text:
    Atlas Floor Company, Defendant in Error, v. Jacob L. Kesner, Plaintiff in Error.
    Gen. No. 19,693.
    Abstract of the Decision.
    1. Contracts, § 312

      —when performance to satisfaction of party a question of fact. Whether or not the dissatisfaction of the defendant to the compliance of the plaintiff with a contract to lay composition floor perfectly satisfactory to the defendant and a certain third party was based on substantial grounds is a question for the jury, and where the evidence is in irreconcilable conflict in that regard, and the court of appeal cannot say that the verdict of the jury was unwarranted, the verdict of the jury will be sustained.

      (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Weels, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action by the Atlas Floor Company, a corporation, against Jacob L. Kesner to recover $315, the balance claimed to be due for labor performed and materials furnished under a contract in laying a combination floor in a building owned by' the defendant. The jury returned a verdict in favor of the plaintiff for $315. To reverse the judgment entered upon the verdict, the defendant prosecutes a writ of error.
    D’Ancona & Pflaum, for plaintiff in error; Edwin B. Mayer, of counsel.
    Silber, Isaacs, Silber & Woley, for defendant in error; Clarence J. Silber, of counsel.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

2. Appeal and error, § 479 —when objection to instruction necessary. 'Where no objection was interposed to an instruction, the principle of law stated therein will not be reviewed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    Simon P. Gary, Plaintiff in Error, v. Charles R. Beadles, Defendant in Error.
    Gen. No. 19,701.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action by Simon P. Gary against Charles B. Beadles, to recover three hundred dollars claimed to be due the plaintiff for professional services in defending a suit instituted in the Municipal Court against the defendant to recover real estate broker’s commissions, wherein judgment was entered against the defendant for fifteen hundred dollars. To reverse a judgment on a verdict in favor of the defendant, the plaintiff brings error.
    Michael Lyons, for plaintiff in error.
    Henry W. Leman and Frank H. Culver, for defendant in error.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 420 —when objection below to insufficiency of affidavit of merits essential. An objection that the affidavit of merits filed by the defendant in an action for attorney’s fees did not aver as grounds of defense that there had been an accord and satisfaction and that such fees had been paid, all of which was testified to by the defendant, cannot be raised for the first time on appeal.

2. Appeal and error, § 883*—when instructions must be set out in full. Alleged error in giving instructions will not be considered on appeal or writ of error unless all the instructions given are set out in full in the abstract.

3. Appeal and error, § 1530*—when instruction harmless. An instruction, although subject to criticism, held not prejudicially erroneous where the testimony relative to the matters therein presented stands uncontradicted.

4. New trial, § 67*—when newly-discovered evidence not ground for new trial. Newly-discovered evidence held not of such a character as to warrant the granting of a new trial.


text:
    City of Chicago, Defendant in Error, v. Barrett Manufacturing Company, Plaintiff in Error.
    Gen. No. 19,728.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action by the City of Chicago against the Barrett Manufacturing Company, a corporation, to recover a penalty for the alleged violation by plaintiff of sections 1425, 1426 and 1430 of the Municipal Code of the City of Chicago.
    Defendant is engaged in the manufacture of roofing and paving materials and coal tar products, and operates an extensive plant located at 2900 Sacramento avenne. The district in which the plant is located is essentially a manufacturing district, wherein are located the plants of the Liquid Carbonic Company, the McCormick branch of the International Harvester Company, the National Malleable Castings Company, the Pilsen Brewing Company, the C. F. Massey Company and other extensive manufacturing plants. To the east and immediately across Sacramento avenue are located the Bridewell and the dog pound. On the south the plant runs to the west fork of the south branch of the Chicago Biver. There are some dwelling houses one or two blocks west on Whipple street and Albany avenue and northeast on Sacramento avenue. The plant of the Pilsen Brewing Company is north and west.
    In the process of distillation of crude coal tar the tar is pumped into a horizontal still where it is heated until it commences to vaporize, and heat is continued to be applied until sufficient vapor has been formed to leave a residue of thin liquid pitch in the still. The vapor is drawn from the still through condensers, where it is transformed into a liquid known as ordinary creosote oil. When distillation is complete the temperature of the pitch in the still is between 500 and 600 degrees Fahrenheit. The pitch is then transferred by steam pressure from the still into coolers where the temperature of the pitch is lowered to about 350 deg’rees Fahrenheit, when it is permitted to run into concrete receptacles known as “pitch bays.” In the last process mentioned some vapor and fumes arise from the pitch as it leaves the coolers and flows into the “pitch bays.” The presence of these vapors and fumes in the atmosphere constitutes the alleged violation by defendant of the section of the ordinance in question.

