text:
    The People of the State of Illinois, Defendant in Error, Ed. Kirk, Plaintiff in Error.
    Gen. No. 16,424.

      Dram-shops—statute pertaining to fixing status as antv-saloon territory construed. If a town has voted that its territory shall be anti-saloon a village located therein is bound thereby, and re-submission cannot take place until the expiration of 18 months, and then only to the voters of the town.

      Error to the Criminal Court of Cook County; the Hon. Bichard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Mayer, Meyer, Austrian & Platt, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

The plaintiff in error, Ed. Kirk, hereinafter called the defendant, was indicted in the Criminal Court of Cook county for selling liquor in the village of Summit, which is in the township of Lyons, Cook county, and alleged to.be a part of what is known as anti-saloon territory. The law governing the case went into effect July 1, 1907, and is incorporated in Chapter 43 of the Revised Statutes. The case was tried in the Criminal Court upon a stipulation of fact, and the defendant found guilty as charged in the indictment and fined $25.00 and costs. This writ of error is prosecuted to reverse the judgment.

The stipulation of fact is as follows:

“ * * * that on the 31st day of October, A. D. 1908, said defendant was the proprietor and keeper of and operating a dram-shop within the limits of a certain political subdivision in a certain township (town) in Cook County, Illinois, to-wit: the township (town) of Lyons.
That on, to-wit: April 7th, A. D. 1908, the township (town) of Lyons held an election, and at said election there was submitted to the voters of said township (town) of Lyons, the question of Shall this town become anti-saloon territory, ’ and that at said election the majority of voters in said town voted ‘yes’ upon said proposition.
That said election was duly and properly held in manner and form as provided by statute, and that said question was duly and legally submitted to said voters as provided by law.
That the village of Summit is a duly incorporated village located within said township (town) of Lyons, and that the boundary limits of said village of Summit are not identical with those of said township (town) of Lyons, and is not an identical political subdivision or district to or with said town of Lyons.
That on February 18, 1908, there was duly filed in the clerk’s office in the village of Summit, a duly and properly verified petition duly signed by the required number of residents and legal voters of said village of Summit, requesting said clerk to cause to be submitted to the voters of the village of Summit in manner provided by law, at the next election, the proposition ‘Shall this village become anti-saloon territory.’
That on March 23, A. D. 1908, a notice was duly given by said village of Summit, and by the duly authorized officers of said Milage, as provided by law, which said notice was duly posted, published and circulated in manner and form as proMded by law, and that said notice proMded and published that on Tuesday, April 21, A. D. 1908, there would be submitted to the voters in said Milage the question ‘Shall this Milage become anti-saloon territory!’ That pursuant to said notice an election was duly held in manner and form as proMded by law, and the statute in such case made and proMded, in said Milage on April 21, A. D. 1908, said election being one at which said question hereinabove referred to might be duly and legally submitted to the voters of said Milage, if it could at such time be submitted at all, and at said election said question was submitted to said voters, and at said election 105 voters in said Milage voted ‘Ño’ upon said proposition, and 12 voters in said Milage voted ‘Yes’ upon said question.
That all preliminary steps necessary or required by law to submit said question to the voters of said township (town) of Lyons, and to the voters of said Village of Summit, were duly, legally and lawfully had and taken, and the respective elections at which said respective votes were cast in said township (town) and in said village were such elections provided by law fdr the submission of such questions respectively.
That pursuant to the result of said election, the village board of the village of Summit duly passed ordinances with reference to the issuing and granting of licenses to keep dram-shops in said village; that said ordinances were passed pursuant to and in conformity with the provisions of Chapter 24 of the Revised Statutes of Illinois, known and described as the Cities and Villages Act, and in pursuance and conformity with the provisions of Chapter 43 of the Revised Statutes of Illinois, known and described as the Dram-Shop Act. That pursuant to the provisions of said ordinances so passed by said village of Summit, said village did on the 1st day of July, A. D. 1908, issue to said defendant herein, a license to keep a dram-shop in said village of Summit in said County and State aforesaid, which said license did not, by its terms, expire until the 30th day of June, A. D. 1909, and that on said 31st day of October, A. D. 1908, said defendant was operating the said dram-shop hereinbefore referred to, in conformity with and under and in pursuance of said terms of said license as aforesaid.
It is the intention of the parties hereto in entering into this stipulation, to submit to the court for its consideration and adjudication, the question whether or not the township (town) of Lyons having voted to become anti-saloon territory on April 7,1908, the smaller political subdivision or district which is not identical with the township (town) of Lyons, although included within the boundaries of said township (town) could submit the question which it did submit to its voters on said April 21, 1908. ’ ’

By section 1 of the act referred to, anti-saloon territory is defined to mean all territory wdtbin the limits of any town, precinct, city or village in this state in which, through the action of the legal voters therein as provided by this act, the sale of intoxicating liquor, except as otherwise provided, is prohibited.

Sections 8, 9 and 10 of the act are as follows:

“Section 8. All the territory within any political subdivision which has become Anti-Saloon Territory shall continue to be Anti-Saloon Territory throughout its entire extent, notwithstanding any change which may be made in the limits of any such political subdivision, until the legal voters thereof have voted, according to the provisions of this act, to discontinue such Anti-Saloon Territory and the following section shall be construed in harmony herewith. In all Anti-Saloon Territory, during the time that it continues to be Anti-Saloon Territory, the operation of all ordinances providing for the restriction, regulation or prohibition of the sale of intoxicating liquor or for the issuing of dram-shop licenses within any portion or the whole of such territory, so far as inconsistent with its status as Anti-Saloon Territory, shall be suspended.

Section 9. Upon the filing in the office of the clerk, at least sixty days before an election in any political subdivision, of a petition directed to such clerk, containing the signatures of legal voters of an Anti-Saloon Territory or district, in number not less than one-fourth of the total vote cast therein at the last election, to submit to the voters thereof the proposition “Shall this . . . (political subdivision or district) continue to be Anti-Saloon Territory?” (provided such petition corresponds in all other respects with the petition to this act before described) such proposition shall be submitted at such election to the voters of such political subdivision or district, and the provisions of sections one (1), four (4), five (5), six (6), and seven (7) of this act shall apply in all respects, so far as applicable, to the proposition “Shall this . . . (political subdivision or district) continue to be Anti-Saloon Territory?” to the submission of such proposition to such voters, to the petition therefor, to the recording of the vote thereon and to the proof and evidence of the petition and vote, except that in a district such proposition shall be submitted by separate ballot. If a majority of the legal voters voting upon such last mentioned proposition in any such political subdivision or district vote “No,” such political subdivision or district shall cease to lie-Anti-Saloon Territory, and all ordinances providing for the restriction, regulation or prohibition of the sale' of intoxicating liquor or for the issuing of dram-shop licenses, the operation of which was in any wise suspended within such political Subdivision or district by virtue of the vote therein to become Anti-Saloon Territory, and with all additions and amendments which in the meantime may have been made thereto, shall, if not in the meantime repealed, become and be in force within said political subdivision or district to. the same extent, only, however, as the same would then be in force had such political subdivision or district never become Anti-Saloon Territory. The petition mentioned in this section shall be a public document and shall be subject to the inspection of the public. »

10. A vote under the provisions of this act in and for any political subdivision upon the proposition ‘Shall this . . . become Anti-Saloon Territory?’ or in and for any political subdivision or district upon the proposition ‘Shall this , . . (political subdivision or district) continue to be Anti-Saloon Territory?’ shall be a bar to the submission to the voters thereof of either of such propositions as applied to that identical political subdivision or district only, until after the lapse of eighteen months.”

It is contended by the plaintiff in error that because in the village of Summit, at an election held April 21, 1908, there was submitted to the voters the question, “Shall this Village become Anti-Saloon Territory?” and a large majority of the voters at such election voted “No” upon the proposition, that thereupon the village ceased to be “anti-saloon territory,” notwithstanding the action of a majority of the voters of the town on April 7, 1908, in voting “Tes” upon the question “Shall this town become Anti-Saloon Territory?”

It is insisted that the act recognizes in its operation certain separate and distinct political entities, viz: the town, precinct, village, and city; that these throughout the act are treated as political subdivisions which are to determine, each for itself, the continuance or abatement of the liquor traffic; that there is nothing in the law, either expressly or impliedly, to prevent the circulation of a petition for the submission of the question in one of the smaller subdivisions, although at the same time a petition may have been filed for submitting the same question at an ensuing election, in a large subdivision including within its boundaries the smaller subdivision; that the only requisite for such submission is that the petition in either case shall comply with Section 2 of the act; that Section 10 does not prohibit the submission of the anti-saloon territory question within eighteen months to any political subdivision other than the identical one only which has previously voted on the question.

