text:
    Nettie Stickel, Appellee, v. Riverview Sharpshooters Park Company, Appellant.
    Gen. No. 15,101.
    1. Negligence—liability of proprietor for acts of concessioner. The proprietor of an amusement park is liable for injuries to its patrons arising from damages in structures or apparatus employed by its concessioners where the proprietor receives a portion of "the sums paid for admissions to such structures or apparatus and retains and "exercises a general charge of the grounds in which such structures and apparatus are contained.
    2. Contributory negligence—what not as a matter of law. Held, that it was not contributory negligence as a matter of law for a person going upon or placed upon a chute at an amusement park to fail to take hold of the railings upon the sides thereof.
    3. Instructions—must not ignore issues. An instruction which directs a verdict for the defendant should not ignore any theory of recovery justified by the pleadings and the evidence.
    4. Verdicts—when not excessive. Held, that a verdict in an action on the case for personal injuries for $3,500 was not excessive where the evidence showed that the plaintiff was in the business of keeping boarders, that she did the hard work connected with that business, that since the injury she has been unable to do the work which she was formerly accustomed to do, that she is lame and crippled, has suffered pain and is permanently injured.
    Action in case for personal .injuries Appeal from the Superior Court of Cook county; the Hon Willard M. McEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed December 2, 1910.
    Rehearing denied December 13, 1910.
    Statement by the Court. The defendant below, Riverview Sharpshooters Park Company, appellant, maintained and operated Riverview Park, a public amusement park, which contained within its enclosure various kinds of amusements and attractions. It charged and collected at the gates of the park a general admission fee of ten cents for .each person. Certain exhibitions and attractions were maintained and operated within the park by owners of concessions from the defendant. Additional charges were made and collected for admissions to these exhibitions and attractions by the various concessioners. One of these amusement attractions was known as Katzen jammer Castle, which was run and operated by Paul W. Cooper and William Schmidt, concessioners. To enter this establishment, an additional admission fee of ten cents a person was charged by the concessioners, twenty-five per centum of which was paid by the concessioners to the defendant.
    June 17, 1906, the plaintiff with her escort visited Eiverview Park. They purchased admission tickets at the main entrance and passed into the grounds. After walking about the grounds for some time, they came to the building known as Katzen jammer Castle and purchased tickets of admission to the Castle, paying ten cents for each ticket. They ascended the moving stairway in the building and were conveyed to the upper floor of the building, which had dark and narrow passages, moving, springing and suspended floors, dark rooms with images of goblins, heads of ferocious beasts with lighted eyes, many kinds of weird and fantastic figures, all so arranged in connection with the noises made, as to produce an effect upon the nerves of the visitors. Having passed through this section of the floor they came to the exit, claimed by the plaintiff to be the only exit from this part of the Castle. This consisted of a chute or slide. Here, objection being made by the plaintiff and her escort to using the chute or slide, they were told by an attendant that they would have to go out that way as there was no other, and that they would have to hurry out as they were blocking the passage of other people. The plaintiff testifies that the attendant took hold of her, placed her on the chute in a sitting position and started her down the chute, and she went down with considerable velocity to the bottom, breaking her leg as she struck the bottom.
    The chute extended from the outside of the upper story of the building to from eighteen inches to two and one-half feet from the ground, and was at an angle or pitch of thirty-five or forty degrees.
    At the close of plaintiff’s evidence and again at the close of all the evidence in the case, the defendant moved the court to exclude the evidence and instruct the jury to find the defendant not guilty.
    These motions were each denied and the instructions were refused. The jury returned a verdict against the defendant, assessing the plaintiff’s damages at $3,500. The court denied a motion for a new trial, and a motion in arrest of judgment, and entered a judgment on the verdict.
    Winston, Payne, Strawn & Shaw, for appellant; Ralph M. Shaw and Edward W. Everett, of counsel.
    John T. Murray and James Maher, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The evidence tends to show that the employes of the concessioners were not under the immediate and direct control of the defendant. True it is that Paul W. Cooper, one of the concessioners of the Katzenjarnmer Castle, was president of the defendant, he nevertheless had nothing to do with the employes of that enterprise as president of the defendant, except to see that they were orderly. He had nothing to do with hiring or discharging them as president of the defendant. The question of liability is therefore presented whether the defendant as proprietor of Biverview Park is liable for injuries to its patrons through defect in structures or apparatus employed by its concessioners Cooper and Schmidt for the amusement of patrons of the park, where it receives a portion of the sums paid for admissions to such structures or apparatus and retains and exercises a general charge of the grounds in which such-structures and apparatus are contained. We think the liability of the defendant for injury caused by the negligence of its concessioners, under the circumstances shown in the record, is supported by the weight of authority.

