author: Mb. Presiding Justice Holdom

text:
    Sarah Mary Wall, Administratrix of the Estate of Edward Wall, Deceased, Appellee, v. Chesapeake & Ohio Railway Company, Appellant.
    Gen. No. 23,755.
    1. Appeal and error, § 1725

      —when opinion binding upon subsequent review. The opinion of a court of review becomes the law of the case, binding alike upon the lower court upon a retrial and upon the reviewing court upon a subsequent review.
    2. Carriers, § 476*—when ownership of railroad shown. Evidence held sufficient to sustain a finding that defendant owned the railroad at the time plaintiff, a cattle shipper, was injured as the result of being brushed off a cattle car, on which he was riding, by a bridge.
    3. Evidence, § 480*—what is effect of failure of defendant to produce. The failure of a defendant to produce evidence known to be in his control, and to be material ’and affecting the defense, may he considered by the jury in "determining the rights o-f the parties.
    4. Instructions, § 151*—when properly refused. It is not error to refuse an instruction substantially covered in given instructions.
    5. Carriers, § 482*—when instruction improper as assuming engine is safe place in which to ride.In an action to recover for personal injuries sustained by a cattle shipper who had been invited to ride in one of defendant’s trains, as the result of being brushed off a cattle car when it passed under a bridge, an instruction assuming that an engine is a safe place in which to ride is improper.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthiel, Judge, presiding.
    Heard in this court’ at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.
    Worth E. Caylor, for appellant.
    Bulkley, More & Tallmadge, for appellee.

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

   Mb. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff’s intestate was on May 24,1896, fatally injured while he was riding on top of a cattle car in Cincinnati, Ohio, by striking a bridge under which he was passing. From the effects of his injuries he died the nest day. March 29, 1898, plaintiff began an action against defendant, similar to the one at bar, in the Superior Court of Cook county, seeking damages for the death of her intestate, which she averred resulted from actionable negligence of defendant. April 22, 1898, she filed her declaration. At the May term, 1898, defendant removed the cause to the United States Circuit Court sitting in Chicago, and in that court moved on special appearance to quash the return of service made by the sheriff of Cook county upon the summons. The motion was allowed, the return quashed, and an appeal perfected to the United States Circuit Court of Appeals, and that court affirmed the order quashing the service. Wall v. Chesapeake & O. Ry. Co., 37 C. C. A. 129. June 8, 1899, the suit in this record was commenced. To the declaration then filed defendant interposed a general demurrer, which was sustained, and plaintiff electing to stand by her declaration appealed to this court, which affirmed the judgment April 4, 1902. Plaintiff then sued out a writ of error from the Supreme Court, which December 16, 1902, reversed the judgment of this court and of the Circuit Court and remanded the cause to the Circuit Court. These last two appeals may be found in 101 Ill. App. 431, and 200 Ill. 66. On such remandment the cause on issues joined was tried before court and jury and a verdict rendered for plaintiff in the sum of $6,000. During the trial the defendant moved for leave to file an additional plea, in which it alleged that it did not own, operate or control any railway in the City of Cincinnati and did not own, operate or control the engine, car or train of cars on which Wall was riding at the time he suffered the fatal injuries complained of, etc. This motion was denied, and on appeal to this court, among other errors assigned, was the denial of leave to file a plea of nonownership, nonoperation, etc. This court reversed the last judgment for the sole reason that the court erred in not admitting evidence proffered of nonownership and nonoperation under the pleadings as they were, and also because the denial of leave to file the last-mentioned plea was an abuse of judicial authority. The cause again went to trial before court and jury with the added plea of nonownership, nonoperation, etc., and resulted in a verdict and judgment for $10,000, and the parties are again before this court on appeal of defendant.

We rest content with the foregoing chronological recitation and by referring to the case as stated in the former appeal to this court reported in 189 Ill. App. 234, where a full statement of all the essential facts will be found and in which all the law pertaining to the case is cited.

The- record before us discloses that the facts involved in this appeal, with the exception of those arising under the additional plea, are the same as on the former appeal in case, supra. Notwithstanding this, counsel has argued the case as if it were here for the first time. , We shall, however, confine our opinion to the facts and the law projected into the case by the issues joined under the additional plea of nonownership, etc., as these questions are the only ones which are pertinent to be considered at this time.

It has often been decided that the opinion of a court of review becomes the law of the case, binding alike upon the lower court upon a retrial and upon the reviewing court upon, a subsequent review. ’ Linnberg v. City of Rock Island, 157 Ill. App. 527; Board of Directors Chicago Theological Seminary v. People, 189 Ill. 439; Clayton v. Feig, 188 Ill. 603.

Questions of contributory negligence, the statute of limitations, the effect of the dismissal of the federal court action, are all settled by the decision of this court in 189 Ill. App. 234. So far as this court is concerned, these questions are closed incidents. .

As to the ownership and operation of the road and its instrumentalities at the time plaintiff’s intestate was injured, there is abundant evidence in the record from which, if given credence by the jury, they might reasonably and justly find that the same was owned and operated by defendant. Defendant contended, and endeavored to support such contention by evidence, that the Covington & Cincinnati Elevated Railroad and Transfer and Bridge Company (colloquially referred to as the Bridge Company) and not defendant was the owner and operator. At the time of the accident the train crew of the train on which deceased was riding when injured was in the employ of defendant; they were paid from the pay car of defendant by the paymaster of defendant. The engine that hauled the cars was engine No. 32 of defendant. Defendant owned, as its own witness testified, all of the stock of the Bridge Company. Furthermore, deceased was taken to the hospital after his injuries as a patient of defendant and attended by its surgeon. The coroner’s jury by their verdict found that at the time deceased suffered the injuries from which he died he was riding upon a car of defendant. The engineer who had charge of the engine and of the cars, upon one of which deceased was riding when injured, was the engineer of defendant. The fireman was likewise the employee of the defendant. This was strong evidence, unless overcome by countervailing proof, from which the jury might reasonably find that the ownership and operation of the road was in defendant; and furthermore, it likewise appeared from the evidence that defendant had depot privileges in Cincinnati at the time of the accident and ran its trains over the bridge from Covington, Kentucky, into such depot in Cincinnati.

Defendant sought to establish by oral proof that while admittedly the engine was the engine of defendant. and the various persons who operated the engine and the train were its servants, after such equipment crossed the river from Covington it was operated by the Bridge Company and that the persons so operating the trains became employees of the Bridge Company and were paid for their services during the time so engaged as the Bridge Company’s servants by defendant’s paymaster out of defendant’s pay car. It also appeared from the testimony of one of defendant’s witnesses that the Bridge Company and defendant had an arrangement between them which was evidenced by a writing. This was not produced by defendant. Certainly such writing, would have fixed the relationship between the parties with certainty. In these circumstances defendant must suffer the consequences of its failure to produce such writing, as without it the greater weight of the evidence tended to prove affirmatively that the road was operated and owned by defendant at the time of the accident, and the evidence is ample to sustain the jury’s finding in relation thereto. It is true, as contended by defendant and as testified to by its own witness, that the contract was of record, but he did not say nor even intimate where. “Of record” is a very vague and i undefined term. It might have meant the public records or the records of defendant. "While defendant .was not bound to- produce this contract as a part of its case, nevertheless, it being the best evidence obtainable, the jury might readily infer from the fact of its 'nonproduction by defendant, who had it, that there was nothing in it which would strengthen its defense, but on the contrary, that if its contents had been made known it would have affected such defense to defendant’s prejudice. On this subject it was said in East St. Louis Connecting Ry. Co. v. Altgen, 112 Ill. App. 471 :

“Under the circumstances of this case the court and jury were fully warranted in giving full force to any legitimate inference based upon the evidence regarding the employment of those in charge of defendant’s engine, for the reason that the evidence was at hand and peculiarly within the control of the defendant, whereby such inference, if unjust, could be successfully rebutted. The failure to produce evidence known to be within the control of a party to the litigation, and known to be material, or conclusive as in this case, may rightly be considered by the jury in determining the rights of the parties.”

