense to a cause of action, the law of the place where the release was executed as to its execution should be applied.
    11. Insurance, § 491

      —when release is not bar to action on accident policy. Where an action was brought to recover on an accident insurance policy alleged to have been tortiously obtained from plaintiff by fraud and duress with a release of liability under the policy of the insurer obtained at the same time and under the same circumstances, the questions of defendant’s guilt of such tort and, if guilty, of what damages were thereby inflicted, held to be not affected by the fact of such release.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 18, 1917.
    Rehearing denied May 9, 1917.
    Frederick A. Brown and Raymond S. Pruitt, for appellant; John McDonald, of counsel.
    Wilkerson, Cassels & Potter, for appellee; Ralph F. Potter and Kenneth B. Hawkins, of counsel.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

This is an appeal from a judgment entered by the Circuit Court of Cook county,' on March 5, A. D. 1915, in favor of the Ocean Accident & Guarantee Corporation, Ltd., appellee (hereinafter designated defendant). The judgment was based on the verdict of a jury, directed by the trial judge, at the close of all the evidence in the case.

In the year 1908, the defendant had issued to appellant, George T. Woodbury (hereinafter designated plaintiff), an accident insurance policy, which provided, inter alia, for the payment of $12,500 in case the insured lost either hand or foot solely through external, violent and accidental means. The occupation of the plaintiff was stated in the insurance policy as that of vice president of the Columbus Safe Deposit Company with the ordinary duties of office and traveling.

On October 1, 1910, the plaintiff having moved from Chicago to Phoenix, Oregon, and while the policy was still in force, received a serious injury to his right leg, through the accidental discharge of a gun, and as a result of the injury his right foot had to be amputated above the ankle.

At the time of the accident plaintiff had additional accident insurance, but for different amounts, in both the United 'States Casualty Company and the Continental Casualty Company. Plaintiff brought suit in the Circuit Court of Cook county on each of the accident policies, and as the material facts in each suit were substantially the same, the three suits were by agreement of counsel consolidated. Separate appeals were prayed and allowed. The plaintiff has filed a similar brief in each of the three cases; and each of the defendants (appellees) has filed a separate and different brief.

The declaration contains two counts, the first of which contains the following averments:

That on October 23, 1910, the plaintiff owned and possessed an accident policy, which provided that the defendant would pay the plaintiff $25,000 if he should accidentally lose either foot; that on October 3, 1910, he lost his right foot by the accidental discharge of a shot gun, and the policy then had a value of $12,500, but that the defendant sent an adjuster to plaintiff, while he was injured and in a weakened condition from the shock of the injury and two operations, who menaced and threatened the plaintiff that unless he would surrender the policy for the sum of $6,250.00 in full settlement thereof, the defendant would cause plaintiff to be criminally prosecuted for intentionally having shot off his foot for the purpose of defrauding the insurance company; that he, the adjuster, told the plaintiff that he had evidence of such fact that would probably result in sending plaintiff to the penitentiary; that said statement was false; that said adjuster further stated that if he did not accept the sum of money so offered, the defendant would never pay; that it had an abundance of money to defend any suit and would keep the plaintiff in court for years and bankrupt him, and that if plaintiff succeeded in staying out of the penitentiary, he would be unable to support himself and wife because of the trouble defendant would make him; that said statements were made in the presence of plaintiff’s wife, who was in a run down physical condition from nursing of plaintiff, and were made for the purpose of terrorizing her and having her influence plaintiff to accede to the demands of said adjuster; that said adjuster so terrorized them that by reason of such menace, threats, and in fear and apprehension thereof, plaintiff delivered said policy to defendant while there still remained due on said policy $6,250, which was then and there the value of said policy.

The second count is in trover and contains the following' averments:

‘ ‘ That on, to wit, the 23rd day of October, 1910, the defendant was lawfully possessed of the policy of insurance heretofore described, which on said date had a value of $12,500 by reason of plaintiff having accidentally shot off his foot, which policy was lost by the plaintiff and came into the possession of the defendant, who, knowing it to belong to the plaintiff, nevertheless converted the same to its own use and refused to deliver it to the plaintiff, though often requested so to clo and disposed of the same to the damage of the plaintiff in the sum of $10,000.”

To the declaration, the defendant filed a plea of the general issue, and also a special plea, setting forth that after the occurrence of the acts alleged in said declaration, plaintiff executed a release under seal, discharging the defendant from all claims. ■ To the latter’s special plea the plaintiff filed a general replication.

The case was tried before a jury, and at the close of all the evidence, the plaintiff’s and the defendant’s, upon a motion of the defendant, the court instructed the jury to find the defendant not guilty.

It was expressly admitted by the defendant upon the trial that on October' 3, 1910, plaintiff suffered the loss of his right foot, solely through external, violent and accidental means; that due proofs of loss were furnished, as required by the policy in question, and that said policy was in force and effect at the time said loss occurred.

The plaintiff contends that the defendant, through its adjuster, obtained the said policy from the plaintiff by fraud and duress, and caused the plaintiff to surrender it for one-half its value.

The defendant contends: (1) That on account of an alleged change in the insured’s occupation to a more hazardous risk, the defendant was liable only for the amount of indemnity the premium paid by the insured would purchase in the more hazardous classification, and that the defendant did not pay that amount; that because of the dispute as to plaintiff’s occupation the claim was unliquidated, and the settlement and release were supported by a good consideration, and the plaintiff was barred from his action at law; (2) that no fraud or duress were shown in obtaining the policy from the plaintiff, and the court rightly directed a verdict; (3) that the release, being under seal, could not be attacked in an action at law.

We shall consider those contentions seriatim.

' As to the alleged change in the occupation of the plaintiff: At the time the plaintiff took out the insurance he was employed by the Columbus Memorial Building, and had been for about eighteen years, as renting agent. On June 10, 1910, he went to Phoenix, Oregon, where his father-in-law lived, to go into the ranch business. The plaintiff himself testified, that six or eight weeks after his arrival in Oregon he gave up the idea of going into the ranch business and went into the real estate business at Medford, Oregon, where he claims he had desk room; that he had quite a list of property for sale; that he had some real estate for sale for one Wilber, in Ashland; that after he went into the real estate business he was not directly interested in the ranch, though he did some chores; that he was not in any other business than that of real estate after September 1,1910, and at the time of the accident; that on the day of the accident he had made all preparations to go east, grip packed, money in his pocket, contract for the commissions he was to receive, signed up, etc.

The testimony of E. J. Wilber is also to the effect that' the plaintiff was engaged in the real estate business a month or so prior to October 1, 1910, the date of the accident; that plaintiff’s office was in Medford, and that on October 1, 1910, the plaintiff and he were interested in selling a subdivision of 1,800 acres of land, and on that day Wilber himself took some plats, blue prints, maps and other data, to the plaintiff’s house. The plaintiff’s father-in-law, C. S. Redfield, testified that the agreement between plaintiff and Wilber was signed just before the accident happened.

The testimony of. the defendant’s chief witness, Wisner, the adjuster, also, in a measure corroborates the testimony of plaintiff and Wilber. He testified that the plaintiff showed him a receipt for $10 from Mr. Patterson, for use of his desk; that his recollection was that the receipt was for the month of September; that when he talked with Wilber, the latter pointed out a tract of land and said that he had made arrangements with the plaintiff to go to Chicago and interest his friends; that the plaintiff had gone into the real estate business with him.

Plaintiff’s exhibit 9 shows a letter head, which the plaintiff testified was used by him when he engaged in the real estate business. It is as follows:

“Gr. T. Woodbury,
Fruit and Timber Lands,
Medford, Oregon.”

On August 20, 1910, the plaintiff wrote a letter to the defendant company, stating that he had made arrangements to move to Medford and go into the real estate business on September 1st, and requesting advice as to what would be necessary for him in regard to his insurance. On August 24, 1910, the defendant company answered plaintiff’s letter (in part) as follows: “Tour kind favor of August 20th at hand, and your new occupation will not necessitate any change in your policy. ’ ’

It seems impossible to consider the testimony of the plaintiff and Wilber, and the admission of the defendant’s witness, the adjuster, in regard to the receipt from Patterson, and the answer of August 24, 1910, of the defendant company, that the new occupation would not necessitate any change in his policy, without concluding that there was evidence that tended strongly to prove that there was no reasonable dispute of any kind as to the occupation of the plaintiff; and that, as far as the defendant was concerned, no change had taken place in occupation or risk to justify any dispute or contention on the part of the defendant that the claim of the plaintiff was unliquidated. The evidence that he was in the real estate business at the time of the accident was quite overwhelming. The testimony of the neighbors who were called, and knew generally what he did about his wife’s ranch, is, on the whole, entirely consistent with the testimony of both the adjuster and Wilber on that subject. .