The case of Hollis v. Kansas City Mo. Retail Merchants Ass’n., 205 Mo. 508, is so closely analogous in its facts to the case here made that the cases cannot be discriminated or distinguished on the material facts or the principles of law applicable thereto. In that case the plaintiff was injured by the breaking of an axle of a gondola car running at great speed, operated by a concessioner of the defendant in an exposition conducted and operated by the defendant, which received a certain portion of the admission fees charged for admission to the gondola cars by the concessioners. The defendant had not constructed or equipped the so-called merry-go-round amusement, nor did it have any voice or control in the management or operation of the amusements furnished by the concessioner including the gondolas. The trial court, at the close of the plaintiff’s evidence at the request of the defendant instructed the jury that the plaintiff was not entitled to recover and a judgment was entered for the defendants. The Supreme Court reviewing the record and judgment on appeal said: “If the instruction in the nature of a demurrer was given in this case upon the theory that the defendants were engaged in a separate and distinct business, and that the fact that the show and amusements and the appliances connected therewith were provided and conducted by a corporation or persons independent of the merchants’ association, and that the association was not the owner of the appliances upon which the accident occurred, then we say that, under the evidence, which clearly indicates that the merchants’ association were interested in the exhibitions and amusements furnished, had general charge of all the grounds, participated in the proceeds from the appliances upon which this accident occurred, and took an active part in the distribution of posters advertising the amusements, which at least must be construed as an implied invitation to the plaintiff and others to visit the ground under the control of the retail merchants’ association, this instruction should not have been given. ’ ’

The court refers to Fletcher v. Boston & M. R. Co., 1 Allen, 9, and Shearman & Redfield on Negligence, 501, 504, and Nagel v. Missouri R. R. Co., 75 Mo. 653, 660 where the rule is laid down that ownership in such cases is not the test of responsibility, and that if enough appears to show that the party sought to be made liable have the property in his charge or under his control on which the nuisance complained of existed, it is sufficient.

The court then quoted at length from the decision in Thompson v. Lowell, L. & H. Street R. Co., 170 Mass. 577, and from other authorities, and concludes that under the authorities there was a sufficient showing of negligence in the construction, operation and management of the appliances to have authorized a submission of the cause to the jury, and reversed the judgment and remanded the cause accordingly.

In Thornton v. Maine State Agri. Soc., 97 Me. 108, the court had in judgment before it the liability of an agricultural society for the death of a patron which occurred while the latter was standing upon a railroad platform outside of the grounds. The death was caused by careless shooting by a patron of a shooting gallery maintained and controlled by a concessioner upon the society’s grounds. The court held that it was the duty of the society to use reasonable care in making the allotments of space for exhibits, shows, and other features and in their subsequent inspection and supervision to see that the safety of its patrons was not endangered; that as between the society and the invited public the duty remained upon the former, of using reasonable care to see that all of the exhibition grounds were safe; and that this duty would be particularly urgent in case of an exhibition or sport which might be attended with danger, unless properly conducted. This rule of law finds further support in Texas State Fair v. Brittain, 56 C. C. A. 499, 118 Fed. 713; Texas State Fair v. Marti, 30 Tex. Civ. App. 132; Richmond & M. R. Co. v. Moore, 94 Va. 493; Roper v. Ulster Co. Agri. Society, 120 N. Y. Supp. 644; and Barrett v. Lake Ontario Beach Improvement Co., 174 N. Y. 310.

It is not seriously controverted by counsel for defendant that the defendant as owner of the park is liable to persons injured while visiting the amusements therein for the negligent construction or dangerous arrangement of the structures within the park. The contention is that under the law the defendant is not liable for an injury caused to a visitor by the negligence of an independent concessioner when the injury results from negligent operation by the employes of a concessioner and not from negligent construction or dangerous arrangement of any of the structures. We think, however, that under the pleadings and the evidence it was a question for the jury in the first instance, whether or not the construction and the arrangement of the structure in question was negligent, and dangerous to. persons visiting the amusement conducted therein. The amended declaration sufficiently presents this issue. From the evidence it appears without serious controversy that the plaintiff paid for entrance tickets admitting her to the park and to the Katzenj ammer Castle, and that she had never been in the Castle before and was not aware of what it contained, or how it was laid out and arranged, nor did she know of the means of egress therefrom. When she and her escort, Starkey, arrived at the exit and found the exit to be by means of a steep and precipitous slide or chute, they strongly objected to that means of exit, and asked the employes in charge for another way out, and according to the testimony of herself and Starkey, they were informed that there was no other way out of the Castle, and that they must keep moving and go out in the same manner as other people were going—that it was impossible for them to turn back and go ont by the way they came in. This seemed probable because of the place being filled with people going the same way that they had been going. Whether under these circumstances the plaintiff was pushed down upon the chute as she and Starkey testify or not we do not regard as essential. She stepped upon the chute or was put upon it with the result that she suffered the injury.

