author: Mb. Presiding- Justice Holdom

text:
    City of Chicago v. Mathilda Wieland.
    Gen. No. 13,666.
    - 1. Variance—what essential to preserve question of, for review. In. order to preserve for review a question of variance, the variance must be specifically pointed out in the trial court.
    2. Variance—when does not exist. A declaration which alleges that a city wrongfully suffered a sidewalk to become in bad and unsafe repair and condition and unfit for travel and permitted the same to become rotten, unsafe and defective and some of its boards to be broken and removed, is sufficient to enable the introduction of proof either that a plank was broken out or broken off or that there was a hole in the walk caused by the rotting of the planks.
    3. Assignment of error—when essential to review. A question of variance will not be reviewed in the absence of an assignment of error predicated upon the alleged variance.
    4. Verdict—when not excessive. A verdict for $3,000 in an action for personal injuries is not excessive where it appears that the plaintiff, as a result of the accident, suffered a miscarriage and displaced womb, a fracture of the tenth rib and had a floating kidney, and where it further appears that at the time of the accident the plaintiff was about thirty years of age, in good health, weighing about 160 pounds, and that as a result of the accident she became permanently invalided, her weight reduced to about 125 pounds and that she suffered much physical pain.
    5. Instructions—need not contain repetitions. A court need not give a correct instruction if its principles are substantially embodied in another instruction given.
    6. Instructions—when cannot he complained of. The giving of an instruction cannot be complained of by a party who has offered and had given in his behalf an instruction like that urged as error.
    Action in case for personal injuries. Appeal from the Superior Court of Cook County; the lion. Robert W. Wright, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 9, 1908.
    John E. Cavebly and D. H. Wamsley, for appellant; Wm. J. Stapleton, of counsel.
    Miles J. Devine, for appellee; John T. Murray, of counsel.
   Mb. Presiding- Justice Holdom

delivered the opinion of the court.

Appellee sues the city of Chicago to recover compensatory damages for injuries suffered hy falling through a defectively maintained sidewalk within the limits of the municipality of appellant.

A jury trial in the Superior Court resulted in a verdict for $3,000, upon which judgment was entered after the overruling of motions for a new trial and in arrest of judgment, to which due exceptions having been preserved, the cause is brought to this court for a review of the record. It is argued and assigned for error, that the verdict is excessive as well as contrary to the law, in that the proof is variant from the averments of the declaration; that the court erred in not allowing appellant’s motion to instruct the jury to find in its favor, and in giving the first instruction proffered by appellee, and refusing to give the 11th instruction requested by appellant.

The declaration contained one count. Its material averments of negligence are that the city wrongfully suffered the sidewalk through which appellee fell and was injured, to remain in bad and unsafe repair and condition, and unfit for travel, and permitted the same to become rotten, unsafe and defective, and some of its boards to be broken and removed; that such condition existed a long time prior to the accident, and that the city had actual knowledge, or by reason of the long-continued defective condition, is chargeable with knowledge thereof. It is then averred that by means of this condition of unrepair, appellee, while passing along the walk at night in the dark, in the exercise of due care, stepped into a hole in the sidewalk caused by the absence of planks or boards, etc., alleging the manner of her fall and the injuries sustained in consequence thereof.

The objection here made for the first time, that there is a variance between the averments of the declaration and the proof, is unavailing. An objection of this character, to avail on appeal, must be made in the trial court at the time the variance is made apparent by the proofs of the plaintiff, and such variance must be specifically pointed out when the motion is made, and the court’s attention directed to the matter of the variance. The object of so requiring is to prevent a mistrial on a legal technicality, not in any wise affecting the merits of a plaintiff’s cause of action, and that such plaintiff may be afforded an opportunity to avoid the variance by an appropriate amendment of his declaration. The trend of the law is to discourage technicalities which tend to defeat natural justice and right, and to encourage the adjudication of causes on their merits. C. & E. I. R. R. v. Snedaker, 223 Ill., 295 ; Ehlen v. O’Donnell, 205 Ibid., 38. Furthermore, we are debarred from reviewing the question of variance for another and an insuperable reason, that is, it is not assigned upon the record for error, and the objection therefore, if in other respects tenable, must be treated as waived.

As the court say in C. C. Ry. Co. v. McClain, 211 Ill., 589, “* * * the contention of variance comes now too late. The case seems to have been tried upon its merits. No specific objection appears to have been made in regard to a variance between the evidence and the declaration during the trial, or. a verdict asked for appellant upon that ground. In West Chicago St. R. R. Co. v. Martin, 154 Ill., 523, an objection was urged to a certain instruction, on the ground of variance, and it was there said (p. 531) : ‘The objection to the instruction in substance amounts to a claim of variance. The defect was curable and had plaintiff’s attention been called to the matter by a specific objection, he could readily have amended one of the counts of his declaration by striking out the special matter alleged therein. Appellant, not having afforded him an opportunity to do this, must be considered as having waived the objection that it now seeks to avail of.’ * * *” In City of Joliet v. Johnson, 177 ibid., 178, the court say: “Such objection should properly be made at the time the evidence is offered; otherwise it will be waived.” Probst Construction Co. v. Foley, 166 ibid., 31; Village of Chatsworth v. Rowe, id., 114.

However, we are convinced from a perusal of the evidence that the proof is not variant from the negligent acts charged in the declaration, as the proximate cause of the injuries which appellee suffered by falling through the defective sidewalk in question. Whether a plank was out or broken off the walk at the place of appellee’s injury, or whether there was a hole in the walk, caused by the rotting of planks, through which appellee fell and was injured, is not of the essence of the right to a recovery; for whichever one or more of the conditions recited resulted in appellee’s injuries, the averments of the declaration in this regard are sufficient, on her proof, to authorize a recovery and sustain a verdict in appellee’s favor.

There being no fatal variance between the averments of negligence and the proof thereof, and the evidence of appellee not being met with countervailing proof, it may be said that such proof established a prima facie case of negligence against the city, so that the court rightly refused to instruct the jury to find a verdict for the city, and as the city did not offer any evidence in defense of its liability, but contented itself with introducing evidence of medical experts in an attempt to minimize the damages to he awarded, it is equally apparent that no additional reason existed warranting the court in instructing a verdict for the city at the close of all the proofs. On the primary question of liability the proof stood the same at the close of the city’s evidence as it did at the close of appellee’s. The latter motion was therefore properly refused.

The evidence as to the manner of the happening of the accident is not controverted. 2s either is there any countervailing proof by any witness having personal knowledge as to the extent of appellee’s injuries. While it is true that three medical men, of recognized ability, in their profession, testified hypothetically to primary conditions and expectant results at variance with the serious injuries, their continuance and permanency, found in the evidence of appellee and her witnesses, medical and lay, the solution of such controversy was the function of the jury, which it is not our duty to disturb unless we can say that the jury’s determination upon the facts in dispute is manifestly against the weight and probative force of the evidence. We are unable to say that the finding by the jury is manifestly contrary to the weight or preponderance of the evidence. On the contrary we are in accord with the jury’s determination of the questions of fact submitted to them.

The evidence shows that appellee was the mother of children, living with her second husband, and that in his company and that of one of her children, on the night of October 9, 1901, about nine o’clock, while walking along the west side of Lock street about 60 feet north of 31st street, she fell into a hole in the sidewalk, and was injured; that the sidewalk was owned by the city; that the place of the accident, at the time of its happening, was dark; that appellee was not guilty of negligence that in any manner contributed to her injuries; that the dangerous condition of the walk had existed for a sufficient length of time to charge the city with negligence in not causing it to be repaired in sufficient time to have avoided the accident to appellee.

As the time of the accident appellee was pregnant. As a result of the accident she suffered a miscarriage, a displaced womb, a fracture of the tenth rib, and had a floating kidney. At the time of the accident appellee was about thirty years of age, in good health, weighing about 160 pounds. As a result of the accident she has been permanently invalided, her weight reduced to about 125 pounds, and she has suffered much physical pain. If the jury believed that such injuries were directly traceable to and flowed from the accident, we are unable to say that an award of three thousand dollars as compensation is excessive. While it is true, as matter of law, that a person injured as the result of the negligence of another must act discreetly in using proper means to bring about a cure of the injuries thus incurred, and cannot recover any compensation whatever for ailments brought about by negligence in failing to procure proper treatment, still it was for the jury to decide, as a matter of fact, whether appellee was shown by the proof to have been negligent in this regard. Their verdict repels any assumption by us that they believed that the evidence proved that appellee was suffering or had suffered from ailments attributable to neglect in securing proper medical aid, or in failing to use suitable remedies in an honest endeavor to be cured. Her testimony demonstrates that she had competent medical attention from the inception of her injuries and used all reasonable means in an effort to be healed of her injuries. Appellant’s medical experts’ views on this subject, wherever they were in conflict with appellee’s proof, were to be weighed by the jury in arriving at a conclusion as to what injuries of appellee the city rvas liable to recompense her for. The verdict is not so large as to inhibit an inference that they may have regarded some of the ailments from which appellee suffered as traceable to some neglect on her part to be as diligent as the law requires in endeavoring to be cured. The verdict inay not include compensation for all the diseases and ailments shown by appellee’s proof to afflict her, but only for such injuries necessarily suffered by her as a result of the accident, providing due care had been taken in attempting their cure. We think, in the state of the proof, the finding of the jury is not to be impeached.

