text:
    John Caldon, Plaintiff in Error, v. National Malleable Castings Company, Defendant in Error.
    Gen. No. 18,298.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Pleading, § 45

      —how construed. Upon demurrer a declaration is to be construed against the pleader.
    2. Master and servant, § 539*—what allegations are insufficient. An allegation that a plaintiff was ordered to work outside the scope of his employment upon certain work in which he was wholly unskilled and with a certain wrench which was too small to put in a certain screw is defective and insufficient as stating the conclusion of the pleader, and the designation of the work and instrumentalities as “certain” is too vague and indefinite.
    3. Master and servant, § 543*—when allegation as to assistants required in doing work, is insufficient. An allegation that work required an assistant to enable plaintiff to perform the same with safety states a mere conclusion.
    4. Master and servant, § 545*—when absence of assumption of rislc is not sufficiently alleged. Declaration held defective in failing to negative such knowledge of danger as the plaintiff might have acquired in the exercise of ordinary diligence.
    Error to the Superior Court of Cook county; the Hon. Chables A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by John Caldon against National Malleable Castings Company for damages for personal injuries. Plaintiff appeals from a judgment rendered against him on demurrer.
    Theodore G. Case, for plaintiff in error.
    Page & Page, for defendant in error; Cecil Page, of counsel.

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

   Mb. Justice Baume

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    George C. Johnson, Defendant in Error, v. John E. Kurzenknabe, Plaintiff in Error.
    Gen. No. 18,330.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Broker, § 62

      —when commissions are forfeited. The rule that a broker may not recover a commission where he has been secretly acting for the buyer while ostensibly acting for the seller does not apply where the seller is informed that the broker is acting for the buyer and the .element of bad faith on the part of the broker is lacking.
    2. Evidence, § 457*—when properly excluded. The exclusion of evidence given at former trial is not improper when such evidence relates to immaterial matters.
    Error to the Municipal Court of Chicago; the Hon. Rufus J. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by George C. Johnson against John E. Kurzenknabe for damages for breach of warranty. From a judgment for plaintiff, defendant brings error.
    Elbert C. Ferguson, for plaintiff in error.
    George C. Johnson, pro se.

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

   Mr. Justice Baume

delivered the opinion of the court.


author: Mr. Justice Duncan

text:
    Edward M. Murray v. Charles U. Gordon et al. On Appeal of William D. Washburn et al., Appellants, v. Edward M. Murray, Appellee.
    Gen. No. 17,417.
    1. Mortgages, § 88

      —when trust deed passes riparian rights. Trust deed conveying lands bordering on Lake Michigan passes riparian rights with the title without designation in the conveyance.
    2. Mortgages, § 437*—necessary parties. A bill to foreclose a trust deed executed on lands bordering on Lake Michigan, park commissioners to whom owner has conveyed riparian rights need not be made parties, when complainant does not insist on riparian rights.
    3. Mortgages, § 491*—lohen cross-bill demurrable. On bill to foreclose and for taxes paid, a cross-bill praying the court to establish a dividing line between the land covered by the trust deed and the land added by accretion, held properly demurrable.
    4. Mortgages, § 547*—when foreclosure decree may allow for taxes paid on accretions. On bill to foreclose, complainant held entitled to taxes paid by him on a portion of the land added by natural accretion subsequent to the mortgage.
    5. Riparian owners, § 2*—riparian rights. Riparian rights consist of the right to hold all natural accretions to the shore lands and the right to pass to and from the waters within the width of the land.
    Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Franklin E. Vaughan, for appellants.
    John W. Burdette, for appellee.

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

   Mr. Justice Duncan

delivered the opinion of the court.

Edward M. Murray, appellee, as owner of certain notes secured by the trust deed described in the bill, obtained an ordinary decree in foreclosure against William D. Washburn and wife, appellants and owners of the land, Charles U. Gordon and wife, the debtors, Chicago Title & Trust Company, and Northern Trust Company, trustee and successor in trust. The sums found due were $12,465.68, as debt, and $675, as solicitor’s fees, no part of which is questioned on this appeal, except the items of taxes paid by appellee. The property, as described in the trust deed and in the bill, is lot 13, except the west one hundred feet thereof, in Simmons and Gordon’s Addition to Chicago, the same being a subdivision of lots 10 and 19 and vacated street between them, in School Trustees’ Subdivision of section 16, T. 40 N., R. 14 E. of the third principal meridian.

In their second amended answer, on which they relied for defense, appellants denied that appellee paid as taxes on said real estate the sum of $264.93, as averred in the bill, and alleged that the larger part of said taxes was paid by appellee on other and different property lying east of and adjacent to said property and that said lot 13 bordered on the waters of Lake Michigan and was vacant, unoccupied and unimproved land. The master in chancery upon those issues found that the property described in the deed of trust and in the bill was then known and taxed as lots 7, 8, 9 and 10 of County Clerk’s Subdivision of lots 12 and 13 and lot 25, except the west five hundred and fifty feet thereof, together with the accretions thereto, in Simmons and Gordon’s Addition to Chicago; that appellee paid said taxes on said property by said description; and that the property described in the tax receipts and certificates is the property described in the trust deed with its accretions. Objections to such findings were overruled by the master, and the court overruled exceptions to the master’s rulings and found and decreed accordingly.

Appellants also filed a cross-bill setting forth, in substance, that the land immediately east of and adjacent to the land described in the trust deed was at the date thereof covered by the waters of Lake Michigan and that the title thereto was vested in the State of Illinois; that by certain acts of the legislature of Illinois the title to said submerged land was vested in the Commissioners of Lincoln Park; that in September, 1906, by contract with the Commissioners of Lincoln Park and by a decree of the Circuit Court of Cook county in the case of Cordon and others against said Commissioners, under the authority of the said acts of the legislature, the east line of said lot 13 was established and permanently located a considerable distance east of the former location of said boundary line and that the title to said added land to said lot 13 became and is vested in appellant, William D. Wash-burn, and that this added land lies immediately east of the line extending from a point two hundred and three feet east of the S. W. corner of said lot 13 to a point two hundred and one feet east of the N. W. corner of said lot 13, and that said added land is one hundred and twenty-three feet long on the north line and one hundred and thirty-five feet long on its south line and of the same width of said lot 13, or two hundred and ten feet wide; that in consideration for the location of said new line said appellants deeded to said commissioners all riparian rights to said lot 13; that thereafter the county clerk of Cook county caused a subdivision to be made of said lot 13 and other lots, as increased by said added land, and a'plot thereof to be recorded for assessment purposes and that said lot 13, except the west one hundred feet thereof, and its added land is now known on said plot as lots 7, 8, 9 and 10 of County Clerk’s Subdivision of lots 12 and 13 and lot 25, except west five hundred and fifty feet thereof, together with accretions thereto, in Simmons and Cordon’s Addition to Chicago, sec. 16, T. 40, B. 14; that said new land so acquired was not the land of appellant, William D. Washburn, at the execution of said trust deed and was not and is not covered by said deed, and was and is submerged land in Lake Michigan; that, therefore, the dividing line between the land mortgaged and the added land should be established by the decree of the court; that by the terms of said decree establishing said new line it is provided that appellant, William D. Washburn, should have the right of taking from the bed of Lake Michigan immediately east of said line, in any way desired, a sufficient amount of sand to build up appellant’s premises west of said line to the established grade required by the Chicago ordinances; that, therefore, some question arises by the pleadings as to whether or not the said deed of trust and the bill cover the riparian rights conveyed to said commissioners, and that no adjudication of said boundary line can be had until said commissioners, owners of the riparian rights, shall be made parties; that the land decreed to be sold herein should only include said original lot 13, except the west one hundred feet thereof and such accretions as may have been added up to the entry of the decree herein, and that said land should be properly described by metes and bounds.