It was a question for the jury whether a chute constructed as this was with its lower end terminating from a foot and a half to three or four feet above the ground was negligently and dangerously constructed. We cannot say that the finding of the jury was manifestly wrong upon this issue.

Defendant contends that the plaintiff assumed the risks from injuries received from the use of the slide; and that her injury was caused by her own act in jerking away from the attendant at the bottom of the chute. These questions were also for the jury in the first instance, and we find no reason in the evidence for saying that the conclusions of the jury were wrong.

In our opinion the trial court did not err in refusing to give instructions to the effect that the plaintiff could not recover under the first and second counts of her declaration. We think the instruction requested by defendant to the effect that if the jury found from the evidence that the defendant furnished a safe means of egress from the place the plaintiff was in immediately before using the slide, and that the plaintiff knew of the safe means of egress or by the exercise of ordinary care and diligence could have known of the safe means of egress, and that plaintiff chose a more dangerous means of egress, she could not recover and that the jury must find the defendant not guilty, was properly refused for the reason that there was no evidence upon which to base it. There is no evidence that the plaintiff knew or could have known, within the time she was given at the top of the chute, of the place constructed of wood and about two feet wide, testified to by the witness D ’Algores, which she could have used to descend to the ground. It was not pointed out to her by the attendant.

The instruction requested by the defendant relating to the duty of the defendant as landlord of Cooper & Schmidt was properly refused in our opinion for the reason that it submitted a non-essential issue or question and did not correctly state the law, and was misleading.

We do not think that the plaintiff could be held guilty of contributory negligence which precludes a recovery, as a matter of law, because she did not take hold of the railing on the sides of the chute (I. C. R. R. Co. v. Keegan, 112 Ill. App. 28) and the court did not err in refusing the instruction that if she did not use the railing for the purpose of regulating her speed, and that by so doing she could have avoided the injury the jury should find the defendant not guilty.

The defendant requested the following instruction which the court refused:

“You are further instructed that if you find from the evidence that the attendant in charge at the top of the slide pushed or shoved the plaintiff at the time she was about to use the slide, you are instructed that the mere fact that the attendant pushed or shoved the plaintiff would not be an act of negligence on his part. The plaintiff must show by a preponderance of the evidence that the attendant pushed or shoved the plaintiff and thereby accelerated her speed to such an extent that the plaintiff, by the exercise of ordinary and reasonable care on her own behalf, was unable to avoid the accident complained of. If you find that the plaintiff has failed to show by a preponderance of the evidence that the attendant pushed or shoved the plaintiff, and that in doing so he accelerated her speed so that she was unable, by the exercise of ordinary and reasonable care for her own safety, to prevent the injury complained of, then the plaintiff cannot recover and you must find the defendant hot guilty.”

The court did not err in refusing the instruction, because it directed a verdict and ignored entirely the question of the negligent and dangerous construction of the slide or chute, and limits the right of recovery to the negligent act of the attendant at the top of the chute.

It is claimed that the verdict is excessive. The evidence shows that the plaintiff was in the business of keeping boarders and that she did the hard work connected with that business. Since the injury she has been unable to do the work which she formerly was accustomed to do. She is lame and crippled since the injury. She has suffered great pain; and the inference from the evidence that she was permanently injured, or at least permanently disabled from conducting her business as she formerly did and that she has been and will continue to be deprived to a great extent of the ability to earn her livelihood, is warranted. We see no evidence that the jury were swayed by passion or prejudice in assessing the damages. While the amount of the verdict may be considered liberal we cannot say it is excessive and should be reduced. Finding no material error in the record, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    F. H. Renberg, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 15,213.
    1. Verdicts—when set aside as against the evidence. A verdict manifestly against the weight of the evidence will tie set aside on review.
    2. Agency—when conductor not authorized to bind traction company. A conductor has no express or implied authority to bind his company for medical attention given to a person injured by the car of such company.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with finding.
    Opinion filed December 2, 1910.
    Charles J. Gould and Ferdinand Goss, for plaintiff in error; John R. Harrington, of counsel.
    No appearance by appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Defendant in error, F. H. Renberg, recovered a judgment in the Municipal Court of Chicago against the Chicago City Railway Company, for professional services rendered by him on January 1, 1908, to a man named Richardson, who fell from a car of the company and was injured. Richardson never made any claim against the company, and the evidence in this case tends to show no liability on the part of plaintiff in error for Richardson’s injury.

