text:
    Lucy Ann Beninghoff, Administratrix, Defendant in Error, v. Gustave Futterer and The West Coast Company, Plaintiffs in Error.
    Gen. No. 17,638.
    1. Negligence—-proximate cause. If a defective chimney on premises occupied by defendant is blown down and bricks therefrom strike an occupant of adjoining premises and injure him, the proximate cause of the accident is the negligence of defendant in failing to keep such chimney in repair or to guard against its collapse.
    2. Negligence—liability of owner of premises. The rule that the owner of premises is not liable for injuries resulting from the negligence of servants of an independent contractor does not relieve such owner from liability for injuries caused by his own negligence though the contractor is also negligent.

      3. Negligence—independent contractor. If the negligence of an owner of premises and that of an independent contractor directly concur in producing an injury, both are jointly liable.
    4. Negligence—liability of owner of building. If an owner allows his building to get out of repair so as to endanger adjoining owners, it becomes a nuisance, and he is liable to an adjoining owner injured when such building falls for that reason.
    5. Negligence—neglect to keep premises in repair. A person who has a homestead estate in premises, and resides there with his family, which he supports, is liable for personal injuries to an adjoining owner resulting from the collapse of a defective chimney on such premises caused by neglect to keep it in repair, though the fee to the premises belongs to his wife.
    6. Negligence—when occupant of building and contractor liable for injuries caused by defects. Where a defective chimney on a building collapsed while workmen were repairing the roof, and an adjoining owner was injured thereby, an argument that the only negligence shown was that of the workmen, and that the occupant of such building and the original contractor are not liable, does not apply where the defects were due to the neglect of such occupant and where it appears from the evidence that the workmen were servants of such contractor.
    7. Master and servant—when person not original contractor. An alleged original contractor cannot be relieved from liability for negligence of certain workmen on the ground that they were servants of a subcontractor, though such original contractor merely directed the subcontractor who hired the workmen “to make a good job” of certain work, where the material was furnished and delivered at the premises by the “original contractor” and he did not deny by special plea an allegation that he was in possession and control of the premises at the time of the accident.
    8. Pleading—when defendant must plead specially. If defendant expects to take issue with allegations that he was the owner or in possession -or control of property or instrumentalities which caused an injury, he must plead specially thereto, and in the absence of such a plea the allegations stand admitted of record.
    9. Pleading—when leave to file special plea properly denied. In an action for personal injuries leave to file a special plea denying that defendant was in possession or control of instrumentalities causing the injury is properly denied where such leave is asked after the trial and after the statute of limitations had run.
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed January 23, 1913.

      Mann & Miller, for plaintiffs in error; Adams, Bobb & Adams and Mark D. Goodman, of counsel.
    Edward Mayer and James L. Bynum, for defendant in error; Bernhardt Frank, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This writ of error is brought to reverse a judgment for $2,750 against plaintiffs in error for damages for wrongfully causing the death of Reuben Beninghoff. The latter and Dr. Gustave Futterer lived on adjoining lots on Fullerton Avenue, in Chicago. Between their houses was a space about six feet wide, except where a bay window projected three feet from the Beninghoff house. An outer wall supported the bay window. Under the bay window was an open space which was excavated two or three feet below the ground and floored with cement to afford an entrance to the basement of the Beninghoff house, and from this excavation, stairs led up to a cement walk running alongside the house to the street in front of the property. Nearly opposite the bay window, on the wall of the Futterer house, was a chimney which was in a bad state of repair. The title to the Futterer property was in the doctor’s wife, subject, however, to an estate of homestead in the husband. The doctor’s family, consisting of himself, his wife, son, mother and two servants, resided on the property continuously from 1891 until the time of the accident, in 1909, and the doctor testified: “I support the household.”

On May 14, 1909, Dr. Futterer was advised by his wife that the roof leaked and needed repairs. He telephoned to a Mr. Goldberg, president of the defendant, The West Coast Company, a corporation engaged in the manufacture of roofing materials. Dr. Futterer repeated what his wife had said and requested Goldberg to “have the roof fixed up.” Goldberg replied that he would attend to it. He, in turn, telephoned to one Heavenrich, a roofing contractor residing at Gary, Indiana, and doing business under the name of the “Ready Roofing Company.” Goldberg told Heaven-rich “that there was a roof at 716 Fullerton avenue which was in bad condition,” and asked him to remove it and put on a new roof, saying-also “that material would be on the job with which to do that.” Heavenrich testified that Goldberg gave him no directions as to the manner of doing the work further than “to make a good job of it;” that no price for the work was mentioned, and that he, Heavenrich, hired and paid four men, who did the work. The old roof was a gravel roof. The new one was composed of sixteen rolls of “West Coast Ready Roofing” and asphaltic cement, all of which was furnished by the West Coast Company and was in the rear of the Futterer house when Heavenrich first went there. The workmen pried off the. old roof with crowbars, causing considerable noise and jarring, and threw the old material into the back yard. There is some evidence that a high wind was blowing at the time. While the workmen were tearing off the old roof, the chimney collapsed and some of the bricks and mortar fell into the space between the two buildings. A few moments later Reuben Beninghoff was found lying at the foot of the stairs above described under his own bay window, unconscious and bleeding from wounds about the head, and near him were some of the fallen bricks and mortar. ' He was taken to a hospital, where he died the next morning from shock and internal hemorrhage. He was seventy-four years of age, in good physical health, and had just retired from a position as a carpenter or ■ bridge builder, at which occupation he earned eighty dollars a month.

The declaration contains three counts. The first count charges that the injury was caused by the negligence of both defendants in repairing the roof and chimney in a “reckless, improper and unsafe manner.” The second count alleges that the defendant, Futterer, ordered the roof and chimney to be repaired, and the defendant, The West Coast Company, made said repairs, with full knowledge on the part of both, of the defective condition of the chimney; and that the injury was caused by the negligent failure of both defendants “to furnish proper and suitable protection” to Beninghoff and others in close proximity to the building. The third count merely alleges that while Beninghoff was upon the premises known as 714 Fullerton Avenue, and was exercising due care, etc., and while defendants were engaged in remodeling and repairing the house at 716 Fullerton Avenue, “bricks, mortar and other materials connected with said building” fell upon him and killed him. All the counts allege that defendants were “in the possession of, had control of, and were using and operating” the premises upon which the chimney was located. The defendant Futterer, filed a plea of not guilty and a special plea denying “the ownership, control or management of said premises * * * or of any of the agencies * * * which caused the death of the said Reuben Beninghoff.” The defendant, The West Coast Company, filed the general issue only. Upon the motion for a new trial, nearly two years after the accident, it asked leave to file a special plea similar to that filed by its codefendant, but the motion was denied.

In support of their contention that the judgment should be reversed, counsel for plaintiffs in error present an ingenious argument, which may be stated as follows: The only negligence shown is that of the workmen on the roof at the time of the accident; these workmen were not servants of the defendants, but were hired and paid by the Ready Roofing Company and were under its sole direction; that the latter was an independent subcontractor, in possession of the premises; therefore, neither the owner nor the original contractor is liable. If the assumptions (or deductions) of fact contained in this argument be conceded to be correct, the conclusion stated would doubtless naturally follow. But we think the argument fails to take into consideration all the evidence. There was evidence to the effect that several months before the accident, the bricks and mortar in the chimney were loose, and it is a fair inference from all the evidence that at the time of the accident the chimney was in such a condition of decay and disintegration that it was ready to topple over or collapse at a touch or jar, or even to be blown down-by a heavy wind. If it was in fact blown down (as claimed by the witness Heaven-rich), then the proximate cause of the accident was the negligence of the owner or occupant in failing to keep it in a reasonable state of repair or to guard against its collapse. If it fell because it was jarred or touched by the workmen while they were tearing off the roof (and counsel admit that the evidence fairly tends to that conclusion), then the jury were justified in finding from all the evidence, that the accident was caused by the careless work of the roofers, combined with the negligence of the owner or occupant in failing to guard against the danger of the chimney falling while the men were at work on the roof.

The rule which exempts an owner of property from liability for the negligence of the servants of an independent contractor is based upon the principle that in such cases the relation of master and servant does not exist between the owner and the contractor, and therefore, the owner cannot be held liable for injuries caused solely by the negligence of the contractor or the servants of the contractor. Scammon v. City of Chicago, 25 Ill. 424; Hale v. Johnson, 80 Ill. 185. But this rule cannot be so applied as to relieve the owner from liability for injuries caused by Ms own negligence, even though the contractor may also be negligent. If an owner’s own negligence and the negligence of an independent contractor directly concur in.producing the injurious result, both are jointly liable. Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481. If the owner of a house suffers his building to get out of repair so as to endanger persons passing along a public street, it becomes a nuisance, and if it falls for that reason, he is liable to any one thereby injured. 1 Thompson on Negligence, 349. The same rule is applicable as between adjoining owners of land in cities. Kappes v. Appel, 14 Ill. App. 170; Schwartz v. Gilmore, 45 Ill. 455.