We are bound to assume, therefore, that the evidence tends strongly to show that at the time of the accident and at the time of the settlement there was no justification for any dispute concerning the occupation of the plaintiff, nor the amount of indemnity to which he was entitled.

As to the alleged fraud or duress in obtaining the policy from the plaintiff, and making a settlement:

It may be well (1) to consider the evidence as to the physical and mental condition of the plaintiff at the time of the settlement; and then (2) the evidence as to the alleged threats and intimidation and representations of the adjuster.

As to the physical and mental condition of the plaintiff: On October 1, 1910, between 2:00 and 3:00 p. m., the plaintiff went out to a tool house, which was about 150 feet from the rear of the main house, and reached up for his rifle. It got away from his hands, struck the door and dropped muzzle down, and then fell over, and, as it did so, it went off, the bullet going transversely through his right leg about three inches above the ankle. In about half an hour Dr. Malmgren arrived, and the plaintiff was put on a stretcher, his wound dressed, and he was taken in a wagon to a hospital at Medford, where he arrived, after intense suffering, about 6:00 o’clock p. m. He was given an anesthetic and three inches of the bones were taken out. The bullet, which was a soft nose bullet, had entered from the inside of the leg and had cut in two, transversely, both the tibia and fibula. The first operation was a wiring of the severed ends of both those bones. There were a great many loose fragments of bone in the wound. Dr. Malmgren testified that the bullet by its circular motion had ground up the bones and that it took half an hour to clean'out the bone; that it bled quite freely and the plaintiff suffered intensely. Forty-eight hours afterwards, on October 3, 1910, the circulation after the first operation being very poor, amputation was performed. The evidence of the doctors and of the plaintiff is that the injury and the operations caused a considerable loss of blood and a great amount of suffering.

The plaintiff testified that after the accident, while on the way to the hospital, and at the hospital, he lost two or three quarts of blood; that at the first operation they took out three inches of bone; that he was hardly out from under the influence of one anesthetic when they put him under another; that he did not remember much that happened in between the two; that the second operation was performed at 2:00 p. m. on Monday, October 3, 1910; that after the second operation “the chloroform nauseated me, and my weakened condition made me weaker. It was a long time before I could take anything on my stomach, due to the effects of the chloroform”; that his wife and trained nurses took care of him; that after the amputation the wound was dressed “very frequently,” they would undo it and see the condition it was in and then do it up again and put on fresh bandages”; that they put surgeon’s plaster on to hold it together; that when they would remove them it was very painful; that pus was present, and a drainage tube kept in for some time; “that several times the pieces of bone that they had been unable to remove, worked out to the surface, and there was one or two that broke out, and other times they would cut in and dig them out”; that “it was at least five ¡months before the last one came out”; that after he had been at the hospital several weeks, owing to the fact that it was crowded, he was taken to the physician’s house, where he could receive attention; that “the doctor was there and dressed the wound the day that this settlement was made”; that he remained at that doctor’s house three or four weeks, after being three weeks at the hospital; that he was nursed at the doctor’s house by his wife; that the doctors called every day; that he was under the care of a physician until the following March; that until then he had some fever.

As to threats, intimidations and representations of the adjuster: The plaintiff testified that Wisner, the adjuster, called on him on November 5, 1910, at the hospital; that he told him he had come out to adjust his claim; that when he left he said he wished to make some investigation and would be back again; that he came back the next morning before the plaintiff was up; that he said “he had some very suspicious evidence, some evidence which was very suspicious” regarding the accident; that he said, “it was rather unusual for a man out in the country to have so much insurance”; that in the morning and in the afternoon both, “he did talk about people going to the penitentiary where the evidence was less against them than it was against me”; that “he cited a case of a man at Buffalo who threw his arm under a street car and it was cut off. He had to sue the companies and they sent him to the penitentiary, and he cited several cases, two or three more, I can’t say just where”; that when plaintiff told him that he would not settle for anything but the face value, he said “they will bankrupt you and possibly put you in the penitentiary”; that “they will ruin your reputation anyway”; that “they have unlimited funds and the best legal talent in the country, it is foolish for you to attempt to fight them”; that he, the plaintiff, told the adjuster that he was in no condition to talk the matter over; that there was time enough to settle it; that he said “it was either $10,000 (meaning a fifty per cent. settlement of the policies) on the one hand, or litigation on the other, with the penitentiary as the possible wind up for me”; that he said “you are very foolish if you don’t accept this offer of mine. You are getting along at the time of life when it will be hard for you with only one leg to support your wife. ’ ’

In the afternoon, between 2:00 and 3:00 o’clock, the adjuster visited the witness again, and stayed about an hour. Mrs. Woodbury was there, and had been present at the prior conversations. Plaintiff testified that the adjuster talked about the same thing in the afternoon as in the forenoon, “about the possibility of my going to the penitentiary, and that I hadn’t a chance on earth to win a suit if I fought it”; that that night “we did not sleep a wink all night” (meaning himself and wife); that “I was greatly worried.” “I was worried talking this over with my wife”; that they talked about it all night long; “I was rather run down from the loss of blood and very weak, they were 'trying to build me up”; that he had no appetite during the time Wisner visited him; that the wound was painful for months.

The adjuster called again on the third morning, but had to wait some minutes until the doctor got through dressing the plaintiff’s wound, the plaintiff being in bed. Plaintiff testified further that the dressing of the wound that morning was painful; that the adjuster reiterated the statements about the penitentiary, “they were the things that stood out prominent, that was the thing that stood out prominent most of the time”; that that morning he finally agreed to make a settlement, and the adjuster went away and said “he would be back in the afternoon with the drafts, and that he was in a great hurry and must get right out of town”; that he came back about 2:00 o’clock with the papers ready; that the settlement was for one-half, with some addition for miscellaneous fees; that on the morning when the wound was dressed by the doctor and the matter finally settled, his condition was “very weak and nervous,” and (referring to his wife, who had been present at all the interviews, and who he testified had lost thirty pounds), “her weakened condition induced me to make this settlement and avoid further trouble and friction”; that more than once during the several interviews he told the adjuster he was in no condition to do business; that at one of the interviews the adjuster said it was “rather peculiar that there was no witness to the accident”; that he asked him to illustrate how it happened, and the witness said he could not stand up; that Wisner then stood up in the doorway and went through the motions, and then said, “you see how ridiculous that would appear before a jury”; that Wisner convinced him, by what he said, that if he brought suit on the policies he would never get a cent; that when the adjuster threatened in case the companies were sued that they would prosecute him criminally “I did not know what they might do. Innocent men have been sent to the penitentiary” ; that he believed him; that he did not read over the papers which were given him that afternoon to sign; that the adjuster took the policies away with him. The witness, Wilber, testified that he telephoned the plaintiff he was not in any condition to make a settlement. There is some evidence that the plaintiff talked with a lawyer, or some one called Judge, but it is too uncertain to justify any definite inference. Dr. Conroy testified that the plaintiff was very nervous; that the negotiations with the adjuster had a bad effect upon his mental condition and worried him a great deal. Redfield testified that he was not in a normal condition either mentally or physically.

The question arises, and it is the substantial matter upon this appeal, was there sufficient evidence tending to show fraud or duress to justify the trial judge in submitting it to the disinterested judgment of the jury.

In determining the duty of the trial judge in such a case, the principle of law applicable is set forth quite exhaustively by Mr. Justice Scott in Libby, McNeill & Libby v. Cook, 222 Ill. 206, in the following language: “In either case (meaning at the close of plaintiff’s or all the evidence), if there is no evidence, or but a scintilla of evidence, tending to prove the material averments of the declaration, the jury should be directed to return a verdict for the defendant. If, however, there is in the record any evidence from which, if it stood alone, the jury could, ‘without acting unreasonably in the eye of the law, ’ find that all the material averments of the declaration had been proven, then the cause should be submitted to the jury. (Frazer v. Howe, 106 Ill. 563; Simmons v. Chicago and Tomah Railroad Co., 110 id. 340; Bartelott v. International Bank, 119 id. 259; Offutt v. Columbian Exposition, 175 id. 472). Such evidence last mentioned fairly tends to prove all the material averments of the declaration, and such evidence, standing alone, is sufficient to sustain, warrant or support a verdict in favor of the plaintiff, even though it may be that a verdict for the plaintiff, if returned, would have to be set aside on a motion for a new trial because against the manifest preponderance of all the evidence.”

