text:
    The People of the State of Illinois, ex rel. G. Frank Lydston, Appellant, v. Maclay Hoyne, State’s Attorney, Appellee.
    Gen. No. 17,736.
    1. Cobpobations, § 181

      —place of holding corporate meetings. A corporation organized not for profit under the laws of Illinois cannot lawfully hold its corporate meetings outside of the State.
    . 2. Cobpobations, § 240*—place of holding elections. The election of directors or trustees of a corporation is a corporate act requiring the election to be held within the State which granted the charter.

      3. Cobpobations, § 240*—statutes construed, as to place of holding elections. Sections 20 and 32 of the Corporation Act, J. & A, IHf 2437, 2450, do not authorize election of trustees to be held without the State.
    4. Cobpobations, § 665*—where corporate acts must be performed. Corporate acts, strictly so called, as distinguished from ordinary business transactions such as may be performed by agents, can only be lawfully performed in the State in which the corporation was created, and such rule applies to corporations organized not for profit.
    5. Cobpobations, § 181*—place of holding directors’ meetings. Acts of directors at directors’ meeting aré not corporate acts, requiring such meetings to be held in the State where corporation was created.
    6. Cobpobations, § 184*—voting by delegates selected by constitutent assemblies. A corporation organized under the laws of this State cannot by its by-laws provide for the election of its trustees by delegates selected by constituent assemblies in this and other States, instead of an election by the members, in person or by proxy.
    7. Cobpobations, § 247*—when member may compel quo warranto proceedings against officers illegally elected. A member of an Illinois corporation deprived of the right to vote for trustees, except by and through delegates selected from constituent assemblies in elections held without the State, may file a petition for mandamus to compel the State’s Attorney to sign a petition for leave to file an information in the nature of a quo warranto against trustees so elected.
    McSurely, P. J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Chabees M. Waekeb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Stedmah & Soelke, for appellant.
    Frederick Z. Marx, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment dismissing a petition against the State’s Attorney, seeking to compel him, by mandamus, to sign a petition for leave to file an information in the nature of a quo warranto alleging, in substance, that certain persons therein named were unlawfully elected and acting as trustees for the American Medical Association, an Illinois corporation, not for profit. A general demurrer to the petition for mandamus was sustained by the Circuit Court, whereupon the relator elected to stand by his petition and appealed.

Three questions are raised in the brief of appellant’s counsel which may be stated as follows: (1) Do the facts stated in the petition show, prima facie, such a case of usurpation of office as entitles the relator to have that question determined upon information in the nature of a quo warranto? (2) Is an election of trustees of an Illinois corporation not for profit, held outside of this State, voidable at the instance of nonparticipating and nonconsenting members of such corporation? (3) Can the by-laws of such a corporation lawfully provide for the election of its trustees by delegates selected'by “constituent assemblies” in this and other States, instead of an election by the members of the association, in person or by proxy?

The petition presented to the State’s Attorney for his signature recites that the American Medical Association is a corporation not for profit, organized under the laws of Illinois in April, 1897; that its charter states that “the location is in the City of Chicago, County of Cook and 'State of Illinois;” that the object for which it is formed is to promote the science and art of medicine; that the management of the association shall be vested in a board of nine trustees “who are to be elected as the by-laws direct;”, and that nine persons (naming them) shall be the trustees for the first year of the corporate existence. The petition then avers that said association adopted a constitution and by-laws, a copy of which is attached to the petition.

The constitution provides that “the membership of this Association shall consist of such members of the Constituent Associations and of such medical officers of the Army, of the Navy and of the TJ. S. Public Health & Marine Hospital Service, as shall make application in accordance with the by-laws;” that all state and territorial medical associations which have, or may, become organized in accordance with the general plan of organization of the .American Medical Association, and which have declared, by resolution, “their allegiance” thereto, and “shall agree with other state and territorial medical associations to the formation and the perpetuation of the House of Delegates of the American Medical Association,” shall be recognized as constituent associations, on acceptance of their applications for recognition by the House of Delegates; that the House of Delegates shall consist of delegates elected by the constituent associations and ‘1 shall represent the delegated powers of the members of the American Medical Association;” that said House of Delegates shall elect the general officers and trustees of the American Medical Association; that three trustees shall be elected annually to serve for three years; that an “annual session” of the Association shall be held at a time and place to be fixed by the House of Delegates. The by-laws provide that any physician “reported as a member in good standing of a constituent association by the secretary of that association, ’ ’ who shall make application and pay the annual assessment and the subscription to the Journal of the American Medical Association for the current year, “shall be a member,” which membership shall continue “so long as he is a member in good standing of the constituent association of the state in which he resides,” and so long as he continues to pay his annual assessment and subscription to the Journal. The by-laws also provide for the election by the constituent associations of delegates to the House of Delegates, which meets annually on the day preceding the annual session of the American Medical Association at the same place as the annual session, and then and there elects the -trustees and officers of the Association. The duties of the officers and trustees are also defined by the by-laws. The trustees “shall have charge of all properties and of the financial affairs of the Association,” superintend the publication of the Journal and proceedings of the Association, audit the accounts of the treasurer and of the Journal office and “have full control of all arrangements for the annual sessions.”

The petition then avers that the Chicago Medical Society is a “constituent association” of the American Medical Association; that the relator is a licensed, practicing physician in Chicago and a member of the Chicago Medical Society; that he has complied with all the rules and regulations of the American Medical Association, has paid his dues regularly for more than ten years and has been duly accepted and recognized as a member of said Association; that as such member he has repeatedly demanded the right to vote for trustees thereof, but that the Association has refused to permit members to elect the trustees “except through and by virtue, of delegates representing subordinate bodies;” that in 1908 the House of Delegates assembled in Chicago and elected three trustees, whose terms expired in 1911; that in June, 1909, the House of Delegates assembled at Atlantic City, New Jersey, and there elected three trustees whose terms expire in 1912, and in June, 1910, at St. Louis, Missouri, elected three trustees whose terms expire in June, 1913. The petition charges that the Association has no power under its charter and the laws of Illinois to hold an election for trustees outside of the State of Illinois, and no power to deprive its members of the right to vote for the trustees; that the election of said trustees was never ratified nor confirmed by the members of said Association, either individually or collectively, in the State of Illinois;'that the “pretended election” of said trustees was without authority of law and was null and void, and that said trustees are now unlawfully holding themselves forth as trustees and unlawfully acting as such trustees without having been legally elected to such offices. The petition concludes with a prayer for leave to file an information in the nature of a quo warranto against said acting trustees. Attached to the petition is an affidavit by the relator as to the truth of the facts stated in the petition. When this petition and affidavit were presented to the State’s Attorney for signature he declined to sign it. A similar application to the Attorney General was likewise refused.

In People v. Healy, 230 Ill. 280, it was held that where an individual having a private right or grievance distinct from that of the public at large, which is enforceable by a proceeding under the quo warranto statute, presents his petition to the State’s Attorney for signature, accompanied with an affidavit as to the truth of the statements of fact therein, the only discretion possessed by the latter is to determine whether the petition and the accompanying affidavit are in proper form and state a prima facie case under the statute, and if the petition and affidavit are sufficient the State’s Attorney may be compelled by mandamus to sign and present the petition. The petition here presented to the State’s Attorney and the accompanying affidavit were in proper form and related, we think, to a private right or grievance distinct from that of the public at large which was enforceable by a proceeding under the quo warranto statute of this State. Hence, under the rule announced in the Healy case, supra, the only discretion possessed by the State’s Attorney was to determine whether the facts stated in the petition, assuming them to be true, were sufficient to make a prima facie case of usurpation of office by the defendants named in the petition. When the State’s Attorney refused to sign the petition he thereby, in effect, took the position that neither the fact that the acting trustees of the American Medical Association were elected at meetings held outside of this State, nor the fact that such meetings were held not by the members as such, but only by delegates of the constituent associations, nor the combination of these facts, was sufficient to show a want of title to the office of trustees in the persons so elected. Whether the position thus taken by the State’s Attorney is correct, as a matter of law, is therefore, the real question presented by this record, the facts as stated in the petition being not denied by him but admitted by the demurrer.