In the present case, the unsafe condition of the chimney was not due to any negligence on the part of the contractor or his workmen. Its dangerous condition was the result of the neglect of the person whose duty it was to keep the premises in repair. Dr. Futterer was the occupant of the premises. He had a homestead estate therein, resided there with his family and supported the household. That the title to the fee was in his wife’s name can make no difference in this case, for it is a general rule that it is the occupant, and not the owner as such, who is responsible for injuries received in consequence of a failure to keep the premises in repair. Gridley v. City of Bloomington, 68 Ill. 47; Boyce v. Tallerman, 183 Ill. 115. The chimney was at the top of the side wall of a gravel-roofed brick house. The workmen hired by the Beady Boofing Company were roofers, not brick layers or masons. They were not employed to repair or rebuild the chimney, but to remove the old roof and lay a new one. But while they were not responsible for the defective condition of the chimney, still, in view of that condition, they were charged with the duty of exercising reasonable care in doing the work they were hired to do. That work required them to “attack” the old roof with crowbars. This, with its consequent jarring of the roof, made the work they were engaged in necessarily and inherently dangerous to anyone rightfully upon the adjoining premises who was near enough to be hit by falling bricks and mortar dislodged by their work. Under such circumstances, the rule relied on by plaintiffs in error has no application. Sherman House Hotel Co. v. Gallagher, 129 Ill. App. 557; Scammon v. City of Chicago, supra; Chicago Economic Fuel-Gas Co. v. Myers, 168 Ill. 139, 146; City of Chicago v. Murdock, 212 Ill. 9.

Nor do we think that the West Coast Company, as the alleged “original contractor,” can be relieved from liability, upon the ground stated, under the facts shown by the record in this case. The West Coast Company employed Heavenrich to do the work. Heavenrich testified that he frequently did this kind of work for the West Coast Company, sometimes “as an employee” and at other times “by contract.” The only evidence from which it might be inferred that he laid this particular roof by contract, as distinguished from doing the work by day labor, is that he hired and paid the roofers, and that he was given no other directions as to the manner of doing the work than “to make a good job of it.” On the other hand, it appears that the West Coast Company furnished and delivered at the premises all of the required material, prepared ready for laying. There is no evidence that this material was purchased or owned by the Beady Boofing Company. It was the property of the West Coast Company, and the possession of the same by the Boofing Company was the possession of the West Coast Company. Moreover, the declaration alleges that the “defendants” were in possession and control of the premises at the time of the accident, and the West Coast Company did not deny this averment by any special plea. It is contended that the rule announced in the case of Chicago Union Traction Co. v. Jerka, 227 Ill. 95, requiring matters of mere inducement in a declaration to be denied by special plea, is applicable only to railroad or street railway companies and similar corporations. There is nothing in the opinion in that case which gives any support to this claim, audit appears from the opinion that the court did not there lay down any new rule, but merely applied an established and settled principle to a personal injury ease brought against a street railway company. The Jerka case has been followed and the same rule applied in the following cases, if no others, in which the defendant was not a railroad or street railway or other like corporation. Morris v. Williams, 143 Ill. App. 144, aff’d 237 Ill. 254; Carr v. W. S. Silica Co., 153 Ill. App. 519; Johnson v. Johnson, 166 Ill. App. 422; Casey v. Grace Co., 168 Ill. App. 488. We understand the rule stated in the Jerka case, sufra, to be one of general application, requiring a defendant to plead specially that he was not the owner or in possession or control of the property or instrumentalities which caused the injury if he expects to take issue with the plaintiff upon such allegations. On page 100 of the opinion in that case the court says: “If a plaintiff is afforded timely notice by a special plea that the want of ownership is relied upon as a defense, the plaintiff will have an opportunity of making investigation, and if he ascertains that he has sued the wrong party, he may, before the statute of limitations becomes a defense, bring his suit against the party that is, in fact, liable. We cannot imagine a case where the rule established by the decisions of this court can work any hardship on defendants.” This language is peculiarly appropriate in this case, in view of the fact that after the trial, and after the statute of limitations had run, leave was asked to file such a special plea. The request was denied by the trial court and we think it was properly denied under the circumstances. There being no special plea on file on behalf of the West Coast Company, it stands admitted of record that it was in possession and control of the instrumentalities causing the injury at the time of the accident. Even if this were not true, we think the proof shows the West Coast Company was in possession, and that Heaven-rich and his men were merely its employees, for whose negligence it is liable, for the reasons already stated.

We have also given due consideration to the contentions of counsel that the deceased was guilty of contributory negligence, and that the damages are excessive. These are questions of fact, and the verdict of the jury as to such questions should not be disturbed unless clearly contrary to the weight of the evidence. We do not find it so. As to the alleged errors of the court in refusing instructions, we think the court properly refused those relating to the question of independent contractor, for the reasons hereinabove stated; and the instruction relating to the fact that Dr. Futterer was a stockholder in the West Coast Company was properly refused because it apparently assumes that the latter was guilty of negligence.

The judgment of the circuit court will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Ervilla M. Twaits, Defendant in Error, v. Willy H. Lau Company, Plaintiff in Error.
    Gen. No. 17,651.
    1. Chattel mortgages—sale of mortgaged property. Where personal property has been mortgaged by a man to his wife, and is thereafter sold by the former, the latter may recover from the buyer either on the principle that her husband was acting as her agent and with her consent, or on the principle of a suit for money had and received.
    2. Chattel mortgages—possession after default. As between a mortgagee and a mortgagor of chattels, or a purchaser from the latter, possession need not be taken upon default, and a purchaser from the mortgagor, before condition broken, is in no better position in relation to it than the mortgagor.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 23, 1912.
    Gregory, Poppenhusen & McNab, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

Ervilla M. Twaits, defendant in error, wife of Daniel H. Twaits, sued the plaintiff in error to recover the purchase price of sundry gas and electric lighting fixtures and miscellaneous parts thereof, and upon a trial before the court without a jury recovered a judgment for $115.23. Plaintiff in error seeks to reverse the judgment upon the ground, first, that plaintiff failed to establish her right to maintain this action; second, that no sale was established by a preponderance of the evidence; and third, that the court erred in certain rulings regarding the admission and exclusion of evidence.

It appears that prior to the transaction in question Daniel H. Twaits mortgaged the property to his wife for money loaned. Several months after the alleged sale, the purchase price not having been paid, Mrs. Twaits called on Willy Lau, the president of the defendant corporation, presented him with a bill for the price of the articles claimed to have been sold by her husband, and requested payment. He replied that he had sold some of the goods, and would return the rest if she wanted them. She then brought suit for the purchase price. We think she had the right to maintain this suit, either on the principle that her husband was acting as her agent and with her consent, as held in Bank v. Raymond, 57 N. H. 144, or on the principle of a suit for money had and received, as held in Allen v. Stenger, 74 Ill. 119; Chittenden v. Pratt, 89 Cal. 178, and Nugent v. McNeil Shoe Co., 62 N. J. Eq. 583. It has been held that as between a mortgagee and a mortgagor of chattels, or a purchaser from the latter, possession need not be taken upon default (Sondheimer v. Graeser, 172 Ill. 293), and that a purchaser from a mortgagor before condition broken, takes the property subject to the mortgage, and is in no better position in relation to it than the mortgagor. Arnold v. Stock, 81 Ill. 407. No question is raised as to the validity of the mortgage in other respects, and it appeared that it was duly acknowledged and recorded prior to the sale in question. We think there was no error in admitting the mortgage in evidence. Nor was it error for the court to refuse to allow defendant to show that it had always been ready and willing to turn over the goods, or what was left of them, to the original owner for the reason that, in our opinion, the conclusion of the trial court that a sale had been made, as claimed by the plaintiff, was in accordance with the preponderance of the evidence.

The judgment of the municipal court will be affirmed.

Affirmed.


text:
    Jacob C. Portis, Defendant in Error, v. Illinois Surety Company, Plaintiff in Error.
    Gen. No. 17,680.
    1. Appeals and errors—liability of surety on appeal bond. An appeal bond conditioned for the payment “of the judgment rendered and to be rendered against her in case the said judgment shall be affirmed,” where the principal so referred to, who appeals the case, is not a party of record or to the judgment, is not a statutory bond, but where no motion to dismiss the appeal is made and the bond serves the same purpose as if valid, the surety is estopped from denying its recitals or that it is binding upon the obligors as a voluntary contract executed upon good consideration, and is liable for substantial damages, or only nominal, or none at all, according to the strict letter and terms of the bond.
    2. Appeals and errors—-parties. The right of appeal is purely statutory and the statute gives the right only to a party to the suit, while the right to sue out the common-law writ of error is available also to any one who is privy to one of the parties or who appears to have been prejudiced by the judgment.
    3. Municipal court—affidavit of merits to action on appeal bond. In an action on an appeal bond an affidavit of merits which sets forth that the bonded principal was not a party to the record and judgment appealed from, presents prima facie a good defense.

      Error to the Municipal Court of Chicago; the Hoist. William N. Gbmmlll, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed January 23, 1913.
    Charles J. Herman, for plaintiff in error; Douglas C. Gregg, of counsel.
    Morton A. Mergentheim, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

After striking from the files a fourth amended affidavit of merits, the municipal court entered judgment by default for $506.65 against the Illinois Surety Company upon the plaintiff’s affidavit of claim. The statement of plaintiff’s claim, as filed, sets out in haec verba an appeal bond for $1,000, signed by Fannie Singer and the Surety Company. The bond recites that Jacob C. Portis recovered a judgment in the County Court of Cook County for $425 against “Bernard Sangerman, executor of the estate of Abraham Singer, deceased,” from which judgment “said Fannie Singer, successor in trust of Bernard Sanger-man, has prayed for and obtained an appeal to the appellate court;” and the condition is as follows: “Now, therefore, if the said Fannie Singer, successor in trust of Bernard Sangerman, shall duly prosecute her said appeal with effect, and moreover, pay the amount of the judgment, costs, interest and damages rendered and to be rendered against her in case the said judgment shall be affirmed in said appellate court, then the above obligation to be void, otherwise to remain in full force and virtue.” The statement then avers that said judgment was affirmed in the appellate court, and that plaintiff claims that defendant is liable for $506.65, as follows: Original judgment, $425; interest, $56.50; county court costs, $12; appellate court costs, $13.15.