Upon an analysis of the evidence in the instant case, we find that it proves, or tends to prove, that the injury to the plaintiff was accidental; that the defendant knew that the plaintiff had not changed his occupation and was therefore entitled to $12,500; that a settlement was made for half that sum; that the adjuster knew at the time the settlement was made, find prior thereto, that the plaintiff, by reason of two major operations within approximately a month of the date of settlement, had suffered such nervous shock and physical change that he was not in a normal condition; that while the plaintiff was in that enfeebled condition, the adjuster, representing the defendant, by insidious suggestions as to suspicious evidence and the possibility of the plaintiff going to the penitentiary, persuaded plaintiff to make a settlement for a grossly inadequate sum. The evidence tends to show that the plaintiff agreed to surrender his right to half the amount of the policy when there was no valid defense against its payment, and no consideration for its release.

In view of the evidence, which in the case of Fraternal Army of America v. Evans, 114 Ill. App. 578, was considered sufficient to support a verdict, we feel compelled to the conclusion that there was in this case ample evidence of fraud and duress to justify its submission to the jury.

The jury are entitled to consider, as an element in the case, the evidence which bears upon the physical and mental condition of the plaintiff at the time the settlement was made. In Buchanan v. Sahlein, 9 Mo. App. 552, the court uses the following significant phrases, “the will of "an innocent person of common-firmness,” “the will of a person of ordinary courage.” In the instant case, the evidence, tending to prove that the plaintiff at the time of the settlement was incapacitated, should be passed upon by the jury. The injury made an immeasurable difference to the plaintiff ; it caused a permanent change in his capacity and possibilities as a man; it limited at once his scope and his future conduct; and bearing that in mind, together with the effect of the shock and pain upon his mind and upon his will, it became a proper subject for the consideration of the jury. It is safe to' assume that the injury and its consequences, as they existed at the time of the settlement, lessened his will to resist suggestion and the influence of others, and enfeebled his normal power of judgment. The matter of extent was for the jury. As to the quantity, applying the principle so exhaustively expounded in Libby, McNeill & Libby v. Cook, supra, we are of the opinion that there was plenty of evidence to justify submitting it to the disinterested judgment of the jury.

As to the release under seal being a bar to plaintiff’s suit:

The release in this case was executed with a scroll which, at common law, was not recognized. No evidence as to the law of Oregon, where the instrument was signed and sealed, was offered. We assume, therefore, that the common law prevailed at the place of execution. In Oregon, it follows, the instrument would not be considered as one under seal. What effect, then, should be given it here when presented and interposed as a defense? The defendant claims that the plaintiff is without remedy at law until he has gone into equity and has the release set aside. The plaintiff contends that as it is not a sealed instrument according to the law of Oregon, where it originated, it is not such here. The question seems never to have arisen in our courts. A seal, generally speaking, merely adds “factitious dignity” to a document; “more conclusiveness, as mere evidence of the agreement of the parties.” Steele v. Curle, 34 Ky. 381. Many cases are found where it has been determined that the lex. fori governs the form of action, whether, for example, it shall be in assumpsit or covenant, and there is, perhaps, some justification for such law. Where, however, as here, the release is presented as a defense to a cause of action, we are inclined to agree with the court in Waln v. Waln, 53 N. J. L. 429’ and apply the law of the place where the release was executed.

Further, it may be said that the plaintiff is not suing upon the policy, but for the tort committed in obtaining it. Two questions may be considered as involved: (1) Was the defendant guilty of a tort in obtaining the policy; (2) if guilty, what damages were thereby inflicted upon the plaintiff. These questions are not affected by the fact that in connection with, and as a part of the tort, a release of liability was also obtained. If the acts by which the policy was obtained were tortious, the obtaining of the release at the same time and in the same manner was equally tortious. The complaint of the plaintiff is that he has been tortiously deprived of a thing of value. The defendant replies we have a release. The plaintiff then, in effect, says, that does not make my policy valueless, for the evidence shows that the release also was obtained by the same tortious act.

After full consideration of the record in this cause, we are of the opinion that the evidence presented was amply sufficient to justify submitting it to the jury, and, therefore, we think that the court erred in directing a verdict for the appellee, and for the error so committed the judgment ought to be reversed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    George Trumbull Woodbury, Appellant, v. Continental Casualty Company, Appellee.
    Gen. No. 21,801.
    Appeal from the Circuit Court of Cook county; the Hon. Look-wood Hoetobe, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 18, 1917.
    Rehearing denied May 9, 1917.
    Frederick A. Brown and Raymund S. Pruitt, for appellant; John G. McDonald, of counsel.
    M. P. Cornelius and George R. Sanderson, for appellee; Manton Maverick, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.

Inasmuch as this appeal involves substantially similar matters to those adjudicated in Woodbury v. Ocean Accident & Guarantee Corporation, Ltd., Gen. No. 21,800, ante, p. 387, we are of the opinion that the court erred in directing a verdict for the appellee, and, for that error so committed, the judgment ought to be reversed and the cause remanded.

Reversed and remanded.


text:
    George Trumbull Woodbury, Appellant, v. United States Casualty Company, Appellee.
    Gen. No. 21,850.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 18, 1917.
    Rehearing denied May 9, 1917.
    Statement of the Case.
    Action by George Trumbull Woodbury, plaintiff, against the United States Casualty Company, a corporation, defendant, to recover on an insurance policy. From a judgment for defendant, on a directed verdict, plaintiff appeals.
    The decision in this case is governed by the decision in the case of Woodbury v. Ocean Accident & Guarantee Corporation, Ltd., ante, p. 387,
    Frederick A. Brown and Raymond S. Pruitt, for appellant; John G. McDonald, of counsel.
    Moses, Rosenthal & Kennedy, for appellee; Joseph W. Moses and Walter Bachrach, of counsel.
   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Alabama Marble Company, Appellee, v. H. L. Stevens, Appellant.
    Gen. No. 21,838.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Contracts, § 171*—when whole of instrument considered. In interpreting a contract to determine the mutual obligations of the parties thereto, it is necessary to consider the whole of the contents of the instrument.
    2. Principal and agent; § 169

      —when right to recover against agent• is dependent upon receipt of money from principal. Whiere a contract for the rendering of certain services and the furnishing of certain material by the plaintiff for the defendant as agent of the owner of a building for a certain sum to be paid by the defendant, provided further that no money should be due under the contract until the defendant had received such money from the owner, held that such provision was not a qualification or exception but an inherent part oí the liability, and plaintiff’s right to compensation or to sue therefor was dependent upon defendant having received the money from the owner of the building.

      Appeal from the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed April 18, 1917.
    Statement of the Case.
    Action by the Alabama Marble Company, plaintiff, against H. L. Stevens, defendant, to recover, for certain services rendered and material furnished under a written contract, a claimed balance of $1,614.91. From a judgment for plaintiff for the amount claimed, defendant appeals.
    Wilkerson, Cassels & Potter, for appellant
    Hoyne, O’Connor & Irwin, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.

3. Principal and agent, § 223 —when burden is on plaintiff of proving receipt of money by agent. In an action brought to recover under a contract for services rendered and materials furnished by the plaintiff for the defendant as agent of the owner of a building for a certain sum to be paid by the defendant, and providing that no money should he due under the contract until the defendant had received such money from the owner, where the statement of claim set up such contract and defendant’s affidavit of merits set up that no money had been paid by the owner of the building, held that such affidavit did not set up a plea in the nature of confession and avoidance hut was a direct traverse of a material part of plaintiff’s cause of action, and put the burden upon plaintiff of proving that the defendant had received such money.


text:
    The People of the State of Illinois ex rel. John D. Kavanaugh, Appellee, v. City of Chicago, Appellant.
    Gen. No. 21,990.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoobty, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded with directions.
    Opinion filed April 18, 1917.
    Statement of the Case.
    Petition for writ of mandamus by the People of the State of Illinois on the relation of John D. Kavanaugh, petitioner, against the City of Chicago, respondent, for the purpose of having relator’s name restored to the roster of lieutenants of the fire department. From a judgment awarding the writ, respondent appeals.

      Abstract of the Decision.
    Civil service, § 28

      —when demurrer to petition of mandamus on ground of laches is properly sustained. In mandamus proceedings against a city, brought by a lieutenant of the fire department to have his name restored to the roster from which it had been dropped, where the original petition, which was filed nearly nine years later, failed to state any facts excusing the delay in the filing of the petition, held that the demurrer to the petition on the ground of laches was improperly overruled.
    Samuel A. Ettelson, for appellant; Roy S. Gaskill, of counsel.
    Earl J. Walker, for appellee.