In the case of Cole v. Commonwealth, 39 S. W. Eep. 1029, the Supreme Court of Kentucky had before it a statute which provided that upon petition of a number of voters in each precinct of the territory to be affected equal to 25 per cent, of the votes at the last election in each precinct, and, when for town or city elections, to the number cast at the last city or town election, the judge of the county court should direct an election to be held in said county, city or town, district or precinct, as the case may be, to determine whether spirituous liquors should be sold therein. It appears that on petition by the requisite number of voters of a county, and at the same time on like petition by the requisite number of voters of a city therein, an election was held in each of the precincts of the county, including the city, and in each of the precincts of the city, resulting in a vote against sales in the county, and for sales in the city. The court held that the result of the city election was not controlled by that of the county election.

This case is cited to us by the plaintiff in error as authority for the proposition for which he contends, namely, that any portion of the township may determine for itself whether or not such portion shall be included in the so-called anti-saloon territory. The contention is that although the election of the village was held after that of the town, and although the election was not held under Section 9, supra, the village is set apart from the other portions of the township and is no longer anti-saloon territory. The opinion in the case heretofore referred to as having been decided by the Supreme Court of Kentucky, was delivered in 1897. In 1906, however, the Legislature of Kentucky passed what is known as the Cammack Act.

In May v. Ferguson, 122 S. W. Rep. 208, the Supreme Court of Kentucky held that under the Cammack Act the county is the absolute unit except in counties in which there are situated cities of the first, second,, third or fourth class, and in counties all of the territory outside of the city limits is an absolute unit, and the city is made a separate unit. It was further held that this was a complete reversal of the order of things that had theretofore existed. • In the same case it is also said:

“Hence it has been held that where territory is wet where prohibition has not theretofore been enforced, any subdivision of a county may vote" upon the question of establishing prohibition therein, but no subdivision of a county other than cities of the first, second, third, or fourth class may take a vote upon the question at all when prohibition is already enforced within such territorial limit. In other words, where no prohibitory laws are in force in the county, any magisterial district, voting precinct, or town of any class may vote to establish prohibition within the limits of such magisterial district, voting precinct, or town; but where prohibition has been established in the entire county, a different rule obtains. A unit has been established, and a vote can never again be taken in any subdivision of that county other than in some one of the cities belonging to the excepted class, unless it is taken in the entire county. So that, where a precinct or magisterial district has once been made dry by a vote of the county, it must forever remain dry, unless the bond is lifted by the people of the entire county. Eggen, etc. v. Offutt, etc., 128 Ky. 314, 108 S. W. 333, 32 Ky, La,w Rep. 1350. It is true, in the case to which we have just referred, this identical question was not before the court, but just the converse of the conditions with which we are dealing was under consideration. There the county was wet, and the precinct had taken a vote upon the question as to whether or not prohibition should be enforced within its limits and had voted dry, and the court held that it might do so, but in the same opinion distinctly stated that, if the county in which this precinct was situated had theretofore voted dry, the election would have been invalid, for prohibition having been established in the county, thé unit, the will of the people therein could not be overthrown by the voters of any part of that unit.

In Schwartz v. People, 46 Colo. 239, it was held:

“When once any subdivision becomes anti-saloon territory, the only way to restore it to its original status of license or saloon territory is to secure a favorable vote to that end in the identical territory."

If the election in the Village of Summit had occurred prior to that of the town, a different situation would be presented; but as the entire town voted to become anti-saloon territory prior to the election held in the village, we think, in order to give effect to Section 8 of the statute, it must be held that the decision so reached by the town established a situation which must continue to exist “throughout its entire extent until another election is had in the town, on a petition based upon the provisions of Section 9, Supra. Under Section 10 such an election could not take place until eighteen months after the vote was had creating the town anti-saloon territory.

We agree with the State’s Attorney that under Section 10, when a vote has been taken upon the proposition to become, or the proposition to continue, anti-saloon territory, the result of the vote upon either proposition must stand for eighteen months, and a resubmission may be had only by the identical political subdivision or district.

The proposition submitted tb the voters of the village was not “ Shall this village continue to be anti-saloon territory?” but it was “Shall this village become anti-saloon territory?” By the vote of the town a few weeks prior thereto the village, as well as the rest of the town, had become anti-saloon territory, and its status in this regard could not be changed for eighteen months, and then only by a vote of the entire town.

For the reasons stated, the judgment of conviction of the plaintiff in error is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    Dominick Baliutis, Appellee, v. G. H. Hammond Company, Appellant.
    Gen. No. 16,477.

      Negligence—what essential to application of doctrine res ipsa loquitur. In order that the doctrine res ipsa loquitur may be availed of the plaintiff must aver that the causal act or omission was one that a reasonably prudent person in the defendant's plane would have foreseen might cause the injury.
    Appeal from the Circuit Court of Cook county; the Hon. E. M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed April 19, 1912.
    F. J. Canty and J. C. Clow, for appellant.
    Cyrus J. Wood and Theo. Proulx, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment was rendered in favor of the appellee and against the appellant for $500, on account of personal injuries received by the former June 25, 1904.

The only testimony in the record is that of the plaintiff (appellee) himself. This testimony was given through an interpreter, and it is very hard from it to get a correct idea of the facts in the case.

The defendant company owns and operates a slaughter house at the Stock Yards in Chicago. Part of its business consists of putting up meat in cans for the market. After the meat is placed in them the cans are sealed and put in hot water, thus cooking the meat. This is done in a room called the cooking room, which is fitted up with rows of iron vats containing water heated by coils of steam pipes. The filled cans are put in pans, several of the pans being placed in each vat. Over each row of vats is a track, upon which there is a contrivance resembling a trolley. From this trolley are suspended a block and tackle in the form of an endless chain, on the lower end of which is a hook. Each pan is provided with a bail consisting of a chain, in the middle of which is a ring. The trolley, with a hoisting device attached, is moved along the rail or track above the line of vats. The ring of the bail is placed on the hook of the hoisting device, and after the meat is sufficiently cooked the pans are lifted from the vat.

Plaintiff had been for a year prior to the accident engaged in the work of cooling and piling the cans. He claimed he had never done the work of taking the pans from the vats before the occasion on which he was injured. On that day the foreman showed him how to do the work by taking out one pan from a vat. The foreman then told the plaintiff there were two pans in the next vat and three in the third vat to be taken out. The foreman left and the plaintiff proceeded with the work.

The plaintiff’s description of his manner of doing the work is as follows:

“After the foreman went away I went over to the next two pans and took them out in the same way. I took the hook and then I fished around in the water and then I hooked it on the pulley and I began to pull. I took this away a.nd let the water go Out and then I went to the third tank a.nd then again I fished for the rings and after I hooked it on to the pulley I began to pull and I pulled it up about a foot higher than the tank and all of a sudden it fell into the water and when it fell into the water it splashed my face.
“The foreman pulled out one pan while he was showing me. In the second tank there were two pans that I -pulled out. I pulled out them two alone and when I came to the third tank I pulled out three pans and when I hoisted them about a foot high, it broke off and splashed right into the water.”

At this point in his testimony the question was asked of the plaintiff: “When the three pans were there, then what happened?” Answer: ‘‘ The end of the pan broke off and fell into the water.” There was a motion to strike out this testimony on the ground that there was no allegation in the declaration that any part of the pan broke. There was no ruling on the motion at this time, and the witness then proceeded as follows: “At the corner where it is hooked on, the pan broke off; that is, it didn’t break out but it ripped out. There is a hole there and the chain is connected to that and it broke out and fell in. It broke out in ■the pan. I didn’t see exactly how it happened, but I noticed from the corner it let go 'and fell. The corner broke and the pans fell into the water. ’ ’ The Court: “Ask him what let go of the corner. He said it let go; ask him what let go.” Answer: “I do not know whether it was the pan broke. I didn’t see it.” The court then directed the witness as follows: “Tell what you saw the pan do, and the chain do and the pulley do.” And the witness answered: “Well, while the chains were connected and when 1 was hoisting it, I don’t know whether the pan broke out or not but it fell and splashed on me.” The court then directed that the witness be asked what he saw break, if anything. The witness then replied: “The pan broke.” The Court: “Ask him if he saw it break.” The witness: “When it splashed on me I didn’t see anything.” Thereupon the court sustained a motion to strike out the testimony of the witness that the pan broke, and directed the jury to disregard his answer in respect thereto.

On cross-examination the witness testified as follows:

“After I took those two pans out I went on to the next vat. There were three pans in that vat. Just the three that I was taking out. In taking out the three pans I hooked the chain up on the hook just the same as I had the ones at the other vat. I took the chains out of the water and hooked the ring over the hook there that hung at the top of the vat. Above the vat is a pulley with a hook on it; that hook and pulley with a rope of chain on it is fixed so that you can move it along above the top of each vat. I was using that same hook and pulley and chain that I had used at the first vat and at the second vat. After I had hooked the rings on this hook, ready to pull a pan out, all I had to do was to take hold of this rope here by the pulley and just keep pulling down. It was an endless chain. When I was pulling the three pans out, I had hooked the chains on that were fixed to the bottom pan. I did not do anything with the chains on the two top pans. ’ ’

Plaintiff further testified to the effect that there were four chains attached to each pan, so that when the ring was attached to the so-called trolley a chain ran down to each corner of the pan from the ring; that none of the chains came loose; that he was pulling all of tiie three pans out of the vat at one time; that one side tipped over and fell.