In Pittsburgh, C. & St. L. Ry. Co. v. Knutson, 69 Ill. 103, the court say:

“It is first urged that the train which did the injury was. not shown by the evidence to have belonged to appellants. On this question several witnesses testify, and their evidence tended strongly to show that appellants owned, or at least were operating this train. It may not prove the fact beyond all doubt, but it certainly raises a strong presumption that they had the control of the train. In reference to such a fact we cannot expect full and undoubted proof. * * *”

In Harper v. Owen H. Fay Livery Co., 264 Ill. 459, in discussing a similar question the court, quoting from 16 Cyc. 937, said:

“Where, for any reason, the evidence to prove a fact is chiefly, if not entirely, within the control of the adverse party, it has been held that the burden of proof—meaning the burden of evidence—is on the party who knows, or has special opportunity for knowing, the fact. * * *”

In Great Western R. Co. v. Bacon, 30 Ill. 347, the court said:

“If the railroad company has a contract with the proprietor of this land that she shall fence it, it is no trouble to produce it, and thus exonerate itself from the liability to build the fence. If the defendant does not produce such a contract, the presumption is that none exists.”

In Chicago Junction Ry. Co. v. McAnrow, 114 Ill. App. 501, this court, quoting from Pittsburgh, Ft. W. & C. Ry. Co. v. Callaghan, 50 Ill. App. 676, said:

“Weak evidence becomes strong by the neglect of the party against whom it is put in, in not showing by means within the easy control of that party, that the conclusion drawn from such evidence is untrue.”

Great Western R. Co. v. Bacon, 30, Ill. 347; Germania Fire Ins. Co. v. Klewer, 129 Ill. 599.

Defendant endeavored to sustain its case of non-ownership, nonoperation, etc., by the testimony of brakemen and firemen and of a yardmaster of the Louisville & Nashville Railroad Company. By this last witness it was attempted to prove the relationship between the Bridge Company and the defendant, but this utterly failed, as this witness had no knowledge upon the subject except from hearsay. Testimony of this character would naturally find but little credence with the jury, to whom it was made known that defendant had available a written contract to prove without any uncertainty the real relationship between the-Bridge Company and defendant.

There was no error in the court’s refusal to give to the jury the two instructions asked by defendant. The first one was faulty and was moreover substantially covered in instructions given. The instruction was in no wise akin to the one in Cullen v. Higgins, 216 Ill. 78, but was materially variant from it.

The second instruction refused was clearly bad because there was an assumption in it that the engine on which deceased was invited to ride was a proper and safe place. In Southern R. Co. v. Cullen, 221 Ill. 392, in a case where personal injuries were sustained by a cattle shipper riding in an engine, it was held in effect, by sustaining the judgment recovered in the trial court, that an engine was not per se a safe place in which to ride.

We do not think .the objection to the instruction regarding the credibility of the witnesses given at the instance of plaintiff is well taken. This instruction is nearly verbatim the same as an instruction held to be good and without error in Illinois Cent. R. Co. v. Haskins, 115 Ill. 300.

There is nothing of merit in the defense interposed and argued before us. The contentions for reversal are wholly technical and have no reference whatever to the merits as established by the proofs.

There should be an end to this litigation, which has now been in the courts 20 years. In each trial upon the merits plaintiff has succeeded. The first verdict was for $6,000 and the one appealed from now is for $10,000. This last verdict is the limit of recovery permitted under our statutes. While there is no complaint that the verdict is excessive, it is significant that after so long a time the jury were moved to award plaintiff the maximum sum which the law permits to be recovered in actions of this nature.

It is time this litigation was finally determined. Its prolongation would be a scandal to the administration of justice.

The trial appealed from was fair; the cause is upon the merits just; correct principles of law have been applied to the facts with sufficient accuracy so that it cannot be said that any right of defendant either of fact or law has been prejudiced by any ruling of the trial court.

The judgment of the Circuit Court ought to be and it therefore is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    Mary T. Horstman, Appellee, v. Chicago Hallways Company, Appellant.
    Gen. No. 23,769.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Carriers, § 475

      .—what evidence is inadmissible as part of res gestee in action for injuries to passenger alighting from street car. In an action by a passenger against a street railroad, to recover damages for personal injuries, a conversation concerning plaintiff’s injuries between herself and a sympathetic woman after the accident and after plaintiff had been put back on the car from which she fell while alighting, and the order of the conductor to the woman to “move on,” were inadmissible because constituting no part of the res gestee.

    Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Action by Mary T. Horstman, plaintiff, against Chicago Railways Company, defendant, to recover for personal injuries sustained as the result of the sudden starting of one of defendant’s cars while plaintiff, a passenger, was in the act of alighting. From a judgment for plaintiff for $3,300, defendant appeals.
    Philip Rosenthal and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Delbert A. Clithero and Frank Wentworth Swett, for appellee.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

2. Evidence, § 76 —when act or declaration part of res gesta. An act or declaration can ■ only he considered as a part of the res gesta when it illustrates, explains or interprets other parts of the transactions, of which it is itself a part.

3. Evidence, § 444*—when physician must base opinion upoñ objective symptoms. A physician who has treated an injured person, but 3 years later makes an examination for the purpose of qualifying as an expert to testify as to the then condition of the patient, must base his opinion upon objective, not subjective, symptoms.

4. Evidence, § 444*—when physician may not testify as to subjective symptoms. A physician who has not treated an injured person and makes an examination for the sole purpose of qualifying as a witness to the person’s injuries may not testify as to subjective symptoms.

5. Instructions, § 88*—what is an essential of instruction on preponderance of evidence. An instruction on the preponderance of evidence in an action for personal injuries must have in it the element of the number of witnesses testifying on each side.


text:
    Elizabeth Russell, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,797.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Action, by Elizabeth Russell, plaintiff, against Chicago City Railway Company, defendant, to recover for personal injuries sustained as the result of the car in which plaintiff was riding colliding with the rear end of another of defendant’s cars. From a judgment for plaintiff for $3,750, defendant appeals.

      1. Instructions, § 159*—consideration as a whole. Instructions should be read as a whole.
    2. Damages, § 205*—when instruction on in action for personal injuries not misleading. In an action for damages for personal injuries, an instruction that if defendant was found guilty it would be proper for the jury, in estimating the damages, to consider the nature, extent and duration of plaintiff’s injuries and their effect upon plaintiff’s ability to pursue her ordinary calling and to attend to her affairs generally, and any sum plaintiff had necessarily paid or had been obligated to pay for surgical and medical services, and bodily pain and suffering and any and all damages in so far as they were alleged in the declaration and shown by the evidence “to be the necessary and direct result of the injuries complained of,” held not misleading.
    3. Appeal and ebbob, $ 1650

      —when instruction on damages in action for personal injuries not limiting damages to those charged not reversibly erroneous. Even if an instruction, given at plaintiff’s request in an action for damages for personal injuries, may have been- misleading as conveying the idea that damages for injuries other than as alleged in the declaration were recoverable, it was not reversibly erroneous where another instruction given at the instance of defendant told the jury what injuries plaintiff could recover for and that injuries predating the accident or infirmities suffered prior thereto must not be taken into consideration by the jury in its assessment of damages.
    Busby, Weber & Miller, Franklin B. Hussey and Arthur J. Donovan, for appellant; John B. Guilliams, of counsel.
    James C. McShane, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


author: Mr. Justice O’Connor

text:
    Abstract of the Decision.

      Jennie Murphy, Administratrix, Plaintiff in Error, v. Chicago, Milwaukee & St. Paul Railway Company, Defendant in Error.
    Gen. No. 23,381.
    (Not to he reported in full.)
    Error to the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 3, 1918.
    Statement of the Case.
    Action by Jennie Murphy, administratrix de bonis non of the estate of Patrick Murphy, deceased, plaintiff, against the Chicago, Milwaukee & St. Paul Railway Company and the Car Loading and Unloading Association, defendants, to recover for the wrongful death of deceased. From a judgment entered on a verdict in favor of plaintiff against the Car Loading and Unloading Association for $7,625, and finding the railroad company not guilty, plaintiff brings error.