      See niinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Taylor

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Isadore H. Stone, Appellee, v. Janette Manufacturing Company et al., Appellants.
    Gen. No. 23,364.
    (Not to he reported in full.)
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Martin M. Gridley, Judge, presiding. Heard in this court.
    Affirmed.
    Opinion filed April 23, 1917.
    Rehearing denied May 4, 1917.
    Statement of the Case.
    Bill by Isadore Hi Stone, complainant, against Janette Manufacturing Company and certain stockholders of the corporation, defendants, to restrain the sale or disposition of treasury stock of the corporation. From an order denying a motion to dissolve a temporary injunction, defendants appeal.

      Abstract of the Decision.
    1. Appeal and erbob, § 309*-—when appeal lies from order denying motion to dissolve injunction. Under the Practice Act, sec. 123 (J. & A. If 8661), entitled “An Act in relation to practice and procedure in courts of record,’’ an interlocutory appeal lies from an order denying a motion to dissolve an injunction.
    2. Injunction, § 385

      —when discretion of chancellor in dissolving temporary injunction restraining sale of corporate stoclc not interfered with. On an application for a temporary injunction by a minority stockholder, who charged the other stockholders with a conspiracy and combination to deprive him of his interest in the corporation and to destroy the value of his stock so as to compel him to sell at a loss, and that a resolution had been passed authorizing the issuance of treasury stock and a sale thereof at par value if such stockholders saw fit, and that such stock would be sold to the defendants and others at par, which would increase the capital stock of the corporation, and that the stock of the complainant would thereby be reduced by about one-half of its value, so that his voting power would be destroyed, and that there was no necessity for the sale of such stock as the corporation wa's not in need of money, and that the defendants did not intend to pay for the stock, their only purpose being to injure the value of complainant’s stock and lessen his voting power, and, upon the bill, supported by affidavit, a temporary injunction restraining the sale of disposition of such treasury stock was granted, and the court subsequently denied a motion to dissolve, held that the exercise of the sound discretion of the chancellor would not be interfered with.
    Leslie A. Gilmore, for appellants.
    Bernard J. Brown, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section nnmber.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    F. J. Riley Printing Company, Appellee, v. Bissell Laundry, Appellant.
    Gen. No. 22,874.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1752*—judgment affirmed for insufficiency of abstract. The abstract is the pleading of the parties in the Appellate Court, and if it fails to inform the court as to what the judgment was which the court is asked to reverse, such judgment will he assumed to be correct and will be affirmed.
    2. Appeal and error, § 888

      —when abstract is insufficient. In a case where the abstract contained the recital: “Verdict and motion for new trial. Order denying motion for new trial and judgment,” held that such recital did not inform the court as to the character of either the verdict or judgment.
    3. Contracts, § 338*—what is no defense to action to recover on advertising contract. In an action to recover for the amount due under a contract for advertising in a publication called “The Hamiltonian,” where the defendant claimed that it thought it was contracting for such advertising with the Hamilton Club of Chicago, held that as the contract was in writing, and did not purport to be with such club, the defendant could not avoid payment by claiming that it executed the contract under the impression that the money was to be paid for the benefit of a party not named in the contract.

      Appeal from the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.
    Statement of the Case.
    Action by F. J. Riley Printing Company, a corporation, plaintiff, against the Bissell Laundry, a corporation, defendant, to recover on a contract for advertising. From a judgment for plaintiff, defendant appeals.
    Dennis J. O’Toole, for appellant.
    Lawton & Peterson, for appellee.

      See Illinois Notes Digest, Vole, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Maude E. Foy, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 22,877.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 97

      -—when pedestrian crossing tracks is not guilty of contributory negligence. A pedestrian who attempts to cross street ear tracks at a street intersection, after observing an approaching car which had turned at the terminal one block away and was proceeding on its last trip with the sign “Depot” marked on it, and knows that it is the duty of such car to stop on the same side of the intersecting street that she was proceeding along in crossing the tracks, for awaiting passengers, is not guilty of contributory negligence in attempting to cross the tracks where she was misled because the car came at a rapid rate of speed without warning that it was not going to stop for awaiting passengers.

      Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Mande E. Foy, plaintiff, against the Chicago City Railway Company, defendant, to recover damages for personal injuries due to being struck by one of defendant’s street cars. From a judgment for plaintiff for $5,000, defendant appeals.
    Busby, Weber and Miller, Robert J. Slater and Arthur J. Donovan, for appellant; John R. Guilliams, of counsel.
    James C. McShane, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Damages, § 120 —when verdict for personal injuries sustained by woman is not excessive. A verdict for $5,000 held not excessive, where a woman thirty-three years old, the mother of three children, was struck by a street car and knocked more than thirty feet away, was unconscious when picked up, was taken to a hospital and stayed there forty-two days, had periodical spells of unconsciousness for two or three days following the accident and was under a doctor’s care all of the time, and she sustained a fracture of four ribs, an injury to the knee, a fracture of one of the bones of the pelvis and other injuries, and she was in good health and did her own housework before the accident and was in poor health after-wards and walked slightly lame.


text:
    John Garrett, Appellee, v. Anglo-American Provision Company, Appellant.
    Gen. No. 22,880.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.
    Statement of the Case.
    Action by John Garrett, plaintiff, against the Anglo-American Provision Company, a corporation, defendant, to recover damages for personal injuries sustained as the result of the falling of a scaffold on which plaintiff was working. From a judgment for plaintiff for $6,000, defendant appeals.

      Abstract of the Decision.
    1. Appeal and ebrob, § 1698a*—when error in refusal of requested instruction is waived. A party, after the refusal of its request for an affirmative instruction upon its theory of the law, cannot ask the court to instruct negatively as to the same theory of the law, without waiving error, if any upon the prior ruling.
    2. Workmen’s Compensation Act, § 2*—when employee is not "bound by. Where an employer has not given or posted a notice or statement of his intention to come within the Workmen’s Compensation Act, as required by paragraph c, sec. 1 of the Act (J. & A. If 5449), an employee is not bound by the provisions of the act.
    3. Workmen’s Compensation Act, § 2*—what is purpose of provisions as to posting of statement of compensation provisions by employer. The purpose of paragraph c, sec. 1, of the Workmen’s Compensation Act of 1911 (J. & A. If 5449), requiring the giving to the employee or posting of a statement of the compensation provisions of the act in the work place, is to notify employees that the employer is operating under the act, so that they can protect their interests by filing a notice with the Bureau in case such employees should elect not to work under the act.
    4. Workmen’s Compensation Act, § 12

      —what does not constitute variance between pleading and proof. In an action for personal injuries by an employee against his employer, where the plaintiff alleged that, the defendant had elected not to come under the provisions of the Workmen’s Compensation Act of 1911, and witnesses testified that no statements or notices of the compensation provision were posted about the work place, held that such evidence did not constitute a variance with the pleadings, as the failure to post notices was consistent with refusal to come under the act.
    5. Workmen’s Compensation Act, § 12*—what evidence is competent as admission that employer was not under. In an action for personal injuries by an employee against his employer, where the question involved was as to whether or not the Workmen’s Compensation Act of 1911 applied to the parties, held that a certified copy of a notice dated after the date of the accident that the defendant elected to come under the act as of the date of the notice, with a statement that before that time it had not come under the provisions of the act, was competent as an admission that the defendant was not under the act at the time the notice was filed.

      Holt, Cutting & Sidley, for appellant; Charles S. Holt and Edwin C. Austin, of counsel.
    James C. McShane, for appellee.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

6. Master and servant, § 823*—when instruction, as to amount of proof is erroneous. In an action by an employee for personal injury, where plaintiff charged as negligence a violation of the so-called Structural or Building Act, Hurd’s Rev. St. ch. 48 (J. & A. j; 5368 et seq.) held that an instruction that plaintiff must prove failure to erect the scaffold in a safe manner beyond a reasonable doubt was properly refused.

7. Master and servant—what degree of proof required in aotion by servant for injuries due to violation of Structural Act. An action for personal injuries based upon a violation of the so-called Structural or Building Act, Hurd’s Rev. St. ch. 48 (J. & A. j[ 5368 et seq.), is not an action to enforce a penalty, but a civil action to recover compensation for injuries, and the plaintiff is required to prove his case by a preponderance of the evidence only, and not beyond a reasonable doubt.