The court sustained a demurrer to said cross-bill apparently upon the ground that the subject-matter thereof was not germane to that of the original bill. The same matters were afterwards set up in said second amended answer and the court sustained exceptions thereto and those matters were stricken from the answer as impertinent matters. On this appeal appellants ask for a reversal of the decree, insisting that the court erred in sustaining. the demurrer and dismissing the cross-bill, in sustaining said exceptions, in including in the sum found due all of said taxes and in finding that the property described in the trust deed is now known as said lots 7, 8, 9 and 10, etc.

In the said County Clerk’s Subdivision and plat, original lot 13, with its accretions or said added land on its east end, is now known as lots 12, 11, 10, 9, 8 and 7, all of which lots except lot 7 are fifty feet wide. Lot 7 is seventy-four feet wide on the north end and eighty-eight feet wide on the south end, and lies the farthest east of all of said lots, and all of said lots are one hundred ten feet long north and south. Lots 12 and 11 include the west one hundred feet of said original lot 13 which was excepted from the trust deed. The contention of appellants is that the land described in the trust deed only includes said lots 10 and 9 and a strip off the west side of said lot 8 one foot wide at the north end and three feet wide at the south end, and that the remainder of said lot "8 and lot 7 which lie east of said newly established line are the property of appellants and free from the lien of said trust deed and that the said taxes thereon ought not to have been included in said sum found due appellee. All the evidence admissible to sustain the cross-bill and the matters expunged from the second amended answer were admissible and were given in evidence to prove appellants’ averments in the said answer, and not expunged therefrom, alleging, in substance, that the payments of taxes on the newly added land in said lots 8 and 7 by appellee were voluntary on his part and unsolicited by appellant, and should not be included in the sum found due, because paid on no part of the land mortgaged. Waiving the question of whether or not the court on a mere question of pleading erred in sustaining appellee’s demurrer or exceptions, the evidence in the record does not and would not support the cross-bill or the matters expunged from the answer had they been retained as part of the issues, and the decree of the court is, therefore, clearly right and it ought to be affirmed.

Appellee does not dispute the claim of appellants that the title to the submerged lands in the lake extending out to the line of navigation east of said original lot 13 was originally in the State and that the same was vested by the legislature in the Commissioners of Lincoln Park. That is a clearly established fact by the acts of the legislature and their title have been many times confirmed by the decisions of our Supreme Court. Hurd’s Statutes of 1909, ch. 105, pp. 1594, 1609, sees. 81, 127, 128 (J. & A. ¶¶ 8097, 8099, 8100); Gordon v. Winston, 181 Ill. 338; Lincoln Park Com’rs v. Fahrney, 250 Ill. 256.

It is also true that said submerged lands were vested in the park commissioners and their successors for the benefit of the public as a part of Lincoln Park, and for no other purposes whatever. They had no right to convey or sell any part of the land so vested in them to any one for private purposes. By said section 128 (J. & A. 8100) they had the right to acquire the riparian rights of the owners of the shore lands by contract or by condemnation proceedings, and had the right to have established and permanently located the boundary line between the shore owners’ lands and the submerged lands. The newly established line between said original lot 13 and the submerged lands adjacent thereto was so established in the Circuit Court, according to the statute in the said case of Gordon and others against said Commissioners of Lincoln Park, and appellants proved that fact by the introduction of the decree in that case and the'contract of the parties to said decree made before the suit was begun. Appellant, William D. Washburn, was a party to said contract and decree. By that contract he and the commissioners agreed upon the said line mentioned as the true line between the said original lot 13 and the park property, or the submerged land, and he and said commissioners represented to the Circuit Court in said suit that they caused the question of said correct boundary line to be examined by competent engineers and other skilled persons, and after full examination had agreed that the line so established as aforesaid is the line between said private land and the park land, and that it ought to be so established by the court. The court found that said allegations were true and decreed that said boundary line should be the permanent boundary line between said parcels of land and that the same should not thereafter be changed by accretions or erosions and confirmed the title in said lands west of said line in said Washburn and the title to the submerged lands east of said line in said commissioners. The decree further provided that said Washburn should have the right of drawing sand from the bed of the lake opposite his premises for the purpose of raising his land to the proper grade, and a plat of said lands and line was accordingly made and filed as a part of said decree. The surveyor, Emil Budolph, and the County clerk of Cook county, who caused said plat for assessment purposes to be recorded, certify to that plat and that said lots 12, 11, 10, 9, 8 and 7 are a correct resurvey and plat of said original lot 13 with the accretions thereto. By said contract and decree appellants were bound to said commissioners and to all other parties to said decree. Having caused such records to be made, appellants ought to be estopped in equity to now say that appellee should not be entitled to. pay said taxes on said lots 8 and 7 and to have a decree for the repayment of the same in view of the further facts that he failed to pay the taxes himself and by his said trust deed authorized and empowered appellee to pay the same and be reimbursed therefor by such a decree, even supposing that said lots are not in reality covered by said trust deed.

All the evidence, however, relied on by appellants and introduced by them shows that the .said newly established line was the true line, that is, the water line, between said original lot 13 and the submerged lands of the said commissioners immediately east of said lot, and that the newly added land to said lot 13 that he claims to be free of the lien of the trust deed was, therefore, land added to said lot 13 by natural accretions up to and at the time said line was established. The trust deed then covered the land described in it with the accretions, and the same from thence until the decree in this case was shore land without rip; rian rights, which rights were conveyed by appellant ■ ’ deed to the commissioners, and by the decree establishing said line, said lot 13 with its said accretions are to remain shore lands without riparian rights to the owners thereof, and are, therefore, not to be diminished or increased by erosions or accretions after said decree. There is no evidence in the record showing that any part of appellants’ land west of said established line was submerged land at the time said line was established, or at the date of the foreclosure decree. Emil Rudolph, the surveyor who surveyed it for the county clerk, testified that at the time of his survey lots 8 and 7 of that survey were undoubtedly under water, but that he did not know that they were. The evidence also shows that the actual shore line has varied considerably from the,, year 1900 to May, 1910, but we do not regard these facts as of any consequence in the decision of this case. Original lot 13 bordered on Lake Michigan when the trust deed was executed and appellants then were the owners of it with riparian rights. Riparian rights pass by deed with the title to the land without designation in the conveyance, and, therefore, the trust deed conveyed to appellee the riparian rights of appellants in said lot. Illinois Cent. R. Co. v. Illinois, 146 U. S. 387; Hanford v. St. P. & D. R. Co., 43 Minn. 104.

The rights of a riparian owner of lands on Lake Michigan cannot be divested or taken from him without just compensation, and these rights consist of the right to hold all natural accretions to the shore lands and the right to pass to and from the waters of the lake within the width of his land. Revell v. People, 177 Ill. 468.