The fourth amended affidavit of merits which was stricken from the files (presumably under the rule of the municipal court which authorizes that to be done when it appears from the affidavit of merits that the defendant “is relying on a defense that is clearly unfounded in law”) states, in substance, that the nature of the defense is that the bond was null and void for the reason that Fannie Singer was not a party to the record nor to the judgment in the case in which the appeal bond was filed, and that the appellate court decided that said judgment was not against Sanger-man, as executor, but against him personally.

The right of appeal is purely statutory, and the statute gives the right only to a party to the suit. If an appeal be taken and a bond be filed by one who is not a party, the appeal will be dismissed on motion. Louisville, E. & St. L. Consol. R. Co. v. Surwald, 147 Ill. 194; Union Nat. Bank of Chicago v. Barth, 179 Ill. 83; Cleveland v. Cleveland, 225 Ill. 570. In this respect there is a material distinction between the right to an appeal and the right to sue out a writ of error, the latter being a common-law writ available to any of the parties or their privies, or to any one who appears by the record to be prejudiced by the judgment. Anderson v. Steger, 173 Ill. 112; Granat v. Kruse, 213 Ill. 328; Moll v. Sanitary District, 228 Ill. 633.

The bond here sued upon is an appeal bond, approved by the county court. It does not show on its face that Fannie Singer was a party to the suit. Its language clearly implies the contrary. Furthermore, the statute provides (Practice Act, section 92) that if an appeal is taken from a money judgment “the condition of the bond shall be for the prosecution of such appeal, and the payment of the judgment, interest, damages and costs in case the judgment is affirmed.”

This bond shows that an appeal was prayed and allowed from a money judgment, yet the condition is not for the payment of the judgment appealed from, but for the payment of the judgment “rendered and to be rendered against her in case the said judgment shall be affirmed.” It was not, therefore, a statutory bond, and upon motion in the appellate court, the appeal would either have been dismissed, or a proper bond required to be filed. No such motion was made, however, and the bond apparently served the same purpose, pending the hearing of the appeal, as if it had been filed by a party to 'the suit, and had contained the statutory conditions. Under such circumstances, the bond is not a mere nullity, as claimed by the affidavit of merits, but was valid and binding upon the obligors according to its terms as a voluntary contract executed upon a good consideration. Me-serve v. Clark, 115 Ill. 580; McCarthy v. Chimney Construction Co., 219 Ill. 616. The surety in such a bond is estopped from denying that it is a binding obligation, and that its recitals are true. Courson v. Browning, 78 Ill. 210; Mix v. People, 86 Ill. 329; Arnott v. Friel, 50 Ill. 174; Terre Haute & I. R. Co. v. Peoria & P. U. R. Co., 81 Ill. App. 435; McCarthy v. Chimney Construction Co., supra. “The obligee in such a case will recover substantial damages, or only nominal ones, or none at all, according to the terms of the bond.” Weigley v. Moses, 78 Ill. App. 471. While the conclusion stated in the affidavit of merits that the bond was null and void is inaccurate, yet the fact alleged as a defense is that there was no judgment rendered against Fannie Singer. If this be true, in point of fact, then under the authorities above cited, Portis, the obligee, is not entitled to recover the amount of the judgment against Sangerman, as such, but is entitled to recover only such damages as he may have sustained under the strict letter of his bond. No such damages are claimed in the plaintiff’s statement of claim.

We conclude, therefore, that to the extent that the affidavit of merits avers as a fact that Fannie Singer was not a party to the judgment in the case in which the bond was filed, it states, prim,a facie, a good defense to the plaintiff’s claim of right to recover the amount of such judgment. Plaintiff in error was entitled to a trial upon the issue of fact thus presented and the court erred in striking the affidavit from the-files.

The judgment will be reversed and the cause remanded for further proceedings, not inconsistent with this opinion,

Reversed and remanded.


text:
    Edward McClintock, Appellant, v. The Hall Signal Company, Appellee.
    Gen. No. 17,695.
    Master and servant—accord and satisfaction. In an action for salary, where plaintiff had been employed in consideration of the right to use an invention, and the defendant alleged fraudulent representations and accord and satisfaction, held, that findings for defendant were not clearly against weight of evidence.
    Appeal from the Municipal Court of Chicago; the Hon. John R. CaverIíY, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 23, 1913.
    Baker & Holder, for appellant.
    Cooney & Verhoeven, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

In 1909, appellant was the manager of the McCIintock Manufacturing Company, of St. Paul, Minnesota, which manufactured an article invented by him, known as a “Mercury Contact Bing,” used in connection with railway signaling apparatus. Appellee is a corporation engaged in manufacturing and installing railroad signals. In June, 1909, appellant had an interview in New York City with W. P. Hall and J. J. Kennedy, president and general manager, respectively, of the Hall Signal Company, resulting in a contract, by the terms of which appellee was given the exclusive right to use appellant’s invention on all its signaling devices, and agreed to buy from the McCIintock Manufacturing Company not less than $24,000 worth of mercury rings during the first year, and to “retain” appellant “to introduce and extend the application” of mercury rings at a salary of $3,000 a year in addition to his traveling expenses. Appellant entered upon this employment and continued therein for several months and was paid the agreed salary until November. During this time appellee’s chief engineer, W. H. Lane, caused a series of tests of the appliance to be made at appellee’s factory in New Jersey, and sundry inquiries to be also made regarding the use of the same by others, with results unsatisfactory to him, and he made a written report of his conclusions to Hall and Kennedy. They called appellant into their office, told him of Lane’s report, said they were not satisfied with the operation of the device, that it was not suitable for railway signals, and accused him of having falsely represented to them that his device was in successful use and had been adopted by a large number of railroad companies. A long and heated discussion ensued, at the close of which appellant received from appellee $311.59 and departed for his home in St. Paul. Appellant claims this payment was merely the amount of his November salary and his traveling expenses, and that he was told to go home and await further instructions. Appellee claims that the payment was a final payment, in full settlement, upon an agreed cancellation of the contract. Appellant remained in St. Paul, doing nothing until the end of the contract year, when he sued for the remainder of the year’s salary, alleging that he was discharged without cause. Upon a trial before the court without a jury, a finding and judgment for the defendant were entered.' The plaintiff appeals.

The only errors assigned which are discussed in the briefs of counsel are that the finding is against the weight of the evidence and that the court erred in refusing to permit appellant to testify, in rebuttal, as to certain alleged conversations between himself and Hall prior to the making of the contract, such proof being offered for the purpose of showing, by Hall’s statements, that he was fully informed concerning the character and successful working of the mercury rings. If the alleged false representations constituted the only defense to plaintiff’s claim, we should be inclined to agree with appellant’s counsel that this defense was not shown by a preponderance of the evidence. But the evidence concerning the alleged accord and satisfaction is such that after a careful study of the record we cannot say that the finding of the court, as to this second matter of defense, is clearly against the weight of the evidence. The preponderance of the evidence shows that after receiving Lane’s report, both Hall and Kennedy told appellant that they had been misled and deceived by appellant’s positive assertions regarding the successful and general use of his device, and therefore they claimed the right to rescind the contract and declared their intention to rescind; that suits were threatened by appellant if they did so, and that the whole matter was finally compromised and settled by the payment to appellant of a month’s salary and fifty dollars in addition thereto (neither of which sums was then due to appellant even if the contract was in force), and by appellant’s acceptance of this payment as a final settlement in full. While appellant denied that he received the money upon that understanding, he failed to give any other satisfactory reason for such payment, and both Kennedy and Lane testified unequivocally that the money was paid at appellant’s own request and was accepted by Mm as a final settlement of the controversy.

In this state of the record, the finding and judgment of the trial court must be affirmed.

Affirmed.