      Abstract of the Decision.
    1. Negligence, § 213

      —when instruction on liability of one defendant for negligence of another not misleading. In an action against a railroad company and a car loading and unloading association to recover for the death of a teamster employed by another, due to a heavy roll of paper falling off a truck which the association was using to convey the paper through the door of the railroad warehouse to deceased, and striking him, an instruction that the jury could not hold one defendant liable for the negligence of the other, and that they could not find both defendants guilty on evidence which showed the guilt of but one defendant, was not misleading.
    2. Negligence, § 207*—when instruction on care required of railroad as to floor of warehouse not erroneous. In an action against a railroad company owning a warehouse and a car loading and unloading association to recover for the death of a teamster employed by another, due to a heavy roll of paper falling off the truck which the association was using to convey the paper through the door of the warehouse to deliver to deceased, because of defects in the floor of the warehouse, an instruction that the railroad company was not required to furnish a floor in an absolutely perfect condition, but if the jury believed from the evidence that the floor was of such ordinary character as reasonably prudent persons in the exercise of ordinary care would maintain for such purpose, then the railroad company should be found not guilty, held not to be improper.
    3. Appeal and ebbob, § 1544*—when instruction on negligence in care of floor of railroad warehouse not reversibly erroneous. In an action tq recover for the death of a teamster alleged to be due to the fall of a heavy roll of paper from a truck which a car loading and unloading association was using to deliver the paper to deceased from the railroad freight warehouse, because of a defect in the floor of the warehouse, an instruction that if the jury believed from the evidence that the floor was in such condition that by the use of ordinary care the paper roll in question would have been safely trucked over it the railroad company was not liable, held to be erroneous, but not reversibly so, in view of all the instructions and the simplicity of the facts in the case.

      Matthew P. Brady, for plaintiff in error.
    Hay & Brown, for defendant in error; O. W. Dynes, of counsel.

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

4. Negligence, § 205 —when instruction on required proof of negligence of railroad as to defects in warehouse not erroneous. In an action to recover for the death of a teamster alleged to be due to the fall of a heavy roll of paper from a truck which defendant car loading and unloading association was using to deliver the paper to deceased from the defendant railroad’s freight house, because of a defect in the floor of the freight house, an instruction setting out the substance of the first count in the declaration and telling the jury that plaintiff must prove such charge by a preponderance of the evidence to recover thereunder, held not erroneous on the ground that the declaration averred that defendant railroad company “permitted divers holes and openings to be and remain” in the floor, but the proof of one hole, if it contributed to the injury, was sufficient.

5. Instructions, § 87*—when instruction on preponderance of evidence in action for negligent death not erroneous. In an action for negligent death, an instruction that plaintiff, to recover, must establish her case by a preponderance of the evidence, .that if the evidence was equally balanced or if the jury were in doubt or unable to say on which side the preponderance of the evidence lay, or if the preponderance was against the plaintiff, the verdict should be not guilty, was not misleading on the ground that it did not restrict the evidence to the issues essential to the maintenance of the action, nor point out the issues necessary to be established by a preponderance of the evidence to entitle the plaintiff to recover, the jury being specifically advised that all the instructions must be considered as a whole and that they should apply them to the facts and not detach or separate one instruction from any of the others.


author: Mr. Presiding Justice

text:
    Power Equipment Company, Appellant, v. Gale Installation Company, Appellee.
    Gen. No. 23,806.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Assumpsit, Action of, § 6

      —when indebitatus assumpsit not proper form, of action. Indebitatus assumpsit is not the proper form of action where the agreement sought to be enforced is not for the payment of money for machinery but for the liquidation of the debt by the obtaining of notes from a third party for whom defendant is acting.
    2. Pleading, § 248*—when discretion of court in permitting filing of amended plea and affidavit of merits not abused. A trial court does not abuse its discretion in permitting, four months before the time of trial, the filing of an amended plea and affidavit of merits, where the first affidavit is fatally defective.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Action by Power Equipment Company, a corporation, plaintiff, against Gale Installation Company, a corporation, defendant, to recover on the common counts for the expense of substituting new boilers in place of secondhand ones, and other extras, payments for which were to be made by the notes of the Lomax Town Company, for which defendant was acting. From a judgment of nil capiat and for costs, plaintiff appeals.
    Hoyne, O’Connor & Irwin, for appellant.
    Lambert & Mayer, for appellee.

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

   Mr. Presiding Justice

Holdom delivered the opinion of the court.


text:
    Vaclav Vanek, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 23,822.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 104

      —when negligence of driver of automobile colliding with street car not imputed to passenger. The negligence of the driver of an automobile, with which a street car collides, cannot be attributed to a passenger in the automobile.
    2. Street railroads, § 91*—when passenger in automobile colliding with street car fails to exercise due care. A passenger -in an automobile, with which a street car collides, cannot sit inactive when danger is imminent and be regarded as having exercised due care for his own safety.
    3. Street railroads, § 131*—when lack of due care to prevent

      collision of street car and automobile by passenger of automobile shown. Evidence held sufficient to sustain a finding that plaintiff, a passenger in an automobile, with which one of defendant’s street cars collided, did not exercise any care or do anything when the danger was imminent and obvious to him to prevent the accident.

      Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Action by Vaclav Vanek, plaintiff, against Chicago City Railway Company, defendant, to recover for personal injuries due to a collision of one of defendant’s street bars with an automobile in which plaintiff was riding as a passenger. From a judgment of nil capiat and for costs in favor of defendant, plaintiff appeals.
    Earnhardt & Stafford, for appellant.
    Weymouth Kirkland and William H. Symmes, for appellee; J. R. Guilliams and Frank L. Kriete, of counsel.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

4. Stbebt railroads, § 131 —when collision between automdbile and street car shown to be due to recklessness of driver of automobile. Evidence held sufficient to sustain a finding that the collision of defendant’s street car with the automobile in which plaintiff was riding as a passenger was not due to the negligence of defendant and that the collision resulted from the reckless conduct of the driver of the automobile in attempting to cross the street car tracks in front of the approaching street car, which the motorman, by the suddenness of the driver’s action, was unable to stop in time to prevent a collision.

5. Street railroads, § 140?—when instruction on liability of street railroad for negligent injuries to passenger in automobile due to collision is proper. In an action by a passenger in an automobile against a street railroad to recover for personal injuries due to the collision of one of defendant’s street cars with the automobile, an instruction, that even though the jury believed from the evidence that the driver of the automobile in which plaintiff was riding was guilty of negligence, that fact alone would not relieve defendant from liability if the jury believed from a preponderance of the evidence that defendant was negligent and plaintiff was free from negligence, was proper.

6. Instructions, § 151*—when properly refused. An instruction adequately covered by given instructions is properly refused.


text:
    Louis Leguriates, Appellee, v. E. F. McDonald & Company, Appellant.
    Gen. No. 23,855.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, § 31

      —when judgment affirmed for insufficiency of record. Where the statement of facts in a fourth-class case appealed from the Municipal Court of Chicago has been stricken from the record and nothing remains but the statutory record for review, and no error can be considered without reference to the stricken statement, there is nothing to review and the judgment will be affirmed,
    Appeal from the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Action of tort by Louis Leguriates, plaintiff, against E. F. McDonald & Company, a corporation, defendant. From a judgment for plaintiff for $585, defendant appeals.
    Cline C. Brosius, for appellant
    Rudolph Frankenstein, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Cable Lumber Company, Appellee, v. Thomas Mack, Appellant.
    Gen. No. 23,876.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 329

      —when delivery and promise of payment shown. In an action to recover the purchase price of lumber claimed to have been sold to defendant, the evidence of plaintiff’s salesman that he sold the lumber to defendant, presented a bill to defendant and that defendant promised him to pay it, and evidence of promises made to the president of defendant and to a lawyer to pay the bill, were sufficient to show delivery and promise of payment.
    2. Appeal and error, § 1772*—when error not ground for reversal. Where substantial justice has been done by a judgment, it will not be reversed because of slight unprejudicial errors.
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Action by Cable Lumber Company, a corporation, plaintiff, against Thomas Mack, defendant, to recover for a bill for lumber. From a judgment for plaintiff for $92, defendant appeals.
    L. C. Thesen, for appellant.
    Harry L. Solomon and Joseph H. Landes, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Magdalena Junk, Appellee, v. Non-Corrosive Rollable Metals Company, Appellant.
    Gen. No. 23,892.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 75

      —when motion to open judgment by confession is insufficient. A motion to open a judgment by confession to be let in to plead, not upon the merits but to “plead, answer or demur to the declaration,” is insufficient, and will not be entertained.
    Appeal from the Superior Court of Cook county; the Hon. Mabcus A. Kavanagh, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Judgment by confession in favor of Magdalena Junk, plaintiff, against Non-Corrosive Reliable Metals Company, a corporation, defendant, for $2,114.66. Defendant made a motion to open up the judgment and for leave to plead and in support of his motion filed two affidavits. The motion was denied, from which order defendant appealed. Defendant later renewed its motion theretofore made and filed one affidavit in support thereof. The motion was denied and defendant excepted and took and perfected a further appeal.
    John L. Hopkins, John W. Creekmur and Donald J. DeWolee, for appellant.
    Edmonp W. Pottle, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

2. Appeal and ebeoe, § 2*—what is not an appeal. An appeal prayed but not perfected is not an appeal.

3. Judgment, § 422*—when denial of motion to open up judgment by confession creates estoppel. The denial of a motion to open up a judgment by confession from which an appeal is prayed and allowed, but not perfected, works an estoppel when the matter decided is again raised by an appeal taken from an order denying a renewed motion to open up the judgment.