Richardson was picked up by the conductor and motórman of the car of plaintiff in error from which he fell, and was carried to a drug store at the corner of Cottage Grove avenue and Sixty-fifth street. From there he was taken upstairs to the office of the defendant in error by whom his wounds were dressed.

The contention of defendant in error on the trial was that the conductor of the car requested him to give Richardson medical attention. This is contradicted by the testimony of several witnesses. The manifest weight of the evidence sustains the contention of plaintiff in error that the conductor made no such request.

If it be conceded however that the conductor requested Dr. Renberg to give Richardson medical attention, the conductor had no implied or express authority to employ him. St. L. & K. C. R. R. Co. v. Olive, 40 Ill. App. 82; St. L. U. B. T. Ry. Co. v. Wiggins, 47 id. 474; Tucker v. St. L. K. C. & N. R. R. Co., 54 Mo. 177; R. R. Co. v. Gary, 22 Fla. 356; Ry. v. Beatty, 35 Kan. 265; Sevier v. R. R., 92 Ala. 258.

There is no evidence in the record of any ratification of the employment of defendant in error by plaintiff in error.

The evidence does not sustain the verdict and judgment. The judgment is accordingly reversed with a finding of fact.

Reversed with finding.


text:
    H. R. Chislett, Defendant in Error, v. Ferdinand W. Jaros et al., Plaintiffs in Error.
    Gen. No. 15,220.
    Municipal Court—when judgment not disturbed. The Appellate Court will not reverse a judgment rendered by the Municipal Court unless it is satisfied from an examination of the record that the judgment is contrary to the law and the evidence or resulted from substantial errors in the trial court directly affecting the matters in issue between the parties.
    Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed December 2, 1910.
    Walter A. Brendecke, for plaintiffs in error.
    Cameron & Matson, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error, H. E. Chislett, recovered a judgment in the Municipal Court of Chicago for professional services rendered as a surgeon on the son of the plaintiffs in error February 16, 1908. It appears that the patient was suffering from acute, diffusive, suppurative peritonitis, and in the opinion of Dr. Chislett he could be expected to live only a short time unless operated upon, and that medical treatment alone offered no assurance of recovery.

The defense attempted to be made out was that the operation was performed in an improper and careless manner and directly contributed to the death of the boy.

The contentions of the parties and the substantial facts in support of them were placed before the jury. The employment of the plaintiff below was not disputed. It was a question of fact for the jury to determine from the evidence whether the operation was improperly and carelessly performed or not. Some errors intervened in the rulings on evidence, but we are not satisfied from an examination of the record that the judgment is contrary to the law and the evidence, or resulted from substantial errors of the trial court directly affecting the matters at issue between the parties.

The judgment is affirmed.

Affirmed.


text:
    Charles E. Peters, Defendant in Error, v. Levi A. Raven, Plaintiff in Error.
    Gen. No. 15,241.
    1. Statute oe Frauds—how question whether promise is original or collateral determined. Whether a promise is original or collateral, where a dispute exists as to the terms of the promise, is a question to be determined by the jury from all the circumstances in the case and the evidence under the instructions of the court.
    2. Statute oe Frauds—when promise original. If a person claimed to have made the promise to pay the debt of another is interested in the business of such other and primarily to protect his own interests made such promise, it is an original undertaking, and it is not necessary to its validity that the party to whom the promise was made and who sold and delivered the merchandise should have intended to hold the promisor alone responsible.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed December 2, 1910.
    Samuel B. King and Jule F. Brower, for plaintiff in error.
    John J. Sonsteby, for defendant in error; William Moffett, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