In an early case in the United States Supreme Court, Chief Justice Taney said that “a corporation can have no legal existence out of the boundaries of the sovereignty by which it was created;” that “it exists only in contemplation of law, and by force of the law, and where that law ceases to operate and is no longer obligatory, the corporation can have no existence;” that “it must dwell in the place of its creation, and cannot migrate to another sovereignty.” But the Court also added the qualification or explanation that “although it must live and have its being in that State only, yet it does not by any means follow that its existence there will not be recognized in other places; and its residence in one State creates no insuperable objection to its power of contracting in another.” Bank of Augusta v. Earle, 13 Pet. 519, 588. This statement of the law has been quoted and followed in many later cases, in the same and other courts. Shaw v. Quincy Min. Co., 145 U. S. 444, 449; Galveston, H. & H. R. Co. v. Cowdrey, 11 Wall. (U. S.) 459; Miller v. Ewer, 27 Me. 509; Duke v. Taylor, 37 Fla. 64; Franco-Texan Land Co. v. Laigle, 59 Tex. 339; Aspinwall v. Ohio & M. R. Co., 20 Ind. 492; Arms v. Conant, 36 Vt. 744; Hilles v. Parrish, 14 N. J. Eq. 380. In Shaw v. Quincy Mining Co., supra, it was said: “This statement has been often reaffirmed by this court, with some change of phrase, but always retaining the idea that the legal existence, the home, the domicile, the habitat, the residence, the citizenship of the corporation can only be in the State by which it was created, although it may do business in other States whose laws permit it.”

In applying this principle to the facts of particular cases the authorities are practically unanimous in holding that corporate acts, strictly so called, as distinguished from ordinary business transactions such as may be and usually are performed by agents, can only be lawfully performed within the boundaries of the State by which the corporation was created. 1 Thompson on Corporations (2d Ed.) sec. 500. This is the law in this State. In Harding v. American Glucose Co., 182 Ill. 551, it was said (p. 614): “It has been recognized as a general rule by this court, that the power of a corporation to perform corporate acts outside of the State of its creation, and where the laws of its corporate existence have no force, does not exist.” In Reichwald v. Commercial Hotel Co., 106 Ill. 439, it was said that “the courts differ as to what are corporate acts and what are acts merely of agents,” and it was there held that the acts of the directors of an Iowa corporation, at a meeting of such directors held in Illinois, authorizing and approving the sale of certain property in satisfaction of a' mortgage, were not corporate acts, but were merely “acts done by the directors in the exercise of their powers as agents of the corporation,” and therefore could lawfully be done outside the State of Iowa. In Bastian v. Modern Woodmen of America, 166 Ill. 595, it was held that the act of changing the articles of association is “unquestionably” a corporate act, and in the Harding case, supra, acts done at a meeting of stockholders are treated as in the same category. In the light of these decisions, it seems clear that the election of directors or trustees of a corporation must be regarded as a corporate act and therefore, under the rule above stated, such an election must be held within the State which granted the charter.

It is urged, however, that the general rule in this respect applies only to ordinary business corporations and is not applicable to corporations not for profit. Two reasons are advanced in support of this alleged distinction, first, that many, if not most, corporations not for profit are national, or even world-wide, in their scope, which makes it impracticable to hold all their corporate meetings in one State; and second, that the statutes of this State recognize a distinction in this respect between corporations for profit and those not for profit. The first of these reasons is one of the reasons given by the Supreme Court of Pennsylvania for its decision in Derry Council v. State Council, 197 Pa. St. 413, holding that a per capita tax levied by the National Council of a Pennsylvania corporation not for profit was valid though levied at a meeting held in Minneapolis. We think the reasoning of the Court in0 that case is unsound in principle and unsupported by authority. Many stock corporations, as well as corporations not for profit, conduct enterprises which are national in character and scope, but that fact has never been regarded as furnishing any ground for exempting such corporations from the rule that a corporation must have a domicile somewhere in which its corporate acts must be performed. It would hardly be contended that an individual citizen of this State could exercise his right of suffrage in any State to which his business, or his philanthropies, might extend, so long as he maintains his legal residence here. Yet the same principle which prevents a man being a citizen' of two states at the same time applies to corporations as well as individuals. “As a corporation can only exist, as a legal entity, within the bounds of the sovereignty in which it has been created, it follows, as a corollary of that proposition, that corporations cannot have two domiciles.” 1 Thompson on Corporations (2d Ed.) sec. 493. “If any person, natural or artificial, as a result of choice or on technical grounds of birth or creation, has a domicile in one place, it cannot have one elsewhere, because what the law means by domicile is the one technically preeminent headquarters, which, as a result either of fact or of fiction, every person is compelled to have in order that by aid of it certain rights and duties which have been attached to it by the law may be determined. It is settled that a corporation has its domicile in the jurisdiction of the State which created it, and as a consequence that it has not a domicile anywhere else.” Holmes, J. in Bergner S Engel Brewing Co. v. Dreyfus, 172 Mass. 158, citing Shaw v. Quincy Min. Co., supra, and other cases. This settled general rule does not prevent any corporation formed under the laws of this State from doing business in any other State or country whose laws permit it. But the mere fact that it does business in other States does not make it a corporation of any such State. There it is a “foreign” corporation and is there recognized as such, if at all. Its rights and duties there as a foreign corporation are different from those which are incorporated there. It cannot be considered an Illinois corporation today, a Missouri corporation tomorrow and a New Jersey corporation the next day, merely because it does business here today and there tomorrow or the day after. It cannot thereby become an incorporated “will o’ the wisp.” There is no law which compels such associations as the one here in question to become incorporated. Presumably this association chose the corporate form of organization because it possessed certain advantages over that of a voluntary association or partnership. Having chosen Illinois as its domicile by the act of incorporation, it must conform to the laws of Illinois.

This conclusion naturally suggests the second reason advanced, viz: That the statutes of this State permit corporations not for profit to hold their corporate meetings anywhere, while they deny this right to business corporations. ° This contention is founded upon the language of sections 20 and 32 of the Corporation Act (J. & A. ¶¶ 2437, 2450). Section 20, however, does not refer to corporate meetings, but to directors ’ meetings. The acts of directors at directors’ meetings are not corporate acts, but the acts of agents merely, which, were it not for the prohibition contained in section 20, might lawfully be performed anywhere. Reihmald v. Commercial Hotel Co., supra. Under that section the recognized rule as to corporate acts is extended to cover all acts of directors outside of the State unless such acts are authorized or ratified at a meeting held within the State. While that section does not use the words “within the State,” its language was so construed in Place v. People, 192 Ill. 160, 164. Section 32 provides that “corporations, associations and societies not for pecuniary profit, formed under the provisions of this act, may elect trustees, directors or managers from the members thereof in such manner at such times and places, and for such periods as may be provided by the certificate of incorporation, or in case such certificate does not contain such provisions, then as may be provided by the bylaws.” It is contended that this section gives specific authority to corporations not for profit to hold their corporate meetings and elect trustees at any time and place and in any manner “provided by the by-laws,” whether in this State or elsewhere. To this contention it might be technically replied that, even if section 32 could be given the construction contended for, the by-laws of the American Medical Association do not in fact provide for any particular place or places at which corporate meetings shall be held for the election of trustees, but attempt to delegate the power of the members to elect trustees to the House of Delegates. Section 31 of the Corporation Act authorizes the trustees to make by-laws not inconsistent with the laws of the State, “which by-laws, among other things * * * shall provide for annual meetings of such members,” and also that “at any such meeting, members of the corporation may take part and vote in per son or by proxy.” In view of these provisions of the statute, the right and power of the trustees to delegate to the House of Delegates (who are not trustees) their statutory duty and authority to fix the place of the annual meetings of members, and the right and power of the trustees to provide for the election of trustees by a vote of any part less than the whole number of members, may well be doubted. But aside from such consideratibns, we think that the words “at such places as may be provided by the by-laws” must be construed to refer to places within the State. Section 30 of the act clearly contemplates that every such corporation shall have a principal place of business in some county in this State, and the language quoted from section 32 was evidently intended to authorize the holding of elections for trustees either at that place or at any other place within the State, as the bylaws should provide. Certainly it cannot be presumed, merely from the use of the quoted words, that the legislature intended to refer to places beyond the limits of its own jurisdiction where its laws could have no operative force and effect. In Franco-Texan Land Co. v. Laigle, supra, it was said: “It is, to say the least, doubtful whether or not a State could grant a corporation the right to change its residence to another sovereignty at its own will, and there exist and perform its corporate functions.” The rule of construction applicable to statutory provisions is “that every power that is not clearly granted is withheld, and that any ambiguity in the terms of the grants must operate against the corporations.” American Loan & Trust Co. v. Minnesota & N. W. R. Co., 157 Ill. 641, 651; Fritze v. Equitable B. & L. Society, 186 Ill. 183, 196. “Where the charter or law is silent as to the power sought'to be exercised, it does not exist; and wherever a grant of corporate power is claimed by a corporation, it must clearly appear, and will not be inferred or presumed.” Knapp v. Supreme Commandery, etc., 121 Tenn. (13 Cates) 212. Here it does not clearly appear from the language used in section 32, or elsewhere in the Corporation Act, that corporations not for profit are given the power claimed in this case to hold corporate meetings outside of the State of Illinois ; nor does it clearly appear that the power is anywhere given to take from the members, by means of by-laws, the right to vote, “in person or by proxy,” for trustees, and vest that right in delegates selected by the constituent associations. We therefore must conclude that the powers claimed have never been granted to, and are not possessed by, the association in question.