author: Mr. Presiding Justice Gridley

text:
    R. Deatwyler, Trading as R. Deatwyler & Company, Defendant in Error, v. Oregon Railroad & Navigation Company, Plaintiff in Error.
    Gen. No. 17,542.
    1. Carriers—when liability of initial carrier terminates. In an action for damages for delay and injury to a car load of fruit which, after the arrival in the “hold” yards and before reaching the “delivery” yards of a connecting carrier at its original point of destination, was ordered reconsigned to another city by the consignee, held, that the shipment had arrived at its original destination before being diverted and that the liability of the initial carrier under its contract then terminated.
    2. Carriers—reconsignment of freight after arrival at destination. A reconsignment of freight which is1 not made during the original transit, but after it has arrived at the original point of destination, is a new contract of carriage after the original contract has been completed, and a connecting carrier has then no implied authority to make a new contract in behalf of the initial carrier.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed January 23, 1913.
    Statement by the Court. Defendant in error, hereinafter called plaintiff, commenced an action of the fourth class in the Municipal Court of Chicago against plaintiff in error, hereinafter called defendant, to recover damages to the amount of $627.30, by reason of the failure (as alleged in plaintiff’s amended statement of claim) of the defendant to exercise the necessary care to preserve certain prunes, while the same were in its possession and control, and by reason of its unreasonable delay in the transit thereof. The case was tried before a jury and, at the conclusion of all the evidence, the court directed the jury to find the defendant guilty as alleged in plaintiff’s statement of claim, and to assess plaintiff’s damages at the sum of $480.06, to the giving of which instruction defendant excepted. The jury returned a verdict accordingly and the court entered judgment against the defendant for said amount and costs. Defendant seeks by this writ of error to reverse the judgment.
    The facts are substantially as follows: On August 22, 1907, a refrigerator car was loaded with 945 crates of fresh prunes at Blalock Siding, Washington. The prunes were in a greenish state and in good shipping condition, and the car was iced to its full capacity. The defendant issued its bill of lading to J. W. Selover, the consignor, in which it acknowledged receipt of said prunes on said date in apparent good order, and in which it appeared that the consignee was M. Fry & Co., that the car number was 99138, that its destination was “Chicago, Ill.,” and that it was to be shipped thereto via the line of the defendant, as initial carrier, and by the Northern Pacific and Chicago & Northwestern Railroads, as connecting carriers. The car arrived in Chicago on September 2nd, and during the forenoon of that day Martin Fry (engaged in business as a fruit broker, under the name of M. Fry & Co., the consignee in said bill of lading) was notified by telephone by an agent of the Chicago & Northwestern Railroad that said car of prunes had arrived and was on that company’s tracks at Grand Avenue. Shortly after receiving this notification, Fry telephoned the same agent and told him to “divert” said car “to M. Fry & Co., Philadelphia, Pa., to notify R. Deatwyler & Co., by the B. & 0. Railroad,” to which the agent replied, “All right.” Fry immediately sent a confirmation in writing to said agent by a messenger. The order was written on a printed form, dated September 2, 1907, headed “Diversion Order,” and was addressed to “A. D. Oyer, agent C. & N. W. R. R.” The car referred to was described as “Car No. 99138. Initial N. P. From Oregon via St. Paul. Now due. Consigned to M. Fry & Co.” The directions were: “Please reconsign to Philadelphia, Pa. to M. Fry & Co. Notify R. Deatwyler & Co. Route via B. & 0. Keep iced. Protect through rate of -. Charges. We pay freight. Follow. Allow inspection. Charges guaranteed.” The order was signed “M. Fry & Co., per M. Fry.” The witness Fry, called on behalf of plaintiff, testified that the signature to said diversion order was his signature, that he did not personally see the car of prunes in question, that it was not examined before it was reconsigned, and that he was receiving cars in the Grrand Avenue yard “practically every day;” that it was a “hold yard;” that the Chicago & Northwestern Railroad “were receiving a great deal of deciduous fruit at that time, and these cars were always sent to the Grrand avenue yards for North Western business, and held there until they got instructions either to divert the car or send it down to the auction room;” that “there were daily sales held at the auction, and also there were daily diversions, but they held them there;” that the Grrand Avenue yard “was not a delivery yard;” that, prior to the transaction in question with said agent of the Chicago & Northwestern Railroad, he had had many previous dealings, with said agent in “diverting cars further east from this same yard.” The original bill of lading was indorsed by Fry as follows: “Deliver R. Deatwyler & Co., M. Fry & Co.”
    It was further shown by the evidence offered by plaintiff that the car arrived in Philadelphia on Saturday, September 7th, too late for the market on that day; that sixteen days had elapsed since it had been received by the defendant for transit; that the contents of the ear were first examined on the morning of September 9th, and it was found that the prunes were in a very ripe condition and some decayed; that on the same day they were sold at auction for the sum of $1,262.70, which was the fair market value of the same in their then condition, and that the usual and customary time of transit of a car of prunes from Blalock Siding, Wash., to Philadelphia, Pa., over the railroads mentioned was eleven or twelve days. Plaintiff, by deposition taken August 8, 1910, testified that he paid the freight on said car of prunes on its arrival at Philadelphia and that the fair market value of Washington prunes, in good marketable condition, in Philadelphia on September 2 or 3, 1907, was two dollars per crate, or the sum of $1,890 for 945 crates. The difference between this sum of $1,890 and the sum of $1,262.70, or $627.30, constituted plaintiff’s claim on the trial. No further evidence was offered by plaintiff to substantiate the claim of unreasonable delay in transit and negligence in preserving the prunes, or where said delay or negligence occurred, whether prior to the car reaching Chicago, or subsequently thereto. The defendant by its attorneys, at the conclusion of plaintiff’s evidence, moved for a directed verdict in its favor, which motion was denied.
    The only evidence introduced by the defendant was for the purpose of impeaching the testimony of plaintiff as to damages, and was to the effect that on November 19, 1907, plaintiff made written claim against the Baltimore & Ohio Railroad Company for damages “in consequence of the delay and the market on Italian plums having declined fifty cents per crate,” $472.50, and for certain broken crates, in the total sum of $480.06, which claim was not paid. The defendant at the close of all the evidence renewed its motion for a directed verdict in its favor, which motion was denied, and the court directed the jury to bring in a verdiet in favor of plaintiff for $480.06.

      Brode B. Davis, for plaintiff in error; John M. Rankin and Edmund P. Kelly, of counsel.
    Charles A. Butler, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

It is urged by counsel for defendant that, inasmuch as the destination of the car as mentioned in the bill of lading was Chicago, Illinois, and no evidence was introduced showing any damage to the prunes prior to its arrival in that city, no recovery in any amount can be had of the defendant. Counsel argues that while by virtue of the so-called Carmack amendment (34 U. S. Statutes at Large 584, 595) the defendant, as the initial carrier, was liable for any loss or damage to the prunes occasioned by its negligence or the negligence of the connecting carriers prior to the arrival of the car in question at the destination named in the bill of lading, viz.: Chicago, that liability terminated when the car arrived at said destination and notice of its arrival had been given to the consignee, and that when the consignee in this case, Fry, after the arrival of said car in Chicago, directed the agent of the Chicago & Northwestern Bailroad to reconsign said car to Philadelphia, a new contract of carriage was made between said consignee, Fry, and the Chicago & Northwestern Bailroad, and that, unless it be shown that the damage to said prunes occurred prior to the arrival of the ear in Chicago, plaintiff cannot recover. To this argument counsel for plaintiff replies that Fry, as the consignee and owner of the prunes, had the right to “divert” the car at any time during the original transit of the car, such right being vested in him by virtue of the original contract of carriage, and that when Fry signed and delivered said “diversion order” the original contract of carriage from Blalock Siding to Chicago had not terminated, for the reason that the car was then on the “hold track” and not the “team- or delivery track” of the Northwestern Bail-road.

We are of the opinion that the trial court erred in directing a verdict in favor of plaintiff. We think that under the facts of this ease the car in question had arrived at its original destination, Chicago, named in the original contract of carriage, before Fry, as consignee, ordered the car to be shipped to Philadelphia. St. Louis Hay & Grain Co. v. Chicago & A. R. Co., 151 Ill. App. 384; Gratiot St. Warehouse Co. v. St. Louis, A. & T. H. R. Co., 221 Ill. 418; McCabe v. Atchison, T. & S. F. R. Co., 154 Ill. App. 380; Weyl v. Southern Pac. Co., 156 Ill. App. 493. By virtue of said “diversion order” a new contract of carriage was entered into between Fry and the Northwestern Railroad. “The owner cannot * * * change the destination and require delivery somewhere else, except upon the basis of a new contract, after the carrier has completed his undertaking and carried the goods to the destination first agreed upon.” 2 Hutchinson on Carriers (3rd Ed.) sec. 660; Melbourne v. Louisville & N. R. Co., 88 Ala. 443. And we do not think that under the facts of this case the new contract can be construed as a contract entered into between the owner of the prunes, Fry, and the defendant,—the Northwestern Bailroad acting as the authorized agent of defendant to make such new contract in its behalf. In Sheehy v. Wabash R. Co., 169 Mich. 604, plaintiff shipped household goods from St. Louis, Mo., to Flint, Mich., by virtue of a contract of carriage made with the Wabash Railroad,. over that railroad as initial carrier and the Pere Marquette Bailroad, as connecting carrier. The car containing the goods went astray and before it arrived at Flint plaintiff left there and made his home in Detroit. When the goods arrived at Flint the Pere Marquette Bailroad notified plaintiff of their arrival and he had them reconsigned to Detroit. They arrived there in bad condition and some of the goods were missing. It was held that no recovery could be had against the Wabash Bailroad unless it be shown that the goods were damaged before they reached Flint, and that there was nothing in the testimony that would charge defendant after that time.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice G-ridley

text:
    The People of the State of Illinois for use of State Board of Health, Defendant in Error, v. F. A. T. Powella, Plaintiff in Error.
    Gen. No. 17,588.
    1. Physicians and surgeons — when chiropodist must have license. Where a person not having a license to practice medicine examines and manipulates an ankle, diagnoses the ailment, applies salve, charges for the treatment, gives the patient a pamphlet entitled “Chiropody * * * Pedaology’’ and a business card setting forth the office address, office hours and telephone number and that the practitioner is an “M. S. C.,” meaning a “medical surgeon chiropodist,” and that a foot and hand hospital is conducted, such person" is unlawfully practicing medicine without a license, contrary to the Act of 1899, § 7.
    2. Appeals and errors—appellate court cannot pass on constitutionality of act. The appellate court is not authorized by law to decide whether a statute is constitutional.
    Error to the Municipal Court of Chicago; the Hon. Jttoson F. Going, Judge, presiding. Heard in thy Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 23, 1913.
    James Edgar Brown, for plaintiff in error.
    Charles Alling, Jr., for defendant in error.
   Mr. Presiding Justice G-ridley

delivered the opinion of the court.

This was an action brought in the Municipal Court of Chicago by defendant in error to recover the sum of one hundred dollars from plaintiff in error, as the penalty for the first offense, for violation of the provisions of the act as amended 11 to regulate the practice of medicine in the State of Illinois. * * * Approved April 24, 1899,” it being claimed that she practiced medicine, as defined in section 7 of said act, without a license. The jury found by their verdict that she was guilty of such violation and assessed a fine of one hundred dollars, upon which verdict the court entered judgment for one hundred dollars and costs against her.