Charles E. Peters, defendant in error, recovered a judgment for $174.75 against Levi A. Raven on an account for merchandise sold and delivered to one Grage. The position of defendant in error is that on May 1, 1906, Grage owed him a balance of account amounting to $186.25; that on that date he presented the account to Grage, who sent him to Raven with the account for payment. Peters then went to Raven with the statement of account and informed him that Grage had sent bim and directed him to present to Raven all his bills and to mail to Raven all statements every month. Raven then looked at the statement and asked Peters to call at a later date. On May 22, 1906, Peters again called on Raven, 'who then agreed to pay all bills for goods delivered to Grage, and paid Peters $50 on the account. At the time of this payment Peters asked Raven “if he intended to pay these bills hereafter, and he said yes, but he said he wanted to keep these bills down as much as possible, and don’t give any more goods than what they really needed.” Peters then said: “The best thing you can do is to stop sending work over there and pay the bills up.” Raven answered: “Go along and go to work and we will do the best we can, and I will give you a check each month, a little at a time, and do the best we can.” Thereafter, and until May 1, 1908, Peters continued to deliver goods to Grage and do repair work for him charging the same to Grage, and during that period Raven paid Peters various amounts aggregating $335 without directing the application of the payments. These payments were credited by Peters to the account of Grage. During this period of two years Peters presented to Raven itemized statements each month showing the balance on the entire account on the first of the preceding month. In May, 1908, Raven refused to pay the bills, and the action was brought to recover the amount of the bills then unpaid.

Raven in his testimony denied the material part of the conversation téstified to by Peters. It appears that he held a mortgage for $4,000 on the property of Grage.

It will be seen that there is evidence in the record (controverted by Raven) tending to prove that Raven promised to pay for goods and work which Peters might thereafter deliver to Grage or do for him, and that if such promise was made there was a consideration therefor.

Whether or not Raven’s promise, if made, was original or collateral was a question to be determined by the jury from all the circumstances of the case and the evidence, and under the instructions of the court. Lusk v. Throop supra. It was important, therefore, in view of the radical conflict in the evidence that this question be properly submitted to the jury.

The court instructed the jury:

“If you believe from the evidence that the defendant, Eaven, promised the plaintiff that he would pay the plaintiff for goods, wares, merchandise, labor and material as he might thereafter furnish August Grage, and that the plaintiff relied alone upon such promise, and that in pursuance of such promise and relying upon such promise, furnished and supplied goods, wares, merchandise and labor to said Grage, intending to hold Eaven alone responsible for such goods, wares, merchandise and labor, then you will find for the plaintiff.
“If you believe from the evidence that the plaintiff did not rely alone upon the promise of Eaven, if any such was made, to pay for goods, wares, merchandise and labor furnished Grage subsequent to such promise, if any there was, then you must find for the defendant.”

In our opinion the instruction is clearly erroneous as applied to the facts shown by the evidence. If, by reason of holding a mortgage upon Grage’s property of $4,000 or otherwise, Eaven was interested in the business and primarily to protect his own interest promised to pay for any goods sold, delivered to, or repairs made for, Grage thereafter, it was an original undertaking and not merely a collateral promise to pay the debt of Grage, and it would not be necessary to its validity that Peters in selling the goods and making the repairs should have intended to hold Eaven alone responsible for such goods- and labor. A promise so made by Eaven would be none the less an original undertaking because Grage also became indebted. Browne on Stat. of Frauds, 4th Ed., sec. 194; Borchsenius v. Canutson, 100 Ill. 82; Wickham v. Hyde Park B. & L. Assn., 80 Ill. App. 523; Kee v. Cahill, 86 Ill. App. 561.

The instruction of the court is not only erroneous but as is frequently the case where an erroneous instruction is given, it presents to the jury an immaterial issue and misleads them. There was a sharp conflict in the testimony as to the alleged promise and undertaking. It cannot be reconciled. When such a conflict exists on the main , issue in the case it is important that the jury be accurately instructed as to the law applicable to the facts shown by the evidence. The real question in the case was not whether Peters relied alone upon the promise of Raven to pay for the goods and labor furnished Grage intending to hold Raven alone responsible. The issue was whether or not Raven for a consideration made the alleged promise, and if the promise was made whether it was made primarily in his interest. Beltine Chemical & M’f’g. Co. v. Zulfer, 152 Ill. App. 308. This issue was not submitted by the court’s instructions. From the record it does not appear that the jury were required to determine the main issue of fact in the case, and there must therefore be another trial. I

The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. John Mackin, Plaintiff in Error.
    Gen. No. 15,248.
    1. Criminal law—when information charging visiting code pit sufficient. An information which charges a violation of the statute prohibiting etc. the visiting of a place used for the purpose of fighting and baiting cocks, is sufficient which avers substantially in the language of the statute that a certain room in a certain city and county was a place kept and used for the purpose of fighting and baiting cocks and that the defendant visited the described place and was found therein.