The foregoing is practically all of the evidence in the case relating to the manner in which the accident occurred.

At the conclusion of the plaintiff’s testimony the defendant requested the court to charge the jury to direct a verdict for the defendant, on the ground that no negligence of the defendant had been shown. In the first count of the declaration the charge of negligence is that the defendant permitted the chains to be and remain unsafely attached to the pan, so that the chains became detached and separated from the pan and allowed it to fall. The second count is that the defendant was negligent in permitting one of the chains to become and remain defective and unsafe, so that it broke and allowed the pan to fall into the water.

There is ño evidence in the record that the chain broke, and while the plaintiff testified that the pan broke, the court struck out the testimony in that regard because the plaintiff on further examination testified he did not see that the pan was broken. In other words, there was in the record no testimony tending to sustain either count of the declaration.

It is argued by the appellee,—but as we understand it, not insisted upon,—that the rule of res ipsa loquitur should apply. Can it be said in the present case that the fact that the accident happened necessarily shows that the defendant was guilty of negligence? It is not clear from the record whether the pans should have been lifted one at a time, nor whether or not the accident occurred because of the attempt of the plaintiff to lift all three of the pans at once. Each of the pans had a ring and chains upon it, and the foreman in showing the plaintiff how to do the work at-, tached but one pan to the trolley.

In Diamond Glue Co. v, Wietzychowski, 227 Ill. 338, the court uses the following language:

“It is perhaps true that the doctrine of res ipsa loquitur is not applicable to an action of this kind by a servant against .his master, (4 Thompson on Meg., Sec. 3909.) In such a case the mere happening of the accident raises no presumption that it was caused by negligence of the master. (Spring Valley Coal Co. v. Buzis, 213 Ill., 341.) It may have no tendency to show that the injury was the result of negligence on the part of the master, or it may have resulted from one of the risks which the servant assumed, or have occurred through the negligence of fellow servants. In order to recover, the servant must go farther and aver and prove that the appliance was defective; that the master had notice thereof or knowledge, or ought to have had; that the servant did not know of the defect and had not equal means of knowing with the master; and that the defect was the proximate cause of the injury.”

In the case of C. & E. I. R. R. Co. v. Beilly, 212 Ill. 506, the Supreme Court had before it a case wherein the plaintiff had been injured by a timber projecting over the side of a flat car, the plaintiff being near the track of the defendant and on a highway as the train crossed the highway. The Appellate Court of the First District held (Case No. 10974, opinion filed March 1, 1904) that the maxim res ipsa loquitur applied, and sustained a judgment for the plaintiff. The Supreme Court, however, reversed the judgment and cited with approval Wabash, St. Louis & Pacific Ry. Co. v. Locke, 112 Ind. 404, to the effect that in this class of cases the plaintiff must aver that the causal : act or omission was one that a reasonably prudent person in the defendant’s place would have foreseen might cause the injury.

For the reasons stated, the judgment must be reversed.

Reversed.


text:
    Julia K. Burdick, Plaintiff in Error, v. Steve Peer, Defendant in Error.
    Gen. No. 16,511.

      Replevin—when demand not essential to maintenance. If the original possession of the defendant was wrongful a demand of possession is not essential to the maintenance of an action of replevin.
    Error to the Municipal Court of Chicago; the Hon. Wm. N. Gem-MILL, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed April 19, 1912.
    P. H. Bishop, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

The controversy in this case is as to the ownership and right to possession of a board partition, or the lumber which had been used in making the partition.

It seems that plaintiff in error was the owner of a building, which she had rented to one Cook. Cook had placed a partition in the building, but had been paid for the same by allowance on the rent. Afterwards Cook made a bill of sale of his business to the defendant in error, Steve Peer. When Peer vacated the premises he took the partition or lumber with him. Prior to his doing so he had been told by plaintiff in error that it belonged to her. The defendant in error says that after he had taken the lumber out he had a conversation with, the plaintiff in error, in which he said to her: “You don’t own one inch of that and you know it. If you feel that you want to have me arrested go ahead and have me arrested,” Plaintiff in error then brought replevin proceedings.

At the trial there was a verdict in favor of the defendant in error. The court charged the jury,—to which objection was made by the plaintiff in error,— that in order to maintain her suit plaintiff in error must have shown that she had made a demand for the lumber. It is clear from the testimony of the defendant in error as above set forth, that a demand would have been unavailing,—if indeed the conversation to which he testifies is not in itself proof of a demand and a refusal. No citation of authorities is necessary upon the proposition that a previous demand of possession is unnecessary when the possession by the defendant was wrongfully obtained, or if the circumstances are such as to demonstrate that a demand would have been unavailing.

In our opinion the motion of the plaintiff in error to direct a verdict should have been granted. The judgment will therefore be reversed, and a judgment entered in this court finding the right of possession of the property in question to be in the plaintiff in error.

Reversed.


text:
    Charles H. Seaman, Appellee, v. Frank’s Collateral Loan Bank, Appellant.
    Gen. No. 16,514.

      Pledges—who not authorized to make. Personal property turned over to another, to sell and turn over the proceeds, or else to return the property, cannot by such person be pledged even though the pledgee be an innocent third party without notice.
    Appeal from the County Court of Cook county; the Hon. William C. De Wolf, Judges presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Jetzinger & Seligman, for appellant.

      Harvey Strickler, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

There was a recovery in this case by the appellee of a judgment against the appellant for $325, the alleged value of a diamond ring. The suit was in trover and was tried before the court without a jury. We are asked to reverse the case, principally on the ground that the finding is against the manifest weight of the evidence.

On the part of Seaman, the plaintiff below, the testimony tended to show that one Louise Berg, wife of Louis Berg, obtained the ring in question from Seaman, together with another ring and a brooch for the purpose of showing them to a prospective purchaser. The transaction was entered in a memorandum book kept by the plaintiff, by the man who attended to the business. This man it appears occupied the store with Seaman and occasionally acted for him in such matters. In this memorandum the price at which the three articles should respectively be sold was shown.

From the defendant’s testimony it appears, and it is uncontradicted, that Louise Berg turned the jewelry over to her husband, Louis Berg, and that the latter hypothecated the ring in question with the defendant.

We-'think it quite clear from all the evidence in the case that the understanding when the rings and brooch were turned over to Louise Berg was that she was authorized to sell them at the .price mentioned, and was either to return the goods or turn over the amount for which they were sold. Title to the property, we think, never passed to Louise Berg. It is argued that because she was given the privilege of selling it, that as to third parties the transaction must be treated as a sale. The case of House v. Beak, 141 Ill. 290, is cited with other cases. These cases, however, are not in point because there is no evidence tending to show that Mrs. Berg or her husband was authorized to hypothecate the ring.

We find no error in the record, and the judgment is affirmed.

Affirmed.


text:
    M. Kenny Transfer Company, Defendant in Error, v. Mayer Bros. Co., Plaintiff in Error.
    Gen. No. 16,573.

      Bailments—extent of liability of gratuitous bailee. A gratuitous bailee is only obligated to exercise slight care and if a loss result gross negligence must be shown to authorize recovery. ,
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    W. S. Newburger, for plaintiff in error.
    H. J. Rosenberg, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the defendant in error, the M. Kenny Transfer Co., against the plaintiff in error, Mayer Bros. Co., and judgment obtained for the sum of $111.54, for the hauling of a quantity of merchandise and for the amount of freight advanced thereon.

It appears that the plaintiff in error, as a corporation, was a wholesale liquor dealer of Cincinnati, without any office in Chicago; that it made sales of liquor in Chicago to different persons, and shipped the goods to the defendant in error; that the defendant in error paid the freight charges and delivered the goods to customers as directed by the plaintiff in error.

The controversy in the case arises over a set-off claimed by the plaintiff in error for the loss of six barrels of whiskey, claimed to have been of the value of $480. The testimony offered to sustain the claim of set-off was simply that of the president and secretary of the defendant in error, who were called as witnesses for the plaintiff in error, excepting as to the value, which was testified to by salesmen for the plaintiff in error.

From this testimony it would appear that it had been the custom of the defendant in error to store in its barn the goods of the plaintiff in error, where the same were refused by the persons to whom they were supposed to have been sold; that this was done, gratuitously. The court before whom the case was tried disallowed the claim of set-off, presumably upon the ground that gross negligence was not shown. This result, we think, is justified by the record. The six barrels, as heretofore stated, were stored in a barn. There seems to have been a burglary, at which time the goods were taken. Gross negligence of the defendant in error was not shown, and for that reason we think the judgment entered was proper. Gray v. Merriam, 148 Ill. 179.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. D. D. Root, Plaintiff in Error.
    Gen. No. 16,597.
    Assault and battery—when owner may eject person upon his premises. One has no right to go into or upon the premises of another whether it is a business office, store, workshop, factory or other place of business when the owner has forbidden him to do so. When a person enters the premises Of another and is requested to depart and refuses so to do, the owner may eject him without incurring liability, provided he uses no more force than is reasonably necessary for that purpose.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed.
    Opinion filed April 19, 1912.
    D. D. Boot, plaintiff in error, pro se; E. Langtry, of counsel.
    John E. W. Wayman, for defendant in error, Charles V. Barrett, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

The plaintiff in error was charged with assault and battery by one Mrs. Boucher. There was a trial before the court without a jury, and Boot was found to be guilty and a fine of $10 and costs was imposed.