Appellee, not being a party to fixing said permanent boundary line, had the right to assert riparian rights in said lot, even as against the Park Commis-' sioners. Appellants had no power or right to insist on his abandoning or asserting such rights. Appellee chose to abide by the established line by the Circuit Court so established for the appellants and the commissioners, and to not insist on riparian rights, and, therefore, the commissioners were not necessary parties to this suit in foreclosure. Leiter v. Field, 24 Ill. App. 123; Culver v. Cougle, 165 Ill. 417; Walker v. Warner, 179 Ill. 16.

"Whatever of benefit, if anything, appellants received for the extinguishment of said riparian rights equitably belonged to appellee to be applied in sátisfaction of said mortgage debt, as he elected to be bound by the establishment of said permanent boundary. There is, therefore, no merit in the claim of appellants that said lot 13, except the west one hundred feet thereof, does not extend to said permanently established boundary and that appellee has no lien thereon up to the fixed boundary. Neither the appellants nor any grantee of theirs has spent any sum in filling up the added land with sand for the purpose of improving or reclaiming the same from the waters of the lake, as was shown to be done in the case cited by appellants, Point Breeze F. & I. Co. v. Bragaw, 47 N. J. Eq. 298. As the permanent boundary line is already established and as no one else has any superior lien or claim to that of appellee in the land west of said line, and as the evidence of appellants upon which they rely to establish their cross-bill so shows, there is no occasion for a cross-bill or further answer to have established and defined the rights, of appellee and appellants, which are simply those of ordinary mortgagees and mortgagors. The decree is, therefore, affirmed.

Affirmed.


text:
    Chris Schmidtz, Defendant in Error, v. Ernest Tosetti Brewing Company, Plaintiff in Error.
    Gen. No. 17,740.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 492

      —when driver may not recover for injuries from kicking horse. A servant ordered to drive a kicking horse cannot recover for injuries where the danger was so imminent that a man of ordinary prudence would not have incurred the risk.
    2. Master and servant, § 398*—when servant is relieved from assumption of risk. When the master makes a promise to repair or to remove a defect, or gives a command to encounter danger, the doctrine of assumption of risk is thereby removed from consideration and the real question is one of contributory negligence on part of the servant.
    3. Master and servant, § 818*—when instruction erroneous. Instruction which permits a servant to recover for injuries sustained while obeying an order of master, regardless of servant’s knowledge of the danger, held erroneous.
    Error to the Municipal Court of Chicago; the Hon. Isadore H. Himes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by Chris Schmidtz against Ernest Tosetti Brewing Company, a corporation, to recover for injuries sustained from driving a kicking horse belonging to defendant while plaintiff was in the employ of said defendant. From a judgment in favor of plaintiff for three hundred seventy-five dollars, defendant brings error.
    F. J. Canty and J. C. M. Clow, for plaintiff in error.
    Francis X. Busch and Frank A. Rockhold, for defendant in error.

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

   Mr. Justice Duncan

-delivered the opinion of the court.


text:
    Mina Ankele, Defendant in Error, v. Workingmen’s Relief Societies, A. U. V. O. of the State of Illinois, Plaintiff in Error.
    Gen. No. 17,778.
    1. Insurance, § 747

      —when member of mutual benefit society bound by new by-laws. A member in a mutual benefit society may be bound by new by-laws when he consents to be so bound for a sufficient consideration though such consent or agreement be not a part of his original contract.
    2. Insurance, § 747*—when member of mutual benefit society bound by new by-law by estoppel. Where a member of a mutual benefit society acquiesces in a new by-law reducing the amount of death benefits and pays assessments in accordance therewith for more than two years, such member and his beneficiary are estopped to claim payment under the old by-law.
    3. Insurance, § 747*—consideration for consent to change in by-laws. Reduction of society’s liability and reduction of assessments constitute ample considerations for members consent to a new by-law.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed with finding of facts.
    Opinion filed October 15, 1913.
    Herman H. Breidt and A A. Meter, for plaintiff in error.
    Charles E. Frazier and . error. s Ziv, for defendant in

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

   Mr. Justice Duncan

denied the opinion of the court.

Mina Ankele, defendant i' ment of $328 against the cieties, A. U. V. 0. of the in error, on a membership c payment to her by said soci the death of her husband, F certificate was issued, Augus ror, recovered a judgkingmen’s Belief So-’;e of Illinois, plaintiff .cate providing for the the sum of $500 upon Ankele, to whom said >, 1902.

The evidence in this record discloses that said society was incorporated by special act of the legislature of this State, February 16,1865, and that said act was amended by the legislature March 26, 1869, by an act declared to be a public act. The said charter, as amended, declared the object of said society and the subordinate lodges thereof to be: “To unite the members thereof in' a bond of brotherhood and mutual friendship; to minister to their wants in sickness and in distress; to bury their dead brethren and to provide for their needy widows and orphans, and to raise funds to give to their widows, heirs, next of kin, etc., entitled thereto under the by-laws of said corporations.” The charter also granted power to the Grand Council of said society to assess such initiation fee and other monthly or quarterly dues necessary to carry out the objects of said corporations, and to said corporations the power to make and from time to time to alter as they deem expedient and proper the by-laws of said corporations with reference to the times and manner of electing officers, and their number, names and duties, “and such other provisions for the good government, general welfare, improvements and existence of said respective corporations, as the majority of the members of each corporation may determine,” not inconsistent with the laws of this State. The following by-laws of June 9, 1901, were in full force and effect when said membership certificate was issued to Emil Ankele:

“Upon the death of a member, the person or persons to whom the death fund certificate is made payable and whose name is conscientiously enrolled in 'the lodge death fund is entitled to the sum of $500, which sum is to be paid out of the order’s death fund.”
“This $500 death money shall be derived through a standing assessment of 75 cents per month. In the event that the treasury is too weak, the Grand Secretary shall call an extra assessment, which is to be paid with the monthly assessments. i:= * * All surplus which shall be derived from the hall management shall go to the death fund, so that all members will have equal benefit of the order.”

Dues were collected also for sick benefits, etc., and for the burial of the deceased wives of members and all members at first paid equally for dues and assessments, but the assessments to the death fund were raised to $1.55 per month in January, 1907. A graduated rate was on July 24, 1907, recommended to all the members of the order by a committee duly appointed by the Grand Lodge, by which members would be required to pay monthly assessments as follows:

Age 18 to 25............$1.35
Age 26 to 30............ 1.45
Age 31 to 35............ 1.55
Age 36 to 40............ 1.70
Age 41 to 45...;........ 1.85
Age 46 to 50............ 2.35
Age 51 to 55............ 2.60

The committee further reported that said rates should be raised every five years, and that, “should the members not be satisfied with the above proposition under the present insurance of $500 and $100 woman’s insurance, it would be advisable that each member pay $1.00 for each death, and that upon the death of a member the society pay as many dollars as it has members on the day that the payment is due. Upon the death of a woman every member pays a pro rata assessment. The dues are 50 cents per month and $1.00 per year for the reserved fund. ’ ’

At an extra society meeting held August 25, 1907, composed of the members of the Grand Lodge and a large majority of the members of each section or subordinate lodge of the order, after having considered the report and recommendations of said committee, the following by-laws were unanimously adopted to take effect September 1, 1907, to-wit:

“First:—Done away with the death money of $500.
Second:—Done away with the age rate and all extra assessments.
Third:—The death money is $1.00 from every member who is in good standing at the day of the death of a member.
Fourth:—The assessment of $1.00 per member must be paid in advance.
Fifth:—The sum for the sick fund amounts to 60 cents per month.
Sixth:—Upon the death of the wife of a member $100 death money will be taken from the sick fund.”