In our opinion, the Circuit Court erred in sustaining the demurrer to the petition for mandamus, and its judgment will therefore be reversed and the cause remanded.

Reversed and remanded.

Mr. Presiding Justice McSurely dissents.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Leonard Shadburne, Appellee, v. A. Sbarbaro, Appellant.
    Gen. No. 17,776.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Leonard Shadburne against A. Sbarbaro for dissolution of a partnership and an accounting. From a decree in favor of complainant for $3,720.25, defendant appeals.

      Abstract of the Decision.
    1. Partnership, § 377

      —when master's report sufficient. In proceeding for dissolution of a partnership and for an accounting, a master’s report sufficiently itemizes the amounts found to he due to the complainant without giving the details of the several items, where the itemized statement leaves no doubt as to what was included in the total.
    2. Partnership, § 422*—when decree in accounting may be entered without first settling partnership affairs. Decree finding the amount due on an accounting may be entered without first settling the partnership affairs, where the defendant filed a bond to secure payment of any amount which might be found due to complainant, retained the assets and did not offer to show there was no such settlement.
    3. Partnership, § 52*—when evidence sufficient to establish partnership as between the parties. Finding in favor of the existence of a partnership held sustained by the evidence, where the evidence as to the agreement is conflicting, but there is uncontroverted evidence that defendant held plaintiff out as a partner and that he received from plaintiff cash and credits used in the business.
    Richard I. Gavin, for appellant; Gavin & Mayer and George E. Swartz, of counsel.
    Frederick A. Brown, for appellee; Brown & Ewen and Kendall & Luby, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Alice Bankwitz, Appellee, v. Northwestern Elevated Railroad Company, Appellant.
    Gen. No. 17,823.
    1. Carriers, § 364

      —liability to passenger falling through open space between ear and station platform. Elevated railroad stopping its cars at a platform where it is dangerous for passengers to alight, by reason of an open space between a car and the platform,
      held liable for injuries sustained by a passenger falling through such open space while attempting to alight. ■
    2. Cabbiebs, § 347*—proximate cause. Failure of elevated railroad company to provide barriers under its platform at side of track to prevent a passenger falling from track platform to the ground is negligence contributing to the injury of a passenger who falls through an open space between car and platform to the track and thence to the ground, if the facts show that the company ought to have foreseen and guarded against such an accident.
    3. Cabbiebs, § 480*—when question of negligence is for jury. Whether failure of an elevated company to provide barriers under its station platform at side of track is negligence, contributing to the injury of a passenger who falls .from platform to ground, is a question for the jury.
    4. Cabbiebs, § 464*—when evidence not relevant to the issue. Evidence offered by carrier tending to show want of negligence in the method of constructing station platform, not admissible when declaration does not allege negligence in the construction.
    5. Cabbiebs, § 455*—when amended count does not state new cause of action. Where an original count avers negligence in the construction and operation of defendant’s train and platform, such count when amended by omitting the charge of negligence in the construction does not state a new cause of action.
    6. Damages, § 115*—when excessive. Verdict for twenty thousand dollars for personal injuries, held excessive and on condition of remittitur reduced to thirteen thousand dollars where the earning capacity of plaintiff, a young woman, did not exceed five and one-half dollars per week and the injuries consisted of a fracture of the elbow and other serious injuries requiring a double abdominal cavity operation.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed on remittitur.
    Opinion filed October 9, 1913.
    Rehearing denied October 23, 1913.
    Sheriff, Dent, Dobyns & Freeman, for appellant; Addison L. Gardner, of counsel.
    George D. Wellington, Francis X. Busch, Dillard B. Baker and Frank A. Rockhold, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, game topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

On December 11, 1908, about 6:30 P. M., appellee, then a yonng woman of nineteen years, was riding as a passenger in the next to the last car of a five car train going north on appellant’s elevated railway on Wells street, in the city of Chicago. The car was well filled with passengers and appellee was standing in the aisle five or six feet from the rear doors. These doors were located on each side of an arched vestibule at the end of the car, were built to slide back and forth in the side of the car and were opened and closed by the guard by means of levers and air pressure. There is a station on appellant’s railway at Kinzie street. In approaching the station from the south there is a slight curve in the tracks. The station platform, as originally constructed, extended north along a straight track from a point near the north end of this curve, but later, and prior to the accident to the plaintiff, the platform had been extended southward along the curve, with the edge nearest the tracks trimmed to conform to the curve in the tracks. Whenever a car was stopped opposite this south extension of the platform there was a space between the curved edge of the platform and the car, which varied in width from about four inches at the center of the side of the car to probably eight or nine inches in width opposite the doors above described. The station platform was about three inches below the level of the vestibule floor. When the train in which appellee was riding stopped at the Banzie street station, the fourth and fifth cars stopped opposite the curved edge of the south extension of the station platform. The guard opened the doors to let off and take on passengers. Several passengers entered and others alighted. Appellee moved towards the door, intending to step to the platform and there await the coming of a more convenient or less crowded train. The guard did not see her and turned the lever to close the door. As the door was closing she stepped across the threshold of the door and fell between the car and the platform to the tracks and from there to the ground, twenty-three feet below the platform. There was some evidence to the effect that the platform was not well lighted at the place of the accident, and some to the effect that appellee was struck by the closing door just before she fell. There was also evidence to the effect that there was no railing or other barrier under the platform at the side of the tracks to prevent her from falling from the tracks to the ground. The trial resulted in a verdict of twenty thousand dollars, and from a judgment entered thereon, the defendant appeals.

The first count of the declaration, as originally filed, alleged, in substance, that the defendant, in violation of its duty to provide a safe place for passengers to alight from its train, and to stop the train at such place, so negligently constructed and operated its train and platform that the train “was stopped in such a position that the door leading out of the car in which plaintiff was riding was stopped alongside of defendant’s certain temporary and narrow platform;” that the door was only partly opened and that the platform was overcrowded; that when the plaintiff in the exercise of due care, attempted to step out of the door on to said platform she stepped into a space between the station platform and the car platform and fell to the ground. This count was amended upon the trial by striking out the word “constructed” and by striking out the statement's that the door was only partly open and that the platform was overcrowded.

The gist of the negligence charged in the second count is the failure on defendant’s part to have sufficient light on the station platform, and the negligence charged in the third count is the-careless closing of the car door while the plaintiff was getting off. The fourth count was-discontinued. The fifth count charges negligence in failing to have any railing or other means of protection under the platform near the tracks, to prevent the plaintiff from falling thence to the ground.'

It is urged at great length and with much force that the evidence is insufficient to justify a recovery under any count in the ■ declaration, and in support of this contention the evidence pertaining to each count is set forth in detail in the argument of appellant’s counsel. In so far as the contention thus made involves the determination of matters of fact, the rule is that the verdict must be sustained unless it is clearly and manifestly contrary to the preponderance of the evidence. The issues made, by the second and third counts, and the plea of the general issue, involve only the determination of pure questions of fact, and after a careful study of the evidence as to the negligence charged in those counts, we find ourselves unable to say that the verdict is manifestly contrary to the weight of the evidence. As to the fifth count, it is contended that by no process of reasoning can it be concluded that the negligence charged in that count was a proximate cause of the injury to the plaintiff, but that the fall of the plaintiff through an unprotected space at the side of the tracks, after she had fallen to the tracks, was a result, rather than a cause, of the accident. If, as was claimed by the defendant, the plaintiff’s fall to the tracks was caused not by anything the defendant did or omitted to do with reference to its platform and car, but solely by the crowding of other passengers upon the platform, whereby she was pushed off the platform áfter having stepped safely out of the car, then the question would arise, whether the defendant’s duty to the plaintiff as one of its passengers required it to anticipate and provide reasonable safeguards against the consequences of such a fall, and if so, whether the defendant’s failure to provide any means of preventing such consequences was a contributing negligent cause of the injury sustained by the plaintiff. It is evidently upon the theory that this question must be answered in the affirmative that the fifth count was framed and filed in this case.