Instruction No. 1 given to the jury correctly states the law governing its prerogative in deciding the facts and the credit to be given the testimony of the several witnesses, and the treatment to be accorded to evidence of a witness whose veracity has been impeached. The form in which this instruction is drawn has been repeatedly approved. City of Sandwich v. Dolan, 141 Ill., 430; Johnson v. Johnson, 187 ibid., 86; C. & A. Ry. v. Fisher, 141 ibid., 614.

Instruction number 11 asked by appellant and refused by the court, contained a statement of the law as to the weight to be accorded by the jury to the testimony of a witness knowingly swearing falsely to any fact material to the issue,which in substance was the same as contained in instruction number 1, of which appellant complains. Instruction number 11 does state a correct principle of law, and but for instruction number 1, should have been given. The court undoubtedly refused this instruction because number 1 sufficiently stated the law contained in number 11. In this action the court was governed by well-established and approved precedent. Chicago City Ry. Co. v. Bundy, 210 Ill., 39.

By offering instruction number 11 appellant is estopped from complaining of the giving of instruction number 1. Chicago City Ry. Co. v. Pural, 224 Ill., 329; C. & A. Ry. Co. v. Harrington, 192 ibid., 9.

There is no error in this record justifying a reversal of the judgment of the Superior Court, and it is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    Howard H. Willson et al. v. Jessie B. Logan.
    Gen. No. 13,691.
    1. Evidence—what competent with respect to condition of machinery connected with accident. Evidence with respect to the condition of a machine at which the plaintiff was injured should be confined to the condition of such machine at the time of the accident, and evidence as to such condition prior to the accident, given by one having no knowledge of its condition at the time of or immediately before the accident, is not competent.
    2. Negligence—what constitutes actionable. In order to constitute actionable negligence, it must appear that the act or omission complained of was the proximate cause of the injury in question; between such act or omission and the accident the relation of cause and effect must appear.
    3. Master and servant—when doctrine of assumed risk applies. The doctrine of assumed risk will defeat a recovery by a servant who has approached within four months of her majority and who for months has worked at a machine and is injured thereat by a danger open and obvious, namely, that of getting the fingers between a shoe and a perpendicularly moving plate.
    4. Instructions—what error to refuse. It is error to refuse instructions predicated upon the doctrine of assumed risk where the issue of assumed risk was raised by the evidence in the cause.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed and remanded.
    Opinion filed March 9, 1908.
    Statement by the Court. The parties will be referred to in this opinion according to their titular designation in the trial court.
    At the time of her injuries, December 21, 1901, plaintiff was seventeen years and eight months old, and had been in the employ of defendants nearly ten months. According to defendant Willson’s testimony, when plaintiff applied for work she was accompanied by her sister, Mrs. Sheriff, who was at that time in the employ of defendants and with whom Willson had previously had some talk in relation to plaintiff’s being employed by them. Willson testifies that he said to plaintiff at that time, “Jessie, did you come down to work ?” to which she replied “Yes,” and Willson said “All right,” and thereupon she went to work and continued to work until injured.
    The business of defendants is die cutting for the printing trade and label printing. At the time of the accident there were two machines in use for “cutting dies” and “flattening-eyelets.” The machines are referred to as new and old, the new machine having a brake appliance back of the shaft not possessed by the old, but in other material respects they were very much alike. Plaintiff was first put to work at what is referred to as “table work,” during which time she did not work with the machines, although she constantly carried to those who did materials with which they worked at the machines. The so-called “table work” consisted in sorting’ tickets, labels and advertising cards, “stringing” them, and the placing of eyelets in advertising cards. The machines -were used for cutting out with dies advertising labels and cards, and for flattening eyelets, when eyelets were used. The modus operandi of flattening eyelets seems from the evidence to be about as follows: The eyelets are inserted by hand into holes punched in the cards for that purpose. In this condition the cards are put upon the table of the machine, to the left of the machine operator, who from that table would handle the cards for flattening the eyelets with the machine, and to do so would place her foot upon the treadle of the machine, causing the upper part, composed of a square metal plate, to move up and down, the motive power being steam. This was so nicely adjusted that the plate fell to a distance sufficient to flatten the eyelet without damaging the card. The ascent and descent of this plate was rapid, and its setting in motion and stopping were regulated by the foot treadle. The top of the table underneath the descending part of the machine was a square iron plate not set into and flush wdth the top of the table, on the top of which was set a heavy flat piece of iron, weighing 32 pounds, termed a “shoe.” The putting of the cards into the machine for the purpose of flattening the eyelets did not require an operator to place his or her fingers near the machine where the descending plate came down upon the “shoe” underneath it. At the time of the accident the edge of the “shoe” nearest plaintiff was so nearly directly under the corresponding edge of the descending plate that the difference in alignment did not exceed an inch and a half. The card which plaintiff was engaged in flattening eyelets in with the machine at the time of her injury, is in the record, and we have examined it, as also the model of the 32-pound iron plate which descended upon the shoe in the table beneath it. At times prior to the accident the machine referred to as “old” was out of order, causing the descending plate to stop at the terminus of its descent. It would not ascend again until readjusted.
    When plaintiff first entered upon her employment with defendants their place of business was in the Caxton building, from from which, on December first following, they removed to 327 Dearborn street. Mrs. Sheriff, plaintiff’s sister, left defendants’ employ ¡November 9th before the accident. One Fannie Latchell, who was a machine woman-, left her employment in August, and plaintiff asked to be given the vacant place to work upon the machine. Part of the time from August to November 9 th, plaintiff worked on the machine, and all the time from the latter date to the time of her injury. Mrs. Sheriff was working on a machine when she quit. Plaintiff denies this testimony but states that she worked on the machine infrequently and under protest on the day of the accident. Willson instructed plaintiff to be careful and keep her hands out of the machine, and on cross-examination testified that he saw her hold her hands under the “chuck” after he had warned her to keep her hands out. Ford testifies that when plaintiff was hurt he was watching her, and she was looking out of the window. Philip Cullen, the foreman who put her to work on the machine, testifies that she seemed pleased “to get on that work.” Plaintiff returned to work for defendants in August following her injuries, and continued until the January following. She quit one day and the sheriff served Willson with process in this action the next.
    Plaintiff caught two fingers of her left hand in the machine as the plate descended upon the shoe in flattening the eyelets in the card referred to, which removed the fleshy tips and the nails of these two fingers.
    A trial before the court with a jury resulted in a verdict for $1,250, upon which judgment was entered after overruling motions for a new trial and in arrest of judgment, to which rulings defendants preserved sufficient exceptions to call for our review of the record in this appeal.
    The negligence averred in the declaration, and on which a right of recovery is predicated in the first count, is that the machine at which plaintiff was' hurt was a dangerous one to work at; that she was unacquainted with the working of the machine or its attendant dangers; that defendants through their foreman, knowing the premises, ordered plaintiff to use and operate the machine; that while doing so, in the exercise of all due care, she was injured; and by the second count the negligence averred is in allowing the machine to be out of repair and unsafe to be used.
    The errors assigned and argued for a reversal relate to the rulings of the court upon the evidence, variance between the proof and the averments of the declaration, in failing to direct a verdict for defendants, and errors in instructions to the jury.
    Ela, Grover & Graves, for appellants.
    Johan Waage, for appellee; W. E. Hughes, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The testimony.of plaintiff’s witness, Mrs. Louise Berquist, is clearly incompetent. While formerly in the employ of defendants, she had not been employed by them at any of the times when plaintiff worked there. Notwithstanding she worked the machine and had knowledge of its condition, such working and knowledge were at a time previous to the time of appellee’s employment and working upon the machine. The inquiry should have been directed to the condition of the machine at the time of the accident to plaintiff. Of this condition Mrs. Berquist had no knowledge. She was necessarily ignorant as to what changes had been made in the meantime. The machine had been moved from the place it was in when she operated it to another building; it had been used by various persons unknown to her. She had no opportunity of knowing what changes had taken place in its working or mechanism. Her evidence on these matters was all given over the objection of defendants’ counsel, and allowed to remain in the record after a motion to strike it all out at its conclusion. Allowing the evidence to be given over the objection of defendants and failing to strike it out on a motion so to do was error.

An examination of the photograph of the machine found in the record, and of the" evidence in relation to its working and operation, demonstrates that it is a machine of simple device, not complicated in its mechanism and not fraught with danger to any ordinary person when operated with due care, and that the manner of flattening the eyelets in the cards with the machine did not require the putting of the fingers in any position so that the descending plate would strike them. All the dangers in working the machine were open, apparent and obvious to' every reasonably intelligent person, young or old. The only danger to be encountered was in getting the hand or fingers between the plate and the shoe at the time the plate descended to flatten the eyelet. The doing of this work did not require the operator to put either fingers or hand under the descending plate nor within eight inches of the edge nearest the operator, nor to put them in any place of danger when operating the machine with due care.