From the record it appears that Boot, the plaintiff in error, is a lawyer, and that the complaining witness, Mrs. Boucher, had been a client of his. - She had been to his office on at least two occasions prior to the time in question and demanded money which she claimed to have loaned on real estate, the mortgage or trust deed to secure which had been foreclosed. On February 17, 1910, she returned to the office and again demanded the money and called the defendant a thief and a robber. She" admitted that she had been told on prior occasions not to come to the office again. She further testified that the defendant threw her to the floor and against the windows and doors and “dragged me out like a dog. ’ ’

The testimony of the defendant and several witnesses called by him was to the effect that he used no force at the time of ejecting Mrs. Boucher from his office, or at least no more force than was necessary to, get her out.

In passing upon, the case the court said: “The trouble about this matter is, Mr. Boot takes the law in his own hands and attempts to eject this woman, perhaps with good intentions, but nevertheless he does it. f Of course, under the law he had no right to lay hands on her at all or touch her; no doubt about that. ’ ’ The plaintiff in'error then asked: “Didn’t I have the right to use force necessary to put her out?” The court answered: “No.”

We think the court was in error as to the law governing the case. One has no right to go into or upon the premises of another, whether it is a business office, store, workshop, factory, □ or other place of business, when the owner has forbidden him to do so. When a person enters the premises of another, and is requested to depart and refuses so to do, the owner may eject him without incurring liability, providing he uses no more force than is reasonably necessary for that purpose. Woodman v. Howell, 45 Ill. 367.

While the testimony of the complaining witness was to a slight extent corroborated by an office boy, we think the testimony preponderated in favor of the plaintiff in error, and that he did not use unreasonable force in ejecting the complaining witness from his office.

The. judgment of the Municipal Court will therefore be reversed.

Reversed.


text:
    Samuel Cohen, Administrator, Defendant in Error, v. Toy Gun Manufacturing Company, Plaintiff in Error.
    Gen. No. 16,621.
    1. Pleading—what general issue does not deny. The plea of the gener-al issue does not put in issue the character in which the plaintiff sues or the character or capacity in which the defendant is sued.

      2. Verdicts—when excessive. A verdict for $6,000 in a death case is excessive where it appears that the plaintiff’s intestate, was 20 years of age earning from 12 to 15 dollars per week, that he gave his mother 7 or 8 dollars per week for his board and to help her, that such mother was 61 years of age and that the next of kin consisted of such mother, a brother and two sisters.
    Error to the Circuit Court of Cook county; the Hon. P. W. Gallagher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed on remittitur.
    Opinion filed April 19, 1912.
    Timothy D. Hurley and William O. La Monte, for plaintiff in error.
    W. D. Elmer and Edmund D. Carter, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment was obtained in this case against the plaintiff in error in the sum of $6,000, as damages for the alleged negligence of the plaintiff in error, resulting in the death of Ervine E. Sanford.

Sanford in his lifetime was a teamster, and was said to have been employed by the plaintiff in error, hereinafter called the defendant, to transport a large quantity of explosives, known as “percussion caps” and “composition potash,” from the building of defendant. It was charged that the defendant neglected to inform Sanford of the dangerous material that he was to handle, and that while he was in the exercise of due care the percussion caps exploded and thereby Sanford was killed.

The grounds alleged for the reversal of the judgment are, that there was no evidence tending to sustain the verdict; that the court erred in the admission and exclusion of evidence; that the court erred in giving instructions asked by the plaintiff; that the damages are excessive, and that for that reason a new trial should have been granted. All of the errors assigned, except as to the refusal of the court to grant a new trial because of the excessive amount of the verdict, are based upon the contention that the defendant was not the owner of the property and did not make the contract referred to with the intestate.

The only plea filed by the defendant was that of the general issue. The declaration alleged that the Toy Gun Manufacturing Company was in the business of manufacturing percussion caps and kept on its premises large and dangerous quantities of highly explosive materials, etc. The rule in this state, whatever it may be in other jurisdictions where the common law is in force, is that the plea of the general issue does not put in issue either the character in which the plaintiff sues, or the character or capacity in which the defendant is sued. The plaintiff must be given timely notice by a special plea that the want of ownership is relied upon as a defense. Chicago U. T. Co. v. Jerka, 227 Ill. 95; Winn v. C. C. & St. L. Ry. Co., 239 Ill. 132; Brunhild v. C. U. T. Co., 239 Ill. 621.

The only evidence offered and not received, bore upon this matter of ownership, and therefore its ex- > elusion was proper.

The first instruction given at the request of plaintiff is objected to on the ground, as stated in the brief, that it does not take into consideration “the fact that the president of appellant company was directly and personally interested in the business established at 7645 South Chicago avenue.” The objection to the instruction would doubtless have been well taken if there had been a special plea, but in the absence of such a special plea the instruction was, in our opinion, not erroneous.

We have carefully considered the argument of counsel as to certain instructions tendered by the defendant which were refused by the court, and are of the opinion that they were properly refused, as being either covered by instructions which were given, or being improper because of the absence of the special plea heretofore referred to.

The next question we are called upon to consider is whether or not the damages are excessive. The intestate was at the time of the accident twenty years of age, and earning from twelve to fifteen dollars a week. He gave his mother from seven to eight dollars a week as board and to help in her support. The mother at the time of the trial was 61 years of age, and with a brother of the deceased and two sisters constituted the next of kin. We think the amount allowed by the jury is excessive, and that there should be a remittitur of $1,500. The judgment will be affirmed, providing the defendant in error within ten days enters a remittitur of $1,500 in this court. Thereupon a judgment will be entered herein for the sum of $4,500; otherwise -the judgment will be reversed and the cause remanded. Each party to pay one-half the costs in this court.

Affirmed on remittitur.

Remittitur filed and judgment affirmed April 19, 1912.


text:
    Karl Gath et al., Defendants in Error, v. Interstate Amusement Company, Plaintiff in Error.
    Gen. No. 16,653.

      Contracts—“adjacent” construed. The word "adjacent” does not include a town 300 miles away, such word being used in connection with a vaudeville service contract.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Benson Landon, for plaintiff in error.
    S. L. & Fred Lowenthal, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

The parties to this litigation entered into, a contract, in and by which the Amusement Company agreed to engage the plaintiffs below, Karl and Erma Gath, for a period of five weeks, to perform what is called a comedy talking, singing and dancing act. The salary was to be $125 per week, and the services were to be rendered in Montgomery, Ala., Little Sock, Ark., Fort Worth, Dallas and Houston, Texas. The plaintiffs were to pay their own traveling and other expenses. The contract provided that either party might terminate it by giving two weeks’ notice in writing, and from the compensation a commission of five per cent, was to be deducted and paid to a person named in the contract. The contract further provided that plaintiffs were to perform at “adjacent cities” if so required by the Amusement Company.

The plaintiffs were permitted to perform at Montgomery, and while filling the engagement at Little

o Bock received a telegram from the Amusement Company undertaking to cancel the contract. The plaintiffs declined to accede, and thereupon the Amusement Company telegraphed them, “You play People’s Theatre Beaumont December thirteenth, Star Theatre San Antonio twentieth. Confirm.” The plaintiffs replied, “We are billed in Fort Worth and will go to play there next week. Cannot understand this treatment.” To which the Amusement Company answered: “You either play Beaumont or nowhere. Contract permits changing route. ’ ’ The plaintiffs were paid for their services at Little Bock, and went to Fort Worth and reported for work under the contract, but were not permitted to go on with it. They returned to Chicago and sought employment during the period sued for, namely three weeks.

There was a trial before the court and a jury, the verdict of the jury being $375. The court required a remittitur of $137.50—being one week’s salary of $125 and $12.50 commission provided for by the contract. Judgment was thereupon entered for $237.50.

We are asked to reverse this judgment on the ground that the court erred in overruling defendant’s motion to direct a verdict, and in excluding evidence in mitigation of damages; also in refusing to give instructions requested by the defendant. The only point argued in behalf of the defendant, the plaintiff in error here, is that “The defendant might mitigate damages by showing that plaintiffs, during the time the contract had to run, earned, or might have earned, wages in some other employment of the same general character.”

The clause in the contract which permitted a change of route provided that the Amusement Company might require the plaintiffs to give one or more performances in places adjacent to the cities stipulated in the contract. If the period of performance were less than a week the Amusement Company was to pay the extra expense. It appears that Beaumont is about 300 miles distant from Fort Worth, and from Little Bock still farther. The plaintiffs in order to carry out their contract reported at Fort Worth, which was the third city mentioned. We know of no definition of the word “adjacent” under which it could be said that Beaumont, 300 miles or more away, was “adjacent.” In People v. Keechler, 194 Ill. 235, it has been defined to mean “to be near, close or contiguous.”