It appears from the evidence that Purcella Seiwert, an inspector for the State Board of Health, in company with Hannah Kibble, also an inspector for said board, called at the office of Mrs. Powella, No. 1435 North Wells Street, Chicago, on August 15, 1910, and told her that she (Mrs. Seiwert) had heard that she (Mrs. Powella) was a specialist on diseases of the feet, to which the latter replied that she was. Mrs. Seiwert then said that she had a shooting pain in the ankle of her foot and removed her shoe and stocking. Mrs. Powella then manipulated Mrs. Seiwert’s ankle, diagnosed her ailment as the result of the carelessness of a physician in a previous operation properly to replace the veins and cords, applied salve and medicated cotton and bandaged the ankle, charged $1.50 for the treatment (which Mrs. Seiwert paid), gave her some salve in a box for subsequent application, and requested her to return for further treatment in a week.' On August 24th, Mrs. Seiwert, in company with Mrs. Kibble, again called on Mrs. Powella and the latter again treated her ankle, applied a liquid medicine thereon, and said that she wanted Mrs. Seiwert to come back every week for several weeks for treatment, which would cost about twenty-five dollars. For this second treatment Mrs. Powella was paid two dollars at her request. During one or the other of the visits, Mrs. Powella gave to Mrs. Seiwert, at the latter’s request, her business card, and a printed pamphlet of more than twenty pages, entitled “Chiropody * * * Pedaology.” On the face of the business card was printed the name “LeGrand Foot Hospital,” underneath which were the words “Madama Florencia A. T. Powella, M. S. C.” Mrs. Powella told Mrs. Seiwert that the letters “M. S. C.” meant “Medical Surgeon Chiropodist.” On the face of the card, also, were the office address, office hours, and telephone number. On the back of the card was printed: “LeGrand Foot and Hand Hospital, 1435 Wells St., entirely removes all Callous Growth on Feet and Hands. Prevents and cures Gangrene, Blood Poisoning, Inflammation,- etc. When others produce the above conditions the cure is perfected through a course of Surgical and Medical Treatments at Le Grand Foot and Hand Hospital.” The pamphlet referred to contained statements of like import.

It is urged that the evidence in this case shows that Mrs. Powella was only engaged in the “legitimate and harmless business of a chiropodist,” and that defendant has violated no law of thecstate. We cannot agree with counsel. We think that the evidence shows that she violated the provisions of the act in question and that the verdict and judgment are fully supported by the evidence. Eastman v. People, 71 Ill. App. 236; Jones v. People, 84 Ill. App. 453; People v. Gordon, 194 Ill. 560.

It is further urged that the court erred in denying the motion of plaintiff in error, made immediately preceding the trial, to dismiss the suit because of the unconstitutionality of certain sections of the act upon which this action is based. This court is not authorized by law to decide such a question. Schaller-Hoerr Co. v. Gentile, 153 Ill. App. 458, 460; Barnes v. Drainage Commissioners, 221 Ill. 627, 629; Case v. City of Sullivan, 222 Ill. 56, 63.

We think that the other points relied upon by counsel as warranting a reversal are without substantial merit.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Gertrude Swancutt, Defendant in Error, v. W. M. Trout Auto Livery Company, Plaintiff in Error.
    Gen. No. 17,623.
    1. Automobiles—when chauffeur is acting within scope of employment. Where an automobile company does a livery business only and forbids its chauffeurs to “pick up” and solicit passengers, and it appears that such orders are habitually disregarded and that fares from “pick up” passengers are retained by chauffeurs, but if fares are returned to the company they are accepted and a caution given, if a chauffeur picks up a passenger, agrees on the fare and causes an injury through negligent operation, it is for the jury to determine whether he was acting within the scope of his employment.
    2. Automobiles—when negligence of chauffeur is for the jury. Where a taxicab going ten miles an hour following a moving street car runs into the car without the emergency brake being used, injuring the taxicab passenger, the question of whether the accident was caused by the negligence of the chauffeur is for the jury.
    3. Instructions—must he construed as a unit. A portion of an oral charge to a jury which was continuous and a unit may not be prejudicial when the part objected to is read in connection with the whole charge as a unit.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Tobrison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 23, 1913.
    Rehearing denied February 6, 1913,
    Walter J. Miller, for plaintiff in error.
    J. E. Ingram, for defendant in error; H. J. Rosenberg, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Gertrude Swancutt, hereinafter called plaintiff, commenced an action of the fourth class in the Municipal Court of Chicago against W. M. Trout Auto Livery Co., a corporation, hereinafter called defendant, and Owen H. Fay Livery Co., to recover damages for personal injuries which she received, July 11, 1910, while riding in a taxicab owned by defendant, in consequence of the negligence of the driver, a servant of the defendant. The taxicab collided with a street car on Sixty-third street in the city of Chicago. Prior to the trial, which was had before a jury, the suit was dismissed as to the Owen H. Fay Livery Co. The jury found the defendant guilty and assessed plaintiff’s damages at eight hundred dollars, upon which verdict the court entered the judgment which by this writ defendant seeks to reverse.

The following facts appeared from the evidence: The defendant was engaged in the automobile livery business and owned and operated about fifteen automobiles including said taxicab. At the time of the accident there was a strike in force by certain drivers of taxicabs, and the city authorities had granted police protection. This consisted in detailing a police .officer to accompany a taxicab during its rounds. Henry Grade, a police officer, had been detailed for this duty in connection with the taxicabs owned by defendant. On the evening of the accident, the taxicab in question left the premises of defendant, in response to a call from the Auditorium Annex, and went to that hotel, where two persons got into the cab and were driven, at their request, south on Vernon Avenue to their destination. Charles Webb, an employee of the defendant, was the driver of the taxicab and Grade accompanied him. After the two passengers had paid the driver for their ride and had dismissed the taxicab, it was driven to the “White City,” a considerable distance away, to “pick up a load,” and upon arriving at the “White City” awaited outside of the entrance for. a customer. Other taxicabs were also there awaiting customers. After ten o’clock on that evening, plaintiff, accompanied by a friend, came out of the “White City,” and, as it was raining, sought to engage one of the several taxicabs standing at the entrance to convey plaintiff and her friend to plaintiff’s home. Plaintiff testified that at the time “there were several taxicabs around the entrance but we took the first one. I inquired of the driver what the fare would be * * * and upon receiving a satisfactory answer we engaged the cab and started.” The cab so engaged was the cab owned by defendant, on the front seat of which sat Webb, the driver, and Grade, the police officer. While en route to plaintiff’s home and while following a moving street car on Sixty-third Street, the cab ran into the rear of the street car, and plaintiff was “thrown forward on her knees” and against the small seats in the front of the cab, and her right leg was cut and she was otherwise bruised and injured. Grade, the police officer, testified that at the time of the collision “we were going about ten miles an hour;” that the driver “did not use the emergency brake;” that “the water leaked out of the water tank;” that after being informed that plaintiff had been hurt, the driver got another cab and “we carried her from the taxicab to the other cab—one of us on each side helping her in;” that the driver then tried to run the taxicab and found he could not steer it; that another machine towed the taxicab back to the premises of defendant, where it arrived about two o ’clock in the morning and that he (Grade) “rode back in the damaged taxicab, steering it.” Plaintiff testified that she did not pay any fare either to Webb or to the driver of the cab that took her home after the accident, and that she was not asked to pay anything after the accident. Both plaintiff and a physician, who attended her at her home on the night of the accident and several times subsequently, testified to the extent of her injuries, and plaintiff testified as to loss and damage occasioned by the injuries.

Two witnesses testified on behalf of the defendant —C. E. Hyman, night clerk of defendant, and W. M. Trout, president of defendant. The driver, Webb, did not testify. Hyman testified that the license number of the taxicab which Webb drove was 9803; that it was equipped with a meter; that Webb turned in to Hyman the sum of $3.20, which was the amount registered by the meter as being due for the trip from the Auditorium Annex; that the meter could be shut off by the driver so as to cease registering in dollars and cents but could not be so operated as to prevent its showing the mileage run; that Webb had been in the employ of defendant for about two months as a driver of taxicabs; that Hyman had instructed Webb that “he should not do any picking up—just strictly livery,” but that defendant’s drivers did, however, “pick up” passengers on the streets while out on or returning from a trip, and that it was unusual for a driver to make any report thereon, and for the reason that the driver regarded that “as his own fee.” Hyman further testified that if a driver, returning from a trip on which he had been sent, should “pick up” another passenger and receive money from that passenger and should turn it in to him, he (Hyman) would accept it for the company, although it was “against the rules of the company;” that he (Hyman) had always done so, regardless of the rules, and that if on this particular “Swancutt trip” the driver, Webb, had received any money from the plaintiff and had turned that money in to him, he (Hyman) would not have refused it, but “would have taken it with a caution.” The president of the defendant company, W. M. Trout, testified that the company had rules directing the actions of drivers employed by the company; that sometimes these rules were in writing and sometimes they were given orally; that the company instructed the clerks as to those rules and the clerks, in turn, instructed the drivers; that the company did a “hotel business” and had no license authorizing its cabs to stand upon the street and solicit business on the street and did not do that kind of a business; that if a driver should so solicit he would be discharged, but that if a driver picked up a party on the street and conveyed that party as requested, and was paid, and turned over the money received to the company, the company would accept it.