Plaintiff claims that she was employed to do what is called, in the language of the shop, “table work.” As to this she has no corroboration. On the contrary, Willson testifies that she was not hired to do any particular kind of work, hut was first engaged in doing “table work.” Plaintiff says that on the day she was injured she worked on the machine “flattening eyelets” against her protest, fortified with her tears. But Cullen, the foreman, who, she says, compelled her to work on the machine on the day of her misfortune, denies her statement in this regard. Willson swears that plaintiff requested him to let her work on the machine in the place of Fannie Latchell, who left her work in August; that between that time and November 9th, plaintiff worked part of the time on both machines, and from the latter date until the day of the accident was regularly at work upon them. In this Cullen, the foreman, corroborates Willson. Cullen put her to work on the machine, and he says she seemed pleased to get the work, never complained either about the work, the machine or its operation. The fault found with the machine in its being out of repair plainly could not have been contributed to cause the accident. The top plate refused to ascend when down on the shoe without being readjusted; that is said to have been the trouble with the machine. Even were it so, we cannot discover how such condition could contribute in the slightest degree to cause plaintiff’s injuries. It did not operate to draw her fingers into the machine, and unless her fingers were there before the plate struck the shoe, the accident could not have happened. Cullen and Willson both testify that before the machine was again put in motion, after the accident, they examined it and operated it for fifteen minutes, and found it without defect and in working order. They directly testify that the “shoe” was in place at the time of the accident, and that while there were no strips to hold the shoe in place, its weight was sufficient for that purpose.

The contention of plaintiff that she was injured on the so-called “old machine” is not sustained by the proofs. The actual situation of the two machines becomes a controlling factor in determining at which of them plaintiff was working at the time she was injured. The overwhelming weight of the evidence of those who had the best means of knowing their situation, many of the witnesses being entirely disinterested, is against the claim that plaintiff was engaged in working on the “old machine,” and fully sustains the claim of defendants that it was the “new machine” at which the accident occurred. Plaintiff’s version cannot be accepted against the testimony to the contrary of six witnesses, whose veracity has been in no way impugned. It is apparent, however, that if it may be conceded, for the sake of argument, that plaintiff was at work on the old machine, and that it was out of repair in the manner detailed by plaintiff and her sister Jennie, that the accident cannot be attributed in the remotest degree to such defect. The relation of cause and effect which alone constitutes actionable negligence is not present. Such defect was not the proximate cause of plaintiff’s injury. If plaintiff brought on her injuries by her own negligence, so far as defendants are concerned she must be regarded as not having received them. R. R. Co. v. Harris, 53 Ill. App., 592; C. & A. Ry. v. Becker, 76 Ill., 25.

Before plaintiff can recover on any theory of the case she must prove not only that the defect was present, but that it was the cause of her injuries. R. R. Co. v. Dixon, 49 Ill. App., 299. It is plain that plaintiff could not have suffered the injuries which she did except by design or negligence. The testimony of the witness Ford has some bearing upon the want of care on the part of plaintiff at the time of the accident. Plaintiff’s eyes were evidently not upon her work to guide her hand. Ford says she was looking out of the window at the time. This may reasonably account for the happening of the accident, especially when viewed in the light of plaintiff’s inability to account for the position of her fingers or how they got into the machine when they were injured. While there is nothing in the evidence tending to prove that plaintiff was not a girl of ordinary intelligence, and she was admittedly within four months of attaining her majority, there is evidence of her own that she is neither very observant or a close reasoner. This appears from her answer to the following question. “Q. Did you know if you put your fingers in where the cards were—■ where the eyelets were being flattened—did you know you would get hurt? A. Ho, I never thought of that.” That one’s fingers would get hurt in such a position is patent to the most immature mind. With the knowledge that eyelets were flattened by the descending force of the plate upon the shoe which plaintiff had from many months of practical experience, it is incredible, to our mind, that she could have been so calloused to her own safety as not to have had impressed upon her mind that her fingers would receive any but the same kind of treatment as the eyelets, if allowed to get in a like position.

We cannot agree with counsel for plaintiff that their client was inexperienced in the work she was engaged in on the day of her injury. The evidence in the record forbids our so doing. Plaintiff was required to use only such care as a person of her years, intelligence and experience would ordinarily use under like circumstances. What is ordinary care, however, depends upon the circumstances of each case. Here Ave find a minor, it is true, but one of maturity at that, Avithin four months of her majority, working in the sight of a machine many months and for many weeks operating it daily. As before said, the machine was simple in construction and operation. Its one danger so open and obvious, viz.: that of getting one’s fingers between the shoe and the perpendicularly moving plate, that a much younger person than plaintiff would be chargeable with knowledge of such an obvious, danger. The so-called mangle cases are in point on this question.

In Jones v. Roberts, 57 Ill. App., 56, a sixteen-year-old girl was injured by letting her hand come in contact with a hat cylinder. The verdict of the jury Avas against her, and in affirming the court say, had a verdict been rendered in her favor, “it would have been the duty of the court to set it aside.”

Ward v. Daniels, 114 Ill App., 374, was another accident in a “laundry mangle,” the injury occurring by drawing the hand of the operator between the cylinder and the steam chest, crushing it. A judgment of $3,000 was reversed, without remanding, because the court found that the cylinder was open and exposed toward the operator. Its dangers were obvious and the risk therefore assumed.

On the theory that plaintiff was employed to do the work at which she was engaged at the time of receiving her injuries, by like reasoning she assumed the risk of the dangers which were open and obvious to her. Utica Hydraulic Cement Co. v. Whalen, 117 Ill. App., 23; Brown v. Siegel, 191 Ill., 226; Montgomery v. Barringer, 218 ibid., 327; Christiansen v. Graver Tank Works, 223 ibid., 142. Christiansen- lost his arms in the cog wheels of a machine at which he was working, in the discharge of the duties of his employment, yet the court denied him the right to recover damages because of his knowledge that the cog wheels were upon the machine, and that the dangers were apparent and obvious to him, and therefore, in law, he assumed the risk of the employment at which he was injured.

In so far as the trial court refused to instruct the jury as requested, as to the application of the doctrine of assumed risk to the facts in evidence, it committed error. The greater weight of the evidence establishes the fact that plaintiff was put to work upon the machines at her own request, and that work upon such machines was in the line of her employment at the time of the accident. That such work was regarded as carrying with it higher duties and degrees of responsibility than did the doing of “table work” may be extracted from the undenied evidence tending to show that after working two weeks on the machines, plaintiff’s wages were increased and again raised about two weeks before the accident.

A careful examination of the evidence in this regard convinces us that the verdict of the jury is manifestly contrary to its preponderating weight. For the reasons appearing in this opinion, the judgment of the Circuit Court is reversed and the cause remanded for a new trial, conformable to the views herein expressed.

Reversed and remanded.


text:
    Ferdinand Ebann, Appellee, v. James A. Brown et al., Appellants.
    Gen. No. 14,376.
    1. Practice—effect of omission in jurat. The omission to insert in the jurat the date on which the affidavit attached to a bill for injunction was sworn to, is not material; the presumption will be indulged that the oath was administered upon the day the bill was filed.
    2. Injunction—what essential to issuance of, without notice. In order to justify the issuance of an injunction without notice, either the bill or an accompanying affidavit must set forth facts which would tend to show that undue prejudice would result to the complainant if the injunction were not issued without notice; conclusions upon undisclosed facts will not satisfy the statutory requirements in this respect.
    3. Injunction—when lies to restrain collection of judgment. Held, that the bill of complaint in this case set forth sufficient facts showing that the judgment in question was obtained by fraud to entitle a court of equity to restrain its collection by injunction issued without notice.
    4. Injunction—when bond given upon issxiance of, insufficient. A bond given upon the issuance of an injunction restraining the collection of a judgment is insufficient which does not comply with the statute which provides that such a bond shall he “in double the amount of such judgment,” etc.
    Bill for injunction. Appeal from the Superior Court of Cook County; the Hon. Farlin Q. Ball, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed February 27, 1908.
    A. W. Martin and Edward H. S. Martin, for appellants.
    Parker & Kigheisier, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from an interlocutory in junctional order entered hy the Superior Court restraining the collection of a judgment at law, without notice.

The complainant Ebann filed his bill for an injunction to restrain the defendants from proceeding to collect a judgment obtained by the defendant, James A. Brown, against appellee in the County Court of Cook County for the sum of $376.50 on the 20th day of December, 1907. The defendant, Christopher Strassheim, as sheriff of Cook county, is restrained from levying an execution issued upon said judgment upon the property of appellee. The bill was verified and the injunction issued as prayed without notice to the defendants, or either of them. Appellee gave an injunction bond in the penalty of $800. The condition of the bond is that the obligors, complainant and his surety, “shall and do well and truly pay or cause to be paid to the said James A. Brown and Christopher Strassheim, Sheriff, etc., * * "x" all such costs and damages as shall be awarded to any or more of said defendants jointly or severally against the said complainant in case the said injunction shall be dissolved, then the above obligation to be void.”

The bill avers inter alia that the suit in which judgment was rendered was without any foundation; that complainant was not indebted to defendant Brown in any sum of money upon any account whatever; that Brown admitted to complainant that his pretended claim in suit was groundless; that he had no claim or cause of action against him; that it was started in anger, and that he did not intend to prosecute it, and would cause it to be dismissed, and that he need pay no further attention to it. At this time complainant had retained counsel and interposed his pleading in defense of the action; that trusting and relying on Brown’s promise not to further prosecute the action, but to cause it to be dismissed, he discharged his lawyer and paid no further attention to defending the suit; that Brown, disregarding his promises, without notice to complainant, surreptitiously and without his knowledge, proceeded to trial in complainant’s absence and procured the verdict of a jury for $376.50 and judgment to be entered on such verdict on the last day of the term of the County Court, and that complainant did not ascertain or know of any of the proceedings leading up to said judgment or its entry until after the lapse of the term of court at which it was entered, and until it was too late to move to set aside said proceedings and judgment; that the judgment was obtained by false and fraudulent evidence; that the first knowledge appellee had of the judgment was on January 21, 1908, when a demand was made upon him by the sheriff for payment of the amount of the execution issued upon the judgment; that the sheriff was threatening to levy the execution so obtained upon the personal property, machinery, tools, etc., used by complainant in the conduct of a garage and machine shop, and sell the same to satisfy the amount due upon said judgment, and also threatened to levy the execution upon and sell his real estate for the same purpose unless complainant paid the said judgment with costs. Complainant filed two affidavits in support of the averments of his bill. Complainant’s affidavit to his bill stated as a reason for the granting of the injunction without notice, that “he is advised and informed and so states the fact to be, that his rights as complainant will be unduly prejudiced if the injunction is not issued immediately and without notice to the defendants, etc.” The jurat of the notary administering the oath, is “Subscribed and sworn to before me this-day of January, A. D. 1908.” The bill is indorsed filed January 27, 1908.