The entire by-laws of the order were revised and approved at the session of the Grand Lodge, August 31, 1907, the concluding order of which reads thus: “This constitution of the Grand Lodge, as well as the constitution of the subordinate lodges, shall be in forcé and effect from this 1st day of September, 1907, and all former laws and decrees are hereby repealed.”

The new by-laws so adopted for the regulation of the death benefit fund read as follows: “In case of death of a brother every member must pay the sum of $1.00. At the death of a member the person (or persons) who is designated as the beneficiary in the certificate, shall receive as many dollars as there are members in good standing at the time of the death of the member. ’ ’

“After the death of a member, the Secretary of the society shall send to each section a written notice, giving the name of the deceased, his place of residence, and the number of his section.”

“After the decease of a member the designated heirs shall receive an amount of dollars equal to the number of members in good standing at the time of the death of the member, after the furnishing of all legal proofs of death. Such amount to be paid within 30 days after the death. ’ ’

The real question presented for the decision of this court is as to whether or not Emil Ankele and appellee, the beneficiary named in his certificate, were bound by the said by-laws of 1907. It is conceded by defendant in error that there were only one hundred and seventy-two members in the society in good standing at the date of Ankele’s death, and that she has received from plaintiff in error $172.00. It is insisted for her here that she is not bound by the new bylaws, because her certificate does not provide that it shall be subject to subsequent changes of the laws of the order. The certificate in question merely certified that Emil Ankele was a member of the society in good standing, and that as long as he “punctually followed” all the laws, rules and orders thereof, he had thereby part of the death fund of the order to the amount of $500, which sum, after his death, should be paid to his wife, Mina Ankele. A member in a mutual benefit society may consent by his contract that subsequently enacted by-laws or amendments shall enter into and form parts of his contract modifying or varying it. He may also be bound by such new by-laws if he consents to be so bound for a sufficient consideration, although such consent or agreement be not a part of his original contract. Where in such case he acts under the new laws and clearly recognizes them as modifying his contract, and accepts the benefits accruing to him therefrom, he will be estopped to deny that he has consented to the modification. It is also the rule that such by-laws though assented to by a member shall not be permitted to operate retrospectively against him, unless the intention to have them so operate is clear and undoubted. Niblack on Benefit Societies, secs. 26, 27; Covenant Mut. Life Ass’n v. Kentner, 188 Ill. 431.

The certificate of membership is not the entire contract, however, but is only a mere “fragment” thereof. The charter, constitution and by-laws of the society, if the member has assented thereto, are a part of his insurance contract whether they are referred to in the certificate or not. A beneficiary, not being a party to the contract, has no vested rights in such a certificate, and is bound by the consent of the contracting member to an abridgement or annulment of her prospective interest in the contract. Niblack on Benefit Societies, secs. 136, 137; Railway Passenger, etc., Ass’n v. Robinson, 147 Ill. 138; Catholic Knights v. Franke, 137 Ill. 118; Peterson v. Gibson, 191 Ill. 365.

The undisputed evidence in this record shows that in 1907 and prior thereto it had become necessary to gradually increase the assessments for deaths as aforesaid, in order to raise $500 after every death to pay the beneficiaries under the old by-laws, by reason of the constant decrease in the number of the members in good standing in the society; that there were only two hundred and forty such members in all the lodges when the said original by-laws were repealed and the new ones adopted; that every member of the order, including the deceased, Emil Ankele, were duly served with copies of the following instruments, on the following dates: on July 24, 1907, a copy of said report of the Grand Lodge Committee and its recommendations accompanied with a notice to attend the society meeting at the society’s hall in Chicago, August 25, 1907, to vote on the proposed changes; on September 3, 1907, a copy of the new by-laws as adopted with a statement that they were unanimously adopted at said meeting, August 25, and would take effect September 1, 1907;' and after August, 1907, a printed copy of the new revised by-laws of August 31, 1907.

It is also uncontroverted that Mr. Ankele was fifty-' five years of age when he died, and that it would have required more than $2.00 for every member of his lodge on an equal assessment at the time the new bylaws were enacted to pay the beneficiary of any deceased member $500, and that all the members were paying for sick benefits and assessments for deceased members’ wives, etc., and that there was no other fund to give relief therefrom, and that those burdens were constantly increasing as their numbers were constantly decreasing. Ankele understood the situation fully September 1, 1907. He asked-Mr. Beinecker, secretary, the condition of the society, and how much he would have to pay under the new by-laws and how much he would get if -he died, and was informed that he and all other members would have to pay $1.00 for every death assessment, and that he and all other members would only receive at death for their beneficiaries the sum of $1.00 for every member in good standing after September 1, 1907. He also asked how many members there were, and after having the matters fully explained was satisfied, paid his $1.00 in advance for the advance assessment, and paid according to the new by-laws for the nineteen deaths that occurred in the twenty-nine months following September 1, 1907, without objection or protest, and then died with the full understanding that the society was only to pay his beneficiary $1.00 for every member in good standing’. All the other members in his society did the same, that is, acquiesced in the new by-laws and paid the new assessments on the new plan without complaint or protest and with the understanding that their beneficiaries would be paid only $1.00 for each member in good standing instead of $500, according to the old by-laws then repealed. The reductions of the society’s liability, and the reductions of his assessments, would have constituted ample considerations for a new agreement between him and the society that the new by-laws should bind him and his beneficiary. Supreme Council, A. L. H. v. Garrett (Tex.) 85 S. W. Rep. 27; Breslow v. Southern T. M. Relief Ass’n, 107 App. Div. (N. Y.) 123. Mr. Ankele was not bound by the new by-laws as to the amount his beneficiary would receive thereunder in the absence of an intent to be so bound. It is clear that he understood that he was bound thereby, and that he accepted the benefits of the new by-laws with intent to be so bound, and that all the other members of the order did so with the- same understanding and intent, and with the further understanding that every other member was so bound. Having elected to accept the benefits conferred upon him by the new by-laws for almost two and one-half years after their enactment, it would be nothing short of a fraud for him and his beneficiary to claim payment under the old by-laws and they are estopped to do so. Supreme Council, A. L. H. v. Lippincott, 67 C. C. A. 650, 134 Fed. 824; Supreme Council, A. L. H. v. McAlarney, 67 C. C. A. 546, 135 Fed. 72; Clymer v. Supreme Council, A. L. H., 138 Fed. 470.

The court erred in rendering judgment in favor of defendant in error, and the judgment is reversed with a finding of facts.

Reversed with finding of facts to he incorporated in the judgment.

Finding of Facts: That by the acts and conduct of the said Emil Anhele he and defendant in error were and are estopped to claim any further or other sum from plaintiff in error on the certificate in suit than the sum of $172; that said sum of $172 was fully paid to defendant in error by plaintiff in error before the bringing of this suit, and that plaintiff in error was not indebted to defendant in error in any sum at the bringing of her suit.


text:
    In the Matter of the Estate of Frederick Herhold, deceased. On Appeal of Albert L. White, Appellant, v. The Estate of Frederick Herhold, deceased, Appellee.
    Gen. No. 17,827.
    1. Judges, § 9

      —when interchange is proper. Under Hurd’s K. S. ch. 37, § 245, J. & A. If 3294, judges of city courts may hold court for each other and for Circuit and Superior judges anywhere in the State, including Cook county.
    2. Appeal and error, § 1718*—•when error is waived. The Appellate Court has no power to pass on the validity of a statute, and when a person appeals to such court assigning other errors which the court has jurisdiction of he waives his right to contend that the statute is invalid.
    3. Trial, § 31*—when case may he tried out of order. Under Practice Act, § 21, J. & A. If 8558, authorizing the court to try a cause out of its regular order for “good and sufficient cause,” the sufficiency of such cause is a question for the trial court, and its3 decision will not be interfered with on review unless there has been a clear abuse of discretion.
    4. Continuance, § !