It is argued by the defendants in error, and, we think, justifiably, that the proposition that they should go to Beaumont was not made in good faith, but merely done in order, if possible, to cause them to abandon their rights under the contract. The plaintiffs were required to pay' their own railroad fares and other expenses, and it was clearly not contemplated by the requirement that they should perform in “adjacent cities” that they travel 300 or more miles for that purpose.

The court treated the telegram of dismissal as ending the contract under its terms, which provided that such might be done on giving two weeks’ notice. The amount of the judgment is the salary for two weeks less the five per cent, commission referred to, and we think that justice between the parties has been done. The judgment is therefore affirmed.

Affirmed.


text:
    William J. Henderson, Defendant in Error, v. Chicago Railways Company, Plaintiff in Error.
    Gen. No. 16,680.
    1. Negligence—when doctrine of imputed does not apply. The negligence of the driver of a vehicle is not necessarily to be imputed to a passenger in that vehicle and where the passenger is injured by the negligence of the employes of a street railway company with whose ear the vehicle comes in contact, there may be a recovery, notwithstanding the negligence of the driver.
    2. Negligence—when doctrine of imputed does not apply. There would appear to be no reason why the negligence of a driver of a vehicle transporting freight should be imputed to the owner' of the freight, than that the negligence of the driver of a vehicle carrying passengers should be imputed to the passengers.
    3. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Oleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    John A. Rose and Frank L. Kriete, for plaintiff in error; W. W. Gurley, of counsel.
    Sonnenschein, Berkson & Fishell, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

The defendant in error, hereinafter called the plaintiff, brought suit against the plaintiff in error, hereinafter called the defendant, for damages sustained on account of the alleged negligence of the defendant in running one of its cars into a wagon in which plaintiff’s goods were being carried. There was a recovery for $515.29, no question having been raised by the defendant as to the value of the goods destroyed or damaged.

The facts, as appears from the record, would seem to be substantially as follows: The plaintiff employed one Elliott, an expressman, to remove his office fixtures, and some electrical goods from his old to his new place of business. The accident happened at the intersection of Halsted and Wayman streets. Elliott was driving east on Wayman street and across Halsted street. There is a viaduct on Halsted street about fifty feet north of Wayman street. At the intersection both Halsted and Wayman streets are on an incline, the incline on Wayman street being the steeper. Halsted street at this point is very narrow, the distance from the nearer or the west rail of the southbound tracks to the curb of the street being about eight feet. As Elliott reached the intersection, the rear wheels of his wagon, as he testified, being on the brow of the hill, he looked north and saw a street car on the top of the incline, about fifty feet away, coming very slowly down the viaduct. It would appear that the motorman saw him at the same time, and that each motioned to the other to stay back. The load on Elliott’s wagon weighed from 2,500 to 2,800 pounds; it was a single wagon, and Elliott insists that because of the incline he could not stop; he proceeded directly across the track. He thought, so he testified, that the motorman had the car under control “and seemed to be setting his brakes lightly.” Just as the rear wheels of the wagon crossed the farther or east rail of the southbound track, that being the track upon which the car was moving, the rear wheel of the wagon was struck by the car and the wagon overturned, resulting in the breaking and otherwise injuring of the office fixtures and other things in the wagon.

The contention of the defendant is that the judgment should be reversed because the evidence failed to support the claim that the defendant was negligent; second, that the plaintiff was guilty of contributory negligence; third, that an erroneous instruction was .given at the instance of plaintiff.

In the argument of the defendant the questions of the alleged contributory negligence of the plaintiff and the alleged negligence of the defendant are interwoven. The question of contributory negligence will first be considered by us. Several pages of the brief of the defendant are given up to a citation of authorities upon the elementary proposition that if the plaintiff is guilty of contributory negligence he may not recover. There is, so fax as we have been able to discover, not a scintilla of evidence in the record tending to show that plaintiff was himself guilty of any negligence. The question to be determined, therefore, is whether the negligence of the expressman, Elliott, who had the contract for the removal of the goods for the plaintiff, is to be imputed to the plaintiff. A passenger rightfully on a public conveyance, who is injured by the mutual negligence of the servants of the company owning the conveyance, and the servants of a street railway company whose car the conveyance comes in contact with, it has been held may recover against the street railway company. West Chicago Street R. R. Co. v. Piper, 165 Ill. 325. The negligence of a driver of an omnibus upon the highway approaching a railroad crossing, is not to be imputed to the passengers in the omnibus. Landon v. C. & G. T. Ry. Co., 92 Ill. App. 216. The negligence of a driver of a wagon is not necessarily to be imputed to a person riding with him, where such person is not, by his conduct, the cause of such negligence. West Chicago St. R. R. Co. v. Dedloff, 92 Ill. App. 547. To the same effect is Chicago City Railway Co. v. Wall, 93 Ill. App. 411. The cases last cited are based upon that of Union Ry. & T. R. Co. v. Shacklet, 119 Ill. 232. As pointed out in the opinion in Chicago City Ry. Co. v. Wall, supra, a contrary doctrine was at one time held in some jurisdictions, notably in England and in Pennsylvania, but now the rule is the same in England and Pennsylvania as in this state. It may therefore be regarded as well settled, both here and elsewhere, that the negligence of the driver of a vehicle is not necessarily to be imputed to a passenger in that vehicle, and where the passenger is injured by the negligence of the employes of a street railway company with whose car the vehicle comes in contact, there may be a recovery, notwithstanding the negligence of the driver.

We think it quite clear from the record that Elliott was not in the regular employment of the plaintiff, but was employed in the teaming business, and that he made the contract, as a teamster to transport the articles in question. We can see no difference in principle between the case now under consideration and those heretofore referred to. There would appear to be no reason why the negligence of a driver of a vehicle transporting freight should be imputed to the owner of the freight, than that the negligence of the driver of a vehicle carrying passengers should be imputed to the passengers. It may very well be that the plaintiff would have a right of action against Elliott for negligence in the matter, but it does not follow that he has not also a right of action against the defendant, if the defendant is guilty of negligence which was in whole or in part the cause of the accident.

We now come to consider the contention of the defendant that no negligence on the part of the motorman was shown. We think it is quite apparent from the record that the driver of the wagon and thé motorman saw each other at practically the same time; that at this time either probably could have stopped and the accident have been prevented. The wagon was nearer the intersection than was the car. The driver insisted, as heretofore stated, that it was impossible for him to stop because of the incline and his heavy load. The motorman does not testify that he could not have stopped the car if he had undertaken to do so when he first saw the wagon. His testimony appears to be to the effect that he first warned the driver not to attempt to cross, and when he found that his warning was not being heeded he put on the brakes and did everything in his power to stop the car.

We think it. was a question of fact to be left to the jury, whether when the motorman first saw the wagon, he should not immediately have endeavored to get the car under such complete control that he could stop it if the driver should not stop. The rights of a wagon and a car at a crossing are reciprocal, and it is sometimes suggested that at intersections the'vehicle nearer to the intersection has the right of way. Inasmuch as the alleged negligence of the driver may not he imputed to the owner of the property involved in this suit, the only question before the jury was as to the negligence of the Street Car Company defendant. The jury found by its verdict that the Street Car Company defendant was negligent, and we are unable to say that the verdict was manifestly against the weight of the evidence.

Complaint is made of an instruction tendered by the plaintiff and given, the complaint being that there was nothing in the instruction which required the plaintiff to exercise ordinary care. As heretofore observed, there is nothing in the record to indicate that the plaintiff did not exercise ordinary care. Inasmuch, therefore, as the negligence of the driver and owner of the vehicle may not be imputed to the plaintiff, the instruction was not, in our opinion, erroneous.

The judgment will be affirmed.

Affirmed.


text:
    Isadore Krompier, Plaintiff in Error, v. Herman Spivek, Defendant in Error.
    Gen. No. 16,713.

      Contracts—effect of agreement to perform satisfactory service. An employment contract by which an employe agrees to render services ‘ ‘ satisfactory ”, to his employer may be terminated by the employer if the services rendered are not satisfactory to him and such employer is the sole judge as to whether the Services are satisfactory.

      Error to the Municipal Court oí Chicago; the Hon. Charles N. Good-now, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed April 19, 1912.
    Brown & Navigato, for plaintiff in error.
    Moses, Rosenthal & Kennedy, for defendant in error; Walter Bachrach and Oscar Blumenthal, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

This suit is based upon the claim of the plaintiff for a week’s wages alleged to be due him under the terms of a written agreement. By the contract, the plaintiff entered into the employment of the defendant for one year as a designer of ladies’ dresses and capes, at a compensation of $45 per week, $5 of which was to be kept out each week as security for the faithful performance of the contract. The third paragraph of the contract reads as follows:

“Third. Said second party hereof (I. Krompier) agrees to observe and comply'with the rules and regulations of such first party (Herman Spivek) in and about his said business and to carry out and to perform the orders and directions of said first party, as they may from time to time be given and to perform his services in and about his said employment in a manner satisfactory to said first party.”