While we are not called upon at this time to decide the merits of this cause or to adjudicate the ultimate rights of the parties, we are inclined to the opinion that the averments of the bill stated a prima facie case entitling complainant to the temporary restraining order prayed. The omission to insert in the jurat the day on which the affidavit was sworn to before the notary, we regard as immaterial. The fact remains that it was sworn to by the affiant as the jurat clearly indicates, and lacking as it does a statement of the exact day of the month of January when the oath was administered, it may be treated as having been sworn to on the day the bill was filed. This was in ample time to authorize the chancellor to grant the injunction prayed for in the bill, if in other respects the action of the chancellor in awarding an injunction were not erroneous.

The facts which would tend unduly to prejudice a complainant in his rights if the injunction prayed be not issued without notice, must appear either by facts stated in the bill or by an affidavit accompanying it. Conclusions upon undisclosed facts will not satisfy the statutory requirement in this regard. But by reference to the bill, sufficiently verified, we find facts rendering an immediate in junctional order imperative to prevent complainant’s rights from being unduly prejudiced. The execution was in the hands of the sheriff. That officer had demanded payment and was threatening to levy immediately upon the personal property of complainant in use by him in his business.. Nothing but payment of the judgment or an in junctional order arresting the levying of the execution could avail to save the seizure of complainant’s property and the temporary suspension of his business. If the judgment was fraudulently obtained, it would be inequitable to require its payment. We think the facts stated in the bill, if true—and they must, for the purpose of granting the injunction order, be assumed and taken by the chancellor to be true—justified the chancellor’s granting the in junctional order without notice. Suburban Construction Co. v. Naugle, 70 Ill. App., 384.

The bond accepted by the chancellor is not a compliance with the statute. Section 8, chapter 69, is in part as follows:

“Before an injunction shall issue to enjoin a judgment, the complainant shall give bond to the plaintiff therein, in double the amount of such judgment, with sufficient surety * * * for the payment of all moneys and costs due to the plaintiff in the -judgment, and such damages as may be awarded against the complainant in case the injunction is dissolved.” The statute must be strictly complied with. It leaves no discretion to the chancellor to fix the condition or penalty of the bond variant from that directed by the statute. Such bond is the foundation upon which the right to obtain the injunction rests. Failing to have such support, it cannot be allowed to remain in force. The decisions are uniform to this effect. The last expression on this subject by this court is found in Williams v. Harper, 127 Ill. App., 619. We there said:

“The in junctional order restrains defendants from issuing an execution on their judgment in Justice Martin’s court against Tichy. The injunction bond should have been conditioned for the payment of all moneys and costs due defendants in the judgment in compliance with section 8, chapter 69, R. S. The failure so to do is reversible error. This case falls within the rule announced in Stirlen v. Neustadt, 50 Ill. App., 378. The bond here, as in Stirlen v. Neustadt, supra, is conditioned only for the payment ‘of all such costs and damages as shall be awarded """ * in case said injunction is dissolved.’ This is not in accord •with the demand of the statute and is consequently insufficient.” Packer v. Roberts, 44 ibid., 232; Am. Fine Arts Co. v. Voigt, 103 ibid., 659; Grossman v. Davis, 117 ibid., 354.

For the failure to file bond as required by statute, the order of the Superior Court granting an injunction is reversed.

Reversed.


author: Mr. Justice Adams Mr. Presiding Justice Holdom,

text:
    Charles Hinkley Baker v. Howard W. Baker, Administrator, et al.
    Gen. No. 13,640.
    1. Contracts—how to he construed. A contract must, if possible, be so construed as to effectuate the intention of the parties and to sustain the contract; also, if one possible construction would-render the contract illegal and another possible construction would make it legal, the latter construction will be adopted.
    2. Contracts—when party not deemed to have contracted with himself. A party to a contract will not be deemed to have undertaken to perform the impossible feat of contracting with himself, but a construction will be given, if consistent with the contract as an entirety, which will make the undertaking or clause in question an agreement by such party with the other signers of the contract.