      Abstract of the Decision.
    1. Municipal corporations, § 864

      —what evidence necessary in action for penalty. In an action to recover a penalty for the violation of an ordinance, a municipality must prove the violation by a clear preponderance of evidence; a mere preponderance of evidence is not sufficient.
    2. Nuisance, § 64*—when vapors and fumes not. A conviction imposing a fine for the violation of an ordinance with reference to “Matters and things detrimental to health” will be reversed where it appears from the evidence that the vapors and fumes complained of could not be noticed outside of the defendant’s plant and were not deleterious to health.
    Joseph B. Fleming, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; U. S. Schwartz, of counsel.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    Marie Herch, Defendant in Error, v. Carlo Lazzarini, Plaintiff in Error. Charles P. Molthrop, Garnishee, Defendant in Error.
    Gen. No. 19,765.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Pbindiville, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed April 28, 1915.
    Statement of the Case.
    This is an action in attachment instituted in the Municipal Court by Marie Herch against Carlo Lazzarini, wherein Charles P. Molthrop was summoned as garnishee. Judgment was entered in favor of the plaintiff ag'ainst Carlo Lazzarini for $352.23. Carlo Lazzarini then filed a motion to vacate and set aside said judgment and for leave to file his affidavit of defense within five days. The motion was overruled by the court and the defendant filed a second motion setting forth the matters contained in the first motion more in detail, which was also overruled. To reverse the judgment in favor of the plaintiff, the defendant brings error.
    Abstract of the Decision.
    1. Attachment, § 98

      —when affidavit not void. A defective affidavit for attachment which is not objected to in the lower court, if amendable in such court, is not void.
    2. Attachment, § 105*—when affidavit for attachment cannot he questioned on appeal. The sufficiency of an affidavit for attachment cannot be questioned for the first time in the Appellate Court.
    3. Judgment, § 142*—when affidavit to vacate insufficient. It is not error for the court to overrule a motion to vacate and set aside a judgment and for leave to defend upon the merits when the affidavit in support of the same fails to state any fact in support of the motion which should have moved the court to grant the same.
    4. Judgment, § 135*—when second motion to vacate properly denied. A party to an action cannot make a second motion to vacate and set aside a judgment when the matters set forth in his affidavit in support of such motion were all within his knowledge at the time he made his affidavit in support of his first motion to have such judgment vacated and set aside.
    5. Appeal and errob, § 1319*—when evidence presumed sufficient. In the absence of a certificate by the trial judge that the bill of exceptions contains all the evidence offered and received upon the hearing of certain motions of the defendant, the presumption may properly be indulged, in support of the action of the court that the court had before it other and sufficient evidence, such as the oral testimony of witnesses.

      Alberto N. Gualano and George Remus, for plaintiff in error.
    No appearance for defendant in error.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

6. Garnishment, § 105 —what is proper form of judgment against garnishee. A judgment in attachment in favor of the plaintiff against the garnishee is improper; such judgment should be for the plaintiff against the garnishee for the use of the plaintiff.

7. Appeal and erbob, § 1214*—when defendant cannot object to form of judgment against garnishee. A judgment in an attachment proceeding in favor of the plaintiff against the garnishee rather than in favor of the defendant against the garnishee for the use of the' plaintiff while improper cannot be assigned as error by the defendant.


text:
    Catherine Hutchison, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,811.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge,-.presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed April 28, 1915.
    Rehearing denied May 12, 1915.
    Statement of the Case.
    Action by Catherine Hutchison against the Chicago City Bailway Company in the Circuit Court of Cook county to recover damages for personal injuries received while boarding one of defendant’s street cars. The trial resulted in a verdict against the defendant for twenty-five hundred dollars. To reverse a judgment entered on the verdict as rendered, defendant appeals.