4. Appeal and ebbob, § 267*—when ruling appealable. A ruling upon a motion which is final is appealable.


text:
    Peter Hand Brewing Company, Appellee, v. William Nauseda and Rose Nauseda, Appellants.
    Gen. No. 23,898.
    1. Appeal and ebbob, § 760

      —what not part of statutory record. Affidavits read upon the hearing of a motion to open up a judgment by confession have no place in the statutory record, but belong in the bill of exceptions.
    2. Appeal and ebbob, § 1330*—when assumed that ruling on motion to vacate judgment by confession was correct. Where a bill of exceptions has been stricken, affidavits in support of a motion to vacate a judgment by confession, which were in the abstract, instead of in the bill of exceptions, where they belonged, will not be reviewed, and it will be assumed that the ruling of the trial court on the motion was correct, and not, in the condition of the record, subject to challenge.
    3. Appeal and ebbob, § 1751*—when judgment affirmed for insufficiency of record. A judgment will be affirmed where the record is insufficient for the purpose of review of the question involved.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.
    Dillard B. Baker, for appellants.

      Mayer, Meyer, Austrian & Platt, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from an order denying the motion of defendants to open up a judgment entered by confession and for leave to plead to the merits.

Since defendants filed their briefs on motion of the plaintiff the bill of exceptions has been stricken from the record leaving only the statutory record before us for review.

The abstract, which is the pleading of the defendants, contains the affidavits read upon the hearing of the motion to open the judgment. These have no place in the statutory record, but belong in the bill of exceptions. As the latter document has been stricken we are not privileged to examine or review these affidavits and consequently are not at liberty to decide their probative force, but must assume that the ruling of the trial judge on the motion was correct and not in the condition of the record subject to challenge. Horn v. Neu, 63 Ill. 539; Alward v. Harper, 253 Ill. 294; People v. Board of Review of Cook County, 263 Ill. 326.

In the condition of the record before us the judgment must be affirmed. Schwarts v. Brinks Chicago City Exp. Co., 198 Ill. App. 381.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Grace Carden, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 23,907.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 131

      —when shown that driver of eleatrio automobile'is negligent in crossing street in middle of block. Evidence held sufficient to show that the driver of an electric automobile was negligent in attempting to cross, in the middle of the block, the further of two parallel street car tracks, and at a slow speed, after having waited for a street car on the nearer track, running in the direction the driver was going before the automobile was turned, to pass, and having observed a street car on the further track a short distance away going in the opposite direction.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with findings of fact.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Action by Grace Carden, plaintiff, against Chicago Railways Company, defendant, to recover damages for personal injuries received due to a "collision of an electric automobile, in which plaintiff was riding, with one of defendant’s street cars. From a judgment for plaintiff for $2,500, defendant appeals.
    Joseph D. Ryan and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    John A. Bloomingston, for appellee.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

2. Street railroads, § 91 —what is negligence per se on part of driver of automobile. It is negligence per se for the driver of an automobile to stop on a street car track or to go slowly over the track when an on-coming street car is close at hand.

3. Street railroads, § 95*—what constitutes negligence in crossing tracks with automobile. It is negligence for the driver of an automobile to attempt to cross a street in front of an approaching street car without looking.

4. Street railroads, § 104*—when negligence of driver of automobile not imputed to occupant. The negligence of the driver of an automobile colliding with a street car cannot be imputed to an occupant.

5. Street railroads, § 91*—when occupant of automobile colliding with street .car is guilty of contributory negligence. One who is riding in her parent’s automobile, which her sister is driving, and knows that the automobile, after the passing of a street car going in the same direction on the nearer of two street car tracks, is being turned in the middle of the block, to cross the nearer track and the further track for cars going in the opposite direction, and could have seen an on-coming car on the further track if she had looked, but pays no attention whatever, is guilty of contributory negligence.


text:
    The People of the State of Illinois ex rel. Stanislaw Mermel, Appellee, v. Polish National Alliance of the United States of North America, Appellant.
    Gen. No. 23,916.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed without remanding.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Mandamus by' the People of the State of Illinois ex rel. Stanislaw Mermel, petitioner, against the Polish National Alliance of the United States of North America, respondent, to compel the restoration of petitioner as a - member of respondent order. From an order awarding a peremptory writ of mandamus restoring petitioner as a member of respondent order, respondent appeals.
    Abstract of the Decision.
    1. Insurance, § 805

      —what reviewed in proceedings for reinstatement of expelled member of order. It is not the function of the courts to review the record of the proceedings and trials culminating in expulsion from an insurance order, on mandamus to compel restoration of a member to the order, but the question of jurisdiction of the order of petitioner and the right to expel him if the charges preferred are true will be determined.
    2. Insurance, § 802*—when jurisdiction in proceedings to expel member of order is shown. Jurisdiction over the subject-matter and of the person of a member of an insurance order, in proceedings by the order for the member’s expulsion, is shown where the member had notice of the charges preferred against him and was served with a copy of them, and it further appears that he had notice of the time set for hearing and his trial under the charges made; that he prosecuted two appeals from the order of expulsion and was both times defeated and that the charges made were of the nature and character which the rules and regulations of the society permitted.
    3. Insurance, § 805*—conclusiveness of determination that member of trial board of order is competent to serve. It is for an insurance order, and not, for the courts in mandamus proceedings to compel restoration of a member to the order, to determine whether a member of the trial board of the order was competent to serve.
    Edmund S. Cummings, Leo Mallek and Frederick W. Snider, for appellant.
    Maximilian J. St. George, for appellee.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

4. Insurance, § 805 —when action of trial board in expelling member is not reviewed. The courts will not review the action of the trial board of an insurance order in expelling a member where it had jurisdiction of the subject-matter and of the member.

5. Mandamus, § 6*—what must be shown to warrant issue of writ of. No intendments are to be indulged regarding the right of a party to a writ of mandamus. One who seeks this extraordinary remedy must by averment and proof show unqualifiedly a right to the writ.

6. Insurance, § 807*—what is not ground for compelling reinstatement of member of order. Mere informality in proceedings of an insurance order for the expulsion of a member is insufficient to authorize the awarding of a writ of mandamus to compel restoration of the member to the order.

7. Insurance, § 807*—when mandamus not issued to reinstate member of order. Expulsion of a member of an insurance order will not justify interference by mandamus for reinstatement where it appears from the record that there were just grounds for such action, and that the petitioner had been acting in hostility to the corporation and that he seeks restoration in order to continue such conduct of hostility.

8. Insurance—when order has right to discipline member by expulsion. An insurance order has the right to discipline a member by expulsion, although he has a financial interest as an insured member, of the benefit of which expulsion from the order would deprive him.

9. Insurance, § 805*—when act of order in expulsion of member is conclusive. Where an insurance order acts in disciplining members in conformity to its charter and within the powers of its rules and regulations, and the proceedings are not irregular, action of expulsion is conclusive and cannot be inquired into collaterally ■ by mandamus or any other proceeding, and the society in such case acts judicially and its sentence is conclusive, like that of any other judicial tribunal where there is no provision for review.

10. Insurance, § 807*—what is nature of proceedings in court by member of order to compel reinstatement. When an expelled member of an insurance order resorts /to the courts to compel reinstatement, he does not appeal from the judgment of expulsion, as courts have no appellate jurisdiction in such cases.