      3. Contracts—when want of mutuality does not appear. Held, that the contract in question in this case was not void for want of mutuality.
    4. Contracts—when party cannot question validity. A party cannot at one and the same time assert rights under a contract and urge that the same is void.
    5. Contracts—effect of clause limiting time for bringing suit. A clause of a contract which provides that an action with respect to a portion of the subject-matter thereof shall be commenced within a time specified, and that the commencement of such action within such specified time is a condition precedent to its maintenance, is valid and enforceable.
    6. Amendments and jeofails—when error to deny leave to amend Mil of complaint. Held, that under the showing made in this case it was error to deny leave to amend the .bill of complaint filed therein.
    Holdom, P. J., dissenting.
    Bill in chancery. Appeal from the Superior Court of Cook County; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in this court at the March term, 1907.
    Reversed and remanded.
    Opinion filed March 9, 1908.
    Rehearing denied March 26, 1908.
    Statement by the Court. This is an appeal from a decree sustaining a demurrer to and dismissing a bill filed by appellant against appellees. Appellant will be referred to as complainant, and appellees as defendants. The bill in question is the second amended bill filed in the cause, and will be referred to as the bill. The bill is very lengthy, and instead of being abstracted is substantially set forth in full in what is misnamed “Abstract of Record,” but which is, in fact, a printed copy of the record. Counsel have completely ignored the rule of the court requiring abstracts. It is averred in the bill substantially as follows:
    Howard W. Baker is the duly appointed administrator of William T. Baker, deceased, who died at Chicago, October 6, 1903, leaving as his heirs Charles H. Baker, the complainant, Henry D. Baker, Bertha Baker Ailing, formerly Bertha Baker, Anna R. Baker, wife of said William T. Baker, deceased, and Anna M. Baker, all of whom are defendants, and each of the last two non compos mentis. Complainant is the son of William T. Baker, deceased, and is, by education and profession, a civil engineer, and educated in respect to mechanical, hydraulic and electrical engineering, which William T. Baker, deceased, knew, and so knowing, confided in complainant as a son and an expert. William T. Baker in 1897 was not scientific or an expert in matters involving electricity, but was a financier, a business man and a stock broker. Five years prior to 1897 complainant discovered in Kings county, in the State of Washington, Snoqualmie Falls, a water power capable of generating electric agencies for use in conveying power for lighting, heating, and transportation through much of the territory of the then Territory of Washington, and the territory adjacent thereto, and, after investigation and the devisement of plans for the utilization of said Falls, complainant secured an option for the purchase of the same, and came to Chicago and presented to William T. Baker, deceased, a complete plan for the development thereof, and showed how profit could be made by investing therein; and this was approved by said William T. Baker; and, about the year 1894 and 1895 he and complainant) at Chicago, entered into a verbal copartnership agreement for the purpose of developing and distributing said water ¡lower. The partnership agreement is then stated, and is in substance, that complainant was to furnish his skill and labor and devote all his time to the business, and that William T. Baker was to furnish all the necessary money, and that all profits and losses were to be shared equally; and also that the partnership should extend to and include the organization of any company or offspring companies which it might be necessary to form to carry out said project, and that the business should be conducted in the name of William T. Baker, except when it was necessary to be conducted in the names of such companies as might be formed. Complainant performed his part of said agreement, and, in addition, contributed sums of money toward the enterprise to the amount approximately of $14,000.
    In pursuance of said partnership business, complainant acquired the plant, machinery and real and personal property in the name of William T. Baker, or in the names of such companies as might be organized for the purpose of furthering the object of the copartnership, the stock and bonds of which companies were, at complainant’s request, made out in William T. Baker’s name, but were to be held by him in trust for himself and complainant. Complainant proceeded to obtain permits, deeds and titles of such other water plants, rivers and falls in the State of Washington as would make one common system, for the purpose aforesaid, the said William T. Baker furnishing the necessary money. A number of corporations were formed in pursuance of the partnership agreement, the stock of which was taken and held in William T. Baker’s name for the joint benefit of the partners. The first of said corporations was the Snoqualmie Falls Power Co., organized under the laws of the State of Washington, January 18, 1898, the capital stock of which was $500,000, all of which, except not exceeding four shares held by others for the purpose of the directorate, was in the name of William T. Baker, and was held and apparently owned by him. Complainant, by William T. Baker’s direction, was made president and general manager of said company, and complainant expended $25,000 in the construction of implements and materials and erected a ten thousand power plant at said falls, and expended $750,000 in the erection of necessary buildings, which sum was paid from copartnership funds, and said William T. Baker assigned all of said properties for $500,000 par value of the stock of said company, and $600,000 par value of first mortgage bonds of said company. Also there was created by complainant and William T. Baker the Seattle Cataract Co., for the purpose of purchasing power from the Snoqualmie Falls Power Co., and distributing the same to the people of Seattle, and the Seattle Co. took title in its own name to a building known as the Cataract Building, in the city of Seattle, and complainant, at great trouble and in competition with others, procured from the city of Seattle a “franchise” allowing the Snoqualmie Falls Power Co. and its subsidiary companies to furnish power through that city in divers forms and ways, which franchise was secured and confirmed to William T. Baker. Also there was purchased for the sum of $35,000, all the interest of the White River Company, the capital stock of which was $1,500,000, for the purpose of utilizing the White River power, in Pierce county, State of Washington. Also the Tacoma Cataract Co. was organized under the laws of the State of Washing-tong, with a capital stock of $100,000, said company to act in conjunction with the White River Falls Co., and operate, as did the Seattle Cataract Co., with the Snoqualmie Falls Power Co.
    Subsequently, October 22, 1902, complainant, with the knowledge, consent and direction of William T. Baker, did, for the better control and management of said companies, direct the consolidation of all of said companies under the name of Snoqualmie Falls & White River Power Co., with a capital stock of $3,000,000, complainant being one of the incorporators of the consolidated company, and the consolidated company acquired, March 1, 1901, the properties heretofore named. ¡Next, it is stated that large amounts, stating the amounts, were expended by the White River Power Co. and the Tacoma Cataract Co., in constructions and in the erection of buildings. Subsequently, the consolidated company, because of the increase in value of its property, owing to complainant’s labors, had its capital stock increased to $3,500,000, divided into 12,500 shares of preferred stock hearing 6 per cent interest, and 22,500 shares of common stock.
    William T. Baker, while holding all the partnership assets in his own name in trust, as aforesaid, drew, from time to time, large amounts of money, greatly in excess of his investment, and, as complainant charges, of all amounts contributed .by him. In the spring of 1903, complainant requested William T. Baker, as he had at other times before, to make distribution of stock, in accordance with the intent of the partnership, hut he, being at that time, oppressed by matters pertaining to the debts of, and bond issues on the property, and pertaining to his operations on the Board of Trade of the city of Chicago, said that division would he made at an early time, and complainant, relying on his integrity and business reputation, etc., refrained from insisting on a division, and shortly thereafter, October 6, 1903, William T. Baker suddenly died, without any accounting having been made with complainant, and immediately thereafter, and following the appointment of Howard W. Baker as the administrator of William T. Baker’s estate, said Howard W. Baker took possession of all the assets of said partnership business, and has since refused to permit complainant, as surviving partner, to wind up the business of the partnership, and has ever since refused to recognize complainant’s claim, as partner, for an accounting in respect to the partnership assets in his hands, and complainant served on said administrator a statement of his claim as partner, and, October 15, 1901, filed in the Probate Court a sworn statement, setting forth his right and interest as partner. Thereafter, it became necessary to obtain money for the benefit of the estate, and to make certain financial arrangements with H. W. Harris & Co., to finance the estate and the properties in which complainant had a half interest as partner; and complainant’s claim, filed as aforesaid, was deemed an obstruction to obtaining the money by Harris & Co., by the administrator and the heirs; and all parties, particularly Howard W. Baker, administrator, Charles H. Baker, complainant, Bertha C. B. Ailing, Henry D. Baker, Howard W. Baker, in his own right, and also as conservator and guardian of Anna F. Baker and Annie M. Baker, concluded that it would be well, for the considerations of advantage to the estate and the properties, to withdraw the written notice of complainant’s claim; all of which agreement was reduced to writing in a certain paper known as “Assignment in Trust,” designated “Exhibit A” to the bill, together with an auxiliary contract with H. W. Harris & Co.
    From time to time during the year 1905, propositions of settlement were made to complainant by said administrator and the heirs, which did not, after negotiations, prove materially satisfactory, and November 6, 1905, complainant commenced suit in the United States Circuit Court for the Northern District of Illinois, and, by reason of said trust agreement, was compelled to make parties to said suit, the Commercial Trust Co. of New Jersey and other defendants, some of whom reside in the State of Washington. The Commercial Trust Co. appeared and objected to the jurisdiction, and Howard W. Baker, for himself and his codefendants, objected that the defendants residing in the State of Washington were not within the jurisdiction of the court, and on the suggestion of the presiding judge, that full relief could not be had against all the parties in that court, the bill was dismissed April 20, 1906, without prejudice, on complainant’s motion. Said trust agreement provides that complainant should commence suit within a year or be barred, and complainant claims that, by said suit in the United States Court, he so did. It is provided in the trust agreement that the trustee shall keep correct books of account of the trust property, at all times during the trust, and furnish to the distributees, at their request, statements showing the condition of said property, which Howard W. Baker has failed to do, although complainant, as a distributee, has frequently requested from him a written statement showing the true condition of said property.
    Section 10 of said trust agreement provides that so far as practicable, the trust property and funds, at any time held by the trustee, shall be deposited in safe deposit vaults or banks in Chicago, and that books of account shall be kept by the trustee in his office in Chicago, and shall be subject, at all times, to examination by the distributees. But the trustee, in violation of said agreement, has sent the trust property out of this State and kept it in the State of New Jersey, and under the control of himself and the said Commercial Trust Co., so that complainant can obtain no information concerning the same.
    William T. Baker, at divers times, received from the partnership business items aggregating $1,221,113.0 8, as complainant believes, leaving at least $149,441.33 to be divided between complainant and the estate of William T. Baker. The bill then sets out properties claimed to exceed in value ,all investments made by William T. Baker in which complainant claims an interest.
    The remaining allegations of the bill we do not deem necessary to be set forth for the purpose of passing on the question to be decided.
    James Hamilton Lewis and Elijah U. Zoline, for appellant.
    Custek, Gbieein & Camebon, for appellees; J. R. Ousted, of counsel,
   Mr. Justice Adams

delivered the opinion of the court.

The special cause of demurrer to the bill is that suit was not commenced by complainant within one year from November 1, 1904, the date of the trust agreement mentioned in the preceding statement, and counsel for the parties, respectively, apparently agree that the court sustained the demurrer and dismissed the bill on the ground that the present suit, which was commenced March 16, 1906, is barred by the following provision in section 6 of the trust agreement, to which the complainant was a party: “Nothing in these presents shall be deemed or taken to prejudice or affect the right of said Charles H. Baker, at any time within one year after the date of these presents, to commence, and thereupon to prosecute to final judgment or decree such action at law, or suit in equity, as he may elect, for the purpose of establishing the validity of his claim of the existence of a partnership between himself and said William T. Baker, deceased, in his lifetime, and for the recovery only out of so much of said property as is not and shall not be required to be applied hereunder by the trustee, or his successor, in his, her or its discretion, to the uses and purposes expressed in the foregoing clauses a, b and c of paragraph 1 of these presents, of such alleged partnership interest or share of said Charles H. Baker, and out of no other property; and the said Charles H. Baker does, hereby, further covenant and agree, that it shall be and is a condition precedent to the maintenance of such suit or action, that the same shall be commenced within one year after the date hereof, or thereafter be forever barred.”

Appellant’s counsel contend that the trust agreement is void for 'want of contracting parties, want of mutuality and want of consideration. Waiving for the present the question, whether appellant is in a position to question the validity of the trust agreement, we will consider this objection. The agreement commences thus:

“This indenture, made and entered into this 7th day of November, A. D. 1904, by and between Henry D. Baker, party of the first part, Howard W. Baker, party of the second part (hereinafter also called the ‘Trustee’), and Charles H. Baker, Bertha C. B. Ailing, Henry D. Baker and Howard W. Baker, in his own right, and as conservator and guardian of Anna F. Baker and Annie M. Baker, duly appointed by the Probate Court of the County of Cook, in the State of Illinois, and the Superior Court of the County of King, in the State of Washington, parties of the third part (hereinafter also called the ‘Distributors’, Witnesseth:”

The conclusion of the agreement, and the signatures thereto, are as follows:

“14. The distributees do hereby jointly and severally agree to and with the parties of the first and second parts to be bound by, all and singular, the terms and provisions of these presents, the said Howard W. Baker as conservator and guardian of the said Anna F. Baker and Annie II. Baker, pursuant to authority conferred upon him by orders duly entered by the Probate Court aforesaid in the matters of their respective estates.

“15. The party of the second part does hereby accept the trusts created and in him reposed by these presents, and does, for himself, his successors, heirs, executors and administrators, hereby covenant and agree to and with the party of the first part and the parties of the third part, their and each of their successors, heirs, executors, administrators and assigns, that he, the party of the second part, will well, truly and faithfully execute the same according to the best of his skill, knowledge and ability.

“In witness whereof, the parties to these presents have hereunto, and to five other instruments of like tenor, set their hands and seals, the day and year first above written.

Henry D. Baker, [Seal]

Howard W. Baker, [Seal]

Chas. H. Baker, [Seal] By James Hamilton Lewis, His Agent and Attorney in fact. Howard W. Baker, Henry D. Baker, Bertha C. B. Albino, Howard W. Baker, As Conservator and Anna F. Baker. Howard W. Baker, As Conservator and Annie M. Baker.” [Seal] [Seal] [Seal] [Seal] Guardian of [Seal] Guardian of Distributees.