8. Master and servant, § 778 —when instruction is properly refused as not conforming to evidence. In an action for personal injuries by an employee against his employer, where the plaintiff charged a violation of the Structural or Building Act, and an instruction, that if the plaintiff himself was guilty of violating the statute the jury should find the defendant not guilty, was refused, held that such refusal was proper, as it was shown without contradiction that plaintiff had nothing whatever to do with the erection or construction of the scaffold.


text:
    Annie Sasek, Appellee, v. Joseph F. Triska, trading as Joseph F. Triska & Company, and John S. Jurik, Appellants.
    Gen. No. 22,884.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Receiving stolen goods-—what can be subject of complaint for. Trees are bought and sold for planting as any other property is bought and sold, and can properly be made the subject-matter of a complaint charging a defendant with receiving stolen property.
    2. Malicious prosecution, § 74

      —when evidence is sufficient to show probable cause and want of malice. In an action by a woman for damages for malicious prosecution of a criminal case for receiving stolen trees, where it appeared that trees similar to those owned by defendants were found on plaintiff’s place and positively identified by the nurseryman who sold them to defendants; that plaintiff’s son claimed to have bought them from a strange man going by in a wagon for about one-seventh of their actual value; that defendants were informed by police officers that plaintiff and her son, whom they had never before seen or heard of had bad reputations, and, acting on their advice, preferred charges against plaintiff, evidence held sufficient to show probable cause and want of malice.

      Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed April 30, 1917.
    Statement of the Case.
    Action by Annie Sasek, plaintiff, against Joseph F. Triska, trading as Joseph F. Triska & Company, and John S. Jurik, defendants, for damages for malicious prosecution of a criminal case for receiving stolen goods. From a judgment for plaintiff for five hundred dollars, defendants appeal.
    Jennings & Fifer, for appellants.
    Lewis F. Jacobson and Daniel L. Madden, for appellee; R. C. Merrick, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, came topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

3. Malicious prosecution, § 74 —what must he proved in action for. In an action for malicious prosecution, it is essential that malice be shown on the part of the defendant who started the prosecution, and a want of probable cause for believing that the plaintiff was guilty of the offense charged, and want of such probable cause is not shown by the acquittal of the plaintiff.


text:
    Rogers & Hall Company, Appellee, v. James H. Walden, Appellant.
    Gen. No. 22,887.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Rogers & Hall Company, a corporation, plaintiff, against James H. Walden, defendant, to recover rent under a lease. From a judgment for plaintiff for $1,497.02, defendant appeals.
    Chytraus, Healy & Frost and John Peter Barnes, for appellant.
    William J. Pringle and Edwin Terwilliger, Jr., for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 6 —what constitutes a lease. In an action to recover upon a document claimed to be a lease, whereby • the defendant agreed to rent certain premises for a stated term and rental and to execute within a reasonable time “the customary form of lease,” and the conduct of the parties indicated an intention that the document should be considered as a lease, and the agreement to subsequently execute “the customary form of lease” was waived by mutual consent, and the defendant sublet half of his space to a third party under a written agreement wherein the document in question was referred to as a lease, and both the defendant and his subtenant entered into possession and paid rent for several years, held that .such agreement constituted a lease.

2. Landlord and tenant, § 449*—what is insufficient to constitute surrender of tenancy. Where, in an action for rent upon a lease, the defendant claimed that it had been dispossessed, and it appeared that after the defendant had vacated, the subtenant remained in possession of part of the premises, held that as the possession of the subtenant was in legal contemplation the possession of the defendant, the latter could not make a surrender of the tenancy without yielding up the premises in their entirety.

3. Landlord and tenant, § 451*—when reletting of abandoned premises does not constitute termination of lease. Where, in an action for rent upon a lease, the defendant claimed that the giving of a lease of part of the premises to the defendant’s subtenant, after the vacation by the defendant of the part occupied by it, terminated the defendant’s liability, and it appeared that such subtenant gave a note to plaintiff for the rent due from it to the defendant as its subtenant, with the understanding that plaintiff would agree to protect the subtenant against the claims of the defendant, and part of the note was paid and applied on the defendant’s account, held that plaintiff had the right to apply whatever might be collected from the defendant’s subtenant on account of the subsequently accruing rental, and that even if the transaction between the plaintiff and such subtenant was a reletting, it did not constitute a surrender by the plaintiff of his lease.

4. Landlord and tenant, § 301*—when taking possession of abandoned premises does not relieve tenant from liability for rent. A landlord may re-enter and again rent the premises abandoned without fault on his part, and credit the lessee with the proceeds, and his so taking possession does not relieve the tenant from the payment of rent.


text:
    Clifford Hodges, by Alfred Hodges, Appellee, v. Charles A. Coey, trading as Charles A. Coey School of Motoring, Appellant.
    Gen. No. 22,891.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Automobiles and gabases, § 3

      —when evidence is sufficient to show that driver of automobile was guilty of negligence and bicycle rider not guilty of contributory negligence. In an action to recover for personal injuries sustained by a minor as the result of being struck by the defendant’s automobile, where such minor was riding a bicycle at a street intersection about three freet from the curb, and the automobile as it came into the cross street cut diagonally across at the rate of about fifteen miles an hour and struck plaintiff at a point about three feet from the cerner and carried him about five feet around the corner, held that the finding of the jury .that the plaintiff exercised ordinary care and that defendant was negligent was fully justified from the evidence.

      Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Tbude, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.
    Statement of the Case.
    Action by Clifford Hodges, a minor, by Alfred Hodges, his next friend, plaintiff, against Charles A. Coey, trading as Charles A. Coey School of Motoring, defendant, to recover damages for personal injuries due to a collision between defendant’s automobile and plaintiff’s bicycle. From a judgment for plaintiff for five hundred dollars, defendant appeals.
    Benjamin Levering, for appellant.
    Ellis & Westbrooks, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly,' same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Municipal Court op Chicago, § 13 —what are essentials of pleading in action of fourth class in tort. In an action of the fourth class in the Municipal Court for personal injuries, the plaintiff is only required to file a brief statement giving the nature of the tort, and such further information as will reasonably inform the defendant of the nature of the case.


text:
    John Liss, Appellee, v. Haskell & Barker Car Company, Appellant.
    Gen. No. 22,907.
    (Not to be reported in full.)
    Appeal from the Circuit. Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.
    Rehearing denied May 14, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John Liss, plaintiff, against the Haskell & Barker Car Company, defendant, to recover damages for personal injuries sustained while working in defendant’s car factory. From a judgment for plaintiff for $20,000, defendant appeals.
    J. B. Collins and Rose & Symmes, for appellant; C. B. Collins, of counsel.
    David K. Tone and Frank A. Rockhold, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 95*—when foreign law governs as to liability for injuries to servant. In an action to recover for personal injuries sustained by an employee while at work in Indiana, where negligence was predicated upon the Indiana Employers’ Liability Act, held that the provisions of the Indiana statutes were binding in the Illinois forum, even though contrary to the local practice.

2. Master and servant, § 699 —when evidence is sufficient to show negligence of fellow-servant and due care of car carpenter. In an action by a car carpenter under the Indiana Employers’ Liability Act to recover for personal injuries sustained while working in a shop, due to the backing of a locomotive against separated cars on the same track, and knocking them against the car he was working on, and the next car while he was passing between the latter two, where it appeared that plaintiff had looked in both directions before going between the cars and had seen no engine and defendant’s fellow-servants had failed to send ahead a brakeman to see if any one was working on the cars, pursuant to custom, evidence held sufficient to show negligence of a fellow-servant and due care of plaintiff.

3. Appeal and error, § 806*—when finding of jury in personal injury case not disturbed because of defective bill of exceptions. Where a bill of exceptions in a personal injury case, in which the plaintiff was injured by being caught between cars located on a track in the shop of the defendant where there were many other cars and tracks, failed to contain one or more blue prints and a photograph which were introduced as exhibits and shown to the jury, which apparently indicated the position of the tracks and surroundings and were of value in fixing in the minds of the jury the physical situation and surroundings, held that in the absence of such exhibits the reviewing court could not presume to find the weight of the evidence contrary to the finding of the jury.

4. Appeal and error, § 806*—when question of excessiveness of damages not reviewed. In an action for personal injuries, where the bill of exceptions did not contain several X-ray plates and photographs which were identified and testified about by doctors on both sides, held that the question as to whether the damages were excessive could not be considered.