      2. Criminal 'law—statute against cock fighting construed. Under the statute enacted against cock fighting several distinct acts are connected with the same general offense and are made subject to the same penalties, and though they might be and doubtless are distinct crimes if committed by different persons, or by the same person at different times, when they are committed by the same person, at the same time, they may be considered as representing stages of the same offense, and may be joined in the same count of an indictment or information as constituting a single violation of the act.
    3. Criminal law—when judgment responsive. A judgment in a prosecution for visiting a place used for cock fighting is responsive which finds the defendant guilty of a violation of section 52 of chapter 38 of the Revised Statutes in manner and form as charged in the information. A finding that the defendant was guilty of an offense for which he was not charged, namely, of “cock fighting” may be rejected as surplusage.
    4. Pleading—lohen information not subject to vice of duplicity. No matters however multifarious, will constitute duplicity in an indictment or information, provided that all such matters taken together constitute but one connected charge.
    5. Pleading—what allegations in information may be stricken as surplusage. If any allegation is not descriptive of the offense, under the maxim utile per inutile non vitiatur, it may be wholly stricken out and rejected as surplusage, where it leaves the count a perfect one.
    Error to the Municipal Court of Chicago; the Hon. Judson P. Going, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed December 2, 1910.
    Mahoney, Burtt, Kriete & Kriete, for plaintiff in error.
    John E. W. Wayman and Clifford G. Roe, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

John Mackin, plaintiff in error, was convicted in the Municipal Court of Chicago of a violation of section 52, chapter 38 of the Revised Statutes upon an information filed by James Hart duly verified by his affidavit, charging the plaintiff in error with visiting a place, describing it, kept and used for the purpose of fighting and baiting cocks and that he was found therein contrary to the form of the statute, and was sentenced to pay a fine of $25 and to imprisonment until the fine should be paid or worked out by him. He prosecutes this writ of error to reverse the judgment or sentence. The grounds urged for reversal are (1) that the court erred in refusing to quash the information and to arrest the judgment; (2) that the verdict is not supported by the evidence; (3) that the court erred in admitting evidence of what one Brazier did with certain spurs at the time of the arrest of the plaintiff in error; and (4) that the judgment is void because it is not responsive to the issues made by the pleadings, and is not sustained by any evidence.

The record shows that a motion was made by the plaintiff in error to quash the information, but upon what grounds or because of what defect does not appear. It is now urged that the information is fatally defective in that it does not purport to state that anything therein contained is presented to the court by the informant as a matter of fact, and perjury would not lie upon any facts stated therein, though every averment of the information were concededly false. It is also contended that the information is double, uncertain, indefinite, informal and insufficient.

Waiving the question whether the specific grounds here urged were raised and preserved for review by a mere general motion to quash which does not point out the specific objections relied upon, we are of the opinion that the information avers facts which, if true, constitute a violation of the statute. It avers that a certain room at number 1639 North Campbell avenue in the city of Chicago and county of Cook, was a place kept and used for the purpose of fighting and baiting cocks and that Macldn visited the described place and was found therein, substantially in the language of the statute. The averments are sufficiently certain, definite and formal. 1 Bishop on Criminal Procedure 146; 4 Wentworths Pleadings 430. As to the point of duplicity, it was held in Blemer v. The People, 76 Ill. 265, at page 272, “Where a statute forbids several things in the alternative, it is usually construed as creating but a single offense, and the indictment may charge the defendant with committing all the acts using the conjunction 'and’ where the statute uses the disjunctive 'or.’ 1 Bishop’s Criminal Procedure, 819; State v. Whitted, 3 Ala. 102; Ray v. Bowen, 1 Dev. C. C. 22; The People v. Adams, 17 Wend. 475.” And no matters however multifarious, will constitute duplicity in an indictment or information, provided that all such matters taken ‘together, as is the ease under the statute in question constitute but one connected charge. Barnes v. State, 20 Conn. 232; Com. v. Brown, 14 Gray (Mass.) 419; State v. Palmer, 4 Mo. 453; State v. Gorham, 55 N. H. 152. We think that under this statute several distinct acts are connected with the same general offense and are made subject to the same penalties, and though they might be and doubtless are, distinct crimes if committed by different persons, or by the same person at different times, when they are committed by the same person, at the same time, they may be considered as representing stages of the same offense, and may be joined in the same count of an indictment or information as constituting a single violation of the Act. Love v. People, 160 Ill. 501; U. S. v. Fero, 18 Fed. Rep. 901; U. S. v. Scott, 74 Fed. Rep. 213; People v. Shotwell, 27 Cal. 394; State v. Robbins, 66 Me. 324; People v. Altman, 147 N. Y. 473. If any allegation is not descriptive of the offense, under the maxim utile per inutile non vitiatur, it may be wholly stricken out and rejected as surplusage, where it leaves the count a perfect one. Sutton v. People, 145 Ill. 279; Henderson v. State, 105 Ala. 82; Myers v. State; 92 Ind. 390; Traut v. State, 111 Ind. 499; State v. Ormiston, 66 Ia. 143; State v. Robbins, 66 Me. 324. The averment that Mackin was connected with and interested in, the management of the place described, may therefore be disregarded as surplusage, as it is not descriptive of the offense charged in the language of the statute that he visited the place and was found therein. Snell v. People, 29 Ill. App. 470. The motion toi quash was properly overruled.