11. Insurance, § 805*—what questions are for decision of court in proceedings, to compel reinstatement of expelled member of order. All that the courts, in proceedings by mandamus to compel reinstatement of a member of an insurance order, can be asked to decide is whether the charge against the member is sufficient under the powers of the society and whether the necessary steps for his expulsion were regularly taken after notice and an opportunity to he heard accorded.


text:
    City of Chicago, Appellee, v. Nathan Salmitsky, Appellant.
    Gen. No. 24,323.
    Municipal Court of Chicago, § 39

      —when judgment affirmed and appeal not dismissed in prosecution for violation of city ordinance. A judgment of conviction in the Municipal Court of Chicago for violation of an ordinance will be affirmed and the appeal not dismissed, under Rév. St. ch. 110, sec. 100 (J. & A. If 8637), relating to affirmance of judgments for failure to file copies of judgments, orders or decrees appealed from within the specified time by the Appellate Court, or dismissal of the appeal, when it appears that violators of ordinances have, on conviction, been in the habit of praying an appeal without any intention of perfecting it and bringing the record to the Appellate Court for review, and with the intention, when the appeal is. dismissed, of suing out a writ of error to review the judgment, thus multiplying judicial procedure, and the defendant had perfected his appeal but had failed to bring the record to the Appellate Court in time for review.
    Appeal from the Municipal Court of Chicago; the Hon. J. A. Swanson, Judge, presiding.
    Heard in this court at the March term, 1918.
    Motion allowed and judgment affirmed.
    Opinion filed March 25, 1918.
    No appearance for appellant.
    Harry B. Miller and Daniel Webster, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Appellant was convicted in the trial court of a violation of section 2012 of the Municipal Code and. sentenced to pay a fine of $100 and also the costs of $6. In default of payment of said fine and costs he was committed to the house of correction, there to remain imprisoned at hard labor until said fine and costs were paid, such imprisonment not, however, to exceed the period of 6 months, from which judgment and sentence appellant prayed for, obtained and perfected an appeal to this court to the March term, 1918, thereof. Appellant however failed to bring the record to this court within the time provided by statute. Appellee has caused the case to be docketed and has filed a short record and now moves that, in accord with section 100, ch. 110, Rev. St. (J. & A. ¶ 8637), the judgment of the Municipal Court be affirmed. Section 100, supra, provides that this court may, in the condition of the record in this case, on motion, either affirm the judgment or dismiss the appeal. It has been the practice heretofore to dismiss such appeals and not to affirm the judgment.

It has, however, been made to appear to the court that violators of such ordinances have, on conviction,. been in the habit of praying an appeal without any intention of perfecting the same and bringing the record to this court for review, and with the intention, when the appeal is dismissed, of suing out a writ of error to review the judgment, which course of conduct results in a miscarriage of justice in multiplying judicial procedure and in placing unusual and unnecessary burdens upon the prosecuting department of the city.

We will assume that to avoid such consequences the statute was enacted giving this court dual powers —either to dismiss or to affirm, as their judgment may dictate to be most- consonant with justice.

The motion of appellee to affirm the judgment of the Municipal Court is allowed and that judgment' is affirmed.

Motion allowed and judgment affirmed.


text:
    City of Chicago, Appellee, v. Wong Wah, Appellant.
    Gen. No. 24,330.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John H. Newcomer, Judge, presiding.
    Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Wong Wah, defendant, for violation of a city ordinance. Defendant, appellant, failed to file the record at the proper term of court. Appellee docketed the cause, filed a short record and moved to affirm the judgment of the Municipal Court.
    The judgment was affirmed for the reasons given in City of Chicago v. Salmitsky, ante, p. 159.
    No appearance for appellant.
    Harry B. Miller and Daniel Webster, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    City of Chicago, Appellee, v. Abe Krisolofsky, Appellant.
    Gen. No. 24,321.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Frank B. Graham, Judge, presiding.
    Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Abe Krisolofsky, defendant, for violation of a city ordinance. Defendant, appellant, failed to file the record at the proper term. Appellee docketed the canse, filed a short record and moved to affirm the judgment of the trial court.
    Judgment affirmed for reasons given in City of Chicago v. Salmitsky, ante, p. 159.
    No appearance for appellant.
    Harry B. Miller and Daniel Webster, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    City of Chicago, Appellee, v. Isadore Cohen, Appellant.
    Gen. No. 24,332.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. J. A. Swanson, Judge, presiding.
    Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Isadore Cohen, defendant, for violation of an ordinance. Defendant, upon conviction, failed to file the record for appeal purposes at the'proper term. Appellee docketed the cause, filed a short record and moved to affirm the judgment of the Municipal Court.
    Judgment affirmed under decision in City of Chicago v. Salmitsky, ante, p. 159.
    No appearance for appellant.
    Harry B. Miller and Daniel Webster, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    City of Chicago, Appellee, v. Joseph Shore, Appellant.
    Gen. No. 24,324.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. J. A. Swanson, Judge, presiding.
    Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Joseph Shore, defendant, for violation of an ordinance. Defendant, appealing from a judgment of conviction, failed to file the record at the proper term. Appellee docketed the cause, filed a short record and moved to affirm the judgment of the Municipal Court.
    The judgment was affirmed under the decision in City of Chicago v. Salmitsky, ante, p. 159.
    No appearance for appellant.
    Harry B. Miller and Daniel Webster, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


author: Mr. Presiding Justice Holdom:

text:
    City of Chicago, Appellee, v. Robert Pearl, Appellant.
    Gen. No. 24,325.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. J. A. Swanson, Judge, presiding.
    Heard in this court,at the March term, 1918.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Robert Pearl, defendant, for violation of an ordinance. Defendant was convicted, and, appealing, failed to file the record at the proper term. Appellee docketed the cause, filed a short record and moved to affirm the judgment of the Municipal Court.
    Judgment affirmed for reasons given in City of Chicago v. Salmitsky, ante, p. 159.
    No appearance for appellant.
    Harry B. Miller and Daniel Webster, for appellee.
   Mr. Presiding Justice Holdom:

delivered the opinion of the court.


text:
    City of Chicago, Appellee, v. Hugh Early, Appellant.
    Gen. No. 24,332.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Joseph Ha But, Judge, presiding.
    Heard in this court at the March term, 1918.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Prosecution by the City of Chicago, plaintiff, against Hugh Early, defendant, for violation of an ordinance. Defendant appealed, but failed to file the record at the proper term. Appellee docketed the cause, filed a short record and moved to affirm the judgment of the Municipal Court.
    This case is governed by the decision in City of Chicago v. Salmitsky, ante, p. 159.
    No appearance for appellant.
    Harry B. Miller and Daniel Webster, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


author: Mr. Justice Dever

text:
    W. L. Carwile, Appellee, v. Ira M. Cobe, Appellant.
    Gen. No. 23,766.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Contracts, § 177

      —presumption that written contract expresses intentions of parties. There is a strong presumption that when parties reduce their agreement to writing it expresses their intentions.
    2. Contracts, § 177*—what proof necessary to overcome presumption that written agreement shows intentions of parties. To overcome the presumption that a written agreement contains the parties’ intentions, the proof must be clear and convincing.
    3. Reformation of instruments, § 12*—when reformation of contract on ground of mistahe proper. A reformation of a contract for a mistake can only be had on the ground that the mistake was mutual, and the proof must he such as to leave no fair and reasonable doubt upon the mind that the instrument does not embody the final intention of the parties, but was executed under a common mistake and expresses what neither of the parties in-’ tended.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed March 25, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Bill by W. L. Carwile, complainant, against Ira M. Cobe, defendant, for reformation of a contract. From a decree in favor of complainant for $10,000, defendant appeals.'
    Moses, Rosenthal & Kennedy, for appellant.
    John B. Dandridge, for appellee; Charles M. Haet, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.


author: Mr. Justice Deyer

text:
    Martha Neville, Appellee, v. Chicago & Alton Railroad Company, Appellant.
    Gen. No. 23,830.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Instructions, § 7

      —when accuracy essential. In an action for damages for an assault, where the evidence is conflicting, the jury should be carefully and accurately instructed as to the law applicable to the facts of the case.
    2. Master and servant, § 870*—when instruction on liability of railroad, for assault by watchman is misleading. In an action •against a railroad company and one of its servants, a watchman, for damages for an assault by the servant, an instruction that if the jury believed from the evidence that “the defendants assaulted and beat the plaintiff,” etc., the jury might fix the damages, etc., was misleading, when it was neither alleged nor shown that defendant company had participated in the assault by the servant.

      Appeal from the Superior Court of Cook county; the Hon. John J. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed March 25, 1918.
    Statement of the Case. "
    Action by Martha Neville, plaintiff, against Chicago & Alton Railroad Company and James Conway, defendants, for damages for an assault by defendant Conway, a watchman of defendant railroad company. A judgment for $1,000 was rendered against both defendants. The cause was dismissed as to defendant Conway, and defendant railroad company appealed from the judgment against it.
    Winston, Payne, Strawn & Shaw, for appellant; Silas H. Strawn, J. Sidney Condit and Leslie M. O’Connor, of counsel.
    C. 3". Waring and John S. Reynolds, for appellee.