The plaintiff was discharged by the defendant a few weeks after entering the employment under the written contract. The court directed a verdict for the defendant.

The only question in the case is one of law, as to the legal effect to be given to the final clause of the third paragraph of the contract as above set forth. Did the agreement on the part of the plaintiff to “perform his services in and about his said employment in a manner satisfactory to said first party,” place it entirely within the power of Spivek to annul the contract whenever he chose? The test seems to be whether the question is merely one of operative fitness, in the case of a person’s services, or mechanical utility, in the case of articles to be furnished; or whether it is a question to be determined by the fancy, taste, sensibility or judgment of the employer or purchaser. 9 Cyc. 618.

We think the case is fully determined by decisions of the Supreme Court of this state. In Kendall v. West, 196 Ill. 221, the court had before it a contract between a theatrical manager and an actor, or a specialist in monologue, as he was called. The contract provided that the plaintiff should render ‘ ‘ satisfactory service,” for which he was to receive the sum of $250 per week. In disposing of the case the court said:

“The appellant (plaintiff) did not undertake to render services which should satisfy a court or jury, but undertook to satisfy the taste, interest, fancy, and judgment of appellee (defendant). It was the appellee who was to be satisfied, and if dissatisfied, he had the right to discharge the appellant at any time for any reason, of which he was the sole judge. ’ ’

The court then proceeds to cite with approval Goodrich v. Van Nortwick, 43 Ill. 445. The decisions referred to have been approved in Union League Club v. Ice Machine Co., 204 Ill. 117, and Temby v. Brunt Potter Co., 229 Ill. 540. The plaintiff in error cites to us no case in this state holding the contrary doctrine. The cases mentioned in the brief are from other jurisdictions. We have examined these cases and find that in the contracts under consideration language was used which tended to indicate, and the courts held did indicate, that it was not the intention of the parties that the employer should have the absolute right to terminate the contract when for any reason he was dissatisfied with the character of the services which were being rendered.

It seems from the record that Krompier, before entering into the written contract, had worked some three weeks for Spivek. It is insisted upon by him that this fact, and the forfeiture clause of $5.00 per week contained in the contract, operate to take the case out of the usual rule. We cannot agree with him in that regard. The work of the plaintiff in error may have been satisfactory to the defendant in error during the three weeks ’ period, and this fact may have induced the defendant in error to enter into the contract. The latter took the precaution, however, to insert in the written contract that the work should continue to be satisfactory to him, and the plaintiff in error is concluded in that respect.

The trial court, having come to this conclusion with regard to the law governing the case, properly excluded the testimony offered by the plaintiff in error tending to show that the discharge of the plaintiff in error was for some other reason than that his work was not satisfactory to the defendant in error.

For the reasons stated, the judgment is affirmed.

Affirmed.


text:
    Elizabeth Dvorak, Plaintiff in Error, v. Bohemian Roman Catholic First Central Union, Defendant in Error.
    Gen. No. 16,742.
    1. Fraternal benefit societies—how intention to withdraw way he shoipiu. An intention to withdraw from an association may be shown by conduct as well as by evidence of oral declaration of a resignation.
    2. Fraternal benefit societies—wheni withdrawal established. If the member voluntarily resign and such resignation is accepted he ceases to Tpe a member and a restoration of membership is not effected by the financial secretary of the organization accepting dues after his death.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branc-h Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Rehearing denied May 7, 1912.
    Benson Landon, for plaintiff in error.
    Kraus, Alschuler & Holden, for defendant in error; Alfar M. Eberhardt, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

The plaintiff in error, Elizabeth Dvorak, hereinafter called the plaintiff, brought suit against the Bohemian Roman Catholic First Central Union, hereinafter called the defendant, upon a membership certificate issued to her husband by the defendant. The case was tried before the court without a jury, and a finding made in favor of the defendant, upon which the judgment was entered which we are asked to reverse.

But one point is relied upon as ground for reversal, namely, that the finding of the trial court was against the conceded facts in the case.

The deceased left him surviving a wife and grown children. From the record it appears that the family were not harmonious, and that at the time of his death and for some time prior thereto, decedent’s wife was not living with him, nor were any of his children. His wife, the plaintiff, had left him on different occasions, and returned to him. Six weeks previous to his death she again left him. She stated that she was at his house two days before he died; that before that time he had come down to the store which she kept on Halsted street and asked her if she was coming back, and she replied to the effect that she never would come back to him. On October 13, 1908, Dvorak received a notice from the lodge to pay his September dues. On October 18th following he attended a regular meeting of the society, and stated to the secretary, in the presence of several members, that as his daughter and wife did not live with him, there was no use to keep up his membership in the lodge, and he did not want to pay his dues any more. The testimony would tend to show that at this time he was' sober, although from the testimony of the plaintiff that would not seem to have been his usual condition. He did not pay the September dues at that time, and' died leaving them still unpaid. The minutes of the meeting were intro- • duced in evidence, wherein it was stated that Dvorak had resigned, and that he owed $4.73 for his September dues. It further appeared that his certificate of resignation dated October 18, 1908, was addressed to the financial secretary of the Bohemian Roman Catholic First Central Union, or Grand Lodge. The financial secretary of the Union testified that he received the certificate above referred to, in his official capacity, and that following out the usual rule in such cases, he had accepted it and stopped the assessments against Dvorak on. the 25th day of October following, on which date another assessment was due.

A witness, who was a member of the local society and its president during October, 1908, testified on cross-examination that he thought it was the duty of Joseph Menk, the representative of the society, to try to get'back the certificate of membership; that nothing was said to Dvorak at the meeting of October 18th about returning his certificate.

On October 30, 1908, Frank Dvorak died. After his death his daughter found a postal card dated October 1¿, 1908, and bearing post-mark of the same date. This postal card was the notice to attend the meeting of October 18th, and advised him of the amount that was due from him for assessments on account of deaths, quarterly dues, grand lodge dues, etc., being a total of $4.73. She took this card to the financial secretary of the local lodge and informed him that her father was dead and 'that she had come there to pay his dues. The financial secretary received the money and marked the postal card “Paid.” '

There was evidence to the effect that members of the society attended the funeral of deceased and wore the regalia of the lodge.

The point chiefly relied upon by the plaintiff apparently is that there was no such action by the association as amounted to an acceptance of the withdrawal before the death of Dvorak; that Dvorak in his conversation had no intention that his proposed resignation should take effect until it became necessary for him to make further payment. The cases relied upon by appellant are chiefly those in which the society has undertaken to declare a forfeiture for non-payment of assessments.

In Lehman v. Clark, 174 Ill. 279, it is said:

“We have no statute in this state concerning withdrawing members or providing for any mode of withdrawing, etc., and no one ever contemplated that any person who joined such an association or society is bound to stay in it for life. The member’s failure to pay is his declaration of severance and the forfeiture provided for in the by-laws and constitution is the association’s compensation. The option is with the member and not with the association. ’ ’

In the present case the severance from membership is not claimed because of non-payment of dues, but because of the declaration of the deceased himself that he desired to withdraw from membership.

None of the authorities cited by the plaintiff are decisions of the courts of Illinois. Whatever may be the rule in other states, it is firmly established by judicial decisions in this state that an intention to withdraw from an association may be shown by conduct as well' as by evidence of oral declaration of a resignation.

In Van Frank v. U. S. Ben. Ass’n, 158 Ill. 560, it was held that in a suit upon a certificate of membership in a mutual benefit society, under which the member had power to change the beneficiary at pleasure, and to pay assessments or drop membership, as he chose, his declaration that he would no longer pay assessments may be shown in connection with the fact that he failed to pay.

There is no contradiction in the record to the evidence of several members of the association that the deceased stated that he wished to withdraw,, and that he had no reason to continue to be a member. It is undisputed that he did not pay his dues, and that his dues were, after his death, handed to the financial secretary by a daughter. It also appears uncontradicted that the resignation was accepted by the local society; that the main organization received the notice of the resignation and treated the deceased as no longer a member.

In Chaloupka v. Bohemian Roman Catholic First Central Union, 111 Ill. App. 585, it was said:

‘ ‘ That the officers and members of the lodge thought the deceased was no longer one of their members, is evident from the acceptance of the tendered resignation and the report made thereon to the parent lodge. That the defendant acted upon and accepted the report submitted to it is shown by its October, 1900, bulletin in which he is dropped from the roll of members.”

No method of acceptance of resignation seems from the record to have been provided by the constitution or by-laws of the society or order. The act of Dvorak in resigning was voluntary. The society had no power to retain him as a member after he had expressed his desire to resign. In our opinion, also, the financial secretary by receiving the dues from the daughter, after the death of Dvorak, did not and could not by that action restore him as a member of the society. There is, also, evidence in the record- tending to show that the money never was received by the society.

We find no error in the record,- and the judgment of the Municipal Court is affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois, ex rel. William Voss et al., Defendants in Error, v. James D. O’Connell et al., Plaintiffs in Error.
    Gen. No. 16,748.