5. Damages, § 120*—when verdict for personal injuries is not excessive. In a personal injury case where it appeared that plaintiff sustained a fracture of the pubic arch, with a rupture of the bladder, and a disintegration of the pubic bone seemed to have followed also with abdominal hernia; that inflammation of the separated ligaments formerly attached to part of the bone, which was missing, set in, so as to render it difficult for plaintiff to use one of his legs in walking; that the pelvic arch became weakened, and there was also severe bladder disease causing infection and inflammation, held that a judgment for $20,000 was not excessive.


text:
    Peter Sindak, Appellee, v. Stanley Jaskowiak, Appellant.
    Gen. No. 22,922.
    (Not to Tbe reported in full.)
    Abstract of the Decision.
    1. Animals, § 46

      —when verdict for damages for injuries from hite of dog is not excessive. A verdict for $900, reduced by remittitur to $600, held not excessive where a man was bitten in the leg by the defendant’s dog, and where the leg bled profusely and the laceration of the muscles caused a permanent condition, and plaintiff was under the care of a physician for nearly three months and suffered an actual loss of twenty weeks’ time at $18 a week.

      Appeal from the Municipal Court of Chicago; the Hon. Habbt P. Dolan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.
    Statement of the Case.
    Action Tby Peter Sindak, plaintiff, against Stanley Jaskowiak, defendant, to recover damages, for injuries sustained by being bitten by defendant’s dog. From a judgment for plaintiff for $600, defendant appeals.
    J. S. Dudley, for appellant.
    Vincent G. Gallagher and Ernest Messner, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Animals, § 43 —when evidence is sufficient to sustain judgment for injuries to person by dog. In an action to recover for personal injuries sustained by plaintiff as the result of being bitten by a dog of the defendant, where it appeared that the plaintiff was visiting at a house located in the rear of the lot on which the defendant’s saloon was located; that as he was leaving the premises, the dog, which was being led by a chain, jumped up and bit plaintiff, and that the vicious character of the dog was Imown to the defendant, held that the judgment in favor of the plaintiff would not be disturbed.


author: Me. Presiding Justice McSurely

text:
    William A. Zeno, Appellee, v. Dr. James H. Ballard, Appellant.
    Gen. No. 22,937.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed April 30, 1917.
    Statement of the Case.
    Action by William A. Zeno, plaintiff, against Dr. James H. Ballard, defendant, to recover damages for malicious prosecution of a criminal case against plaintiff. From a judgment for seventy dollars in favor of plaintiff, defendant appeals.
    William S. Stahl, for appellant.
    No appearance for appellee.

      Abstract of the Decision.
    1. Malicious prosecution, § 13

      —when person acting on advice of prosecuting attorney is not liable for arrest of plaintiff on criminal charge. In an action for malicious prosecution for causing plaintiffs arrest, where it appeared that plaintiff, hy forging defendant’s name to a receipt for certain articles, secured such articles; that plaintiff possessed a bad reputation, and had previously served in the bridewell on a sentence for forgery; that before taking out the warrant the defendant went to the State’s Attorney’s office and accurately stated the facts to two assistant State’s Attorneys and was by them advised to get out a warrant for forgery, and was directed to another assistant State’s Attorney at a branch of the Municipal Court, and, upon stating the facts to him, was advised to get out the warrant and thereupon he caused the arrest of plaintiff, held that under such circumstances the defendant could not be held answerable.
    2. Malicious prosecution, § 13*—when person consulting attorney not liable for institution of criminal proceedings. Where a person before commencing criminal proceedings consults an attorney in good standing and gives him all the facts, and then acts upon the attorney’s advice, he will not be liable in an action for malicious prosecution.

      See Illinois Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic and section number.

   Me. Presiding Justice McSurely

delivered the opinion of the court.


text:
    John C. Cannon, Administrator, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 22,960.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Cabriebs, § 476

      —when evidence is sufficient to sustain finding that passenger struck by another car after alighting is not guilty of contributory negligence. In an action against a street car company to recover for death of a passenger who, after alighting in the daytime from a westbound car, went around the back end of the car and then southward, with the apparent intention of crossing the street and transferring to a car on a north and south street, and was struck by an eastbound car going at the rate of about twenty-five miles an hour, without any warning, and where it appeared that the deceased walked slowly and, as he came around the car, looked west and that just then the car was up to him, and that another man was walking towards deceased from the opposite direction and was near the south rail of the eastbound track and only about eight to twelve feet from the deceased, and that there was nothing between this man and the eastbound track to obstruct his view of the approaching car, and that this man testified that all of a sudden he heard the rumble of a car, and as he turned around it was right up to him and he jumped off the track, and that just then the deceased was struck by such car, held that the conclusion of the jury that such deceased was exercising ordinary care would not be disturbed.

      Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.

      Oertibrari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John C. Cannon, administrator of the estate of Cornelius J. Lynch, deceased, plaintiff, against Chicago Railways Company, defendant, to recover damages for the alleged wrongful death of said Cornelius J. Lynch, due to his being struck by a passing street car on a parallel track after - having alighted from another car. From a judgment for plaintiff for $10,000, defendant appeals.
    Frank L. Kriete, for appellant; W. W. Gurley, J. R. Guilliams and Joseph D. Ryan, of counsel.
    Quin O’Brien, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

       Sco Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Carriers, § 479 —when giving of instruction directing attention to testimony of defendant’s employees is harmless error. In an action for death of a street car passenger caused by the decedent being struck by another street car after alighting from the car in which he was riding, where an instruction was given which particularly tended to direct the attention of the jury to the evidence of employees of the defendant, with the implication that they were interested in the result of the case, but it appeared that the testimony of such employees was not the subject of controversy and vital, held that the instruction was improper, but that as there was no serious controversy over matters testified to by the employees of the defendant, and as by another instruction the jurors were told that they could not discriminate against the testimony of the defendant’s employees, a,nd as the evidence tended to show that other witnesses might have been interested, the giving of the instruction did not constitute reversible error.

3. Carriers—when operation of street car is negligent. The operation of a street car in such a manner as to pass, at a speed of about twenty-five miles an hour without warning, at a busy transfer corner, another car on a parallel track which was stopped to permit passengers to alight, some of whom might cross the track on which such car was approaching, held to constitute negligence.


author: Mr. Justice Dever

text:
    Warren Land Company, Appellee, v. Chicago, St. Paul, Minneapolis & Omaha Railway Company, Appellant.
    Gen. No. 22,764.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 105

      —when evidence is sufficient to sustain verdict for plaintiff in action for negligent delay in delivery. In an action against a railroad company to recover damages caused by delay in the delivery of certain carloads of hay, held that the evidence was sufficient to sustain the verdict for plaintiff.
    2. Appeal and error, § 1725*—what is effect of decision on former appeal. On a second appeal the Appellate Court is precluded from considering questions which were determined on the former appeal.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.
    Statement of the Case.
    Action by Warren Land Company, a corporation, plaintiff, against Chicago, St. Paul, Minneapolis & Omaha Railway Company, defendant, to recover damages for delay in the shipment of four carloads of hay. From a judgment for plaintiff for $297, defendant appeals.
    For the decision on a prior appeal, see 195 Ill. App. 157.
    Irving Herriott and Ira C. Belden, for appellant; William G. Wheeler, of counsel.
    Lewis S. Eaton, for appellee:

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Gertrude Wimmer, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No, 22,767.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 476

      —when finding of jury as to occurrence of accident to alighting passenger is sustained by evidence. In an action by a woman passenger against a street car company to recover for personal injuries, where the plaintiff, as the sole witness in her own behalf as to the accident, testified that she was thrown from the car through its jolting while she was on the rear platform preparatory to alighting, and the conductor testified that the car did not give a jolt and that notwithstanding the car was going at the rate of twelve to fifteen miles an hour, and the signal had been given for the car to stop at the crossing west of where the accident occurred, plaintiff deliberately walked off the car in about the middle of the block, and the testimony "of the only other witness to the actual occurrence contradicted plaintiff as to the jolting of the car, but was not reliable, held that the version of the plaintiff was the more reasonable and that the finding of the jury, who had an opportunity to see and hear the witnesses, would not be disturbed.

      Appeal from the Circuit Court of Cook county; the Hon. David P. Matcbett, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.
    Rehearing denied May 10, 1917.
    Statement of the Case.
    Action by Gertrude Wimmer, plaintiff, against the Chicago Railways Company, defendant, to recover damages for personal injuries sustained while alighting from one of defendant’s street cars. From a judgment for plaintiff for $6,400, defendant appeals.
    For the decision on a former appeal, see 185 Ill. App. 523.
    Joseph D. Ryan and Watson J. Ferry, for appellant ; W. W. Gurley and J. R. Guilliams, of counsel.
    Albert H. Meads and Leslie J. Ayer, for appellee.