      Abstract of the Decision.
    1. Evidence, § 476

      —what considered in determining preponderance. The number of witnesses testifying to a particular fact or state of facts is an important element to be considered in determining where the preponderance of evidence lies, but where in many important and material particulars the testimony of such witnesses is contradictory, inconsistent with established facts and inherently improbable, these elements should also be considered in determining the preponderance of the evidence.
    2. Instructions, § 151*—when properly refused as covered. It is not improper to refuse an instruction when the instruction refused is sufficiently covered by other instructions given to the jury.
    3. Evidence, § 410*—when opinion proper as to cause of condition. In an action of negligence where the inquiries on the examination of the attending physician have reference to the relation between certain injuries, which the plaintiff unquestionably received as a result of her fall, and her physical condition as manifested in attacks of partial paralysis, and do not have reference to whether or not the plaintiff is permanently injured as a result of that accident, the inquiries are proper.
    4. Words and phrases,-—what is meaning of word “liable”. The word “liable” means more or less probable.
    5. Evidence, § 410*—when opinion as to probabilities improper. The opinion of a physician that the plaintiff was “liable” to have recurrent attacks of paralysis and that the degenerative state of the nerve tissue and its surrounding connective tissues might lead to developments that are “liable” to bring about a paralytic stroke is objectionable. The statement of a mere probability of the recurrence is not sufficient.
    6. Appeal and error, § 1499*—when improper evidence harmless. The erroneous admission of evidence as to the probability of future suffering from an injury, Held harmless where there was no complaint that the damages were excessive.

      Watson J. Ferry, for appellant; Leonard A. Busby, Warner H. Robinson and James G. Condon, of counsel.
    Charles C. Spencer, for appellee.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

7. Evidence, § 410*—when opinion as to time elapsing between injury and condition proper. In an action for personal injuries, in the examination of a physician, where the subject-matter of the inquiry then under consideration was whether paralysis, if produced by an injury, would necessarily follow almost immediately, and also whether or not an injury such as the plaintiff claimed to have sustained was capable of producing paralysis, it was held competent for the witness to express his opinion thereon and to state his reasons for such opinion.


text:
    Matthew Zimmer, Appellee, v. Gustave Emil Carlson, Appellant.
    Gen. No. 19,842.
    1. Master and servant, § 412

      —when master not liable to servant injured while obeying order. The master is not liable for personal injuries to a servant acting under his order, while doing some act or performing some service which was included within the usual scope of his duties under his contract of hiring, and where the danger incident to a compliance with such order of the master was fully known and appreciated by him.
    2. Master and servant, § 412*—when order relieves servant from assumption of rislc. The doctrine that assurances or orders of the master will not operate to relieve a servant from assumption of risk unless he was misled thereby has no application where the work was not being performed in the usual and customary manner and the servant on calling the master’s attention thereto was ordered to proceed.
    3. Master and servant, § 414*—when servant justified in obeying master’s order. In an action for personal injuries where the servant called the attention of the master to the position of a stone which he was hauling and requested him to have it moved back and the master ignored the request, assured the servant that the stone was all right and ordered him to get on the wagon and mind his team and not the stone, the servant was not required to balance the degree of care and determine whether he should obey the order or refuse to obey it.
    4. Master and servant, § 411

      —orders involving obvious dangers. Where a servant was injured while performing work under the supervision and control of the master, which on the master’s order was not done in the usual and accustomed manner the doctrine of assumed risk is inapplicable, unless the danger which the servant is directed to encounter is so apparent that an ordinarily prudent person would not have encountered it, in which event the master escapes liability on the ground of contributory negligence on the part of the servant, rather than that of assumed risk.
    5. Instructions, § 151*—when properly refused as covered. It is not improper to refuse correct instructions of the law applicable to the case when the instructions requested are covered by other instructions to the jury.
    Appeal from the Circuit Court of Cook county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed April 28, 1915.
    J. F. Dammann, Jr., for appellant; Franklin B. Hussey, of counsel.
    Charles C. Spencer, for appellee.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

In this suit brought by appellee against appellant to recover damages for personal injuries, a trial by jury in the Circuit Court resulted in a verdict and judgment against appellant for $5,000.