      ■—when proper. A motion for a continuance is properly denied when based upon the ground that the plaintiff had a similar or the same suit pending in another court, and the affidavit did not suggest that the trial in the other court was necessary in order to obtain all the relief sought in the two suits.
    5. Teial, § 192*—when direction of verdict is proper. Where a plaintiff and defendant were both present in court with their attorneys and there were no unsettled pleadings or other sufficient reason why the cause should not be tried, both parties had the right to have a final disposition of the cause, and when the defendant demanded a trial and the plaintiff refused to introduce any evidence, although he had the burden of proving his case, it was proper to direct a verdict for defendant.
    6. Dismissal, nonsuit and discontinuance, § 38*—when involuntary nonsuit is proper. An involuntary nonsuit cannot be legally obtained through the voluntary action of the plaintiff and against the objection of the defendant.
    Appeal from the Circuit Court of Cook county; the Hon. H. Steeling Pomerot, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Leman & Rigby, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellee.

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

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

   Mr. Justice Duncan

delivered the opinion of the court.

Appellant, Albert L. White, appeals from a judgment of the Circuit Court of Cook county against him and in favor of the administrator of the-'estate of Frederick Herhold, deceased, rendered June 12, 1911, on a claim filed by him in the Probate Court against said estate for $9,632.53. The cause was taken to the Circuit Court on appeal from an order of the Probate Court of Cook county, dismissing said claim “without prejudice.” The cause was disposed of in the Circuit Court before H. Sterling Pomeroy of Kewanee, Illinois, as the presiding judge, and who was then the duly elected and qualified judge of the City Court of Kewanee, Henry county, Illinois.

Appellant first contends that Judge Pomeroy had no right, power or authority to act as judge of the Circuit Court of Cook county, and that the judgment therefore is a nullity. He argues that if section 245 of chapter 37 of Hurd’s Statutes (J. & A. jf 3294) should be construed as authorizing and empowering a judge of a City Court outside of Cook county to hold Circuit Court in Cook county, it is in violation of Article IV of the Constitution of 1870. That section of the statutes reads as follows:

‘1 Such judges may, with like privileges as the judges of Circuit and County courts, interchange with each other, and with the judges of Circuit, Superior and Probate courts, and may hold court for each other, and for judges of Circuit, Superior, County and Probate courts, and perform each other’s duties, and the duties of judges of Circuit, Superior, County and Probate courts, when they find it necessary or convenient.”

The said provision seems to clearly authorize judges of city courts to hold court for each other and for Circuit and Superior judges anywhere in the State, including Cook county. Our Supreme Court has recognized the act in question as a valid law. American Car & Foundry Co. v. Hill, 226 Ill. 227. This court has no power or right to pass on the validity of a statute law, and appellant by appealing to this court and assigning other errors which this court has" jurisdiction to pass on has waived his right to contend that the statute in question is unconstitutional. The validity of the said statute is not, therefore, a question for decision in this appeal. Case v. City of Sullivan, 222 Ill. 56; Rogers v. St. Louis-Carterville Coal Co., 254 Ill. 104.

We find no merit in the contentions of appellant that the court erred in advancing and trying the cause out of its regular order, and in refusing to continue the same on affidavit of appellant. Section 21 of our Practice Act (J. & A. U 8558) gives the court the right and power to advance and try a cause out of its regular order for “good and sufficient cause.” What is good and sufficient cause within the meaning of that section is a question for the trial court, and the trial court’s decision in that regard will not be interfered with by the reviewing court unless there has been a clear abuse of his discretion. Spitzer v. Schlatt, 249 Ill. 416; Staunton Coal Co. v. Menk, 197 Ill. 369.

A motion for a continuance setting up other than statutory causes therefor is also addressed to the sound discretion of the court. Appellant failed to show the court that he would be any better prepared to try the cause at a later time or that he was in any wise prejudiced by the advancement and trial of the cause. The main ground relied on for a continuance was that he had the same or a similar suit pending in the Superior Court of Cook county, wherein the same issues were involved requiring the same evidence, and that it would be a burden to him to have to retry the same in that court upon the same evidence, as a judgment in that court for him would prevent any necessity of a trial of this case in the Circuit Court, and his defeat in the suit in the Superior Court would bar his recovery in the Circuit Court. It was not suggested in the affidavit that a trial in the Superior Court was a necessity in order to obtain all the relief he was seeking in the two suits. The court therefore properly overruled his motion for a continuance.

It is finally argued that the court erred in calling a jury and in directing the jury to return a verdict for appellee, as there was no evidence introduced by either party; and that the court ought to have dismissed the suit or the appeal, and should not have entered a judgment on a directed verdict barring appellant’s right of recovery. Appellant and appellee were both present in court with their attorneys, and there were no un-

settled pleadings, or other sufficient reasons shown or urged why the cause should not be tried. "Under such conditions it is the right of both parties to have a final trial or disposition of the cause, and the court cannot legally deny either party a trial without good cause therefor is shown. Appellee demanded a trial, and the court called a jury. Appellant refused to introduce any evidence. As the burden of proof was on appellant to prove his claim, the court properly directed the jury to return a verdict finding the issues for appellee. Such a direction by the court is just as proper where no evidence at all is offered, as it would have been had appellant introduced evidence insufficient to prove his claim, and he was not in a position to legally demand an involuntary nonsuit. Appellee did not obtain a. judgment in bar of the action in the Probate Court, and could not obtain such a judgment by a dismissal of the appeal. Appellant was entitled to a voluntary nonsuit at any time before the jury left the bar by simply asking the court to grant it, but he failed to do so. Having refused to take a voluntary nonsuit, appellant rendered the right of appellee to a judgment in bar absolute, and he must now be held bound by the judgment. An involuntary nonsuit or dismissal of the suit is proper in many instances where there is a failure to prosecute the suit on the part of the plaintiff, or where for any other reason it would not be just to the defendant to allow the particular suit to proceed further. An involuntary nonsuit, however, cannot be legally obtained through the voluntary action of the plaintiff and against the objection of the defendant. A judgment, as in case of involuntary nonsuit by a court under such circumstances would be unwarranted, as such a judgment in contemplation of law usually eomes at the instance of the defendant. Delano v. Bennett, 61 Ill. 83; Kennedy v. Flick, 164 Ill App. 483. See also Seavey v. Rogers, 69 Ill. 534; Williams v. Brunton, 8 Ill. (3 Gilm.) 600; Boyce v. Snow, 187 Ill. 181, affirming 88 Ill. App. 402; Sanitary Dist. of Chicago v. Chapin, 226 Ill., 499; Leonard v. Garland, 252 Ill. 300; Sehnert v. Schipper & Block, 168 Ill. App. 245; People v. Reuter, 88 Ill. App. 586.

There is no error in the record and the judgment is affirmed.