The main contention of counsel for defendant, relied on for a reversal of the judgment, is that the defendant is not liable for the injuries sustained by plaintiff for the reason that, at the time of the accident, Webb, the driver of the taxicab in which plaintiff was riding, was not acting under the directions of defendant or in furtherance of defendant’s business, but on the contrary, after having conveyed the two parties from the Auditorium Annex to their destination, had driven the cab to the “White City” for the purpose of “picking up” a passenger and with the intention “of making a little private money for himself.” After an examination of the record in this case we cannot say that such an intention on the part of Webb affirmatively appears. Webb did not turn in any money to defendant for conveying plaintiff in the taxicab, but the testimony shows that plaintiff did not pay him any money for fare. She did not pay him anything upon entering the cab and after the accident was not asked to pay. The fact that other drivers of defendant sometimes “picked up” passengers on the streets and received money which they did not pay over to defendant, does not show that Webb would not have paid to defendant the money received from plaintiff, if no accident had occurred and plaintiff had paid her fare. And the evidence tends to show that if Webb had received money from plaintiff as fare and had paid it over to defendant, the same would not have been refused by defendant. It was for the jury to say, under all the facts and circumstances of the case, whether or not Webb, at the time he committed the negligent acts complained of, which resulted in plaintiff’s injuries, was acting within the scope of his employment. The jury evidently believed that he was so acting.

“In determining.whether a master is liable for the torts of his servants the most difficult question is whether the particular act or omission of the servant, causing the injury for which the master is sought to be held liable, was committed within the scope of the servant’s employment; and this question is in most cases one of fact to he determined by the jury from the surrounding facts and circumstances.” 26 Cyc. 1533; Krzikowsky v. Sperring, 107 Ill. App. 493, 497; Chicago Consol. Bottling Co. v. McGinnis, 86 Ill. App. 38, 40; Perlstein v. American Express Co., 177 Mass. 530, 532; Cunningham v. Castle, 127 App. Div. (N. Y.) 580; Mattei v. Gillies, 16 Ont. Law Rep. 558, 562; Cargill v. Duffy, 123 Fed. 721, 734.

1 ‘ The fact that a servant, while engaged in the business of his master, deviates from the master’s instructions does not of itself make the act outside of the scope of the servant’s employment so as to absolve the master from liability. Likewise a particular act of a servant may be within the scope of his employment, although it violates the express instructions or orders of the master.” 26 Cyc. 1535; Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481, 495; Keedy v. Howe, 72 Ill. 133, 136; Toledo, W. & W. R. Co. v. Harmon, 47 Ill. 298.

It was also for the jury to say whether the accident was caused by the negligence of Webb, the servant of defendant. “The driver of the automobile was bound to use at least reasonable and ordinary care. He was bound to anticipate that he might meet persons or vehicles and to keep a proper lookout for them and use care to have his machine under such control as to enable him to avoid collisions.” Johnson v. Coey, 237 Ill. 88, 91.

And we.cannot say that under all the facts in evidence the verdict of the jury was excessive.

It is urged that a certain portion of the oral charge given by the court to the jury, to which counsel for defendant objected at the time, was erroneous. Hpon examination of the entire charge, which was continuous and a unit, we cannot say that the giving of the portion objected to, when read in connection with the language which immediately preceded it, constituted prejudicial error. Reading the charge as a unit, we think it was substantially correct. Greenburg v. Childs & Co., 147 Ill. App. 477, 486, aff’d 242 Ill. 110, 115.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    George W. McGowan, Appellee, v. City of Chicago, Appellant.
    Gen. No. 17,645.
    1. Municipal cobpobations—authority of corporation counsel to waive appeal. Where the corporation counsel of a city has waived its right of appeal from an order for a writ of mandamus, a plea of such release of errors which does not plead the ordinance creating his office, and show his authority, binding upon the city, to waive the right of the city to appeal, it appearing from the replication admitted on demurrer that the city council has repudiated such action, is insufficient.
    2. Appeals and ebbobs—when plea of release of errors adjudged had. Under the amendment to the Practice Act of 1907, a plea of release of errors, though adjudged bad, does not deprive the defendant of the right to join in error.
    3. Pleading—demurrer carried hack. Where a replication to a plea of release of errors is upheld on demurrer, the latter is carried back to the plea.
    Appeal from the Circuit Court of Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Demurrer carried back to plea of release of errors and sustained.
    Opinion filed January 23, 1913.
    William H. Sexton, for appellant.
    A. G. Dicus, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On March 31, 1908, George W. McGowan filed his petition in the Circuit Court of Cook County for a writ of mandamus to compel the City of Chicago “to forthwith place the name of your petitioner on the roster of police officers, as sergeant, and upon the police payroll of said City of Chicago, as sergeant, to the end that he may at once enter upon the performance of his duties as sergeant, with the same right to continue in the performance thereof, and receive salary therefor, as he had to continue in the performance thereof and receive salary therefor, prior to his unlawful reduction in rank on March 21, 1898, subject to the laws, rules and ordinances pertaining to sergeants of police.” On April 12, 1911, the demurrer of the City to said petition was overruled, and the court ordered a writ of mandamus to issue against the City as prayed in the petition. From this order the City appealed to this court and assigned errors.

Subsequently, appellee, McGowan, on December 12, 1911, filed in this court a verified plea of release of errors by the City. This plea set forth that after the rendition of said judgment and before the prosecution of said appeal, on, to-wit: April 12, 1911, “The appellant, by Edward J. Brundage, its corporation counsel and attorney,” prepared a release of the City from any claim by appellee against the City growing out of his discharge from the position of sergeant on March 21, 1898; that in said release it was stated that the same was given to the City in consideration of the City’s waiving all right to appeal from said judgment order of April 12, 1911; that said release was under seal and was signed and acknowledged before a notary public by appellee, in triplicate, while in the possession of said corporation counsel and was not carried away by appellee; that one copy was deposited by said corporation counsel with the secretary of the Civil Service Commission, one copy with the secretary of the Police Department and one copy retained by said corporation counsel.

The City filed in this court a replication to this plea in which it alleged that it did not release to appellee any or all errors in the record and proceeding’s mentioned in said plea, and did not accept the alleged release mentioned, and did not waive its right to appeal from said judgment, and alleged that, on the contrary, on May 1, 1911, the city council of appellant passed a resolution, wherein in the preamble it was recited that an instrument purporting to release the City from all claims of appellee for salary and compensation accruing to him since March 21, 1898, in consideration of the City’s consenting to waive its right of appeal from said judgment order, was executed by him and placed in the hands of said corporation counsel, and wherein it was resolved that said instrument be not accepted by the City, that said corporation counsel return said instrument to appellee, that for the present the City do not comply with said judgment order, and that said corporation counsel take all necessary and possible steps to procure the annulment of said judgment order by appeal or otherwise.

To this replication .appellee filed a general and special demurrer. The special grounds for demurrer were that appellant had not in its replication met or denied all the allegations of the plea, viz., that appellant had not denied that the release was prepared by-appellant or that said three copies of said release had been kept in the possession of the City, the corporation counsel thereof, and the secretary of Civil Service Commission respectively.

We are of the opinion that the replication is substantially a good replication to said plea of release of errors. It expressly alleged that the City did not accept the alleged release set up in said plea and did not waive its right to appeal from said judgment, and it set forth the passage by the city council of the resolution on May 1, 1911, wherein it was resolved that said alleged release be not accepted, etc. The fact of this action by the City through its city council was admitted by the demurrer.

It is contended by counsel for the City that this demurrer should be carried back to appellee’s plea of release of error and the demurrer sustained as to such plea. It is argued by counsel for appellee that the plea shows that the release in question was drawn by the then corporation counsel of the City and after it was executed by appellee was delivered to said corporation counsel, that, by virtue of certain provisions of the Municipal Code of Chicago, said corporation counsel had charge of all the “law business” of the City and, therefore, had authority after judgment to waive and release errors, and that such waiver and release is binding upon the City. It is argued by counsel for the City that the plea is defective, first, because, while section 74, art. 6, chap. 24, Statutes of Illinois provides that the city council may provide for the appointment by the mayor of a corporation counsel, etc., the fact that the city council had created the office and defined the extent of his powers and duties is not alleged in the plea,—in other words the ordinance is not pleaded, and second, because the corporation counsel had no power to waive the right of the City to appeal and to execute a release of errors, etc., binding upon the City, as it was alleged in said plea had been attempted. ’

We are of the opinion that appellee’s plea of release of errors is insufficient. In the case of O’Neill v. City of Chicago, 169 Ill. App. 546, recently decided by another branch of this court, a similar plea of release of errors was held insufficient and the demurrer to a similar replication was carried back to the plea. The plea in that case set forth the ordinances of the City of Chicago creating the office of corporation counsel and defining his powers and duties. In that case it was said (p. 553):

“It was formerly the law that, when a plea of release of errors was held insufficient in the Appellate Court, a judgment of reversal must be entered thereon. * * * But in 1907, the Legislature amended the Practice Act by inserting the following: ‘A plea of release of errors, though adjudged bad or not sustained, shall not deprive the defendant of the right to join in error.’ Hurd’s Rev. Stat., sec. 109, chap. 110.”

A similar order will be entered in this case as was entered in the O’Neill case, viz.: The order will be that the demurrer of appellee to the replication of the City is carried back to the plea of release of errors and said plea is adjudged insufficient, and leave is given appellee, if he shall so desire, to join in error and file Ms brief and argument herein on or before February 5, 1913, and appellant is hereby given leave to file a reply brief, if it shall so desire, on or before February 12, 1913, and the cause will be placed on call for February 13, 1913.