      Mandamus—when dismissal of defendants improper. It is improper to permit the dismissal of defendants out of a mandamus proceeding where they have been adjudged to have a material interest in the pending controversy and their continuance in the proceeding is the only way by which under the conditions existing they can obtain an adjudication of their rights.
    Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.. Heard in the Branch Appellate Court at the October term, 1911,
    Reversed and remanded.
    Opinion filed April 19, 1912.
    Fyffe & Adcock, for plaintiffs in error.
    Hoyne, O’Connor & Irwin, for defendants in error; Carl J. Appell, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

The writ of error in this case brings up for review the judgment entered in a mandamus proceeding. The case has received the attention of this court on two occasions, and that of the Supreme Court in one instance. Voss et al. v. Prentiss et al., 154 Ill. App. 609; People ex rel. Voss et al. v. Elton Lower et al., Civil Service Commissioners et al., 162 Ill. App. 305; People ex rel. Voss et al. v. O’Connell et al., 252 Ill. 304.

The published opinions above referred to detail with considerable fullness the facts in the cáse, and it will therefore not be necessary to restate all of them in this opinion. It is sufficient to say that a petition for a writ of mandamus was filed at the relation of certain policemen against the then Civil Service Commissioners, Chief of Police, Comptroller of the City of Chicago, and the City of Chicago, the purpose being to cause to be set aside an order of the Civil Service Commission under which a consolidation was effected of three separate lists or registers of persons eligible for certification to fill by promotion vacancies in the so-called offices of desk sergeants, patrol sergeants and detective sergeants of the police department of the city of Chicago. By the action of the civil service commissioners it was sought to do away with the distinction in the three classes of sergeants in so far as the examination was concerned, and to certify for promotion the names of patrolmen in the order in which the names should appear in' the one list after such consolidation, The relators insist in their petition that by the order of consolidation their rank.in the list was lower than it had been in the list of applications for the position of desk sergeant, for which position they had previously taken the examination. The petition was amended from time to time, and, either upon their petition or at the. instance of the relators, about 44' police officers were made defendants, sóme 34 of whom are now’ appearing as plaintiffs in error in the proceeding under consideration.

On February 8, 1908, a fourth amendment to the petition was filed, The record shows that this amendment was made in pursuance of a stipulation entered into by-the parties to the suit, which stipulation provided that “the defendants’ demurrer filed herein on the twenty-ninth day of June, A. D. 1907, stand as demurrer to said amended petition as amended. ’ ’ The only document filed in the case on June 29th was the demurrer of the civil service commissioners, the chief of police, the city comptroller, and the city of Chicago. The fourth amendment adds a paragraph, being No. 22, to the petition and also amends the prayer so that under it relief is asked only against the officers of the city who filed the demurrer heretofore referred to. On February 17, 1908, the record would seem to show the demurrer in question was overruled and the prayer of the petition was granted and a judgment entered in accordance therewith.

At this time, so far as the record originally showed, the plaintiffs in error were still defendants in the case. On April 4, 1908, an order was entered dismissing the plaintiffs in error and Others out of the ca.se, and a writ of mandamus was awarded with judgment for costs, the judgment being to the same purport and effect as the judgment entered February 17, 1908. On May 6, 1910, an, order was entered correcting the records of the court so as to make the order of April 4, 1909, a nunc pro tunc order as of February 17,1908. Before the last mentioned order was entered an appeal was taken to' this court, which was dismissed on the ground that the order of April 4, 1908, was a nullity, the Superior Court being without jurisdiction, and for the further reason that the appellants (some of whom are now the plaintiffs in error) were not prejudiced by the order of February 17, 1908, because the judgment did not run against them, or if they Were prejudiced by the entering of such judgment they were not entitled to appeal because the record did not show that any appeal had been prayed.- After the decision so rendered by this court was filed, the plaintiffs in error prosecuted this writ of error. The writ of error was dismissed (People ex rel. Voss et al. v. Lower et al., supra) because, as it appeared to this court, the plaintiffs in error were not shown by the record to have any substantial interest in the subject matter, and because the judgment of the court was not tes adjudiGata as to them inasmuch as they had been dismissed from the case. A certificate of importance was granted and an appeal to the Supreme" Court taken. That court disagreed with us (People ex rfel Voss et al. v. O’Connell et al., supra) and remanded the case to this court with directions to consider and decide upon the errors assigned. The court held:

“Only parties to a suit can appeal, because that is a privilege conferred by statute which is qnly given to parties, and if it be considered that the effect of the nunc pro tunc order was that the appellants were not parties when the judgment was. rendered, they could not appeal. But a writ of error is not so limited in its application. It is the beginning of a new suit for the correction of errors of inferior courts, and may be prosecuted as a matter of right in all civil cases by any one who is either a party or privy to the record, or who is injured by the judgment or will be benefited by a reversal, or is competent to release error. ’ ’

The cour-t further held:

“The appellants (plaintiffs in. error in the Appellate Court) are as much interested in the subject matter of this suit as the petitioners, the interest of the petitioners being to set aside the consolidation and the interest of the appellants being to maintain it. The right of the appellants to hold their positions depends upon the success of the defense. • They are the pnly ones haying any valuable or substantial interest in maintaining the consolidation.....They assigned for error in the Appellate Court, among other things, the order of the court dismissing the petition as to them as well as the judgment whereby their rights were collaterally determined. A judgment in a cause to which the appellants had ceased to be parties would not be res ad judicata as to. their rights and interests, and some subsequent proceeding would be required to oust them from their positions, as in the case of Ball, perhaps resulting in different opinions and Contrary judgments of courts of concurrent jurisdictions, but if the judgment in the mandamus suit had been different and had sustained the consolidation and the certification and appointment of appellants they would have been secure in their position so far as the -relators were concerned. They would therefore be directly benefited by a reversal of the judgment.”

We come now to consider the assignments of error, which are eight in number. The first is to the effect that the court erred in overruling the motion of some of the plaintiffs in error to strike out and expunge certain portions of the amended petition in said cause; the second, that the court erred in overruling .the demurrer of the City of Chicago to the amended petition of February 8, 1908; third, that the court erred in overruling, the demurrer of the civil service commissioners, the general superintendent of police, the city comptroller, and the City, to the amended petition; fourth, that the court awarded the peremptory writ upon the amended petition; fifth, that the court erred in entering a judgment for costs against the defendants the civil service commissioners^ the general superintendent of police, the comptroller and the City of Chicago; sixth, that at the time of the awarding of the peremptory writ of mandamus as prayed for in petitioners’ amended petition of February 8, 1908, the court on motion of petitioners ordered that these plaintiffs in error be dismissed from said cause and said cause be discontinued as to them; seventh, that the court, entered judgment awarding the writ without considering or determining various issues of law and fact raised by the pleadings of these plaintiffs in error; eighth, that the court overruled the several motions made in arrest of judgment by the plaintiffs in error.

In view of the opinion of the Supreme Court, we think the sixth assignment of error, namely as to the dismissal of the plaintiffs in error from the cause as defendants, is the only assignment we can at this time properly pass upon.

On February 8, 1908, the fourth amendment to the mandamus petition was filed. On February 15th the record shows that the cause came on to be heard upon the demurrer of the defendant the City of Chicago to such amended petition, and that the demurrer was overruled, and that defendant, the City of Chicago, elected to stand by its demurrer. On February 17th the court, after overruling the demurrer of the civil service commissioners, the general superintendent of police and the comptroller, and the general demurrer of seven other individual defendants, some of whom are among the plaintiffs in error here, ordered the issuance of the peremptory writ of mandamus. On April 4, 1908, the record shows that all of the defendants other than the civil service commissioners, the general superintendent of police, the comptroller and the City of Chicago, were dismissed from the cause, and the court having heard arguments on the demurrer of the defendants last mentioned and overruled the same, and they having elected to stand by their demurrer, it was ordered that a peremptory writ of mandamus be issued as prayed for against the defendants..

If the order of April 4, 1908, was by the order of May 6, 1910, properly entered nunc pro. tunc as of February 17, 1908, then on the last mentioned date all of the defendants were dismissed from the cause excepting those against whom the judgment ran, viz.: the civil service commissioners, the general superintendent of police, the comptroller and the City of Chicago. The case was not then pending upon any other pleadings than the petition and the demurrer of the defendants last mentioned. No order was entered requiring the other defendants to plead, answer or demur to the petition as last amended. None of the plaintiffs in error, so far as we are able to determine from the record, adopted the demurrer that was interposed. Some of the plaintiffs in error had answered and some had demurred to the petition as it stood prior to the last amendment, but these answers and derfiurrers ' were not considered by the court, presumably for the reason that they became nugatory inasmuch as all of the plaintiffs in error had been dismissed as defendants.

It has now been determined by the Supreme Court, after a careful inspection of the record, that the plaintiffs in error have a material interest in the result of the litigation •; that their right to hold their positions depends upon the success of the defense, and that they are the only ones having any valuable or substantial interest in maintaining the consolidation. It follows therefore that they should have an opportunity to demur to or answer the petition and should have a hearing. Until this has been done it would not, in our opinion, be proper for us to pass upon the other questions raised by the various assignments of error.