'Affirmed.


text:
    In the Matter of the Estate of Emma B. Armstrong, deceased. On Appeal of Charles E. Roland, Appellant, v. Samuel G. Grodson, Administrator, Appellee.
    Gen. No. 17,861.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Teiax, § 31

      —when case may 6e tried out of order. Under Practice Act, § 21, J. & A. fl 8558, authorizing the court to try a cause out of its regular order for “good and sufficient cause,” the sufficiency of such cause is a question for the trial court and its decision will not he interfered with on review unless there has been a clear abuse of discretion.

      Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Wiitobs, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Proceeding under R. S., ch. 3, § § 81,82; J. & A. 130, 131, to collect assets, by Samuel G. Grodson, administrator, to collect of estate of Emma B. Armstrong, against Charles E. Roland. From a judgment for plaintiff, defendant appeals.
    James H. Stansfield, for appellant.
    Blum & Blum, for appellee.

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

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

   Mr. Justice Duncan

delivered the opinion of the court.

2. Trial, § 31 —when cause is properly advanced. Held that the advancement for trial of a cause concerning an estate was proper where such estate would be damaged by the delay.

3. Executors and administrators, § 79*—when assets may he recovered. R. S. ch. 3, §§81, 82, J. & A. f ft 130, 131, as to the collection of assets by administrators, does not limit recovery only to “identical property,” and where a person charged with the duty of selling property and paying debts of a woman, only paid a portion of such debts, held that the administrator of such woman was entitled to recover the remainder of the proceeds arising from the sale of property.

4. Executors and administrators, § 226*—when claim need not he probated. In a proceeding by an administrator under R. S. ch. 3, §§ 81, 82, J. & A. flf 130, 131, to collect assets, where it appeared that an agent of the deceased was to be allowed a certain commission for selling property, it was not improper to allow the retention of such commission without forcing the agent to probate his claim.


text:
    National Steam Heating Company, Appellee, v. William C. Moulton, Appellant.
    Gen. No. 17,886.
    (Not to toe reported in full.)
    Appeal from the County Court of Cook County; the Hon Charles E. Jennings, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action on contract toy National Steam Heating Company, a corporation, against William C. Moulton. From a judgment for plaintiff for $588.90, defendant appeals.

      Abstract of the Decision.
    1. Evidence, § 223

      —when hearsay evidence is not admissible. In an action for the recovery of a balance due for installing heating apparatus, where there was no evidence that plaintiff had damaged a boiler, or that such boiler was in fact damaged, held that a certain letter concerning the damage was not admissible in evidence, being merely hearsay and being the statement of third parties in their own interest.
    2. Instructions, § 62*—what facts may be assumed. In an action for a balance due upon a contract for installing heating apparatus, held that the giving of an instruction which assumed that delay of the plaintiff in completing the work was caused by the defendant, or those working for him, was not prejudicial error even if not based on the evidence, since the plaintiff was entitled to recover, the defendant did not prove any defense either by way of set-off or recoupment and there was no damage due to delay.
    Lewis, Folsom & Streeter, for appellant.
    Thomas J. O’Hare, for appellee.

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

   Mr. Justice Duncan

delivered the opinion of the court.


text:
    The University Club of Chicago, Appellee, v. Earl H. Deakin, Appellant.
    Gen. No. 18,009.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Statement of the Case.
    Action by the University Club of Chicago, a corporation, against Earl H. Deakin to recover balance of rent due for use of premises leased Tby plaintiff to defendant. From a judgment in favor of plaintiff for $2,007.66, defendant appeals.
    Abstract of the Decision.
    1. Landloed and tenant, § 83

      —when clause in lease not a dependent covenant. A clause in a lease that lessor will not rent any other store in the building to any tenant making a specialty of the sale of pearls, held not a dependent covenant.
    2. Landloed and tenant, § 81*—when restrictive covenant in lease not violated. Covenant not to rent any other store in the building to any tenant making a specialty of the sale of pearls during the term of the lease, held not violated by landlord leasing to another for a “watch maker and jewelry establishment and for no other purpose” though such latter tenant did sell pearls.
    3. Landloed and tenant, § 276*—when acts of landlord do not debar payment of rent. Wrongful act of the landlord does not debar him from recovery of rent, unless the tenant by such act has been deprived in whole or in part of the possession, either actually or constructively, or the premises rendered useless.
    4. Landloed and tenant, § 81 *—restrictive covenants in lease strictly construed. Covenants restraining the power of alienation, or in restraint of trade, will be strictly construed against the restriction.
    5. Landloed and tenant, § 84*—when parol evidence not admissible in construing lease. Parol evidence not admissible to modify or change the plain unambiguous meaning of terms in a lease.
    6. Landloed and tenant, § 60*—implied covenants. Courts will not imply covenants which might and ought to have been expressed, if intended.
    John S. Goodwin and Robert F. Pettibone, for appellant.
    Matz, Fisher & Boyden, for appellee.

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

   Mr. Justice Duncan

delivered the opinion of the court.


text:
    Mary Royls, Administratrix, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,035.
    (liot to he reported in full.)
    Abstract of the Decision.
    1. Carriers, § 476

      —when evidence sufficient to sustain verdict for death resulting from sudden starting of car. In an action against a street railway company for death of a person resulting from sudden start of one of defendant’s cars while boarding same at a street intersection, verdict for plaintiff, held not against the manifest weight of the evidence.
    2. Carriers, § 472*—when expert evidence admissible. It is discretionary with court to admit expert evidence in rebuttal, although affirmative evidence in establishment of plaintiff’s case.
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 15, 1913.
    Rehearing denied October 27, 1913.
    Statement of the Case.
    Action by Mary Royls, administratrix of the estate of James J. Royls, deceased, against Chicago City Railway Company to recover for wrongful death of deceased resulting from sudden' starting of car while deceased was attempting to board same at street intersection. From a judgment in favor of plaintiff for five thousand dollars, defendant appeals.
    John E. Kehoe and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    S. P. Douthart and James L. Bynum, for appellee; Guerin, Gallagher & Barrett, of counsel.

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

   Mr. Justice Duncan

delivered the opinion of the court.

3. Cabbiebs, § 472*—admissibility of expert evidence as to cause of death. Permitting a physician to state whether injuries caused death, held not to invade province of the jury.

4. Cabbiebs, § 472*—competency of expert to answer hypothetical questions on cause of death. Physician may in answer to hypothetical questions, give opinion whether death resulted from injuries though he had personal knowledge of the nature and extent of the injuries and was able to testify 'from his own knowledge.

5. Appeal and ebbob, § 512*—when objection to hypothetical questions waived. Objection that hypothetical questions contained improper elements or lacked other elements is waived by not making specific objections.

6. Appeal and ebbob, § 430*—time to object for duplicity in declaration. Too late after judgment to complain of duplicity in the declaration.


text:
    August Schultz, Defendant in Error, v. Henry Ericsson Company, Plaintiff in Error.
    Gen. No. 18,074.
    1. Masteb and servant, § 316

      —when servant assumes rish arising from unsafe scaffold. In a common law action for injuries resulting to servant for failure of master to furnish a reasonably safe scaffold, servant assumes the risk when the defects are obvious.
    2. Building bestbictions and regulations, § 1*—defenses not available in action for injuries resulting from unsafe scaffold. Contributory negligence and assumption of risk no defense to an action for injuries sustained by a servant by reason of failure of master to furnish a safe and proper scaffold, under Hurd’s R. S. ch. 48, § 79, J. & A. If 5368.
    3. Municipal Court of Chicago, § 13*—sufficiency of statement of claim. Statement of claim in a fourth class action need not properly name plaintiff’s right of action.
    4. Municipal Court of Chicago, § 29*—when statement of claim sufficient to support verdict'. Objection that the verdict is not supported by the statement of claim is untenable in a fourth class action when the statement of claim is sufficient to apprise the defendant of the nature and character of the suit brought.

      Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 15, 1913.
    Frank M. Cox and R. J. Fellingham, for plaintiff in error.
    S. M. Meek and John P. McDonald, for defendant in error.

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

   Mr. Justice Duncan

delivered the opinion of the court.

This writ of error is prosecuted by Henry Ericsson Company to reverse a judgment ag’ainst it in favor of August Schultz in the sum of one thousand dollars for personal injuries sustained by him.

Defendant in error sets forth in his statement of claim that his claim was for injuries sustained June 21, 1909; that plaintiff in error was then contractor erecting a certain building on the east side of Indiana avenue, near Twenty-second street, in Chicago, and that he was employed by the Company as a common laborer; that plaintiff in error then and there failed to furnish him a proper, safe and sufficient scaffold for him to work upon; and that his claim further is for injuries sustained on said date while employed by plaintiff in error on said building, and that plaintiff in error then and there employed an incompetent servant, well knowing him to be incompetent, to the damage of defendant in error in the sum of one thousand dollars.

The substance of the evidence for the defendant in error is that the building was of steel and brick and had advanced in construction to about the level of the second floor whereon the masons were laying brick in the north wall; that about the center of the building was a hoist so constructed that when a loaded wheelbarrow came upon it an empty one would go down; that there was a platform around the hoist from the south side of which ran a runway or scaffold five or six feet wide to the west wall, and from thence north along the west wall of the building to the north wall, and thence east on the north wall, ran platforms or scaffolds consisting of thirteen planks each ten inches wide, the planks in all of the platforms being placed longitudinally with the platforms, so that wheelbarrows pushed over them would run the planks lengthwise; that on the west side of the scaffold along the west wall of the building mortar boards were laid one foot from the wall, and just east of the mortar boards brick were piled upon the scaffold through its whole length, about two feet high, sloping down to the height of a single brick on the east edge of the pile, leaving a clear space between the east edge of the brick and the east edge of the scaffold of five or six feet; that about eighteen inches east of the east edge of that scaffold for its entire length there was laid flat down another single width plank platform, for the purpose of catching a laborer by his stepping or jumping on it in case he should lose his balance; that there were no guard rails or other contrivances to prevent materials or men from falling off the east side of the scaffold or over the east plank which were to be used for the wheelers of brick and mortar; that there were eight or ten men that day, including defendant in error, engaged in wheeling brick and mortar from the hoist over those scaffolds to the masons, in wheelbarrows about thirty inches wide; that defendant in error began work at 8 o ’clock that morning and was injured about 10:30 A. M., the superintendent of plaintiff in error being present all the time and directing the work; that a loaded wheelbarrow of mortar came up for his last trip with the handles south as usual, and in the usual manner he backed it south and turned west on the first platform and proceeded to the west platform or scaffold and thence north on the west platform or scaffold about twenty feet where he met his colaborer, Donato Magliano, returning on the westerly side of that platform to the hoist with an empty wheelbarrow; that Magliano stopped with the legs of his wheelbarrow very close to the brick pile to the west of him and defendant in error with his wheelbarrow on the second plank from the east edge of that scaffold and about two inches from the other wheelbarrow attempted to pass Magliano; that by reason of a wire in the rim of the tray of his wheelbarrow sticking out from the westerly side thereof defendant in error’s wheelbarrow touched the other wheelbarrow and unbalanced him, and his wheelbarrow dumped over on the east edge of the scaffold and the lone plank and threw most of the mortar on the lower floor, and threw defendant in error over the lone east plank down on to the first floor against an iron beam and very seriously injured him; that defendant in error had done that character of work for about two and a half years, and he testified that that was the first day he had worked on that building, but that the first trip he made along that platform he saw just how wide it was between the brick and the east edge of the scaffold, and that those brick were there all that morning, and he had had no trouble prior to the last trip in passing the wheelbarrows along there, and that he did not know the wire was projecting from his wheelbarrow; and that every trip he got a different wheelbarrow, as he took whichever one came upon the hoist first, on his return to the hoist. Magliano testified that when the wire touched his wheelbarrow that it did not “jar or wiggle it.” Plaintiff in error introduced no evidence, but moved the court to instruct the jury to find the defendant not guilty and submitted the proper instruction therefor in writing. The court denied the motion and the jury returned a verdict of guilty and assessed defendant in error’s damages at one thousand dollars, upon which the court entered judgment after overruling motions in arrest of judgment and for a new trial.

Plaintiff in error’s contention that the evidence does not support the common law action indicated in defendant in error’s second count or charge must be sustamed, as there is no evidence whatever to support it. Defendant in error testified that Magliano was a careful man, and that he had seen him do lots of work prior to the injury in question, and there is no evidence to the contrary. It is also true that the doctrine of assumed risk is a bar to any common law action based upon any charge of negligence in the construction or maintenance of a reasonably safe scaffold upon which defendant in error was employed to do his work, as it was very simple in construction and the danger" in working thereon was equally as open and apparent to defendant in error as it was to plaintiff in error. The first count, however, was not based upon common law negligence by defendant in error, and the count so indicates. The cause of action is not for failure to furnish or maintain a reasonably safe scaffold, but is for failure to furnish a safe and proper scaffold, as required by section 79, ch. 48, Hurd’s E. S. (J. & A. T[ 5368), as defendant in error insisted in the court below and now insists here. That statute provides as follows: “That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation, in this State, for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated, as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” This statute,, as declared in its title, was enacted June 3, 1907, “for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures, and to provide for the enforcement thereof.” Section 82 (J. & A. If 5371) thereof empowers the State factory inspector to inspect any such scaffold and to prohibit the use thereof when found to be dangerous to life or limb, and after such notice or warning the person responsible therefor shall cease the use thereof, until it is altered or strengthened ‘“in such manner as to render it safe.” Section 88 (J. & A. 1i 5377) provides for a penalty of not less than twenty-five, nor more than five hundred dollars, or imprisonment for not less than three months nor more than two years, or both such fine and imprisonment, for the violation of the said act by any owner, contractor or other person having charge of the erection, repairing, altering, removing, or painting of any such structures. That section also authorizes the State factory inspector to enforce the statute through the State’s Attorney or other attorney in case the State’s Attorney fails to act, and “for any injury to persons or property, occasioned by any willful violation of this act, or willful failure to comply with any of its provisions,” it gives a right of action to the party injured for 1 £ any direct damages sustained thereby.”

We cannot agree with plaintiff in error’s contention that the evidence in this record does not tend to show a willful violation of the statute on its part. The words “ shall be erected and constructed in a safe, suitable and proper manner,” and “placed and operated, so as to give proper and adequate protection” to life and limb, are plain and simple words of well known meaning, “Safe” means “free from harm, injury or risk,” as defined in Webster’s New International Dictionary. It means “free from risk,” not “dangerous,” as used in the statute. The scaffold without the single plank was not free from risk to employes. It was dangerous, and was so recognized by plaintiff in error, or the single plank way or “safety catch” for men who might stumble or be overbalanced would not have been added to the scaffold. We are not sure that the scaffold is more safe with the plank way added. It is sure that it only removes a few more chances of injury, and still furnishes very many chances of injury to those working upon and under it. There was no rail or other such barrier to prevent men or material from falling therefrom, and while the statute does not specifically name the appliance that shall be used for that purpose, nevertheless in this instance it was necessary that some such barrier or an equivalent be used to furnish the adequate and proper protection to the laborers contemplated by the statute.