The argument in respect to want of parties is, that Howard W. Baker, by paragraph 14 sufra, purports to contract with the parties of the second part, he being one of said second parties, and as one cannot contract with himself, the agreement is void. We think that counsel, unmindful of the maxim qui haeret in litera haeret in cortice, take too short a view. The parties to the agreement well knew, at the time of its execution, that one cannot contract with himself. This is shown by paragraph 6 of the agreement, in which the appellant contracts as follows: “Charles H. Baker does hereby covenant and agree to and with the party of the first part, the party of the second part, and the parties of the third part (other than Charles H. Baker), and each of them,” etc. The parties must be presumed to have intended that every part of the agreement should be effective and operative, and could not have understood or intended paragraph 14 as requiring Howard W. Baker to perform 1he impossible feat of contracting with himself. They must have understood by the paragraph that he was-contracting with parties other than himself. It is a fundamental rule that a contract must, if possible, bo so construed as to effectuate the intention of the parties and to sustain the contract, ut res magis valeat qmm pereat. It is also a rule of construction that if by one possible construction the contract would be illegal, and if by another possible construction it would be legal, the latter construction will be adopted. Chitty on Contracts, 11th Am. ed., 977; 2 Parsons on Contracts, 6th ed., star p. 500. A fortiori, if construing paragraph 14 one way involves an impossibility, and if construing it another way, of which it is susceptible, it is in accordance with common sense and the general intention of the instrument, the latter construction must prevail.

In respect to the objection that the agreement is void for want of mutuality, counsel say, citing cases, that Howard W. Baker, who, as distributee, signed the agreement, as conservator and guardian of Anna F. Baker and Annie M. Baker, insane persons, cannot bind the persons or estates of his wards. Counsel fail to point out anything in the agreement by which it is sought to bind the person or estate of either of the wards, and, on examination of the agreement, we cannot find anything. The only provision in the agreement specifically referring to the wards, is one providing that the trustee shall pay to them such proportion or shares of the estate as they will, by law, be entitled to take. There is nothing in the agreement imposing any obligation on them, or requiring them to do anything*. Therefore, there is nothing to be enforced against them.

The argument of complainant’s counsel must proceed on the ground that Anna F. Baker and Annie M. Baker are necessary parties to the agreement. If this be true, the sole way in which they could become parties is by their conservator and guardian, who, by section 5, chapter 85 of the statutes, has the care and management of their estates, signing on their behalf, and we know of no decision holding that the conservator of an insane person cannot consent, on behalf of his ward, to an agreement for the benefit of the ward, and which binds neither the person nor the estate of the ward. If the wards are unnecessary parties, and Howard W. Baker was without authority to sign the agreement on their behalf, his so signing did not make them parties, and the agreement can be enforced against the other parties to it. ' Lancaster v. Roberts, 144 Ill., 213.

We find no want of mutuality in the agreement. The agreement was made for the mutual benefit of the heirs, including the complainant, and ample consideration for it is shown in the agreement itself. It is recited in the agreement as follows:

“Whereas, it is the desire of the party of the first part, and for the benefit of each and all of the distributees, that the party of the first part should assign and deliver the property next hereinafter described, to the Trustee, to be held, managed, controlled, disposed of, applied and distributed in the manner herein provided.”

The complainant then proceeds to assign and transfer certain properties to the trustee. We do not think complainant is in a position to attack the trust agreement. He does not, in his bill, claim that the agreement is void; but, on the contrary, pleads it and claims rights under and by virtue of it. It is contended by complainant’s counsel that the present suit is not barred by the limitation in paragraph 6 of the trust agreement, above quoted; that such was not the intention of the parties, and, also, that the commencement of the suit in the Hnited States Circuit Court was a compliance with the limitation.

The date of the agreement is November 7, 1904. It is averred in the bill that the suit in the United States Court was commenced November 6, 1905, the last day but one of the time limited. "The present suit was commenced March 15, 1906. The intention of the parties is to be ascertained from the words of the instrument. In and by paragraph 6 of the trust agreement appellant covenants as follows: “And the said Charles H. Baker does hereby further covenant and agree that it shall be, and is, a condition precedent to the maintenance of such suit or action, that the same shall he commenced within one year after the date hereof, or thereafter he barred,” etc. This language excludes, as we think, all doubt of the intention of the parties. It will be observed that the “condition precedent” is not merely to the commencement of suit within a year, but is a condition precedent to the maintenance of such suit or action, that the same shall be “commenced within one year after the date hereof.” The bill does not inform us of the nature or contents of the bill filed in the United States court, but merely that it was against the defendants, and that complainant, on learning that, by reason of complainant being a- resident of the State of Washington and the legal residence of the Commercial Trust Company being in Hew Jersey, no relief could be granted against the Few Jersey company, for want of jurisdiction of the court, dismissed the bill. In other words, complainant dismissed that bill because it could not be maintained in that court against a necessary party. Riddlesbarger v. Hartford Insurance Company, 1 Wall., 386, was a suit against the insurance company on a policy, which contained this clause:

“That no suit or' action of any kind against said company for the recovery of any claim upon, under, or by virtue of the said policy shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within the term of twelve months next after the loss or damage shall occur, and in case any suit or action shall be commenced against said company after the expiration of twelve months next after such loss or damage shall have occurred, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim thereby so attempted to be enforced.”

The policy was dated June 1, 1861, and was for one year. The loss occurred in March, 1862, and in June, 1862, the plaintiff commenced suit in the Kansas City Court of Common Pleas. The suit was dismissed by the plaintiff in June, 1864, and, within one year thereafter the plaintiff commenced suit in the Court of Common Pleas in St. Louis county, Missouri, and the suit was transferred from that court to the United States Court for the District of Missouri. The defendant pleaded the limitation above quoted, and the plaintiff replied the commencement of the suit in the Kansas City Court of Common Pleas. The defendant demurred to the replication, and the court, Mr. Justice Fields delivering the opinion, say: “The action mentioned, which must be commenced within the twelve months, is the one which is prosecuted to judgment. The failure of a previous action from any cause cannot alter the case. The contract declares that an action shall not be sustained, unless such action, not some previous action, shall be commenced -within the period designated. It makes no ■provision for any exception in the event of the failure of an action commenced, and the court cannot insert one without changing’ the contract.” The court concludes its opinion in these words: “The commencement, therefore, of the present action within the period designated, was a condition essential to the plaintiff’s recovery, and this condition was not affected by the fact that the action, which was dismissed, had been commenced within that period.”

In Arthur v. Homestead Fire Ins. Co., 78 N. Y., 462, the policy contained this condition: “No suit or action against this company, for the recovery of any claim under or by virtue of this policy, shall be sustained in any court of law or equity, unless commenced within the term of one year next after any claim shall accrue,” etc. The loss occurred March 8, 1876, and, by the terms of the policy, the plaintiff’s claim accrued July 8, 1876. The plaintiff commenced a suit in August, 1876, but was non-suited on motion of the defendant, and the suit, from judgment in which the appeal was taken, was commenced October 12, 1877, more than a year after the plaintiff’s claim accrued. The court say: “That the plaintiff’s counsel failed to proceed in that action, and paying costs thereof abandoned it, cannot tend to the advantage of the plaintiff or confer a new right against his adversary. As the.commencement of that action does not bring the present within the limitation, neither does its failure extend the time. (Riddlesbarger v. Hartford Ins. Co., 7 Wall., 386.) The cases cited by the learned counsel for the respondent are abundant to show that waiver may be implied from slight circumstances, but none afford any support to the position that a successful defense of one action estops a party from insisting that a second cannot be maintained because commenced too late.”

We are of opinion that the limitation in paragraph 6 of the trust agreement constitutes a bar to the present suit, and that the commencement of the suit in- the United States Court, which was subsequently dismissed by the complainant, was not a compliance with the limitation. This is said without reference to the question whether complainant was, or not, induced by the appellees to refrain from bringing suit within the period limited. AVhile it is averred in the bill that there were negotiations between complainant and some of the defendants, looking to a settlement of his claim, and that, trusting -to the same, he refrained from bringing suit till November 6, 1905, it is not averred that he was induced to so refrain by any acts or words of the defendants or any of them. On the contrary, the averments of the bill indicate that complainant was as anxious for a settlement as were the defendants. The bill avers that complainant made propositions which the defendants regarded inequitable, and they made propositions which he regarded inequitable, and that no satisfactory conclusion could be reached. When the court sustained the demurrer to the bill the complainant moved for leave to amend the bill, which motion the court denied.