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

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

   Mr. Justice Deyer

delivered the opinion of the court.

3. Assault and battery, § 22*—when instruction on amount of damages for assault erroneous. An instruction, in an action for damages for an assault, authorizing the jury to assess plaintiff’s damages, if any, “at such sum as they believe from the evidence she is reasonably entitled to,” was erroneous, as the right of recovery should have been limited to the damages charged in the declaration.

4. Instructions, § 88*—when instruction on determination of preponderance of evidence erroneous. An instruction for the plaintiff advising the jury that the preponderance of evidence in a case “is not alone determined by the number of witnesses testifying to a particular fact, or state of facts,” and then enumerating the matters proper to he considered by the jury, omitting the number of witnesses testifying for and against, is erroneous.

5. Master and servant, § 867*—when ratification of wrongful conduct of servant in committing assault not shown. Evidence held insufficient to show that defendant railroad company ratified and acquiesced in the alleged wrongful conduct of its servant in committing an assault upon a person on its property.

6. Master and servant, § 867*—what insufficient to show acquiescence in wrongful act of servant committing assault. The fact that an employee of a railroad company who commits an assault upon a person on the railroad property continues in the employ of the railroad company is not sufficient to show knowledge of or acquiescence in the wrongful acts of the servant.

7. Master and servant, § 849*—what is effect of retention of employee on liability of master for assault by him. A railroad company is not liable for the acts of a servant committing an assault upon a person on the railroad property where it in no way participates in the acts, although it retains the employee after the assault.

8. Master and servant, § 836*—when doctrine of respondeat superior does not apply. The doctrine of respondeat superior does not apply where liability depends solely upon the contract of employment, so as to inflict exemplary damages upon the master for injuries resulting from conduct of a servant which he neither authorized, ratified nor participated in.

9. Master and servant, § 847 —when act of servant not act of master. The act of a servant is not the act of the master unless the aej complained of is directed or adopted by the master.


text:
    S. S. Berry, Appellant, v. W. H. Hewitt, Appellee.
    Gen. No. 23,850.
    (Not to be reported in full.)
    Abstract of the Decision.
    1, Brokers, § 36

      —when commission not earned. Under a written contract for broker’s commissions providing that it is understood that in consideration of the procurance of a purchaser and the deal going through, a specified commission will be paid the broker, a commission is not earned if the deal does not go through.
    2. Brokers—oral modification of written agreement for commissions. A written agreement for the payment of real estate broker’s commissions cannot be modified by the oral contemporaneous statements of the parties.
    Appeal from the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    'Action by S. S. Berry, plaintiff, against W. H. Hewitt, defendant, on a written contract for real estate broker’s commissions. From a judgment for defendant, plaintiff appeals.
    Edward Drobnis and Leo J. Kramer, for appellant.
    Henry N. Miller, for appellee; John S. Burchmore, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Ellen Barrett, Administratrix, Appellee, v. Annie Marschak, Administratrix, Appellant.
    Gen. No. 23,861.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 1734

      —what questions res judicata on second appeal. When a cause is litigated and that litigation prosecuted to a court of appeals and passed upon, all questions that were open to consideration and could have been presented, relating to the same subject-matters, are res judicata, whether presented or not.
    2. Appeal and erbob, § 7*—nature of writ of error. A writ of error is the beginning of a new suit.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Action by Ellen Barrett, administratrix of the estate of Thomas E. Barrett, plaintiff, against Annie Marschak, administratrix of the estate of Joseph Marschak, defendant, to recover on a replevin bond. From a judgment for plaintiff for $1,000, defendant appeals.
    See also, Perfect Knitting Mills v. Obstfeld, 154 Ill. App. 637; Strassheim v. Perfect Knitting Mills, 171 Ill. App. 601; Barrett v. Marschak, 192 Ill. App. 481, 204 Ill. App. 179.
    Kerr & Kerr, for appellant.
    Jacob Levy and Josiah Burnham, for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Pleading, § 295 —what may not "be set up in plea puis darrein continuance after reversal and remandment of case on writ of error. The mere fact that a writ of error is a new suit does not warrant the setting up in a plea puis darrein continuance on reversal and remandment of the ease the defense that plaintiff was not the administratrix of the estate for which she was suing, where such defense was available for a number of years before in prior suits.

4. Appeal and error, § 1802*—what is effect of reversal and remandment on writ of error and proceedings. Where the judgment of the trial court on writ of error is reversed and remanded, the proceedings and suit stand precisely as if no writ of error had been issued.

5. Pleading, § 201*—what is mere conclusion of pleader in plea puis darrein continuance. The recital in a plea of puis darrein continuance that the plaintiff was not the administratrix of the estate for which she was suing- is a mere conclusion of the pleader and is not a well-presented fact that is admitted by demurrer.

6. Pleading, § 454*—when defense in plea of abatement waived. The defense set up in a plea of abatement that plaintiff is not the administratrix of the estate for which she is suing is waived by a plea to the merits.


text:
    Helen J. Thorne, Appellee, v. Alcazar Amusement Company, Appellant.
    Gen. No. 23,882.
    (Not to be reported in full.)
    Abstract of the Decision.
    L Civil bights, § 2

      —what is nature of proceeding under statute to recover penalty for exclusion from amusement place. A proceeding, under sections 42 I, 42 J of the Criminal Code (J. & A. Ifli 3531, 3532), to recover the statutory penalty for refusing a colored person the right to occupy a seat in a place of amusement, for which the price of admission has been paid, though civil in form, is to recover a penalty for a criminal ofíense.
    2. Municipal Coubt of Chicago, § 9*—what is extent of jurisdiction as to imposition of penalties for criminal acts. The Municipal Court of Chicago is a court of limited jurisdiction, and it has no jurisdiction to impose penalties for criminal acts committed beyond the limits of the city.

      Appeal from the Municipal Court of Chicago; the Hon. John K. Prindiviule, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Action by Helen J. Thorne, a colored woman, plaintiff, against Alcazar Amusement Company, a corporation, defendant, to enforce the penalty provided by sections 42 I, 42 J of the Criminal Code (J. & A. ¡[If 3531, 3532), for wrongfully refusing to permit her to occupy a seat in a theater operated by defendant, for which she had purchased and received a ticket. From a judgment for plaintiff, defendant appeals.
    Frank P. Leemngwele, for appellant.
    No appearance for appellee.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

3. Municipal Court of Chicago, § 9 —how jurisdiction to try criminal cases must appear. The jurisdiction of the Municipal Court of Chicago to try criminal cases must appear in the information or the pleadings upon which they are tried.


text:
    Dimitrios J. Tompary et al., trading as Tompary Brothers, Appellees, v. Peter Giovan and Constantine Giovan, Appellants.
    Gen. No. 23,913.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 25, 1918.
    Statement of the Case.
    Action by Dimitrios J. Tompary, George Tompary and Peter Tompary, trading as' Tompary Brothers, plaintiffs, against Peter Giovan and Constantine' Giovan, defendants, to recover a balance due on a building contract. From a judgment for $2,318.18 in favor of plaintiffs, defendants appeal.
    Stedman & Soelke, for appellants; Swan M. Johnson, of counsel.
    Litzinger, Healt & Reid, for appellees; Daniel M. Healy, of counsel.

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

   Mr. Justice Dever

delivered the opinion ■ of the court.

Abstract of the Decision.

1. Appeal and error, § 1522*—when improper return of verdict with interest computed harmless error. Where a jury returned a verdict in an action <?n a building contract and erroneously added the words “with interest,” and were ordered to retire and bring in another verdict for the whole amount which they might find was due plaintiffs, and to exclude the words “with interest” from the verdict, and the jury brought in a verdict which included the original sum and the computed interest, but plaintiffs remitted the interest, there was no reversible error.

2. Building and construction contracts, § 104*—what are questions for jury in action on contract requiring repair of alley paving. In an action by a contractor on a building contract, under which plaintiffs were to restore any places in an alley pavement which were disturbed or broken in the construction of the alley, held that whether the work in repairing the alley paving was well done and whether the charge for the additional paving was reasonable were questions for the jury.

3. Building and construction contracts, § 104*—what are questions for jury in action on building contract. In an action on a building construction contract, held, on conflicting evidence, that the questions of reasonableness of charges for pumping of water out of the basement of the building and for retarding the work were for the jury.

4. Building and construction contracts, § 104*—when allowance of charge for construction of temporary roof is question for jury. In an action on a. building contract, held, on conflicting evidence, that the allowance of a charge for the construction of a temporary roof was a question for the jury.