Demurrer carried back and sustained.


text:
    Kathryn Lonergan, Defendant in Error, v. Margaret O’Neil, Plaintiff in Error.
    Gen. No. 17,666.
    Action for services rendered, held, verdict supported by the evidence.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 23, 1913.
    John J. Swenie, for plaintiff in error; M. R. Harris, of counsel.
    Joseph E. Ryan, for defendant in error; Quin O’Brien, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an action commenced in the Municipal Court of Chicago by Kathryn Lonergan, plaintiff, against Margaret O’Neil, defendant, to recover for services rendered by plaintiff, at defendant’s request, as a practical nurse and attendant for the husband of defendant, John O’Neil. Plaintiff claimed that she acted as such nurse and attendant for a period of twenty-two weeks during the year 1909, and had received no compensation for her services. The jury returned a verdict in hér favor and assessed her damages at the sum of $175, upon which verdict the court, on May 20, 1911, entered judgment.

It is urged by counsel for defendant that the verdict is against the weight of the evidence. No useful purpose would be served in here setting forth and commenting upon the testimony of the many witnesses given at the trial. Suffice it to say that, after careful consideration of the same, we are of the opinion that the verdict is supported by the evidence, and that substantial justice has been done.

It is contended that the trial court erred in admitting certain evidence on behalf of plaintiff and in excluding certain evidence offered by defendant. In our opinion the contentions are without merit.

The judgment of the municipal court is affirmed.

Affirmed.


text:
    W. F. Hall Printing Company, Defendant in Error, v. Automatic Sprinkler Company of America, Plaintiff in Error.
    Gen. No. 17,691.
    Landlord and tenant — when company installing automatic sprinklers is liable to lessee. Where a lessor’s contract with a company to install an automatic sprinkler system required him to do certain excavating, and the evidence is conflicting as to who made such excavation which resulted in the weakening of a joint in a water pipe, but the company turned on the water knowing the joint was weak, whereby it burst and the goods of a lessee were damaged, held, there was sufficient evidence that the company was negligent and that the negligence was the proximate cause of the damage.
    Error to the Municipal Court of Chicago; the Hon. Edwabd A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 23, 1913.
    Defrees, Buckingham, Ritter, Campbell & Eaton, for plaintiff in error; Don K. Jones, of counsel.
    Gann, Peaks & Townley, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Defendant in error, plaintiff below, commenced an action against plaintiff in error, defendant below, in the Municipal Court of Chicago, to recover for damage to plaintiff’s stock of goods through the negligence of defendant’s agents “in leaving the joint of a certain water pipe in the basement of premises occupied by plaintiff as lessee so weakened and unprotected that, when the water was turned into it, the water burst through the joint and into the basement aforesaid; and in turning the water into said pipe when said joint was weakened and unprotected as aforesaid; * * * said acts of negligence * * * occurred while said defendant’s agents were installing an automatic sprinkler system, fireproofing device, in a building adjoining and contiguous with the premises now occupied by plaintiff as lessee.” The case was tried by the court without a jury, resulting in a finding and judgment for plaintiff for $899.40, to reverse which judgment this writ of error is prosecuted. Three points are made in this court as grounds for a reversal, viz.: (1) Defendant was not guilty of negligence “in leaving the joint of a certain water pipe * * * weakened and unprotected;” (2) defendant was not guilty'of negligence “in turning the water into said pipe when said joint was weakened and unprotected;” and (3) neither of said alleged acts of negligence was the proximate cause of the injury.

The facts are: James E. Tilt was the owner of a seven-story factory building in Chicago. This building was occupied by plaintiff as lessee, and was equipped with an automatic sprinkler system. Tilt had erected an addition to his building and had contracted with defendant for the installation of automatic sprinklers in the new addition. The old sprinkler system was to be connected with the new, so that both might be operated as one system. The duty of making this connection rested upon defendant, and the connection was to be made at a point in the main pipe line under the floor of the basement of the old building. This main pipe line running downward from the tank on the roof turned at a right angle at this point, and in order to make the connection it was necessary that excavations be made so that the employees of defendant could get at the pipe at this point. In the written contract made by Tilt and defendant it was provided, inter aMa, that Tilt, the owner, “will do all digging and back filling of trenches necessary for the running of underground pipe, do all carpentry and masonry work.” The evidence is conflicting as to whether the excavating was done by employees of Tilt or by employees of the defendant. While making these necessary excavations, or after the completion thereof, it was found that the horizontal pipe, adjacent to the turn or angle, was held in place by two fastened iron rods, and these rods were cut by some of the men. The evidence is also conflicting as to whether these rods were cut by employees of Tilt or by employees of defendant, but the evidence shows that Olson, foreman for defendant, saw the men cutting the rods and knew that the function or purpose of the rods was to prevent the joint of pipe from “blowing out” under the pressure of the water. At the time the rods were cut the water was turned off. Later in the day Olson, having knowledge that the rods had been cut, went up to the tank on the roof and turned on the water, but as there was little pressure in the tank at the time no damage was done. Still later in the day, Olson told one Montgomery (who as engineer of plaintiff had charge of the building, sprinkler system, motors and all machinery) that “all was ready” and to “pump up the pressure in the tank.” Montgomery started to do this, not knowing that the rods had been cut, and while he was so engaged, the pipe in the basement, left unsupported by reason of the cutting of the rods, was blown out by the pressure of the water, resulting in the flooding of the basement of the building and in the damaing of a large amount of paper stored by plaintiff in said basement.

Under the facts of this case, as disclosed from all the evidence, we are of the opinion that the finding of the trial court was justified. We think that there was sufficient evidence that the defendant by its servant or servants was guilty of negligence, as charged in plaintiff’s statement of claim, and that the negligence was the proximate cause of the damage to plaintiff’s stock of paper. No point is made that the finding of the court is excessive. The judgment is accordingly affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    William H. Hoops, Defendant in Error, v. Wells Fargo & Company, Plaintiff in Error.
    Gen. No. 17,655.
    1. Carriers—how express shipment must he delivered. Express companies must deliver goods to the consignee in person or to his authorized agent at his residence or place of business.

      2. Cabbiebs — when express shipment is delivered properly. Where an express company is directed to deliver a shipment to a person in care of a steamship, a delivery to the steamship is proper if the consignee was not on the steamship at the time of the delivery and the driver was unable to find him.
    3. Cabbiebs—when delivery of express shipment to unauthorized agent is sufficient. Where an express company is directed to deliver a shipment to a person in care of a steamship and, the consignee not being on board the vessel at the time of delivery, .the driver makes delivery upon its docks to a receiving clerk of the steamship company, who had no authority to receive the package but whose act is ratified by the company, the package ig delivered to the steamship and the express company is not liable for a delay in a subsequent delivery to the consignee.
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed with finding of fact.
    Opinion filed January 23, 1913.
    Holt, Wheeler & Sidley, for plaintiff in error.
    Silber, Isaacs, Silber & Woley, for defendant in error; Martin J. Isaacs and James D. Woley, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Wells Fargo & Company sued out of this court a writ of ‘error to review a judgment obtained against it by William H. Hoops in the municipal court upon a trial by the court. The facts are as follows: William H. Hoops, hereinafter called plaintiff, was the owner of a coat and two steamer rugs, claimed to he of the value of two hundred dollars, which he caused to he shipped from Merced, California, to San Francisco, and marked “William Hoops, care of Steamship Manchuria, San Francisco, Cal.” The shipment was transported to San Fracisco, and a driver of the defendant took the same to the docks of the Pacific Mail Steamship Company, which company is the owner of the steamship Manchuria. Mr. Hoops was not on the steamship at this time, and the driver, failing to find him, delivered the shipment to G-. P. Fahs, an employee of the steamship company. Fahs had charge of outgoing baggage and was at the time of the delivery of this package in the receiving office on the docks of the steamship company, the package being left in the receiving office. The package was taken in charge by the steamship company, but through an oversight on its part was not placed aboard the Manchuria. On the day the shipment was so delivered the plaintiff asked the defendant if his property had been delivered, and was informed that it had been sent aboard the boat. After the steamer sailed the steamship company forwarded the package by the next steamer and later it was tendered to Mr. Hoops, who refused to accept it and brought this suit, claiming a conversion of the property.

There is practically no dispute as to the facts in the case, and we take it that both counsel agree upon the general rule that express companies are required to deliver goods to the consignee in person, or to his authorized agent, at his residence or place of business. Hutchinson on Carriers, vol. 2, p. 716; Gulliver v. Adams Exp. Co., 38 Ill. 503.

The first question presented for the decision of this court is, did the direction by the plaintiff to deliver to “William Hoops, care of Steamship Manchuria,” make a delivery to the steamship Manchuria a good delivery of said shipment if the carrier was unable to find William Hoops ? There is abundant precedent for holding a delivery under such circumstances to be a good delivery. In Hutchinson on Carriers, vol. 2, sec. 676, the rule is stated as follows: “Goods shipped to one person as consignee in care of another should be delivered to the consignee, and in case he cannot be found then to the one in whose care they are shipped.”

In Chicago & N. W. R. Co. v. Merrill, 48 Ill. 425 (427), the court says:

“It is true that on the box were written, besides, the name of Page, as consignee—the words ‘care of American Express Co.’ But in the receipt given to> the appellee by the company, Page was named as the consignee, and nothing is said about the express company, and we understand these words upon the box as merely indicating that, if Page, the consignee, could not be found to receive the goods, the appellant might, deliver them into the care of the express company. ’ ’

This case was followed and cited in Schlesinger v. West Shore R. Co., 88 Ill. App. 273. In Commonwealth v. Peoples’ Exp. Co., 201 Mass. 564, the court says:

“The defendant was not named as consignee in the shipping order, but was referred to by the phrase, ‘c/o Peoples Express Co.’ The addressing of a package to a consignee in the care of a third person, between the consignor and consignee and the carrier, and as to the liability of the latter, and in the absence of known limitations upon the scope of the authority given, * * * confers upon such third person the right to receive the goods, and ordinarily constitutes him the proper person to whom to make delivery.”