The bill is not verified by affidavit. The motion to amend was in writing, and is called a petition, and is signed by the solicitors for the complainant. It is averred in the written motion or petition that the matters set forth in the proposed amendments were unavoidably and unintentionally omitted from the bill, because of the sickness of Mr. E. N. Zoline, one of the counsel in the cause, who was charged with the duty of drafting the bill and had full charge of the pleadings. The petition is verified by the affidavit of the complainant, who deposes that it is true in substance and in fact. Then follow the proposed amendments, of which we do not deem it necessary to here consider any except such as are intended to account for delay in bringing this suit, which are, in substance, as follows: The defendants, except N. W. Harris & Co. and the Commercial Trust Co., and particularly Howard W. Baker, Henry D. Baker and Bertha Baker Ailing, separately and jointly, made various propositions of settlement to complainant during January, February, March, April and May, 1905, and continuously thereafter, and asked him not to bring this suit, and held out to him, as a reason therefor, that his bringing suit would injure the estate and embarrass the heirs and hurt their financial interests and injure the prospects of obtaining money in Chicago and conducting financial arrangements with IT. W. Harris & Co., etc. And said defendants, except those non compos mentis, frequently and repeatedly offered reasons to complainant why suit by him to establish his copartnership interest should not be brought, and that the income of the estate would be materially depreciated 'if he brought suit, and promised complainant that terms of adjustment satisfactory to him would be arrived at, and prevailed on him to defer bringing suit, and induced him to continue further negotiation. Other averments to the same effect are contained in the proposed amendments, including requests of some of the defendants to complainant, not to bring suit. Affidavits of Elijah N. Zoline and Francis S. Wilson were read in support of the motion, to the effect that the drafting of the pleadings was, by agreement of complainant’s counsel, left to Mr. Zoline, and that he had sole.charge thereof after his employment in the cause, and that Zoline, June 16, 1906, became suddenly ill of typhoid fever, and June 21, 1906, was taken to the Presbyterian Hospital, where he remained till July 8, 1906, and that he had in his possession certain papers necessary to prepare the second amended bill, which is the bill in question, and that, for the reasons stated, the amendments proposed were omitted from the bill. Mr. Custer, solicitor for the defendants, made an affidavit in opposition to the motion, to the effect that all necessary information1 for the purpose of inserting the proposed amendments in the bill, was in the possession of Mr. Lewis, solicitor for complainant, in ample time to have inserted the same in the bill.

By section 37 of the Chancery Act, it is provided that the court “may permit the parties to amend their bills * * * on such terms as the court may deem proper, so that neither party be surprised nor unreasonably delayed thereby.” In the affidavit in opposition to the motion it is not stated that the defendants were surprised, or would be delayed, by allowance of the amendments, and, in the present state of the proceedings, it is not apparent that they would be unreasonably delayed.

In Droullard v. Baxter, 1 Scam., 191, the court held “that a complainant has a right, considered unquestionable, to amend his bill before answer filed.”

In Craig v. The People ex rel., 47 Ill., 487, an amendment, before answer, was allowed to a bill for an injunction, and this was assigned as error, in respect to which the court say: “As to the propriety of allowing the amendment, nothing can be clearer, and it is the constant practice of courts of chancery to allow amendments, certainly before answer filed, and in many cases after and before replication is filed.” Ib., 492.

In Thomas v. Coultas, 76 Ill., 493, 496, it is said that sworn bills are always allowed to be amended, to prevent a failure of justice, when a proper case is shown.

Bauer Grocer Co. v. Zellc, 172 Ill., 407, 412, is to the same effect.

In Nelson v. Randolph, 222 Ill., 531, the lower court refused leave to file certain proposed amendments to a sworn bill. The court held that a proper showing’ had been made for the allowance of the amendment, and used this language: “If the allowance of the amendments would have made the bill one under which the appellants could have obtained the relief sought, or any equitable relief, the court should have allowed the amendments in furtherance of justice, and its refusal to do so is an abuse of discretion, which, may be reviewed on appeal.” The bill in this case is not sworn to, and the allowance of amendments to an unsworn bill is, as a general rule, a matter of course. It is averred in the bill that complainant and William T. Baker, deceased, were equal partners in the business described in the bill, and that the assets of the partnership are large and very valuable, and we think justice requires that the amendments shall be allowed, so as to enable the complainant to prove, if he can, that he was induced by the defendants to delay bringing the present suit within the time limited by the trust agreement. Whether he was so delayed will, of course, be for the chancellor to decide from the evidence.

The decree will be reversed and the cause remanded with direction to permit the proposed amendments to be made, the appellant not to recover his costs of this court.

Reversed and remanded with direction.

Mr. Presiding Justice Holdom,

dissenting. While I unhesitatingly agree with all that has been so well said in the majority opinion of the court, I am unable to bring my mind into accord with its final conclusion. To remand the cause for the purpose of allowing complainant to file the amendments which the chancellor denied him permission to do, seems to me a work of supererogation. These amendments are in the record and were before the chancellor. We ought to assume, at least, that the chancellor had informed himself of the purport and extent of these amendments, and that with full knowledge of their legal effect as injecting new matter into the amended bill, he held them to be obnoxious to the demurrer interposed, and to- have concluded, as a matter of law, that with the proposed amendment the bill, if permitted to be so amended, would not state a case entitling complainant to any of the relief prayed. In my judgment, this court should, in deciding this case, do as the chancellor should be regarded as having done, viz.: consider the proposed amendments in concluding whether or not a case has been stated which, with such proposed amendments, entitled complainant to any of the relief prayed.

It would seem that complainant has not, by the proposed amendment, excused his delay or stated such facts as, when considered with the matters already appearing from the bill before the court, relieve him from the full operation of the limitation clause in the trust agreement. It is plainly apparent that, aside from the trust agreement, complainant has neither legal claim nor standing in any court to enforce one.

If complainant was in fact, as alleged in the bill, a partner of his deceased father in the enterprises, why did he not make that fact known at the time of the grant of letters of administration and take the course sanctioned by the statute ? This opportunity to assert his rights he allowed to pass without availing of it, but elected to assert his rights in the form of a money claim against his father’s estate. He filed his claim, but failed to support it by proof and allowed it to be dismissed. By the latter act, the time in which he could assert any claim, however meritorious it might be, had passed. - He was without remedy. If any right to assert a claim of the nature made apparent by his bill and amendments remains to him, it is in virtue of the trust agreement. The limitation allowed by that writing for the assertion of such right had concedcdly passed at the time of the filing of the original bill in this record. The filing of a bill in the United States Court on the last day of the limitation became abortive when it was discovered that complainant had appealed to a tribunal which was without jurisdiction to hear and determine the matters between the parties to it, and which bill was afterwards dismissed on complainant’s own motion; and this court holds in the majority opinion that the commencement of that suit was not a compliance with the limitation clause of the trust agreement. The only matter left on remand for the court, below to determine, is whether complainant has stated such facts in regard to the conduct of some of the defendants in inducing him to refrain from instituting his action, that the limitation may be treated as waived. If the commencement of the suit in the Federal Court was not a compliance with the limitation clause of the agreement, it being in the record, is it not evidence from which other facts may be deduced ? Is it not indubitable if not conclusive evidence, that complainant did not rely upon any waiver of the limitation of defendants, that he was not lulled into repose by any of their representations, and that he was taking no chances and did not regard the negotiations as any waiver of the limitation ?

The fact of the suit being commenced refutes, to my mind, completely the claim that complainant was misled by any representations which were made to him by any of the defendants. The claim of waiver of the limitation is so patent a pretense .in an attempt to cover up and avoid the mistake of complainant in presenting his cause to the wrong court, that no one could be deceived thereby. When the legal error was discovered, this suit was instituted. What for? To take the place of the suit started in vain in the Federal Court. Complainant was not lulled into repose when he commenced the Federal Court suit. He was wide awake, trusting to no one. His conduct is in conflict with his pretenses. The proposed amendments state no facts from which defendants can be held to be estopped from asserting the limitation as a bar to this action. Such amendments do not contain any representations of defendants, in faith of which complainant acted, which would operate as an estoppel to invoke the limitation clause as a defense in bar of this action. Schmitt v. Merriman, 101 Ill. App., 450; Mills v. Graves, 38 Ill., 465.

As already stated, complainant has no enforceable rights, except by force of the terms of the trust agreement. If that agreement is binding at all, it is binding as a whole, including the limitation clause. If that has been waived, the agreement must be construed with the limitation clause expunged. This is the reasoning and the law as pronounced in Lynchberg Cotton Mills Co. v. Travelers’ Ins. Co., 149 Fed. R., 958. If this doctrine is applied here, then complainant, being barred of any right to maintain an action by the statutes of this State, is as much without remedy as he would be had the trust agreement not been made.

In my judgment the case stated by complainant, including the rejected amendments, does not state a cause of action against defendants which is invulnerable against a demurrer, and it follows that, so believing, I am unable to reach any other conclusion than that the Chancellor did not err in denying leave to file the last amendment, and that therefore the decree dismissing the proceeding should be affirmed.


author: Mr. Justice Adams

text:
    Wells Bros. Company v. William Flanagan.
    Gen. No. 13,652.
    1. Negligence—how question of proximate cause determined. As a rule, it is for the jury to determine what was the proximate cause of an injury.
    2. Negligence—what not defense to charge of. It is no defense to a charge of negligence to say that the injury complained of was caused by the negligence of a third person if such injury might have occurred even though the negligence of such third party had not intervened.
    3. Variance—when objection comes too late. An objection of variance not specifically raised in the trial court cannot be urged on review.
    4. Instruction—when refusal not ground for reversal. It is not error to refuse a correct instruction if its substance is contained in another given.
    Action in case for personal injuries. Appeal from the Superior Court of Cook County; the Hon. George A. Dupuy, Judge, presiding.
    Heard in this court at the March term, 1907.
    Affirmed.
    Opinion filed March 9, 1908.
    Ralph F. Potter, for appellant.
    B. J. Wellman, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

Appellee sued appellant and the Oscar Daniels Company, and, September 14, 1906, filed a declaration, averring - substantially as follows: The defendants are corporations, and June 5, 1905, were engaged in the erection and construction of a building at Wabash avenue and Madison street, in the city of Chicago, and plaintiff was a laborer working in and about said building, for a subcontractor, and while plaintiff was so employed and was exercising due care for his safety, the defendants negligently caused a piece of timber to fall from a place above where plaintiff was working and strike plaintiff with great force, by reason of which plaintiff was injured, etc. Each of the defendants pleaded the general issue. December 10, 1906, the cause was discontinued as against the defendant, the Oscar Daniels Company, on appellee’s motion. The jury found appellant, Wells Bros. Co., guilty, and assessed appellee’s damages at the sum of $1,900, and the court, after overruling appellant’s motions for a new trial and in arrest of judgment, rendered judgment on the verdict.