In City of Joliet v. Shufeldt, 144 Ill. 403, the plaintiff was riding in a buggy in a public street when the horse became unmanageable and ran away. By reason of a defective condition in the street the buggy collided with a stone wall and the plaintiff was thrown out and injured. It was contended that the defect in the street was not the proximate cause of the injury, but the Court held that “if a plaintiff, while observing due care for his personal safety, was injured by the combined result of an accident, and the negligence of a city, or village, and without such negligence the injury would not have occurred, the city or village will be held liable, although the accident be the primary cause of the injury, if the consequences could with common prudence and sagacity have been foreseen and provided against.” This ruling was followed in a very similar case in City of Rock Falls v. Wells, 169 Ill. 224. The same principle was applied in Village of Carterville v. Cook, 129 Ill. 152, where a boy passing along a public sidewalk was inadvertently or negligently jostled or pushed from the sidewalk by another boy, at a point where the sidewalk was elevated some six feet from the ground and was unprotected by any railing or other guard. The principle of these cases has also been approved and applied in other than city cases. Armour v. Golkowska, 202 Ill. 144; Siegel, Cooper & Co. v. Trcka, 218 Ill. 559; Elgin, A. & S. Traction Co. v. Wilson, 217 Ill. 47; Illinois Cent. R. Co. v. Siler, 229 Ill. 390. In Armour v. Golkowska, supra, it is said (p. 149): “In City of Joliet v. Shufeldt, 144 Ill. 403, we deduced from the authorities the general doctrine that it was not a defense to an action for injuries occurring by reason of the negligent act of the defendant that the negligence of a third person or an inevitable accident or an inanimate thing contributed to cause the injury to the plaintiff, if the negligence of the defendant was an efficient cause and without which the injury would not have occurred.” Upon the authority of these cases, if it was true in point of fact, as alleged in the fifth count of the declaration, that the plaintiff, without fault on her part, fell from the platform to the tracks and, because of the lack of a railing or other barrier at that point, unavoidably fell thence to the ground, while the defendant’s failure to provide such a railing or barrier would not be the primary cause of the injury to the plaintiff, yet it would be an efficient contributing cause, for which the defendant would be liable, if the defendant ought to have foreseen and guarded against such an accident to one of its passengers. Whether such were the facts was a question for the jury to determine from all the evidence; and upon that question the evidence is such that we think the jury were justified in finding in favor of the plaintiff under the fifth count if no other. We are unable to appreciate the force of the argument made by appellant’s counsel upon this point in their reply brief to the effect that the moment of time intervening between the plaintiff’s fall from the platform and her fall from the tracks was such a lapse of time as to show that the negligent failure of the defendant to provide a barrier did not “concur” or “operate immediately” with the original act or accident in causing the injury complained of.

To the plaintiff’s first count as amended defendant interposed a plea of the statute of limitations and the court sustained a demurrer to the plea. The ruling of the court in this respect is assigned as error, upon the theory that the amended count states a different cause of action from that stated in the original count. We think the demurrer was properly sustained. It is true that the original count charges negligence in construction and operation, while the amended count omits the charge of negligence in construction; but we do not think the amended count therefore states a different cause of action. Under the original count a recovery could have been sustained without any proof of negligent construction. Proof of negligent operation alone, in the manner and under the circumstances therein stated, would have been sufficient. The same is true of the amended count. The original count also stated, as facts, that the platform was overcrowded, that the door was only partly opened, and that there was a space between the car platform and the station platform at the point where the car was stopped and the door opened. The negligence specified, however, was not the mere existence of any or all of these facts, but the negligent act of defendant in stopping its train at a point where it was unsafe for the plaintiff to alight because of the facts thus stated. It was not essential to a recovery upon the original count that plaintiff should prove the existence of all three of these facts. Proof of one of them, coupled with proof of circumstances showing that such fact made it dangerous to stop the train where it was stopped, followed, of course, by proof of resulting injury to the plaintiff without her fault, would have been sufficient. The amended count struck out the averment as to the two facts not proved, leaving the one proved fact as to the existence of a dangerous space where the car stopped. The averments thus stricken were averments of additional but not essential facts in the statement of the cause of action. The amendments did not, in our opinion, have the effect of stating a new or different cause of action, but merely restated, in a different form, the same cause of action stated in the original count.

It is also urged that the court committed serious error prejudicial to the defendant in refusing to admit evidence offered "by defendant tending to prove that the curve in the tracks was made necessary by the physical conditions and limitations at and near the Kinzie street station; that the platform was extended because the increase in traffic required it, and was extended south because there was no room to extend it to the north, and that no other or different method of. construction of either the platform or the tracks was feasible or reasonably practicable under the circumstances. None of the counts in the declaration as amended contains any averment of negligence in the construction of defendant’s tracks or platform, and therefore the offered evidence was immaterial and irrevelant. If all the evidence thus offered had been admitted, and if, when admitted, it left no room to doubt that the platform and tracks were constructed in accordance with the latest and most approved principles of engineering science, applied with the utmost care and skill to the physical conditions there present, the defendant would not thereby have been relieved in any degree from liability for an injury caused by the negligent operation of its trains. Counsel insist that the existence of the nine inch space, through which the plaintiff fell, was a necessary consequence of the method of construction adopted. This contention overlooks the obvious fact that the mere construction of the curve did not create that space. Before there could be any such space a car must be brought up and stopped on the curve opposite the curved portion of the platform. The act of placing a car in that position, and thereby creating a space of that width for passengers to step over in entering or leaving the car, is not a matter of construction but of operation or management. Counsel admit in their brief that “the curve in the tracks ended just at the south end of the main platform, ’ ’ and the map offered in evidence by the defendant shows that north of that point the tracks are straight. Hence, if the car on which plaintiff was riding had been stopped a few feet further north there would have been no such space as eight or nine inches to step over, and in-all probability the accident would not have occurred. So also, if the car door had not been opened when opposite the curved part of the platform, but passengers had been required to go forward in the train to a door opening upon the straight part of the platform, the accident would not have happened. The neglect of the defendant to take such ordinary precautions as these to prevent injury to its passengers would be actionable even though the construction of the curves was perfect and shown to be absolutely necessary.

Other alleged errors in the exclusion of offered evidence and in admitting evidence are assigned. While some of the evidence offered might perhaps have been admitted without error, most of it was properly ruled out as immaterial or irrelevant, and the exclusion of the remainder was not such error as to require a reversal of the judgment. We think the rebuttal evidence was properly admitted, under all the circumstances. As to the alleged fainting fit of the plaintiff while on the stand the bill of exceptions shows that the trial judge saw nothing of it, and evidently he was not impressed with the view that á continuance was necessary. There is nothing in the record to warrant us in taking a different view.

' Complaint is made of the giving and refusal of instructions. The defendant offered thirty-five instructions, of which the court marked fifteen “given” and twenty “refused.” The court also gave several offered by the plaintiff. Every instruction given and refused is criticised by counsel, and the action of the court as to each is assigned as error. We have considered the criticisms and objections of counsel and deem it sufficient to say that we think the jury were fully and fairly instructed in accordance with the views we have already expressed, and that no reversible error was committed.

It is also urged that the amount awarded as damages is excessive. This error, we think, is well assigned.' -When the plaintiff was picked up after her fall she was taken in a dazed and semi-unconscious condition to a nearby drug store, and soon after to a hospital, where it was found that in addition to the shock resulting from the fall she had received a deep cut over one of the eyebrows, a fracture of the external condyle of the left arm and a number of bruises and abrasions in different parts of the body. Her injuries were dressed, the fractured elbow placed in a east and she was put to bed. For several days she complained pf pains in the abdomen, and on the third day the doctors (there were several of them), becoming alarmed at a sudden increase in the patient’s respiration and a slight rise in temperature, concluded that an operation was necessary to arrest the “developing peritonitis” indicated by these symptoms. A laparotomy was performed and the whole interior of the abdominal cavity examined. Some of the doctors testified that inflammation was found; others that nothing abnormal was found save a slight redness of the parts. An incision was then made into the cavity from below, and a small quantity, about four ounces, of bloody serum was found and removed. “After the operation,” said one of the doctors, “the patient made a rather uneventful recovery, very much to our surprise.” The plaintiff remained in the hospital three months, but was able to be up and around during the last month. She then returned to her home, where she assisted, to some extent, in the housework, though she testified that if she worked one day she was obliged to rest the next day. She claims that thereafter she suffered from pains in the abdomen, headaches and nervousness. About two years after the accident, digital examinations, made by the same doctors and others, were made and evidences found of. adhesions and displacement of the womb and left ovary. On the trial these witnesses gave their opinions that the plaintiff was suffering from neurasthenia which could only be relieved by another operation. Upon the question whether these subsequent conditions were attributable to the accident or not, the medical experts disagreed. Opinions on both sides of this question were submitted to the jury, and this evidence is in a state of hopeless conflict. There was so much of this kind of evidence that it is quite probable the jury thought that if they believed the plaintiff’s witnesses she was entitled to all she claimed, which was' twenty thousand dollars. The measure of damages in these cases is fair compensation for the injuries sustained. There were no circumstances justifying the allowance of punitive damages, and yet we cannot escape the conclusion that the damages awarded are more than compensatory. It was shown that the plaintiff never earned more than five dollars and a half a week. Six thousand dollars, invested at the legal rate of interest, would return an income of more than that amount. The doctors’ bills, loss of time, etc., could not, under the evidence, exceed two thousand dollars. If to these liberal estimates be added the further sum of five thousand dollars to compensate the plaintiff for such other damages as she has sustained, an amount is reached which is fully as large as the evidence warrants from any reasonable point of view.