In our opinion the verdict is sustained by the evidence. It is sufficient to prove so much of the information as shows that the defendant committed a substantive crime therein alleged. Harris v. People, 64 N. Y. 148; State v. Burgess, 40 Me. 592.

The court did not err, we think, in admitting the testimony of the witnesses Sloier and Hart concerning what Brazier did with certain heels or spurs. It was a circumstance tending to prove that at the time of the arrest the place was being used and kept for the purpose of fighting or baiting cocks and that Mackin knew it. The testimony was therefore properly admitted.

It is contended on behalf of plaintiff in error that the judgment or sentence of the court is not responsive to the issues made by the pleadings, and is not sustained by the evidence or verdict, and finds the defendant guilty of a crime with which he is not charged, —that of cock fighting.

The verdict finds the defendant, John Mackin, guilty of a violation of section 52, chapter 38 of the Revised Statutes, in manner and form as charged in the information. The sentence is the conclusion of the law on the verdict. 1 Bishop on Criminal Procedure 1296. The sentence in this case should not, and does not in legal effect, make any finding. The phrase “of cock fighting,” is not a necessary part of the sentence, and may be rejected as surplusage. The sentence is not open to the objection urged. All of the substantial requirements of the law were complied with, and we find no error in the record. The judgment or sentence is affirmed.

Affirmed.


text:
    Louise M. Colekin, Defendant in Error, v. Mason A. Bamborough et al., Plaintiffs in Error.
    Gen. No. 15,255.
    1. Municipal Court—section S3 of act construed. The right to re-examination of a party called pursuant to section 33 of the Municipal Court Act should not be denied.
    2. Instructions-—must be predicated upon evidence. An instruction is properly refused which is not predicated upon any evidence in the record.
    3. Trial—when remarles of counsel will not reverse. Remarks of counsel not materially prejudicial will not reverse.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Poster, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed December 2, 1910.
    Rehearing denied December 16, 1910.
    Adler, Lederer and Schoenbrun, for plaintiffs in error; Francis Adams, Jr., of counsel.
    Lackner, Butz & Miller, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

By this writ of error it is sought to reverse a judgment of the Municipal Court of Chicago in an action brought by defendant in error, Louise M. Colekin, against plaintiffs in error Mason A. Bamborough, and Albert F. Brown, her attorneys, to recover from them $1,000 retained by them for professional services out of an English legacy collected by them for her.

The only evidence in the case was that offered by the plaintiff below. Five witnesses were sworn and testified. They were the plaintiff, Mrs. Battis, the defendant Brown, the member of the defendant firm who acted as the plaintiff’s attorney in the collection of the legacy, and who was called by the plaintiff under section 33 of the Municipal Court Act to testify to all the services performed by the defendants below for the plaintiff, and Mr. Coffeen and Mr. Jarvis, attorneys of the Chicago bar, who were called as experts to testify as to the nsnal and customary charges for defendants’ services.

The jury returned a verdict in favor of the plaintiff in the action for $775 and judgment was entered thereon.

Upon the merits of the case as shown by the evidence we think the verdict is amply sustained.-

Error is assigned upon the refusal of the court to permit defendants below to cross-examine or re-examine defendant Brown who was called by the plaintiff under section 33 of the Municipal Court Act. After some preliminary questions had been put and Brown had answered them, this question was asked him: “Q. Will you kindly state to this jury what services your firm rendered to Mrs. Colekin in this matter? I would like to get the dates of these various services?” In answer to this question Brown stated in detail the services rendered. He closed the statement as follows: “I think, I don’t recall anything except the time I have spent in consultation with her, up until the time the estate was closed other than what would be a repetition of what I have already said, the time spent with her in her various calls in assuring her that everything would probably be all right and that there would be no objection to her claim, and that she would probably get her money "all right in due time. ’ ’ The question was then asked: “Have you completed your statement, Mr. Brown?” and his answer was, “Yes.”