5. Building and construction contracts, § 104*—when compliance with construction contract question for jury. In an action on a building contract, held, on conflicting evidence, that it was a question for the jury whether plaintiffs had complied with the contract.

6. Building and construction contracts, § 103 —when shown that owners permitted work on building without objection. In an action on a building construction contract, evidence held sufficient to show that defendant owners permitted work to proceed on the building without objection as to its kind' or quality.


author: Mr. Presiding Justice Taylor

text:
    Bland B. Button, Appellee, v. Chicago, Indianapolis & Louisville Railroad Company, Appellant.
    Gen. No. 23,406.
    Carriers, § 172

      —when owner estopped to dispute authority of expressman employed by agent to obtain contract limiting liability of carrier. Where the owner of goods authorizes a person in another State to ship the property to him, and the agent employs an expressman to go to his residence and “get these trunks and boxes, take them to the station and ship them,” which the express-man does and obtains a bill of lading, in which the value, for the purpose of obtaining a lower rate, is limited to $10 per 100 pounds, and pays the freight with money furnished by the agent, the owner is estopped to dispute the lack of authority of the expressman to obtain a contract limiting the liability of the carrier.
    Appeal from the Municipal Court of Chicago; the Hon. Prank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed April 3, 1918.
    Winston, Payne, Strawn & Shaw, for appellant; Frank H. Towner, of counsel.
    W. W. Hoover and John Milmine, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

Appellee brought suit to recover $155, as damages arising out of a shipment of two trunks, two boxes of household goods and one rocker from Louisville, Kentucky, on September 8, 1916, via the line of appellant, to the appellee at Chicago. The cause was tried without a jury and judgment in the sum of $140 and costs was entered in favor of the appellee.

In the view we take of this cause the question whether the declaration of value as set forth in the bill of lading was binding upon the shipper (the appellee) is decisive. The shipment being from Louisville, Kentucky, to Chicago, Illinois, was an interstate shipment. On June 29,1906, the Carmack Amendment to the Interstate Commerce Act of February 4, 1887, became effective.. On June 2, 1915, the Cummins "Amendment thereto became effective and on August 9, 1916, the Carmack Amendment as amended by the Cummins Amendment was amended and—in so far as limitations of value were concerned—provided “that the provisions hereof respecting liability for full actual loss, damage or injury, notwithstanding any limitation of liability * * * or release as to value, and declaring any such limitation to be unlawful and void, shall not apply * * * to property * * * received for transportation, concerning which the carrier * * * shall hereafter be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper, or agreed upon in writing, as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released,” etc.

The appellee went to Chicago from Louisville, Kentucky, July 15, 1916. Subsequently he authorized one Holmes, who lived in Louisville, to ship the property in question, the two trunks, two boxes of household goods and one rocker, which he, appellee, had left there already packed, to him at Chicago. Holmes employed an expressman, Whitney, to go to his residence, “get these trunks and boxes, take them to the station and ship them.” He gave Whitney the money to prepay the charges of shipment. The evidence of Whit ney, the expressman, is to the effect that on September 8, 1916, Holmes told him he had some stuff that he wanted crated up and shipped; that he told him to deliver it to the depot, pay the freight and send it to Chicago to the address that he gave him; that Holmes gave him a $5 bill and he, Whitney, took the property to the freight house, paid the freight, signed up, got a bill of lading, and then went back and gave the bill of lading and the change to Holmes. Holmes sent the bill of lading to appellee at Chicago and the latter then-subsequently received the property, although, as claimed-by him, it was in a damaged condition.

The bill of lading covering the shipment shows John T. Holmes as shipper, Bland B. Button as consignee, and is signed by H. L. Whitney. On its face is stamped, “The value of this shipment does not exceed $10 per 100 pounds and is stated for the purpose of enabling the carrier to apply the proper published rate.” That statement was signed by Whitney. According to the official classification, if the shipment had been valued at more than $10 per 100 pounds, the rate would have been very much higher than was actually charged.

It is claimed by appellee that the limitation in the bill of lading to $10 per 100 pounds was not binding upon him, because the bill of lading was executed by Whitney and not pursuant to any authority given by appellee. The latter cites the case of New v. Chicago, R. I. & P. Ry. Co., 171 Ill. App. 488. In that case, however, the teamster who signed the bill of lading was only employed to “move the household goods from South Ottawa to the Bock Island depot”; and the court said that it was clear the railroad knew that the plaintiff (the owner) was the consignor. In the instant case, Holmes, who employed Whitney to take the property to the railroad company and ship it to Chicago, and who gave him the money to pay the freight, was acting as an agent for appellee. It cannot be said, reasonably, that there was any obligation on the appellant to make an investigation and undertake to discover whether Whitney or Holmes were authorized to ship goods. Whitney simply carried ont the instructions of Holmes and Holmes undertook to do what appellee had requested, and it would seem that the latter is now estopped from disputing that part of the contract which provided for a reduced rate of transportation and the limitation of liability on the part of the carrier. Kansas City Southern R. Co. v. Carl, 227 U. S. 639; Adams Exp. Co. v. Croninger, 226 U. S. 491; Wells, Fargo & Co. v. Neiman-Marcus Co., 227 U. S. 469; Boston & M. R. R. v. Hooker, 233 U. S. 97; Western Transit Co. v. A. C. Leslie & Co., 242 U. S. 448.

Inasmuch, therefore, as the weight of the property was 500 pounds, and the maximum liability of appellant $10 per hundred, the judgment must be reversed and a judgment in the sum of $40 instead of $140 will be entered here against the appellant.

jReversed and judgment here.


text:
    Thomas Skruzewski, Appellee, v. Andrew Rybarezyk, Appellant.
    Gen. No. 23,446.
    (Not to be reported in full.)
    Abstract of the Decision.
    L Appeal and erbob, § 1414

      —trial judge as better judge of credibility of witnesses. The trial judge who sees the witnesses and hears their testimony Is a better judge in all matters of testimonial credibility than the Appellate Court.
    2. Evidence, § 476*—■how preponderance determined. The preponderance of evidence is not necessarily to be determined by the number of witnesses.
    3. Trial, § 285*—when denial of argument not error. In a trial before the court without a jury, involving a simple matter of fact, the denial of argument does not constitute a breach of discretion.
    Appeal from the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 3, 1918.
    Rehearing denied April 27, 1918.-
    Statement of the Case.
    Action in assumpsit by Thomas Skruzewsld, plaintiff, against Andrew Rybarezyk, defendant, to recover for labor as a farm hand. From a judgment for plaintiff for $183, defendant appeals.
    William Sherman Stahl, for appellant.
    Mbdard A. Kunz, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court


text:
    Jeremiah J. Laughlin, Appellee, v. Carroll A. Teller, Appellant.
    Gen. No. 23,472.
    (Not to be reported in full.)
    Abstract of the Decision.
    Bills and notes, § 22

      —when owner of store is estopped to deny authority of manager to sign Chech. An owner of a pharmacy, who employs a manager and authorizes him to keep an account in a certain bank on which checks can be drawn, signed in the name of the pharmacy “per” the name of the manager, is estopped to deny the authority of such manager to sign such a check to pay a debt for borrowed money, which money the latter used to pay a personal debt, where the creditor Is ignorant that the check was fraudulently issued or that the money was for the manager’s personal use.
    Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 3, 1918.
    Statement of the Case.
    Action by Jeremiah J. Laughlin, plaintiff, against Carroll A. Teller, defendant, to recover the balance due on a check for $210. From a judgment for plaintiff for $110, defendant appeals.
    Teller, Hart & Pennish, for appellant.
    D. F. Laughlin, for appellee; George J. Crane, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    Harry Rohrbach, Appellee, v. Peter Cavallini, Appellant.
    Gen. No. 23,506.
    1. Building restrictions and regulations, § 1

      —when violation of will be enjoined. A court of chancery will, at the suit of an abutting property owner, enjoin the violation of an ordinance against the erection of a building not complying with the building regulations, where the erection of such a building would amount to a nuisance per se and would result in irreparable damage to complainant and increase the fire risk.
    2. Nuisance, § 10*—when wooden building is. A wooden building is not in itself a nuisance, but when erected in a place prohibited by law and where it endangers the safety of adjoining property, it may become a nuisance.
    3. Building restrictions and regulations, § 1*—when ordinance unreasonable. An ordinance which prohibits the erection of any buildings within certain fire limits “unless the outside and party walls thereof shall be composed of brick, stone, iron or other incombustible, material * * * without the permission of the city council first obtained,” gives the city council, in its discretion, power to issue a permit, and is unreasonable.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed April 3, 1918.
    George F. Borman, for appellant.
    McGilvray, Fames & Vaughan, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

The appeal in this cause is taken from a decree entered on May 25, 1917, enjoining the defendant (appellant) from erecting, upon his premises, being a narrow strip of ground 7 feet in width, a building, pursuant to a permit and certain plans, or any building in contravention of the ordinances of the City of Blue Island.