      See niinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number,

   Mr. Justice Dever

delivered the opinion of the court.

2. Damages, § 110 —when verdict for permanent injuries is not excessive. A verdict for $6,400 in favor of a woman who was thrown from a street car, held not excessive, where it appeared that plaintiff sustained a fracture of the arm, and immediate efforts to set it resulted in failure; that thereafter plaintiff was admitted to a hospital where she was operated on and remained eleven days; that the arm was then in a east for five weeks and thereafter was carried in a sling; that after nine months plaintiff, on attempting to resume her work of stenography and bookkeeping, was unable to do so because of soreness in the arm; that she was unable to do any work for the succeeding seventeen months, with the exception of two weeks, and, at the time of the trial, six years after the accident, she was unable to lift her arm above her shoulder, and the movement of the arm was restricted and the injured arm was shorter and otherwise smaller than the other arm, and there was permanent atrophy of the muscle.


text:
    Svenska National Förbundet i Chicago (Complainant), Appellee, v. Swedish National Association and Othelia Myhrman (Defendants); Swedish National Association (Cross Complainant), v. Svenska National Förbundet i Chicago (Cross Defendant). On Appeal of Swedish National Association, Appellant.
    Gen. No. 22,769.
    1. Corporations, § 61

      —what is right of corporation to acquire different name by usage or prescription. Where a corporation has been given a corporate name by its charter, it cannot at the same time acquire, either by usage or prescription, a legal right to a different corporate name.
    2. Corporations, § 50*—when evidence is sufficient to show that eharitable corporation has ceased to exist. On a bill by a corporation having the name of “Svenska National Forbundet i Chicago,” to restrain the use by the defendants, Swedish National Association and an individual, of the names “Svenska National Forbundet,” or “Svenska National Forbundet, Chicago, Illinois,” or “Svenska National Forbundet i Chicago,” which were the Swedish equivalent for the name of the complainant, where the question was which of the complainant and defendant corporations had the right to use the said name in the Swedish language, and where it appeared that the individual defendant for some years preceding the filing of the bill had conducted a private business under the name of the defendant corporation; that for several years there was an utter failure upon the part of the defendant corporation to comply with the statutes relating to the organization of corporations not for profit, and no effort was made to comply .with the beneficent purposes of such corporation, and the evidence disclosed a purpose to use such corporation or its name in money-making ventures directly opposed to the charitable purposes for which it was organized, held that the evidence was sufficient to sustain the finding that the defendant corporation had ceased to exist some years before the filing of the bill.
    3. Trade-marks and trade names—when corporation may not use equivalent in foreign language of trade name. On a bill to restrain the use by the defendants of the name of the complainant, a corporation not for pecuniary profit, where the question was, which of the parties, the complainant, Svenska National Forhundet i Chicago, or the defendant, Swedish National Association, had the legal right to use the name “Svenska National Forbundet i Chicago” or “Svenska National Forbundet,” or “Svenska National Forbundet, Chicago, Illinois,” and it appeared that the words “Swedish National Association” were the equivalent of the Swedish words “Svenska National Forbundet,” and that the names which constituted the real basis of the controversy had almost the same meaning, held that the defendant had no right to use any but its corporate name, and therefore had no right to use the Swedish equivalent for its corporate name.
    4. Corporations, § 61

      —when corporation cannot acquire title to other than corporate name. If a corporation uses a name other than its corporate name, it can acquire no legal title to the latter, however extensive such use may have been.
    5. Equity—when cross-hill is properly dismissed. Where upon the issues raised by the original pleadings it is determined that the complainant is entitled to the relief prayed against the defendant, and the determination of that question necessarily- involves a consideration of every relief sought by the defendant in his cross-bill, the sustaining of a demurrer to and consequent dismissal of the cross-bill is proper.
    Appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in this court at the Octor her term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Chytraus, Healy & Frost, Charles P. Linder and John Peter Barnes, for appellant.
    Joseph G. Sheldon, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notos Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dever

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court of Cook county in favor of the complainant, Svenska National Forhundet i Chicago, and against the defendants, Swedish National Association and Othelia Mvhrman, and from an order of the Circuit Court sustaining a demurrer to the cross-bill filed in the cause by the defendant Swedish National Association. The appeal is prosecuted by the association alone.

The bill of complaint was filed May 11, 1914, by the complainant against both defendants, in which bill it was charged that on October 10, 1913, the complainant was organized as a corporation, not for pecuniary profit; that ever since the date of its, complainant’s, organization the defendant Swedish National Association had used the name Svenska National Forbundet i Chicago, and that said defendant had endeavored by the use of such name to create the belief among the people of Chicago that the complainant association had unfairly and with a view to misleading the public used the name Svenska National Forbundet. The cross-bill of the defendant association was filed January 29, 1916. The defendants answered the bill of complaint, and the cause was referred to a master in chancery to hear evidence and to report thereon his conclusions of law and fact.

On January 31, 1916, the master filed his report. A large volume of testimony and documentary evidence was introduced in the hearing before the master; exceptions thereto were filed and argued; the report of the master together with the exceptions and objections were subsequently filed in court. On April 22, 1916, the court entered a decree ordering that the defendants be perpetually enjoined from using the name Svenska National Forbundet or Svenska National Forbundet i Chicago, in advertising or in any manner whatsoever. The court further ordered that the general demurrer of the complainant to the cross-bill of the defendant association be sustained, and the association electing to stand by its cross-bill, the court decreed that the cross-bill be dismissed for want of equity.

While the record here is very long and the questions of law and fact have been elaborately argued by counsel, the case really presents for determination but one principal question, and that is, which of the parties, the complainant, Svenska National Forbundet i Chicago, or the defendant, Swedish National Association, has the legal right to use the name “Svenska National Forbundet i Chicago,” or “Svenska National Forbundet,” or “Svenska National Forbundet, Chicago, Illinois. ’ ’

The complainant corporation was organized in October, 1913, under the name Svenska National Forbundet i Chicago. The defendant corporation was organized May 25, 1894, under the name Swedish National Association. The charter of this defendant was amended on December 31, 1896, but the articles of incorporation and the certificate of change of purpose and object of the defendant corporation above referred to were not filed, in accordance with the statutes of the State of Illinois, in the office of the Recorder of Deeds of Cook County until January 6, 1914. Originally the defendant association was organized for the purpose of promoting the temperance, morality and temporal welfare of the Swedish people' of Chicago. This corporation, as we gather from the evidence in the record, was made up of delegates or representatives of many Swedish organizations existing in the City of Chicago.

It is charged in the bill of complaint that the words “Swedish National Association” are the equivalent of the Swedish words “Svenska National Forbundet.” There is some intimation in the record that the Swedish word “forbundet” is the equivalent of the English word “association” or “federation,” but it seems to be conceded that the names which constitute the real basis of the controversy have almost the same meaning. It is alleged in the answer filed by the defendant association, as also in its cross-bill, that for many years following its organization it had promoted picnics, festivals, fairs and other entertainments which were patronized almost exclusively by persons of Swedish birth or parentage; that the Swedish equivalent of the word “Swedish” is “Sven-ska”; that the Swedish equivalent of the word “National” is “National,” and that the Swedish equivalent of the word “Association” is “Forbundet”; that the Swedish people of Chicago, in using the name of the defendant association, had usually given it the Swedish form of “Svenska National Forbundet”; that the name “Svenska National Forbundet” has at all times since the date of the organization of defendant corporation been used by it, its members and its patrons, and that it was generally known by the Swedish people throughout Chicago by such name.

The evidence heard by the master tends to disclose that about ten years after the organization of the defendant association, the defendant Othelia Myhr-' man became active in its affairs; that in the year 1904 the defendant association introduced the sale of intoxicating liquors at certain of its festivals, and that thereafter, about the year 1912, the defendant association, which had formerly conducted a free library and a free labor bureau, began the business of selling books and of operating its labor bureau for profit. The charter of this corporation as amended gives the purposes of the association as follows:

“1. To promote temperance, morality and temporal welfare among the Swedish-American people of Cook County;
“2. To maintain a free labor bureau and library;
“3. To be of mutual aid and assistance in enforcing the legal rights of such persons as its members may designate.”