While we cannot assent to the construction of section 33 of the Municipal Court Act which denies to defendants the absolute right to cross-examine, or further examination, and relegates them to the sound judgment and discretion of the trial court under the circumstances shown by the record or like circumstances as contended on behalf of defendant in error, we think that no possible harm was done to the defendants in the cause by the ruling of the court. The defendant Brown is a lawyer. He had been asked to state the services rendered by his firm to the plaintiff for which they charged $1,000 and retained that sum of money. Brown had made the statement asked for and had repeated parts of it. When he had finished his statement, he was asked if he had completed it and he answered in the affirmative. He was thus given full opportunity to state all he knew about the services rendered. Furthermore, when the ruling in question was made the plaintiff had not closed her evidence; and when the plaintiff subsequently rested her case the defendants had the unquestioned right to offer evidence of their services and the value thereof for the purpose of showing their right to retain $1,000 of plaintiff’s money. The burden of making this proof was not on the plaintiff, it was always on the defendants. The fact that the plaintiff unnecessarily entered upon this proof, did not shift the burden from the defendants, or excuse them from proving their defense. When, however, the plaintiff closed her case and the time and opportunity came for the defendants to make proof of their defense, they stood silent and offered no evidence. The denial of the right to cross-examine Brown in no way precluded defendants from offering Brown’s testimony on the same subject, at this stage of the trial. They therefore have no just ground of complaint because of the ruling of the court which at most required them to offer proof of their defense at the proper time in the orderly trial of the cause.

We do not think that the defendants were prejudiced by the admission of the expert evidence based upon the testimony of defendant Brown who made a complete statement of the services rendered in the presence and hearing of the expert witnesses. Brown’s testimony was all the testimony offered on this subject on the trial and, therefore, the testimony of the experts was based on all the testimony in the case.

We do not think the trial court erred in refusing to submit to the jury the question whether the parties to the action had adjusted the accounts between them by mutual agreement. We find no evidence in the record of an accord and settlement. The plaintiff from the beginning of the interview in which the check was given her by Brown and was deposited in the bank by her objected to the charge for attorney’s fees. Mrs. Battis in her testimony supported the plaintiff on this question. There is nothing in the evidence on this question which indicates, or from which it can be inferred that the check was taken by the plaintiff upon any such condition or understanding.

Some sixteen instructions were requested by the defendants and refused by the court. Fourteen of these are based upon the hypothesis that there was evidence tending to show a settlement, or an accord and satisfaction between the parties. For these there was no basis in the evidence as we have seen. There was no error for obvious reasons in refusing the other two instructions. We find no prejudicial error in the oral charge to the jury. The defendants were not materially prejudiced by the remarks of plaintiff’s attorney- to the jury. The verdict in our opinion is more than just to the defendants, it is liberal; and we think the judgment entered thereon should stand. The judgment is affirmed.

Affirmed.


text:
    William P. Hovald, Defendant in Error, v. Daniel H. Cunningham, Plaintiff in Error.
    Gen. No. 15,265.
    Appeals and erbobs—when finding not disturbed. Where the witnesses testified before the court the finding by the court will not be disturbed as against the evidence unless clearly and manifestly so.
    Tort. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed December 2, 1910.
    Ledbetter, Carpenter & Exter, for plaintiff in error.
    Mather & Hutson, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

By this writ of error a judgment against the plaintiff in error for $95 and costs in favor of the defendant in error is sought to be reversed. The record shows that the horse and wagon of defendant in error was injured in a collision with the automobile of plaintiff in error at the intersection of Sacramento avenue and Twelfth street in Chicago, May 8, 1908. The cause was tried before the court, without a jury. No question of law is raised by the record. The evidence is conflicting on the question of negligence. The witnesses were before the trial judge, who had the benefit of observing the witnesses and their demeanor while testifying, and was, other things being equal, better qualified to pass upon their credibility than is a court of review from the mere reading of a statement of the substance of their testimony in the record. The findings of fact of the trial court, under such circumstances as appear in this record, will not be disturbed unless clearly and manifestly against the evidence. Bouton v. Cameron, 99 Ill. App. 600; Haug v. Haug, 193 Ill. 645. We have examined the testimony carefully and are unable to say that it so clearly preponderates in favor of the plaintiff in error as to justify a reversal. The judgment is affirmed.

Affirmed.