The verdict was rendered December 11, 1906, and December 18, 1906, appellee moved the court for leave to file an additional count to the declaration, and the court ordered that the motion be continued till December 22, 1906, notwithstanding which appellee filed what purports to be an additional count December 18, 1906, the day he made the motion. It does not appear from the record, and is not claimed, that any leave was given to file it; therefore, it must be ignored.

The appellant and others were engaged in the erection of an addition to a building in the city of Chicago. Appellant was the contractor for the mason work of the addition, and the Oscar Daniels Company did the iron and steel work. There was no contractual relation between appellant and the Oscar Daniels Company. The appellee was a laborer in the employ of Schiller & Son. It does not appear what work Schiller & Son were employed to do in the erection or construction of the addition. The iron beams of the south wall of the addition were north of the north wall of the old building, leaving a space of about 6 or 7 feet between the north wall of the old building and the south wall of the addition. It was appellant’s duty as mason contractor to cut out parts of the north brick wall of the old building, exposing the steel frame work of the wall, so that the Oscar Daniels Company could connect that steel frame work with the steel frame work of the addition. For the purpose, and to receive the brick and other material taken from the north wall of the old building, and also to protect persons who might be below from falling brick and other material, appellant, about a week or ten days before the accident, constructed a scaffold across the space above mentioned, at the sixth floor of the building. This scaffold consisted of stringers crossed by planks. The stringers were 3 by 12 planks lying north and south between the old and new building. On these stringers and lying cast and west, were planks 12 to 14 feet in length. The scaffold covered the entire space between the buildings. Before the scaffold was constructed, the Oscar Daniels Company cut a hole in the north wall of the old building, and laid a 3 x 12 plank north and south across the east and west beams, with its south end in the hole. The plank lay next to the west end of the scaffold, when the scaffold was constructed. On this plank the Oscar Daniels Company placed a large derrick with which to raise steel from below. The sill of the derrick was inserted in the hole in the wall, over the end of the plank, and was wedged in, so that while the derrick remained on the plank, the plank was securely held in place. Appellant’s servants, in constructing the scaffold, used the plank on which the derrick rested, as a stringer, to support the west ends of the boards at the west end of the scaffold. This they did by nailing a 3 x 4 cleat about 3 feet long onto the plank, and resting the west ends of the scaffold boards on the" cleat.

After the Oscar Daniels Company had finished their work at the place where the scaffold was, they removed the derrick to a floor above the sixth floor, and the brick and other material on the scaffold were almost wholly removed, there being left on the-scaffold only a few bricks and pieces .of. timber. The Oscar Daniels Company had nothing to do with the scaffold, and after that company removed the derrick, it was appellant’s work to remove the scaffold, and appellant did remove it after the accident.

June 5, 1905, after the purpose for which the platform had been constructed was accomplished, and after the derrick had been removed by the Oscar Daniels Company, John Kennedy, who was a riveter in the employ of the Oscar Daniels Company, and who had been working at a beam north of the scaffold, stepped on the north end of the plank on which the derrick had rested, which north end was unsupported, for the purpose, as he said, of going to a pail of water on the scaffold, and the plank, by reason of his weight, sank beneath him, when he ran toward the other end, and that sank, and he kept running and finally saved himself. The result was that the scaffold at its west end and south side sagged down, and a piece of plank about 12 inches wide and 3 inches thick fell from the scaffold onto appellee, who was working in the "basement, and seriously injured him.

The propositions argued by appellant’s counsel are: (lj Ko act or omission of appellant was the proximate cause of the accident; (2) there is a variance between appellee’s evidence and the declaration; (3) and instructions 12 and 16 requested by appellant, were erroneously refused.

The evidence, as previously stated, shows that it was appellant’s duty to remove the scaffold after its purpose had been accomplished, and that its purpose had been completely accomplished prior to the time of the accident. The evidence also clearly shows that it was known to appellant’s employees that the derrick was at the end of the scaffold only temporarily, and that it would be removed to an upper floor, and appellee must be presumed to have known this. The evidence is conclusive that, after the removal of the derrick, the west end of the scaffold was unsafe.

It is further shown by the evidence of appellant’s witnesses that it was usual and customary for the employees of each of the two companies to walk on the scaffolds of the other company. We cannot, in view of the evidence, hold, as matter of law, that appellant’s negligence was not the proximate cause of the accident. That question was for the jury. It is true that the immediate cause—the cause next in time to the accident—was Kennedy’s attempt to walk on the scaffold; hut this is not by any means conclusive in favor of appellant.

In Pullman Palace Car Co. v. Laack, 143 Ill., 242, 261, the court say: “It is well settled that where the injury is the result of the negligence of the defendant and that of a third person; or of the defendant and an inevitable accident ; or an inanimate thing has contributed with the negligence of the defendant to cause the injury, the plaintiff may recover, if the negligence of the defendant was an efficient cause of the injury. (2 Thompson on Negligence, 1085, section 3; Bishop on Non-contract Law, sections 39, 450, 452; Shearman & Redfield on Negligence, section 31, et seq Carterville v. Cook, 129 Ill., 152; Ice Machine Co. v. Keifer, supra, and cases cited.) In such case, the negligence of two independent persons resulting in injury to the third, where neither is sufficient within itself, both are to be treated in combination as the proximate cause of the injury.” See, also, to the same effect: Elgin, etc., Traction Co. v. Wilson, 120 Ill. App., 371, 373; Byron Telephone Co. v. Sheets, 122 Ill. App., 6, 7.

In Consolidated Ice Co. v. Keifer, 134 Ill., 481, the court quote with approval this language from Cooley on Torts: “In general, the negligence of third parties, concurring with that of defendant to produce an injury, is no defense.”

L. Wolff Manfg. Co. v. Wilson, 152 Ill., 9, relied on by appellant’s counsel, is not applicable. In that case the question of the barber’s liability for placing the pole on the sidewalk was not involved. The court expressly say: “The primary question for the jury to determine being whether the defendant’s servant was guilty of negligence which was the proximate cause of the injury, and their province being to further determine whether, by commission in doing some act which ought not to have been done, or by omission to do some act which ought to have been done, the injury resulted, in either event the inquiry before them was with reference to the acts of the defendant’s servant alone.”

Whether resting the west ends of the boards on a cleat nailed to the plank on which the derrick rested, and from which it was liable to be removed at any time, was or not negligent construction; and whether or not the appellant was negligent in not removing all bricks and other material from the scaffold and the scaffold itself after its purpose had been accomplished and the derrick removed, were questions of fact to be determined by the jury. And the evidence showing that it was customary for the employees of each of the two companies to walk on the scaffolds of the other, it was a question for the jury whether appellant might have reasonably anticipated that some of the employees might attempt to walk on the scaffold in question, after its purpose had been accomplished and the derrick removed.

Appellant’s counsel say, in their argument: “It was error for the trial court to overrule appellant’s motion, made at the close of all the evidence, to instruct for the defendant, and to overrule appellant’s motion to strike out the plaintiff’s evidence on account of the variance pointed out.” The only motion made by appellant at the close of the evidence, so far as appears from the abstract, or from the record, was to instruct the jury to find the defendant not guilty, and the court properly overruled that motion. No variance was pointed out or even suggested. Counsel for both parties tried the cause on the theory that the question whether appellant was or not guilty of negligence in respect to the platform, was a material question, and both introduced evidence bearing on that question. It is now too late to talk of variance.

Instructions 12 and 16 asked by appellant and refused by the court are as follows:

“12. If you believe from the evidence that the platform in question in this suit was built by Wells Brothers Company for their own use, and not for the use of others, in such a way that it could be and was safely used by them for the purposes for which it was built; and that afterwards Oscar Daniels Company, or one or more of their employees, used the platform for their own purposes, without permission or license from Wells Brothers Company, and while so using it caused certain materials to fall from the platform and injure the plaintiff, he (the plaintiff), cannot recover for such injuries from Wells Brothers Company, and you must find the defendant not guilty.”

“16. This is a civil suit, and in the determination of your verdict you are not judges of the law, but only of the evidence, and you must take the law from the court as laid down in his instructions; each and every instruction read to you is given by the court, and it is your duty, under your oath as jurors, to know what the instructions are before you bring in your verdict, and to honestly and impartially apply the evidence to the law as laid down in these instructions, given you by the court.”

Instruction 12 is clearly erroneous. It proceeds on the assumption that although appellant may have been guilty of negligence, in the absence of which the accident would not have occurred, yet, if an employee of the Oscar Daniels Company caused the accident by using the scaffold for his own purpose, there could be no recovery. The decisions cited supra show that this is not the law.

We find no substantial error in instruction 16, but do not think its refusal reversible error. The court, by instruction 3, given at appellee’s request, instructed the jury as follows:

“What the facts are in this case must be determined by the jury from the evidence, and having done so, then apply to them the law as stated in these instructions. The instructions given to the jury are and constitute one connected body and series, and should be so regarded by. the jury; that is to say, they should apply them to the facts as a whole, and not detach or separate any one instruction from any or either of the others.”

The judgment will be affirmed.

Affirmed.