The evidence shows that the complainant (appellee) is the owner- of 50 feet just south of the 7-foot lot or space upon which latter the defendant (appellant) desired to erect a one-story building. The property of the complainant (appellee) is improved with a two-story store building facing "Western avenue, the front of which building is of stone and the side and rear walls of brick, the north wall being 16 inches thick up to the second floor and 12 inches thick above. The value of the building is about $27,000 and the stock and fixtures therein, owned by the complainant, about $40,000. On the building the complainant carries $15,000 insurance and on the stock, from $24,000 to $26,000.

The defendant is lessee of a two-story frame building located 7 feet north of complainant’s building, leaving an unimproved space, 7 feet wide, in between the two buildings. The defendant occupies the top floor of his building as a residence and the first floor as a fruit store and ice cream parlor. Being desirous of improving the intermediate vacant space of 7 feet, the defendant, on October 11, 1915, applied to the City Council of the City of Blue Island for a permit to construct a one-story building covering said space of 7 feet. He filed with said application a plan of the" proposed building, which plan showed the front or west wall to be of brick 12 inches thick, faced with white enamel; the rear or east wall to be of common brick 12 inches thick; the south wall to be solely of sheet iron; the north wall to be of sheet metal attached to Furring strips nailed or fastened to the building which he already occupied; the building to be approximately 14 feet in height; the roof to be a flat gravel roof; the floor of maple, and the interior walls and ceiling to be of sheet metal. The building was to be used by the defendant, in connection with his other building,, as a lunch room. The north wall of complainant’s building is 1% inches south of the north line of his lot. On October 11, 1915, the City Council of the City of Blue Island ordered a permit granted to the defendant to erect a building in accordance with the plans submitted by him, with his application, and, on October 12,1915, a permit was duly issued.

According to an ordinance (No. 508) of the City of Blue Island, the lot upon which the proposed building was to be constructed was within the fire limits. Section 6 of the ordinance provided that “all buildings * * * shall have outside walls of not less than one foot in thickness,” etc. Section 4 of the ordinance provided that “no structure or building of any kind or description * * * shall be erected or constructed or placed on * * * without the permission of the City Council first obtained, unless the outside and party walls thereof shall be composed of brick,” etc. Section 29 of the ordinance provided that “before the erection or construction of any building * * * the owner * * * 'shall submit to the city clerk of said city and file with him a statement, in writing, showing” the location, general dimensions, purpose, material, etc. Section 6 provided that “all buildings designated in the first four sections of this ordinance shall have outside walls of not less than one foot in thickness.”

The evidence of the witnesses Bohrbach, Grobet and Eubank is to the effect that the erection of the building as contemplated by the defendant would decrease the market value and decrease the rental value of complainant’s property, and, at the same time, increase the insurance hazard and, therefore, the insurance rate.

The chancellor entered a decree that the defendant “be forever restrained from erecting, upon the premises described (the 7-foot space), any building in accordance with the permit and plans attached, or any building in contravention of said ordinances.”

It is the contention of the defendant, first, that the bill of complaint fails to state, and the proofs taken by the master fail to show, such a case as will warrant a court of chancery in granting relief by the extraordinary remedy of injunction at the instance of an adjoining property owner; second, that section 4 of ordinance 508 is not unreasonable or void.

We are of the opinion that the allegations in the bill of complaint on the subject of injury to the private property of the complainant are sufficient, and, further, that the evidence shows that the proposed building, if erected, would cause his property, as distinguished from other property within the confines of the City of Blue Island, special irreparable damage. The law is that a court of chancery will not, at the suit of a municipality, enjoin the violation of an ordinance, nor interfere at the suit of an individual; likewise, as to the enforcement of an ordinance. But, where the matter threatened would amount to a nuisance per se, and would result in special damage to the one seeking the injunction, it is otherwise. Griswold v. Brega, 160 Ill. 490; Cicero Lumber Co. v. Town of Cicero, 176 Ill. 9. In the case of Patterson v. Johnson, 214 Ill. 481, the court, quoting from Baumgartner v. Hasty, 100 Ind. 575, sanctioned the following language : “A wooden building is not in itself a nuisance, but when erected in a place prohibited by law and where it endangers the safety of adjoining property it may become a nuisance. * * * There are many things that are not nuisances per se, but which become such when placed in locations forbidden by law and where they essentially interfere with the enjoyment of life or property.” In Wood’s Law of Nuisance, sec. 109, that author states, in regard to the erection of a buEding dangerous by reason of the materials used or the manner of its construction: “Such a buEding on a public street is a public nuisance, and is a private nuisance to those owning property adjoining it.” Patterson v. Johnson, 214 Ill. 481; 114 Ill. App. 329.

The permit which the defendant obtáined from the City Council of Blue Island was evidently issued pursuant to section 4 of ordinance 508, which section prohibits the erection of any buildings within certain limits known as the fire limits “unless the outside and party walls thereof shall be composed of brick, stone, iron or other incombustible material * * * without the permission of the City Council first obtained. ’ ’ By virtue of the legislative grant of power (chapter 24, Hurd’s Rev. St. J. & A. ¶ 1334) the City Council of Blue Island was authorized to prescribe certain limitations in regard to the construction and erection of buildings, but that power they may exercise only by means of ordinances which operate uniformly. They must be entirely impartial and their enforcement not subject to caprice. Inasmuch as section 4 of ordinance 508 gives the City Council, in its discretion, power to issue a permit, it is unreasonable. It is a violation of section 2 of article II of the Constitution of Illinois. Sheldon v. Hoyne, 261 Ill. 222. In the latter case the court said: “The method and manner of enforcing a law must necessarily be left to the reasonable discretion of administrative officers, but any law that vests in the discretion of such officers, unregulated by any rules or conditions, whether such law shall be enforced at all with reference to individuals in the same class, is purely arbitrary, and such laws have always been held invalid.” Tugman v. City of Chicago, 78 Ill. 405; Rich v. City of Naperville, 42 Ill. App. 222; Meyer v. City of Decatur, 125 Ill. App. 556; Cicero Lumber Co. v. Town of Cicero, supra; People v. Yickroy, 266 Ill. 384; Eureka City v. Wilson, 15 Utah 67.

We are of the opinion that section 4 of the ordinance was void, and, likewise, the permit issued thereunder. It follows, therefore, that as the court had jurisdiction and the proofs showed prospective irreparable injury and, under the law, that the permit was void, the permanent injunction issued by the chancellor was justified and proper. ,

Affirmed.


author: Mb. Presiding Justice Taylor

text:
    Anton J. Cermak, Bailiff, for use of Mabel Bowman, Plaintiff in Error, v. Chicago Bonding & Surety Company and John B. Matheson, Defendants in Error.
    Gen. No. 23,528.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed April 3, 1918.
    Statement of the Case.
    Action by Anton J. Cermak, bailiff of the Municipal Court of Chicago, for the use of Mabel Bowman, plaintiff, against Chicago Bonding & Surety Company and John B. Matheson, defendants, on a replevin bond. From a judgment ordering the return of possession of the replevined property to said Bowman and awarding defendants one cent damages, plaintiff brings error.
    Albert J. W. Appell, for plaintiff in error.
    Sabath, Stafford & Sabath, for defendants in error.

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

   Mb. Presiding Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Replevin, § 206*—when return of household goods of tenant not shown. In an action on a replevin bond, given to secure the return of household furniture seized under a writ of replevin by defendant landlord while in a flat rented by plaintiff of defendant, evidence held insufficient to show a return of the property.

2. Replevin, § 171 —what does not constitute return of household goods of tenant. One who seizes household goods of his tenant under a writ of replevin, and, after an order for return of the goods to the tenant, tells her she can have them and that they are in the flat, and keeps the goods there until the expiration of the lease, when he takes them out and stores them, during all this time keeping the premises locked and paying the rent, does not make a return of the' goods.