The error in this respect, however, is one that may be cured by a remittitur. If, therefore, the plaintiff, within ten days from the date of the filing of this opinion, will remit the sum of seven thousand dollars, the judgment will be affirmed for the remainder, thirteen thousand dollars. Otherwise, the judgment will be reversed and the cause remanded.

Affirmed on remittitur.


text:
    John G. Skiple, Appellant, v. Johnson Chair Company, Appellee.
    Gen. No. 17,926.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Steeling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.

      Abstract of the Decision.
    1. Master and servant, § 685

      —when averment of negligence not proved. In action by servant to recover for injuries sustained by a falling door, which had been temporarily set up on uneven ground against a building, a count in the declaration charging defendant with negligence in not providing plaintiff with a safe place to work, because of the uneven condition of the ground, is not sustained by the evidence where the evidence does not show that the condition of the ground caused the door to fall.
    2. Master and servant, § 698*—when evidence insufficient to sustain charge of negligence. A count alleging that defendant negligently exposed the plaintiff to extraordinary hazard will not warrant recovery where there is no evidence that plaintiff did not have full knowledge of the danger or that he did not fully understand and appreciate it.
    3. Master and servant, § 411*—when negligent order of master does not relieve from assumption of rislc. A negligent peremptory order of master does not relieve from assumption of risk where servant has full knowledge of the dangers or the dangers are so apparent to any one of ordinary intelligence that servant is not misled thereby. .
    4. Master and servant, § 191*—duty of master to servant of dangers. No duty rests upon employer to warn servant of dangers which are obvious.
    5. Master and servant, § 191*—duty of master to instruct experienced servants as to method of worlc. Employer not required to instruct an experienced carpenter as to what precautionary method, if any, was necessary to prevent a door temporarily placed against building from falling.

      Statement of the Case.
    Action by John G-. Skiple against Johnson Chair Company, a corporation, for injuries received by plaintiff while in the employ of defendant as a carpenter. From a judgment entered upon a verdict directed for defendant, plaintiff appeals.
    Walter W. Ross, George Mackay and Ray & Pease, for appellant.
    Frank M. Cox and R. J. Fedlingham, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, Same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

6. Masteb and servant, § 376 —risks assumed by servant. It is not the law in this state that an employe assumes only such risks as cannot be obviated by the adoption of ■ precautionary measures by the master.


text:
    Charles R. Kappes, Appellee, v. American Linseed Company, Appellant.
    Gen. No. 17,947.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 1463

      —when error in refusing to strike out testimony, harmless. Where the evidence is such as to justify the conclusion that a different verdict could not be rendered, error in refusing to strike out certain testimony is immaterial.
    Appeal from the Municipal Court of Chicago; the Hon. Max H. Ebebhabdt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed with damages.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Charles E. Kappes against American Linseed Company, a corporation, to- recover commissions for selling certain real estate belonging to defendant. From a judgment for plaintiff for one thousand, two hundred and fifty dollars, defendant appeals.
    William C. Hartray and Johnson & Belasco, for appellant.
    Gann, Peaks & Townley, for appellee; Amos C. Miller, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

2. Costs, § 67 —when statutory damages warranted for prosecuting an appeal for delay. Verdict and judgment held so clearly right as to justify statutory damages for prosecuting appeal for delay.


text:
    Walter Mills, Appellee, v. Edwin S. Mason, Appellant.
    Gen. No. 17,986.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mortgages, § 393

      —when holder of part of notes may declare forfeiture. Option clause in a trust deed giving holder of notes right to declare whole amount due in case of default in payments or waste, held to authorize a holder of a portion of the notes to exercise the option where another clause, referring to such option clause, shows that intention.
    2. Mortgages, § 480*—supplemental hill. An original bill, insufficient because notice of default was not given before suit was begun but sufficient to restrain defendant from committing waste, may be aided by a supplemental bill setting up subsequent service of such notice.

      Appeal from the Superior Court of Cook county; the Hon. Fabian Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Bill in equity by Walter Mills against Edwin S. Mason and others to enjoin defendants from removing fixtures from a building covered by a mortgage and for an accounting and sale of the mortgaged premises. From a decree in complainant’s favor, one of the defendants, Edwin S. Mason, appeals.
    F. William Kraft, for appellant.
    Arthur M. Cox, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

8. Mortgages, § 487 —when defense not set up by cross-bill. In proceeding by holder of the notes to foreclose, defendant claiming he is the equitable owner of such notes may set up such fact as a defense without a cross-bill

4. Equity, § 263*—supplemental bill. An original bill sufficient for one kind of relief prayed is a sufficient foundation for a supplemental hill for other and more extensive relief.

5. Appeal and error, § 352*—when party entitled to appeal after parting with his interest. A party having disposed of his interest pendente lite may appeal where his grantees were not made defendants in his stead and he continues as the only party representing their interests.

6. Appeal and error, § 1447*—when dismissal of cross-bill harmless. Error in dismissing a cross-bill is immaterial where the same facts contained therein were afterward set up in an answer and a full hearing was had upon the issues thus raised.

7. Appeal and error, § 1041*—when assignment of errors treated as a separate assignment.. An assignment of errors purporting to be made by all the defendants “jointly and severally” may be treated as a separate assignment where only one defendant appeals.


text:
    Emil Schaedel, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 18,020.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied October 23, 1913.
    Statement of the Case.
    Action by Emil Schaedel against Chicago Railways Company to recover for personal injuries sustained by plaintiff while attempting to cross defendant’s tracks at street intersection in front of one of defendant’s cars. From a judgment for one thousand five hundred dollars in favor of plaintiff, defendant appeals.
    Abstract of the Decision.
    1. Street railroads, § 97

      —care of pedestrian in crossing tracks. A pedestrian in attempting to cross the street with knowledge that a street car is rapidly approaching, is hound only to exercise a reasonable judgment in view of all the circumstances.
    2. Street railroads, § 97

      —when pedestrian with knowledge of approaching car may cross track. Whether it is prudent for a pedestrian to cross tracks with knowledge that a street car is rapidly approaching depends upon the distance he has to go, the apparent speed of the car and other like circumstances.
    3. Street railroads, § 113*—when plaintiff’s testimony that he heard no gong, admissible. Testimony of plaintiff in an action for personal injuries that he heard no gong or bell is admissible as .bearing upon the question whether plaintiff exercised due care.
    4. Street railroads, § 111*—presumption considered in determining due care of plaintiff. Presumption that motorman will exercise due care in the operation of street car may be considered in determining the question of contributory negligence.
    5. Street railroads, § 135*—questions for jury. Question whether a person had reasonable grounds to believe that he had time to cross track before street car would reach him, is for the jury.
    6. Street railroads, § 144*—instruction defining “ordinary care.’’ Instruction defining the words “ordinary care” to mean “that degree of care which a reasonably prudent or cautious person would take to avoid injury under like circumstances” held not objectionable as limiting question of due care of plaintiff to the time of the injury.
    7. Appeal and error, § 1241*—when party cannot complain of error in instructions. Appellant cannot complain of instructions given, where his own instructions are objectionable for same fault.
    McSurely, P. J., dissenting.
    Joseph D. Ryan and Frank L. Kriete, for appellant; John B. Guilliams, of counsel.
    Edward Maher and James L. Bynum, for appellee; Bernhardt Frank, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


author: Mr. Justice Fitoh

text:
    Barbara Fleck Caird, by Marie Fleck her next friend, Appellee, v. Charles F. Atzel, Appellant.
    Gen. No. 18,288.
    1. Master and servant, § 411