It is to be remembered that the civil service commissioners, the general superintendent of police, comptroller and City of Chicago, have, so far as the record shows, acquiesced in the judgment as rendered. They did not seek to appeal, nor did they sue out a writ of error. If, irrespective of the coercion exercised by the judgment, the civil service board has deemed it best to continue the plan formerly existing, it is questionable whether the plaintiffs in error can compel a return to the plan of a consolidated list. It is certain they can obtain no affirmative relief in the present case as against the other defendants or their successors. ' .

We feel therefore that there should be a rehearing of the case in the Superior Court; that the plaintiffs in error should be let in to answer or demur; and that such judgment should then be rendered as, under the pleadings and proof—if proof be taken—the rights of the parties demand under the altered conditions.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Louis E. Howe, Appellant, v. Chicago City Railway Company, Appellee.
    Gen. No. 16,755.
    1. Negligence—when doctrine of attractive nuisance cannot he availed, of. The doctrine of attractive nuisance cannot be availed of as a basis for recovery unless the declaration in some count or counts relies thereon.
    2. Instructions—when estoppel to complain arises. “A party has no right to complain of an error in an instruction, when a like error appears in an instruction given at his own request. ’ ’
    3. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Francis X. Busch and Frank A. Rockhold, for appellant.
    Franklin B. Hussey and Watson J. Ferry, for appellee ; Leonard A. Busby, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

Louis E. Howe, by James E. Howe, his father as next friend, plaintiff, brought suit against the Chicago City Railway Company, as defendant, for damages for injuries alleged to have been sustained through the negligence of the defendant. There was a trial before the court and a jury. The jury found a verdict in favor of the defendant, and after overruling a motion of the plaintiff for a new trial, the trial court entered judgment against the plaintiff, from which judgment this appeal is taken.

The accident occurred at Cottage Grove avenue and Thirty-second street, in the city of Chicago. The defendant had torn out the easterly or northbound track, and prior to the time of the accident had been engaged for some time in laying the foundation for a new track. The street was torn up at this point for the purpose, and a temporary track had been built to allow cars northbound to pass. Occasionally northbound cars used the southbound track. The accident occurred about eight o ’clock in the evening. It was the practice to put danger signals consisting of lighted torches at intervals along the excavation which had been made, and one of these was located near the point where Thirty-second street intersects Cottage Grove avenue. One hundred and thirty-four feet south of Thirty-second street is what is known as Thirty-second place, which approaches Cottage Grove avenue from the east but does not cross it.

The plaintiff was a boy twelve and a half years of age, living with his parents sft the southwest corner of Cottage Grove avenue and Thirty-second street, where he had lived eight or nine years prior to the accident. About eight o’clock in the evening the plaintiff started northeast across Cottage Grove avenue. He testified that when he started he noticed a car at Thirty-third street, which looked to him as though it were standing still; that he saw in the center of Cottage Grove avenue, about four or five feet from the south cross walk, a torch; that his curiosity was aroused as to how it burned; that he did not remember whether he poked it with a stick or not, but that he investigated, and after he had been examining the torch during so long a time as it would take him to count twenty-five, he heard Mrs. Burke, who was a witness at the trial, shouting to him; that before he began to examine the torch, and after he had stepped into the excavation, he glanced to see if a car was coming, because he realized that he was running a risk; that Mrs. Burke called to him to “Come away; come out of there, the car is coming;” that he made no answer, nor did he look behind him to see if a car was coming; that he was facing south, and saw none coming from that direction. He testified that Mrs. Burke again shouted to him, but he did not look north; that he then put his foot on the east rail of the southbound track, and tried to pull the other up; then stepped back into the ditch to ascertain what the trouble was; that he did not see any wire at the time, and was ignorant of what caught his foot; that he had not moved his feet after he had assumed a stooping position. He testified that he shouted loudly to 'Mrs. Burke that his foot was caught, but in this respect was not corroborated by other witnesses. He was struck and severely injured by a southbound car.

The contention of appellant is, as detailed in the fourth and fifth counts of his declaration, that a certain wire was on the surface of the ground, so twisted and coiled up as to be likely to catch the feet of people who might have occasion to cross the avenue and Thirty-second' street; that while plaintiff was exercising due care, he necessarily and unavoidably got his foot caught in the wire, and while extricating it the defendant negligently and carelessly, etc., so managed and controlled its certain southbound car that it struck Mm. In the fifth count it was further charged as negligence of the defendant that it drove the car over the intersection without keeping any lookout to discover the presence of the plaintiff. In the second and third counts additional charges of negligence are made of the running of the car at a high and dangerous rate of speed, and in approaching Thirty-Second street without warning by bell or otherwise. In the first count there is a general' charge of negligence in operation.

The first point urged for reversal is that the verdict was manifestly contrary to the great weight and preponderance of the evidence. One of the chief questions in controversy is whether or not there was a wire at the place of the accident, such as is referred to in the fourth and fifth counts of the declaration, and whether the boy’s foot.was caught in this wire. One of the witnesses for plaintiff, a Mr. Graves, testified on direct examination that there was some wire between the tracks where the boy was; that he w-as the first one who reached the boy, but did not notice any wire; that he did not notice it until after he had been in the hallway leading to the flat occupied by the plaintiff’s parents, .where he was gone five minutes, and that his attention was then directed to a piece of wire in the street.

A witness named Wunderle testified for the plaintiff that he noticed a coil of wire near where the boy was picked up; that it was of spiral shape; that it was right at the boy’s foot. He further testified that he saw the boy lifted from the ground, but did not notice that.any part of the wire was attached to flim.

The father of the boy testified that he heard a lady shouting that his boy was struck by a car; that he went right in back of the car; that he did not notice anything at that time, but the next morning he observed the wire. He further testified that when he turned the boy over that night “his toes were in ,the edge of the wire.” He further testified that neither of the boy’s feet touched the wire, and that the toe of the right foot was in the loop. His testimony that he picked the boy up is discredited by the fact that three witnesses for the plaintiff, namely Wunderle, Graves and Mrs. Burke, testified that Graves picked Mm up.

The plaintiff himself testified that he saw no wire in the excavation.

A photograph was introduced in evidence, wMch was taken on the Sunday following the Wednesday on the evening of which the accident occurred.

The father testified that the loose end of the wire that extended into the ground was right close to the nearest rail, practically right up to it, within an inch of it;” and was about seven feet north of the center line of Thirty-second street. The photographer testified that the wire entered the ground eight inches from the nearest rail to the east track, and was three or four feet north of the south curb line of Thirty-second street. Thirty-second street appears from the record by actual measurement to be .38 feet wide between the curbs. It would seem that the photographer located the wire three or four feet north of the south curb line, while by the father’s testimony it was 20 or 21 feet north of that line.

Some argument is made by the appellant that the doctrine of attractive nuisances has application to the case. In none of the counts of the declaration is there any allegation on that subject. The matter is discussed by the appellant in his brief upon the proposition that he was guilty of no negligence which proximately contributed to the injury.. The question of contributory negligence was left to the jury, under appropriate instructions given at the request of plaintiff, and others tendered by defendant.

At the close of all the testimony the defendant requested the court to charge the jury to find a verdict for the defendant. In our opinion, the giving of such instruction would not have been erroneous. The trial judge, however, overruled the motion, and in his charge to the jury incorporated 13 instructions requested by the plaintiff and 25 tendered by the defendant. Five of the instructions given at the request of defendant are criticised by the plaintiff, and after a careful consideration of them, we feel that these criticisms are to some extent warranted by decisions in adjudicated cases to which our attention is called. As to one or more of the instructions so criticised, the defendant insists that the plaintiff is estopped, because an instruction was tendered by him which was of a like character. The off-setting or balancing of errors in instructions seems to be established in this state, evidently being deemed necessary because of the manner in which juries are instructed under our practice. In O. & A. R R. Co. v. Harrington, 192 Ill. 9, it is said: “A party has no right to complain of an error in an instruction, when a like error appears in an instruction given at his own request.” C. & A. R. R. Co. v. Sanders, 154 Ill. 531; Funk v. Babbitt, 156 id. 408; Hafner v. Herron, 165 id. 242; I. C. R. R. Co. v. Bebee, 174 id. 13; I. C. R. R. Co. v. Anderson, 184 id. 294; Chicago City Ry. Co. v. Rural, 224 id. 324. We think it sufficient to say that the charge of the court to the jury was of such a character as tended on the whole fairly to advise the jury of the law by which it should be governed in arriving at a verdict, provided the assumption be indulged in that the motion to direct a verdict should not have been entertained. The errors in instructions were not of such a character as should cause a reversal.

The jury having heard all the evidence, found for the defendant; the learned and experienced trial judge, also having had the advantage of seeing and hearing the witnesses, was of the opinion that the verdict was not against the weight of the evidence, and that it should not be disturbed. In our opinion, a new trial could not properly result in any different conclusion.

For the reasons stated, the judgment will be affirmed. Affirmed.