While there is a conflict in the evidence relating to the material facts in the case, the jury were not unwarranted in finding the facts to be substantially as follows: On February 22, 1911, and for some time prior thereto, appellant operated a stone yard wherein appellee was employed in loading and hauling stone. Appellee and his fellow-servant, Olson, commenced work at the usual hour in the morning, and under the direction of appellant were engaged in unloading stones from a flat car and loading them upon a wagon, whereon they were hauled by a team to such points in the yard as appellant might direct. Appellee rode upon the wagon and drove the team. ' The wa¿’on was about fifteen feet in length, and the bed of the wagon consisted of two timbers each ten inches square, placed about a foot and a half or two feet apart. The surface of the timbers was about on a level with the platform of the flat car. The stones then being unloaded were about three or three and one-half feet square and six inches thick and were unloaded from the car and loaded upon the wagon by means of crowbars and rollers. Ordinarily a wagon load consisted of four stones, two stones one on top of the other being placed on the timbers between the front wheels of the wagon and two stones being placed in like manner between the rear wheels. Appellee had hauled five or six loads prior to the time he was injured. The load in question was placed on the wagon under the direction and with the assistance of appellant at about ten o’clock in the forenoon. When the wagon was loaded with four stones appellee observed that the top stone of the two in the front part of the wagon extended about five inches beyond the edge of the bottom stone. The stones were smooth surfaced and usually ashes or cinders were placed beneath and between the stones when loaded on the wagon to prevent them from sliding off. On this occasion no ashes or cinders1 were available for such use and none were used. Upon observing the condition of the front top stone, as mentioned, appellee told appellant that he should move the top stone back again, whereupon appellant said, “You go ahead on your wagon, mind your team and not the stone; the stone is all right.” Appellee testified that at that time the stone did not look very dangerous to him, but that he thought it might happen to slip off, and so called appellant’s attention to it. While the ground upon which the hauling was done was practically level, it had frozen after a thaw and was somewhat rough. Appellee placed a blanket on the front top stone, and sitting upon the blanket proceeded to drive the team, following appellant, who walked ahead of the wagon for the purpose of designating the point where he desired the stones to be unloaded and placed. When appellee had driven a distance of about fifty feet, the front top stone slipped off the wagon, carrying the bot-ton stone with it, and appellee was thrown to the ground and beneath one of the falling stones, and severely injured. While appellee was hauling the last preceding, load, he felt the stone upon which he was sitting slip, and jumped to the back part of the wagon to avoid being thrown off.

As bearing upon the issue of due care by appellee for his own safety, there was some evidence introduced by appellant tending to show that at the time the stones fell off the wagon the wheels on one side of the wagon were permitted by appellee to run over a pile of crushed stone in the yard, whereby the wagon was tipped up on that side, and the stones were caused to fall to the ground by reason of such tipping of the wagon. As to this question, the evidence is so closely conflicting that the verdict of the jury must be held to be conclusive against appellant.

It is clear that in the absence of the order or direction given by appellant to appellee, the latter must be held to have assumed the risk of the danger arising from the manner in which the stones were loaded upon the wagon; and the right of appellee to recover is dependent upon the solution of the question whether or not, under the facts in this case, such order or direction was operative to relieve appellee from the assumption of the risk.

Appellant does not controvert the general proposition that a specific, peremptory order or direction by a master to a servant to encounter a danger operates to relieve the servant from the assumption of the risk, but- it is insisted that the facts in the case at bar bring it within certain exceptions to the general rule, viz: (a) The order or direction by the master must actually mislead the servant into the belief that the danger does not exist; (b) where the order or direction by the master relates to an act to be done by the servant in- the general line of his employment, the rule does not apply.