      —when obedience to orders does not relieve -from assumption of rislc. The fact that a girl employed in a laundry is ordered to “go around and feed” a mangle does not relieve her from assumption of risk of injury, where she. had knowledge of the work and the dangers were apparent.
    2. Master and servant, § 410*—when order of master relieves from assumption of rislc. An-order of the master relieves from assumption of the risk, only when the servant has heen misled thereby to do work which is attended with unknown dangers, and he relies upon such order as an assurance that the work may be safely performed.
    3. Master and servant, § 195*—when master need not warn servant of dangers. Employer is not liable for failure to warn servant of the danger in operating a laundry machine where the servant has sufficient knowledge from experience and is of sufficient age and intelligence to appreciate the risk.
    4. Master and servant, § 600*—when evidence of matters not averred, inadmissible. Evidence as to certain defects in a machine prior to the accident, held inadmissible where there is no averment as to such defects in the declaration.
    5. Appeal and error, § 1467*—when admission of improper evidence, prejudicial error. Admission of evidence as to certain defects in machinery not counted upon in the declaration, held prejudicial error.
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    J. Marion Miller, for appellant.
    Francis X. Busch, Frank A. Rockhold and Henry Pollenz, for appellee.

      See Illinois Notes Digest, Yols. XI to XIV, same topic and section number.

   Mr. Justice Fitoh

delivered the opinion of the court.

This is an appeal from a judgment for five thousand dollars in favor of appellee, hereinafter called the plaintiff, for damages for a personal injury sustained by her while she was working in a laundry belonging to appellant, hereinafter called the defendant. Plaintiff was sixteen years of age at the time of the accident, and before entering defendant’s employ had worked in other laundries, in one of which she had worked for at least ten weeks upon and around a “mangle,” a machine used for drying and pressing articles after they have been washed. There was a “single-roll” mangle in defendant’s laundry, consisting of a horizontal cylinder revolving above and within a semicircular steam chest. At the edge of one side of the steam chest was a feed plate, and above and parallel with the feed plate was a brass rod, intended as a guard rail, which, under ordinary circumstances, was fastened about an inch above the feed plate and a couple of inches from the cylinder. In operating the machine the operator spread out a wet towel or similar article upon the feed plate and pushed it under the guard rail towards the cylinder, which, revolving slowly, carried the article down between the cylinder and steam chest. According to plaintiff’s testimony, while she was thus “feeding” towels into the mangle one of them “got crooked.” She attempted to straighten it out with her left hand, and in some way not shown by the evidence her right hand was caught and drawn into the space between the cylinder and the steam chest, crushing her right hand and seriously burning her arm. She screamed, and one of the other employes in the laundry stopped the machine, reversed the cylinder and released her hand and arm. Plaintiff testified that her right hand went in under the guard rail, which (she said) was at that time about three inches above the feed plate. This last statement, how-' ever, is not corroborated by any other witness, and the doctor and nurse at the hospital where she was taken testified that she then stated to the doctor, who wrote down the statement on the hospital sheet, that she was feeding a towel into the mangle, that the towel went in crooked, and that she “reached over guard to straighten and hand got caught.” The witness who released her hand testified that when she screamed he did not notice whether her hand was over or under the guard rail, but that she was “reaching her hand over the mangle * * * was reaching over, up above.”

The case went to the jury on four counts of the seven originally filed. The first, sixth and seventh counts were dismissed by the plaintiff. Each of the four remaining counts avers that the plaintiff was employed to feed clothes into the mangle, that she was a minor sixteen years of age, and was without experience or knowledge of the danger of working at and about the mangle. In the fourth count, the negligence charged is that the defendant “negligently and carelessly permitted the said machine to become and remain out of • repair in this, that the feed rolls and rolls and chests and parts were not properly adjusted, and by reason thereof, it was exceedingly difficult to feed clothes into the same, and to feed them into the said rolls straight. ’ ’ We are unable to find any evidence in support of this averment of negligence.

The negligence charged in the second count is that the defendant negligently ordered the plaintiff to feed clothes into the mangle without instructing or warning her of the danger of having her fingers caught, crushed and burned between the ‘ ‘ said rolls and steam chests..’ ’ In our opinion, the evidence is clearly insufficient to justify a recovery under this count. The “order” proved was a direction given to the plaintiff, while she was folding articles as they came,out of the mangle, to “go around and feed.” This was the work she was employed to do. She had been feeding into the mangle for two days at defendant’s laundry, and the same, kind of work for weeks elsewhere. Whatever danger there was in doing it, was perfectly apparent. Her own evidence shows that she knew that if her hand should be caught, it would be crushed and burned. This count does not mention the guard rail, nor charge any defect whatever in the machinery. The mere failure of an employer to give notice of danger and instructions to his employe does not make the employer liable if it be shown that the employe had obtained the requisite knowledge from experience or other sources, and that the employe was of sufficient age and intelligence to understand and appreciate the risk to which he or she was exposed. Herdman-Harrison Milling Co. v. Spehr, 145 Ill. 329, 334; Jones v. Roberts, 57 Ill. App. 56, 60. . There is no evidence that plaintiff was not old enough and intelligent enough to fully understand and appreciate the risk she incurred in working at the mangle, and the mere fact that she was told to work there cannot relieve her from the risks assumed by her contract of employment. It is only when the employe has been misled by an order to do work which is attended with dangers unknown to him, and he relies upon such order as an assurance that the task may be safely performed, that he does not assume the risk. Republic Iron & Steel Co. v. Lee, 227 Ill. 246. Plaintiff claims that at the time the order wás given she was suffering from a cut on her left elbow, which was bleeding and painful; but there is no count in the declaration which bases any claim for damages upon any alleged physical inability or unfitness to do the work she was told to do, except so far as her youth and alleged inexperience might be so considered.

In the two remaining counts the gist of the negligence charged is that the guard rail “was adjusted so high from the feed plate that it did not serve the purpose of a guard,” and was insufficient to “prevent the hands and fingers of the operator from being drawn into said machine.” The only competent evidence in support of these counts is the evidence of the plaintiff that at the time of the accident the guard rail was three inches above the feed plate, and the evidence of one Knudson, who said he was in the laundry-machine business and was familiar with the operation of laundry machines, and that it was practical to operate the guard at a height of about three-fourths of an inch above the feed plate. In addition to this evidence, however, the court permitted the witness, Holstrom, who released the plaintiff’s hand from the machine, to testify that a spring upon the pressure lever was broken, and that several days prior to the accident there was a screw loose on the guard rail, which permitted the guard rail to “move up and down.” This evidence was objected to, the objections were overruled, and exceptions were duly preserved. We are of the opinion that it was prejudicial error to admit this evidence. The fact that a spring was broken on the pressure lever, if true, or that a screw was loose several days prior to the accident, could have no possible bearing in this case under the allegations of the declaration. There is no averment in the declaration of any such defects, and there was no proof tending to show that either the broken spring or the loose screw had anything whatever to do with the accident. On cross-examination, the- witness Holstrom admitted that the loose screw had been tightened and that defect thereby remedied at least two days before the accident. This evidence as to alleged defects in the machine not counted upon in the declaration was well calculated to confuse the jury and to lead them to believe that because of such defects the plaintiff was entitled to recover, whether her hand went under or over the guard rail, which was the real question of fact under these counts. The plaintiff must recover, if at all, upon the allegations of her declaration. It is impossible for any one to say just what effect this evidence had upon the jury.

Upon the whole record, we think the court erred in overruling the motion for a new trial, and for the error in that respect the judgment will be reversed and the cause remanded.

Reversed md Remmded.


text:
    Fred G. Richmire, Defendant in Error, v. George A. Neeves, Plaintiff in Error.
    Gen. No. 18,322.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Continuance, § 49

      —when statement of grounds, insufficient. Statements in affidavits that defendant is “unable to attend the trial” are mere conclusions of the deponents, and insufficient.
    2. Continuance, § 49*—sufficiency of grounds. Affidavit stating that a party would testify as to certain matters shows no necessity for his presence where the matters alleged that he would testify to would be immaterial.
    3. Municipal Court oe Chicago, § 6*—jurisdiction of subject matter. Jurisdiction of Municipal Court as to the subject-matter is conferred by statute.
    4. Municipal Court of Chicago, § 6—when jurisdiction of person cannot be denied. In the Municipal Court, jurisdiction of the person cannot be denied after a general appearance has been entered and an affidavit of merits has been filed.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Fred C. Eiehmire against George A. Neeves in the Municipal Court of Chicago to recover on three promissory notes signed by defendant. From a judgment for plaintiff for four hundred dollars, defendant brings error.
    George A. Neeves, Jr., and Leland K. Neeves, for plaintiff in error.
    Charles S. McNett, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

5. Municipal Court of Chicago, § 8*—jurisdiction of suit on promissory, notes. Cause of action on promissory notes accrues within the city of Chicago so as to give the Municipal Court jurisdiction where the notes are expressly made payable in that city.