The verdict of the jury finding that plaintiff in error was guilty of a willful violation of the statute is amply sustained. Every argument offered by plaintiff in error tending to show knowledge of danger to defendant in error while working on the scaffold applies with equal force and weight to a like knowledge of plaintiff in error.

The court in this case instructed the jury, in substance, that contributory negligence of defendant in error and knowledge of the danger on his part without complaint to plaintiff in error would be a bar to his recovery, although plaintiff in error had willfully violated the statute and thereby caused his injury. It is argued that the verdict of the jury is not supported by the evidence, because it clearly shows that defendant in error was guilty of contributory negligence and that he assumed the risk. We do not care to enter into a discussion of those questions. The doctrines of assumed risk and of contributory negligence have no application to the statute in question, and furnish no defense thereunder. This statute being passed specially for the protection and safety of men engaged in structural work, etc., must receive the same construction as our statute on Mines and Miners, as it gives a right of action for a willful violation of the statute in precisely the same language as section 33 of the Mining Act in force when the statute in question was passed. The Mining Statute differs from the present statute in specifying the exact things required of a mine owner to make his mine safe for employes therein, and in being further supported by a constitutional provision requiring the passage of such an act. The statute in question, however, could not in the very nature of things go into the particulars of what should be required to make scaffolds for buildings, etc., safe, their safeness depending so much upon their height from the earth and the purposes for which they are to be used. Neither of these differences are in the way of the holding that contributory negligence of defendant in error and his knowledge of the danger will not bar his right to recover in this case. The Supreme Court has held in the case of Streeter v. Western Wheeled Scraper Co., 254 Ill. 244, that the defense of assumed risk is not a bar to a laborer’s right to recover damages for a violation of the Factory Act, which is an act included in the same chapter as the act in question, under the general head of “Employment.” The Factory Act gave no right of action to an employe injured by reason of a violation thereof, and, yet, it was held in that case that that statute should receive a similar construction in regard to the defense of assumed risk as the Mining Act had received. The Supreme Court said in the above case: “A constitutional law is of as much force as the constitution itself.”

All the reasons given in that case for barring the said common law defenses are equally and even more applicable here, because the statute in question gives the same character of action to an injured employe as the Mining Statute. For more than forty years it has' been held to be the law of Illinois that contributory negligence and knowledge of the danger would not bar a miner’s right of recovery for personal injuries caused by a willful violation of the mining act. Catlett v. Young, 143 Ill. 74; Carterville Coal Co. v. Abbott, 181 Ill. 495; Spring Valley Coal Co. v. Patting, 210 Ill. 342; Waschow v. Kelly Coal Co., 245 Ill. 516.

As said in Catlett v. Young, supra, it was evidently the purpose of the legislature to prevent injuries to persons employed on scaffolds, so that “the slightest degree of negligence might not prove fatal.”

A willful violation of the statute is one consciously or knowingly committed. Catlett v. Young, supra; Mertens v. Southern Coal & Mining Co., 235 Ill. 540.

The court’s holding as to the law was more favorable to plaintiff in error than was its right, and there is no cause of complaint in that regard.

The contention of plaintiff in error that the verdict of the jury is not supported by the statement of claim is also untenable. No written pleadings are required in fourth class actions in the Municipal Court, such as is this case. It is not. necessary that he properly name his right of action. “If upon hearing the evidence he appears to be entitled to recover and the court had jurisdiction of the defendant and of the subject-matter,” it is sufficient when the defendant is apprised by the statement of the nature and character of the suit brought. Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311.

There is no reversible error in the record and the judgment is affirmed.

Judgment affirmed.


text:
    Gust Peretes, Defendant in Error, v. John Tompary and Peter Tompary, Plaintiffs in Error.
    Gen. No. 18,127.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed October 15, 1913.

      Abstract of the Decision.
    1. Set-off and becotjpment, § 13

      —when mutuality is essential. A debt due from a copartnership of two or three members sued jointly cannot be offset by a debt due from a plaintiff to one of such firm.
    2. Judgments, § 63*—when set aside. Denial of motion to open a judgment by confession, held erroneous where an affidavit of defendant disclosed a good defense and the right to set-off.
    Statement of the Case.
    Action by Gust Peretes against John Tompary and Peter Tompary. On denial of a motion by defendants to open up a judgment by confession, such defendants bring error.
    Caswell & Healy, for plaintiffs in error.
    No appearance for defendant in error.

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

   Mr. Justice Duncan

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    Emma M. Bell, Appellee, v. Kossuth H. Bell, Appellant.
    Gen. No. 18,443.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodobe Bbentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 16, 1913.
    Statement of the Case.
    Bill by Emma M. Bell against Kossuth H. Bell for divorce. From an order allowing temporary alimony, defendant appeals.

      Abstract of the Decision.
    1. Divobcb, § 82

      —when allowance of temporary alimony is proper. Bill for divorce, held to contain charges sufficiently to justify an allowance of temporary alimony.
    2. Appeal and ebkob, § 1743*—when judgment may he entered nunc pro tunc. Where an appellant dies subsequently to the time that a cause was taken under advisement by the Appellate Court, a judgment may be entered nunc pro tuno of a date prior to the death.
    Elbridge Hanecy, for appellant.
    McKenzie Cleland, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice F. A. Smith

text:
    Pauline Matson, Appellee, v. Clare S. Jacobs et al., on appeal of Alvin E. Webber, Appellant.
    Gen. No. 19,322.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Dismissed.
    Opinion filed October 28, 1913.
    Statement of the Case.
    Action by Pauline Matson against Clare S. Jacobs and others. From a judgment for plaintiffs, defendant Alvin E. Webber appeals.
    Eugene Stewart, for appellant.
    Lackner, Butz Von Ammon & McGregor, for appellee.
   Mr. Presiding Justice F. A. Smith

delivered the

opinion of the court.

Abstract of the Decision.

Appeal and error, § 1111*—when dismissal is proper. An appeal will be dismissed for failure of the appellant to file a complete record and abstracts and briefs within the time specified by orders of the court.


text:
    Albert L. Schultz and Albert F. Schultz, copartners, Appellees, v. Wenig Teaming Company, Appellant.
    Gen. No. 19,865.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 782

      —when hill of exceptions is necessary. A motion to strike an affidavit from the record must be sustained where such record contains no bill of exceptions making the affidavit a part of the record.
    2. Appeal and ebbob, § 1120*—when- dismissal is proper. Where an affidavit is stricken from the record and the errors assigned are based on such affidavit, the appeal must be dismissed.
    Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Dismissed.
    Opinion filed October 28, 1913.
    Statement of the Case.
    Action by Albert L. Schultz and Albert F. Schultz, copartners as A. L. Schultz & Sons, against Wenig Teaming Company, a corporation. From a judgment for plaintiffs, defendant appeals.
    Wyman, Jurgens & Carpenter, for appellees.
    Nicholas J. Pritzker, for appellant.

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

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.