And the New York Supreme Court in Russell & Annis v. Livingston & Wells, 16 N. Y. 515, says:

“Ordinarily, the address of a package to the care of anyone is an authority to the carrier to deliver it to such person. ’ ’

This rule is repeated with approval in Ela v. American Merchants’ Union Exp. Co., 29 Wis. 611, and Bristol v. Rensselaer & Saratoga R. Co., 9 Barb. (N. Y.)158. We are referred to no cases which state any other rule.

The next question is, was the package delivered to the steamship Manchuria when it was delivered to Fahs, the receiving clerk in the employ of the Pacific Mail Steamship Company, upon its docks, which company is the owner of the steamship Manchuria? It is not disputed that the package came into the hands of the steamship company, and according to the testi mony of Fahs it was through the fault of the steamship company in overlooking the package that it was not placed on board the Manchuria. Fahs testifies that he had no authority to receive this package, but that nevertheless he did receive the same; and the subsequent conduct of the steamship company indicates that it ratified and affirmed this act of its employee. It is of course obvious that delivery to a steamer must be to some individual connected with it, and delivery to Fahs under the circumstances in this case must be held to be a delivery to the steamer Manchuria.

In Hutchinson on Carriers, vol. 2, sec. 120, the author says:

“Delivery to a ship or vessel is complete as soon as the master, mate or any other agent of the owner receives the goods; and they may be received upon the ship, on the wharf, on the beach or at a warehouse, or at any other place at which an agent duly authorized may agree to receive them, and in all such cases the liability of the master and owners as carriers commences at the moment of such acceptance. It has been decided in a great number of cases that it is not necessary that the goods should be taken on board in order to fix the liability of common carriers upon the owner. ’ ’

And in the case of “The Idaho,” reported in 11 Blatchford’s Circuit Court Eeports 218, Eastern District of New York, the court says:

“I cannot doubt that this delivery to the wharf constituted a good delivery of the cotton to the vessel, and that at the moment of such delivery the cotton was in the custody of the vessel and was in law shipped on the vessel. It was a delivery to and a receipt by the vessel for the purpose of shipment. It was the commencement of the liability of the carrier, which dates from the time the goods are received by him for the purpose of transportation.”

In Petersburg, N. N. & N. Steamship Line v. Norfolk-Virginia Peanut Co., 172 Fed. Rep. 321, 96 C. C. A. 383, the court says:

“The general law as to what constitutes the delivery to the vessel is thus stated in Parsons on Shipping and Admiralty, p. 183: ‘The reception of the goods by the master on board of the ship, or at a wharf or quay near the ship, for the purpose of carriage therein, or by any person authorized by the owner or master so to receive them, or seeming to have this authority by the action or assent of the owners or master, binds the ship for the safe carriage and delivery of the goods.’ ”

The court also says in the same case:

“The shipper fully parted with the possession of his goods when he delivered them at the wharf, and had no longer any control or right of control over them. ’ ’

The cases cited by counsel for plaintiff do not deal with facts similar to those in the case at bar, nor with the questions here before us, and therefore cannot be considered as in point.

Finding, as we do, that the evidence shows a good delivery by the defendant, it is unnecessary to consider the other points argued by both counsel in their briefs. Under the facts in evidence herein there can be no recovery against the defendant, and therefore the judgment will be reversed and judgment for the defendant, Wells Fargo & Company, entered in this court.

Reversed with finding of fact.


author: Mr, Justice McSurely

text:
    The People of the State of Illinois for use of State Board of Health, Defendant in Error, v. A. Moser, Plaintiff in Error.
    Gen. No. 17,689.
    1. Physicians and surgeons—immaterial that person treated by unlicensed practitioner has no ailment. Under Hurd’s R. S. c. 91, § 11, which declares a person shall he regarded as practicing medicine who shall prescribe for “any physical ailment,” a person may be fined for practicing medicine without a license although a patient obtaining treatment to secure evidence did not in fact have any ailment.
    2. Physicians and surgeons—laying on hands is practicing medicine. A person not licensed to practice medicine who gives a treatment by passing her hands over the body of a patient violates the statute forbidding the practice of medicine without a license.
    3. Physicians and surgeons—evidence that violation of statute was not barred 5y limitations. Where, in a proceeding to recover a penalty for practicing medicine without a license, the patient testifies to receiving a treatment on the third day of May, without giving the year, and the trial was had on the twenty-fourth day of May, 1911, it is a reasonable inference that the witness intended to be understood as referring to the same month, and it cannot be contended that there was no violation of the statute proved within eighteen months prior to the beginning of suit.
    4. Physicians and surgeons—judgment imposing fine need not recite facts. It is not the duty of the trial court to make recitals of facts in a judgment imposing a fine for practicing medicine without a license.
    5. Appeals and errors—assumed that bottle of liquid was not a proprietary remedy. Where, on review of a judgment imposing a fine for practicing medicine without a license, nothing appears in the record descriptive of a bottle of liquid introduced in evidence that was furnished a patient, the court will assume that the appearance of the bottle of liquid indicated to the trial court that it was not a proprietary remedy.
    Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 23, 1913.
    C. J. Waring, for plaintiff in error.
    Charles Alling, Jr., for defendant in error; Charles G. Hoffman, of counsel.
   Mr, Justice McSurely

delivered the opinion of the court.

The plaintiff in error, Mrs. A. Moser, was found guilty of practicing medicine without a license, in violation of the statute regulating medicine and surgery in the State of Illinois, and was fined one hundred dollars. She alleges in this court as ground for reversal that there was no evidence before the trial court on which to base a finding of guilty.

The facts appearing in the record are that two women, who were inspectors employed by the State Board of Health, called at the house of the defendant and inquired for Mrs. Moser, the fortune teller, and asked her if she had healing power, whereupon they were invited in and sat down. Defendant asked some questions regarding the health of one of the inspectors, and put a table between the inspector and herself. Defendant said not to say a word, as the spirits in the table would tell her, the defendant, just where the pain was; that she, the defendant, would have the same pain that the inspector had. After muttering some things not understood by the witness, the defendant said that she, the defendant, was suffering from stomach trouble; she said she would cure the witness with prayer and would give her some medicine and treatment. She then gave a treatment of passing hands over the neck and forehead of the witness, and handed her a bottle of liquid and directed her to take a tablespoon full each morning and before bedtime. The defendant then asked $1.50 for the treatment, which was paid her, and defendant told the witness to come for other treatments when the bottle was empty.

The statute which defendant is charged with having violated is an act entitled “An act to promote the science of medicine and surgery in the State of Illinois,” chapter 91, Hurd’s Revised Statutes. This statute forbids the practice of medicine in the State of Illinois without a license. Section 11 of the act, which defines the practice of medicine, is in part as follows: “Any person shall be regarded as practicing medicine, within the meaning of this act, who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury to or deformity of another.” It is also provided that the act shall not apply “to any person who ministers to or treats the sick or suffering by mental or spiritual means, without the use of any drug or material remedy.”

It is argued by plaintiff in error that Mrs. Moser did not treat or prescribe “for .any physical ailment,” because neither of the inspectors were in fact suffering from any ailment. This argument would make guilt dependent upon the correctness of the diagnosis of the person giving the treatment; that is, if the patient actually had the malady which the practitioner diagnosed, the practitioner would be guilty if he attempted to treat it without a license; but if the diagnosis was wrong, then the practitioner would not be guilty in prescribing, for he would not be prescribing for any physical ailment which the patient in fact had. The statute evidently means to include any person who undertakes to prescribe for or treat a patient for any ailment, regardless of the real or fancied presence of the ailment.

It is also said that to involve a violation of the statute there must be used a drug or material remedy, and that there is no evidence in this case that the bottle of liquid was either; and also, for all that, the record shows it might have been a proprietary remedy, and that it is held in People v. Wilson, 249 Ill. 195, that any person may vend patent and proprietary medicines without a license. The answer to this contention is (1) that the evidence discloses that the defendant undertook to treat the witness by laying on the hands, and this method of treatment has been held to be within the statute (People v. Trenner, 144 Ill. App. 275); and (2) it is a fair inference that the bottle of liquid was not a proprietary remedy, such as is described in People v. Wilson, where proprietary medicines are described as those “prepared, put up and marked and ready for use by the public so soon as they leave the hands of the manufacturer. They are in packages or bottles, are labeled with the name, and are accompanied with wrappers containing directions for their nse and the conditions for which they are claimed to be specifics.” The bottle of liquid was introduced in evidence before the trial court, but nothing appears descriptive of the same in the record before us. We must therefore assume that its appearance indicated to the trial court that it was not a proprietary remedy.

It is further urged that it does not appear that there was any violation proven within eighteen months prior to the beginning of the suit. This point is based upon the statement of the witness that the occurrence testified to took place on the third day of May, without giving the year. The trial was had on the 29th day of May, 1911, and it is a reasonable inference that the witness intended to be understood as referring to the same month. In any event, this point was not raised upon the trial, and it is too late to raise the same in this court for the first time.

As to the point that it is the duty of the court in trying a case of this character to have recitals of facts in the judgment, we are referred to no rule or statute requiring this to be done.

Finding no error, the judgment will be affirmed.

Affirmed.