6. Municipal Court of Chicago, § 29*—presumption as to jurisdiction on review. Municipal Court held not such a local inferior court that no presumption may be indulged in favor of its jurisdiction.


text:
    F. W. Norwood and T. Y. Hamilton, trading as Lumber Shippers Storage & Commission Company, Defendants in Error, v. Maremont, Wolfson & Cohen Company, Plaintiff in Error.
    Gen. No. 18,341.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed on remittitur.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by F. W. Norwood and T. Y. Hamilton, doing business under the firm name of Lumber Shippers Storage & Commission Co., against Maremont, Wolf-son & Cohen Company, a corporation, to recover for lumber sold and delivered to defendant. From a judgment for plaintiffs of two hundred seventy-eight dollars and eighty-one cents, defendant brings error.
    Edward R. Litzinger, for plaintiff in error.
    Fred H. Atwood, Frank B. Pease and Charles O. Louoks, for defendants in error; Burrell J. Cramer, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Sales, § 146 —remedy of buyer when goods of different quality than ordered. When the goods delivered are of a different quality of description than ordered, the buyer’s remedy, in the absence of a warranty, is to refuse to accept the goods when delivered or to return them within a reasonable time.

2. Sales, § 155*—when buyer waives right to object to the quality of goods delivered. Buyer waives right to assert that goods were of a different quality than ordered where he does not refuse to accept them when delivered or does not return them within a reasonable time; but the rule does not apply to bind the buyer either as to the quantity or the price.

3. Sales, § 155*—when objection to quality of goods delivered, no defense to action for price. Buyer accepting goods and appropriating them to his own use cannot defeat action for purchase price because the goods are not of the quality or description ordered.

4. Sales, § 325*—burden of proof. In action for price of lumber sold and delivered, plaintiff has burden of proving the quantity delivered and also the price agreed to be paid or its market value.

5. Appeal and error, § 1585*—when error may be cured by remittitur. On writ of error from a judgment for $278.81, an error in overruling a motion for a new trial may be cured by a remittitur of $93.96 where the record shows an admission of plaintiff in error that defendant in error is entitled to $184.85.


text:
    Samuel Wilson, Appellee, v. J. T. Counsell, Appellant.
    Gen. No. 18,349.
    1. Master and servant, § 238

      —essentials to relation of vice-principal. A servant may be a vice-principal though he has no power to employ and discharge men under him.
    2. Master and servant, § 242*—when servant performing work of a fellow-servant is vice-principal. A servant who has control of the manner of performing the work, and to whom other servants are directed to report for work, held a vice-principal though engaged in performing the work of a fellow-servant.
    3. Master and servant, § 220*—liability for combined negligence of master and a fellow-servant. Master is liable to a servant for injuries resulting from the combined negligence of the master and a fellow-servant.
    4. Mastib and servant, § 241

      —liability for negligence of vice-principal combined with his negligence as a fellow-servant. Master is liable to servant for injuries where the proximate cause of the injury was a negligent order of vice:principal combined with his negligence while' performing the work of a fellow-servant.
    5. Master and servant, § 411*—liability when injury results from negligent order of vice-principal. Servant may recover for injuries resulting from obeying a negligent order of a vice-principal unless the danger was so imminent that a reasonably prudent person would not have encountered it.
    6. Master and servant, § 755*—questions for jury. Whether, in obeying a negligent order of vice-principal, the danger was so imminent that the servant should not have encountered it is a Question for the jury.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judged presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and Charles J. McFadden, of counsel.
    Gallagher & Messner, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

Appellee brought suit against appellant and recovered a judgment for nine hundred dollars for personal injuries sustained while assisting in unloading a car of telegraph poles. Appellee was employed by the appellant as a teamster. He was an extra man, hired by one Peterson, appellant’s superintendent, and prior to the accident was driving a dump wagon. On July 26, 1910, when he and another teamster, named Seitz, reported for work at defendant’s barn, they were told by Peterson to go to a team track in the yard of the Commonwealth Edison Company, where there was a car of telegraph poles to be unloaded. Appellee told Peterson that he “did not understand that kind of work,” but Peterson, after providing them with ropes and cant hooks, told them to “report to Herb Thompson,” who would “tell them what to do and show them what to do.” Thompson was another of defendant’s employes, whose work was to unload poles from railroad cars and to shave, trim and paint them, in the yard of the Edison Company. Appellee and Seitz went to the yard as directed and reported to Thompson. There was a flat car then standing on the track, loaded with telegraph poles thirty-five feet in length and tapering in thickness from two feet or more at one end to a foot or less at the other end. These poles weighed about seven hundred pounds each. They were held in place upon the flat car by stakes driven into holes or pockets at each side of the car and the stakes were kept from spreading by wires. When appellee and Seitz reported to Thompson, they told him that Peterson had sent them to help unload the car of poles. Thompson first directed them to clear a space for the poles by moving to one side other poles then lying upon the ground. Thompson and Seitz then climbed upon the car while Wilson, at Thompson’s direction, remained on the ground. Thompson cut the stakes on one side of the car at a point below the upper tier of poles. Then he fastened' ropes to the stakes nearest the ends of the car and passed the same over the top of the carload to stakes upon the other side of the car, where a “turn or two was taken around the stake,” so that the ropes could be “eased off” when the poles were rolled or pushed into the slack of the ropes and lowered to the ground. After thus tying the ropes, Thompson and Seitz, with cant hooks, rolled the heavy end of the nearest pole over the stake at the side of the car, where it was held by the rope and by that means lowered safely to the ground. In repeating this process at the other end of the car, the small end of the first pole handled was caught between one of the stakes and the load of poles. Thompson unfastened the rope tied to the stake and Seitz pried up the pole with his cant hook. Then Thompson, standing on the end of the flat car, lifted the end of the pole above the top of the stake. As he did this, he called out to Wilson: “Glo in and tie the rope.” Wilson inquired, “Can you hold the pole?” Thompson replied: “Yes, we can, for two or three minutes anyhow, maybe more.” In obedience to this command of Thompson, Wilson stepped to the side of the car and was tying the rope to the stake when Thompson’s strength gave out and the pole slipped and fell upon Wilson, injuring him seriously.

It is first contended that Thompson and Wilson were fellow-servants, and that therefore the court erred in refusing to instruct the jury to find the defendant not guilty. It was shown by the evidence that Thompson had no power to hire or discharge appellee, and it is insisted that there is no evidence tending to prove that Thompson was a foreman or vice-principal, for whose negligent acts appellant is liable. In Chicago & A. R. Co. v. May, 108 Ill. 288, it was held that when a master confers authority upon one of his employes to take charge and control of a gang of men in carrying on some particular branch of his business, such employe, in governing and directing the movements of the men under his charge with respect to that branch of the business, is the direct representative of the master; that the position of such an employe “is one of superiority,” and “when he gives an order within the scope of his authority, if not manifestly unreasonable those under his charge are bound to obey,” and hence the master is held responsible for the consequences. “For instance, if the section boss of a railway company, while working with his squad of men on the company’s road, should negligently strike or otherwise injure one of them, causing his death, the company would not be liable; but when the negligent act complained of arises out of and is the direct result of the exercise of the authority conferred upon him by the master over his co-laborers, the master will be liable. In such case he is not the fellow-servant of those under his charge, with respect to the exercise of such power, for no one but himself, in the case supposed, is clothed with authority to command the others.” In Chicago, R. I. & P. Ry. Co. v. Rathneau, 225 Ill. 278, the Court said that “the authority and reason of the May case (supra) have never been questioned in this State so far as we are aware, but, on the contrary, the case has been often cited, approved and followed.” In the Rathneau case, supra, the plaintiff was one of a gang of laborers who were loading rails upon a flat car. The rails were shoved up along skids by means of round stakes with a block end, and there was danger that if a rail being shoved up should come in contact with anything and turn over, the men shoving it would lose their hold on it, by their sticks being thrown out of place, and it would slide back down the skids. The evidence tended to show that one O’Rourke was in charge of the gang and was directing the men and gave orders as to the means to be adopted in performing the work. Also that, with knowledge of the fact that one of the stakes at the side of the flat car was too high, he ordered the men to push up a rail. The men did so and the rail struck the stake, turned, slid back down the skids and injured the plaintiff. It was urged that the injury was caused by O’Rourke’s negligence and that he and the plaintiff were fellow-servants, but the Court said (p. 282): “The question whether or not O’Rourke was a vice-principal was a question of fact to be determined by the jury, and there being evidence fairly tending to support the position of the appellee that he was acting as a vice-principal in directing the men and controlling the manner of performing the work in which they were engaged, the court properly refused to give the peremptory instruction.” In the same case the court also said that “it was not necessary for appellee to show, in order to prove 0 ’Rourke was a vice-principal, that O’Rourke had the power to employ and discharge the men under him,” citing Fraser & Chalmers v. Schroeder, 163 Ill. 459, as authority for that statement.