It is shown by the evidence that following the year 1904, at the time the sale of liquors referred to began, such controversy arose among the members of the defendant association concerning this practice, and also that during the years 1909, 1910, 1911 and 1912, many, if not quite all, of the members of the organization withdrew therefrom; the complainant, as stated, was organized in the year 1913. There is some conflict in the evidence with reference to this history of the defendant association, but we think there can be small doubt that the defendant Othelia Myhrman became the controlling spirit of the defendant, and that during the years just preceding the filing of the bill of complaint she, in fact, conducted a private business under the name of the defendant association. The record fails to disclose that any meetings were held by the defendant during several years prior to the filing of the bill; no officers were elected, and not much effort was made to comply with the beneficent purposes of the organization; there was an utter failure upon its part to comply with the statutes relating to the organization of corporations not for profit; and from the whole record we are of the opinion that whatever may be said about the actual use of the name or names in question, the defendant association had no legal or actual existence for several years prior to the filing of the bill. There is evidence in the record from which we think the master was justified in finding, as he did, that the defendant Othelia Myhrman for some years prior to the filing of the bill had used the name of the defendant association as her individual property. The evidence does disclose a purpose to use the corporation, or its name, in money-making ventures directly opposed to the charitable and praiseworthy purposes for which it was organized.

The evidence touching these controverted questions is voluminous; it would serve no useful purpose to indicate all of this evidence; it is sufficient to say that we are convinced from our examination of it that the master who heard the evidence, and the chancellor who confirmed his report, had ample reason for the finding that the defendant corporation had ceased to exist some years before the bill was filed.

We do not think that there is great merit in the contention that because it was shown that the name ‘‘Svenska National Forbundet” had been used by the defendant association, or by the defendant who used the corporate name in the transaction of her business, entitles either of the defendants to any relief in a court of equity. Even if it be assumed, as urged, that the corporation defendant had used complainant’s corporate name in the transaction of its business, it had no legal right to use such name; the law had conferred upon it a legal name and title, by which alone it was authorized to transact business; it had no express or implied authority to use any other name, and if it in fact did use such other name it could acquire no legal right thereto, however extensive such use may have been. Paragraph 220 of chapter 38, Revised Statutes of Illinois (J. & A. ft 3858), directly prohibits a corporation from transacting any business under any other or different name than that conferred upon it by its articles of incorporation. We are inclined to agree with the contention that if the defendant corporation had the power to use without authority of law a name different from its legal corporate name, it would have the right to use an indefinite number of such names. We think it clear that the exercise of any such practice is against the public policy of the State.

In Sykes v. People, 132 Ill. 32, the Supreme Court held that where a corporation has been given a corporate name by its charter, it cannot at the same time acquire, either by usage or prescription, a legal right to a different corporate name.

So far as this record shows, the name Svenska National Forbundet i Chicago was first legally acquired by the complainant. The words that go to make up the names Svenska National Forbundet and Swedish National Association are in no sense similar except in meaning; they are clearly distinguishable; the words that go to form each name are, when translated, nearly synonymous, but in spelling, language and sound they are not at all alike. It should be borne in mind that we are dealing here with proper names, and that the very essence of a proper name is that it identifies the individual without necessarily indicating anything of its or his character.

Our attention has not been called to any case where it has been determined that a corporation has a right not only to the actual name given to it by its articles of incorporation but also to a translation of such name into a foreign language. We do not think, when consideration is given to the fact that corporate names, like all other proper names, serve only the purposes of identification, that there is much merit in the contention made that the defendant association has a legal and exclusive right to the Swedish translation of its corporate name.

It is also urged that the trial court erred in directing in the decree a dismissal of the defendant corporation’s cross-bill. It was the duty of the defendant to have used due diligence in seeking the affirmative relief by its cross-bill which it asserts at this time it is entitled to. The bill of complaint was filed on May 11, 1914; the cross-bill was not filed until January 29, 1916. No reason is given for this long delay. As a matter of fact, no new issue is presented in the cross-bill. The material allegations of the cross-bill and the answer of the defendant corporation are substantially the same. As stated by counsel for cross complainant, the cross-bill was filed so that defendant might obtain affirmative relief on the evidence that' had already been heard. The cross-bill was properly filed on the day in question, but as it presents no new issues either of law or fact, and as it is not contended that a determination of the rights of the cross complainant under it would require a hearing of any further evidence, we are unable to see how the defendant association can complain of this action of the trial court.. A general demurrer was filed by complainant to this cross-bill, and in the decree it appears that this demurrer was sustained. Whatever the form by which the questions raised by the filing of the cross-bill were presented to the trial court, it is clear upon the face of the record that the cross-bill, after the issues presented by the original bill -of complaint and the answers had been determined, was in legal effect eliminated from the cause. It might have been more correct practice to have stricken the cross-bill from the files. Upon the issues raised by the original pleadings it was properly determined that the complainant was entitled to the relief prayed by it against the defendants, and the determination of this question necessarily involved a consideration of every relief sought by the defendant association in its cross-bill.

The decree of the Circuit Court will be affirmed.

Affirmed.


text:
    William R. Brand, trading as Brand Agency, Appellant, v. James P. Younger, Appellee.
    Gen. No. 22,795.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Principal and agent, § 21

      —when owner of accounts may assume that collection agency has abandoned contract. In an action to recover the amount which plaintiff claimed accrued to him under a written contract for collection of accounts, providing that as compensation the entire proceeds of one of the claims and a proportionate part of the other claims collected should be retained by the plaintiff as compensation, where plaintiff collected only the one account of which he was to keep the entire proceeds, and kept the same and did nothing as to the other accounts for about ten years, and the particular account which was the basis of plaintiff’s suit was collected by another attorney ten years after the contract was entered into by plaintiff, and the contractual relations between the plaintiff and defendant were severed shortly after the contract was entered into,, held that, as a result of plaintiff’s conduct, the defendant was authorized to assume that plaintiff had abandoned his contract and any rights which he might originally have asserted thereunder.

      Appeal from the Municipal Court, of Chicago; the Hon. Peter C. Walters, Judge, presiding. Heard, in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.
    Rehearing denied May 14, 1917.
    Statement of the Case.
    Action by William B. Brand, trading as Brand Agency, plaintiff, against James P. Younger, defendant, to recover the sum of $931.96, alleged to be due under a contract for the collection of accounts by plaintiff for defendant. From a judgment for defendant, plaintiff appeals.
    William R. Brand, for appellant.
    Joel C. Carlson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dever

delivered the opinion of the court.

2. Principal and agent, § 11 —when contract with collection agency may he rescinded hy principal. In an action to recover the amount which plaintiff claimed accrued to him under a written contract under which the defendant turned over to the plaintiff various accounts for collection, and 'agreed that as compensation the entire proceeds of one of the claims and a proportionate, part of the other claims collected should be retained by the plaintiff as compensation, where the plaintiff collected only the one account of which he was to keep the entire proceeds, and kept the same and did nothing as to the other accounts for about ten years, and the particular account which was the basis of plaintiff’s suit was collected by another attorney ten years after the contract was entered into by plaintiff, held that the contract was not an assignment of the accounts, but merely a contract of employment, and that the defendant had the right to rescind such contract by reason of the failure of the plaintiff to use diligence in its performance.


text:
    Curtis Publishing Company, Appellant, v. City of Chicago, Appellee.
    Gen. No. 22,858.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 30, 1917.
    Statement of the Case.
    Bill by the Curtis Publishing Company, a corporation, complainant, against the City of Chicago, defendant, to enjoin the city and its officers from interfering- with the exhibition and sale of a certain weekly publication upon sidewalk news stands. A temporary injunction was granted and, upon demurrer, was dissolved and the bill was dismissed for want of equity. An appeal to the Supreme Court was dismissed on the ground that the validity or constitutionality of the city ordinances in question was not involved, and the case was transferred to the Appellate Court.
    Abstract of the Decision.
    1. Appeal and error, § 201

      —when Appellate Court has no jurisdiction as to valid,iiy of ordinance. The Appellate Court has no jurisdiction to pass upon the partial validity of a city ordinance as well as the total validity thereof.
    2. Municipal corporations—when ordinance regulating use of news stands not construed so as to include all newspapers. A city ordinance providing that the commissioner of public works is authorized to permit stands to be maintained on the public streets during certain hours, which shall be used for the sale of daily newspapers printed and published in the city, should not be construed by striking out the limiting language and inserting in lieu thereof “all newspapers,” as it was clearly not the intention of the city council in adopting the ordinance to use such language.
    For the decision on the appeal to the Supreme Court, see 273 Ill. 373.
    Darrow & Sissman, for appellant.
    S. A. Ettelson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Dever

delivered the opinion of the court.