We think that the jury were justified in finding from the evidence in this case that Thompson was given such authority over Wilson and Seitz as to make him a superior servant, or vice-principal, of the defendant as to all matters relating to the manner in which the work should be done, and what work should be done, by Wilson and Seitz. In the exercise of that authority, Thompson commanded appellee to go into a position of danger and tie the rope. In giving that command Thompson knew that whether it could be safely obeyed depended upon his ability and that of Seitz to hold up the pole while appellee was tying the rope. In giving such an order, Thompson acted as the representative of appellant, and his negligence in giving the order was the negligence of appellant. Moreover, if it be conceded that in lifting the pole and letting it fall upon appellee Thompson was performing the work of a fellow-servant, we think it is clear from the evidence that but for the negligent order of Thompson, commanding Wilson to go under the pole for the purpose of tying the rope, the accident would not have occurred. Hence, the proximate cause of the accident was the negligence of Thompson, the superior servant, in giving the negligent order, combined with the negligence of Thompson, the fellow-servant, in letting the pole fall. The rule is well settled that where injury results from the combined negligence of the master and a fellow-servant the master is liable. Illinois Southern Ry. Co. v. Marshall, 210 Ill. 562; Roebling Construction Co. v. Thompson, 229 Ill. 42. In the latter case the Court said (p. 45): “It is no longer open to question in this State that the vice-principal may, as regards certain acts, be a fellow-servant with other servants over whom-in his capacity as vice-principal, he has control and power of direction. This rule, however, will not exempt the master from liability where the injury results from the negligence of the vice-principal as such, in combination with the negligence of such vice-principal in the capacity of fellow-servant. This is the application of the well recognized rule that where the injury results from the combined negligence of the master and fellow-servant, and the negligence of the master is such that the injury would not have happened but for his negligence, the master is liable.” We are of the opinion that it was not error to refuse the peremptory instruction.

It is next contended that appellee assumed the risk, even if Thompson was a vice-principal or foreman, because, it is said, the order given was an order to encounter an obvious danger, which was one of the incidents of the employment. In Illinois Steel Co. v. Schymcmowski, 162 Ill. 447, the Court said (p. 459): “A master is liable to a servant.when he orders the latter to perform a dangerous work, unless the danger is so imminent that no man of ordinary prudence would incur it. Even if the servant has some knowledge of attendant danger, his right of recovery will not be defeated, if, in obeying the order, he acts with the degree of prudence which an ordinarily prudent man would exercise under the circumstances. When the master orders the servant to perform his work, the latter has a right to assume that the former, with his superior knowledge of the facts, would not expose him to unnecessary perils; the servant has a right to rest upon the assurance that there is no danger, which is implied by such an order. The master and servant are not altogether' upon a footing of equality. The primary duty of the latter is obedience, and he cannot be charged with negligence in obeying an order of the master, unless he acts recklessly in so obeying. Whether he acted thus recklessly in obeying his master’s order or whether he acted as a reasonably prudent person should act, are questions of fact to be determined by the jury.” (Citing cases.) The same rule is announced in the following cases: Western Stone Co. v. Muscial, 196 Ill. 382, 386; Illinois Steel Co. v. Ryska, 200 Ill. 280; Hartrich v. Hawes, 202 III. 334; Pressed Steel Car Co. v. Herath, 207 Ill. 576; Henrietta Coal Co. v. Campbell, 211 Ill. 216. In Chicago & E. I. R. Co. v. Heerey, 203 Ill. 492, the same principle is stated in a somewhat different form, and it is held that in cases of a direct command the question of assumed risk does not arise at all, since that question is removed by the command, and the only question remaining is whether the servant was guilty of contributory negligence in obeying the command. “In the case of a promise to repair, or of a command, and perhaps some other cases, the question is one of contributory negligence on the part of the servant, depending upon whether the danger was so great that an ordinarily prudent person would not have encountered it. * * * In those cases the question of assumed risk, which is founded in'contract, is removed by the promise to repair, the coercion or other sufficient cause, but the question of contributory negligence involved in every case still remains. The employee must always exercise the degree of care which an ordinarily prudent person would have exercised under the same circumstances, but he does not assume the risk resulting from a direct command.” (Ibid. p. 503.) The same distinction is repeated in Springfield Boiler Co. v. Parks, 222 Ill. 355, at page 359, as follows: “When the servant is directed by the master, or one who stands to the servant in the place of the master, to encounter a danger, and the servant, by reason of such direction, does encounter the danger and is injured, the master cannot escape liability unless the danger which the servant is directed to encounter is so apparent that an ordinarily prudent person would not have encountered it, in which event the master escapes liability on the ground of contributory negligence on the part of the servant, rather than that of assumed risk.” (Citing authorities.)

Under the authority of these decisions, and especially in view of the character of the order given by Thompson, it must be held that appellee is not precluded from recovering damages for the injury susstained, unless the danger was such and so imminent that a reasonably prudent person would not have encountered it, which was purely a question of fact for the jury. From the evidence in this case, we cannot say that the verdict in that respect was manifestly contrary to the preponderance of the evidence. What we have said above disposes of the further contention that the evidence fails to show that any negligence of the defendant was the proximate cause of the injury.

It is also insisted that the court erred in giving certain instructions. Without discussing these in detail, it will suffice to say, that after due consideration of the arguments advanced, we think there was no reversible error in this respect. The instructions complained of do not materially differ from the forms that have been repeatedly approved, and they were applicable to the facts in evidence.

Finding no reversible error in the record, the judgment of the Circuit Court will be affirmed.

Affirmed.


text:
    Duquesne Security Company, Ltd., Defendants in Error, v. Isaac W. Hodgens, Plaintiff in Error.
    Gen. No. 18,360.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 124

      —necessity of assignment by indorsement. Assignment of promissory note to vest the legal title in the assignee must he made by an indorsement on the note itself.
    2. Bills and notes, § 131*—method of assignment. Promissory note cannot be assigned by a separate instrument so as to vest legal title in the assignee.

      Error to the Muncipal Court of Chicago; the Hon. William. N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.

      Narr. and cognovit filed by John Mulholland against Isaac W. Hodgens for entry of judgment on judgment notes containing a power therein for confession of judgment. After judgment, on affidavit of defendant, the judgment was opened up and leave granted defendant to make defense. And on motion of plaintiff leave was granted to change the name of plaintiff to J. F. McHendry, J. E. Jackson and James E. Taylor, co-partners doing business under the firm name of Duquesne Security Company, Ltd. From a judgment for plaintiffs for two hundred and eighty two dollars, entered on a second verdict of jury, after the first verdict in favor of defendant was set aside, defendant brings error.
    Daniel Byrnes, for plaintiff in error; John T. Byrnes, of counsel.
    Clark & Clark, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.

3. Municipal Court op Chicago, § 13*—when assignment of note must be averred. Assignee of a judgment note cannot recover thereon in his own name in the Municipal Court where the narr or statement of claim does not aver that the note was as; signed.

4. Municipal Court op Chicago, § 14*—burden of proving assignment of note sued on. Rule 23 of Municipal Court being an adoption of section 52 of the Practice Act, J. & A. If 8589, places the burden of proving a valid assignment of a promissory note upon the plaintiff when plaintiff’s title is denied by an affidavit of merits.

5. Appeal and error, § 1236*—when errors not waived by admissions in trial court. Fact counsel for plaintiff in error acquiesced in a statement made before the jury by counsel of defendant in error limiting the issues, held not to estop plaintiff in error from assigning error for failure of proof of other issues where such admission was not relied upon in the trial court.