A merely superficial consideration of the language employed in some of the cases cited by appellant might be held to promulgate the doctrine as applicable in all such cases that the servant may not avoid his assumption of the risk of a danger encountered in obedience to an order or direction of the master, where the servant has not been thereby misled to believe that no danger exists. Thus in Elgin, J. & E. Ry. Co. v. Myers, 226 Ill. 358, it is said at page 366:

“It is only where the servant has been misled by the assurance of the master, or someone standing-in the master’s place, that he can excuse himself from the assumption of the risk on the ground that he has been assured by the master that there is no danger in the use of the appliance or piece of machinery which he knows, as a matter of fact, is defective and the use thereof attended with danger.”

In Republic Iron & Steel Co. v. Lee, 227 Ill. 246, it is said:

“It is only where the servant has been misled by the order of the master that the exception exists.”

The doctrine, as thus stated, finds its application in cases wherein the master ordered the servant to do some act or perform some service which was included within the usual and general scope of his duties under his contract of hiring, and where the danger incident to a compliance with such order of the master was fully known and appreciated by the servant. McMahon v. Owsley, 260 Ill. 43.

In the case at bar, the stones were loaded upon the wagon by the direction and under the superintendence of the master, not, as the evidence tends to show, in the usual and customary manner, but in such manner that the top front stone was, under the existing road conditions, liable to slip or slide off the wagon and injure the servant, who, in the usual course of his duty, was required to ride upon the wagon and drive the team.

That appellee was aware of some danger incident to the manner in which the top front stone was loaded upon the wagon is apparent from the fact that he called the attention of appellant to the situation and requested him to have the stone moved back. When appellant ignored this request of appellee and, coupled with an assurance that the stone was all right, peremptorily ordered appellee to get on the wagon and mind the team and not the stone, appellee was not required to balance the degree of danger and determine whether he should obey the order or refuse to obey it. Under the facts in this case, the risk incurred by appellee was not one of the usual and ordinary incidents of his employment and appellant cannot escape liability upon the ground that appellee assumed the risk. The rule applicable here is that where the servant encounters a danger by direction of the master and is injured in so doing, “the master cannot escape liability unless the danger which the servant is directed to encounter is so apparent that an ordinarily prudent person would not have encountered it, in which event the master escapes liability on the ground of contributory negligence on the part of the servant, rather than that of assumed risk.” Springfield Boiler & Mfg. Co. v. Parks, 222 Ill. 355. Whether or not, under the rule as stated, appellee was guilty of contributory negligence was a question of fact for the jury. The doctrine announced in the Parks case, supra, is neither unique nor sporadic and has been announced and applied in numerous cases. See Chicago Anderson Pressed Brick Co. v. Sobkowiak, 148 Ill. 573; Illinois Steel Co. v. Schymanowski, 162 Ill. 447; Offutt v. World’s Columbian Exposition, 175 Ill. 472; William Graver Tank Works v. O’Donnell, 191 Ill. 236; Illinois Steel Co. v. McFadden, 196 Ill. 344; Western Stone Co. v. Muscial, 196 Ill. 382; Slack v. Harris, 200 Ill. 96; Illinois Steel Co. v. Ryska, 200 Ill. 280; Pressed Steel Car Co. v. Herath, 207 Ill. 576; Chenoweth v. Burr, 242 Ill. 312; and Crannon v. Donk Bros. Coal & Coke Co., 259 Ill. 350; Wheeler v. Chicago & W. I. R. Co., 267 Ill. 306.

The cases cited and relied upon by appellant are distinguishable upon the facts from the case at bar.

As applied to the facts in the instant case, the first instruction, given at the instance of appellee, stated the law correctly. The same instruction, in substance, was approved in Yarber v. Chicago & A. Ry. Co., 235 Ill. 589.

Such of the instructions tendered by appellant and refused by.the court as stated correct principles of law applicable to the case were covered by other instructions given to the jury.

We perceive no substantial error in the record and the judgment is affirmed.

Judgment affirmed.


text:
    City of Chicago, Plaintiff in Error, v. Clarence E. Green, Defendant in Error.
    Gen. No. 20,135.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 28, 1915.

      Abstract of the Decision.
    1. ' Municipal corporations, § 864

      —when evidence insufficient to show ownership in action for penalty. In an action for a penalty based on the violation of a city ordinance, requiring saloons to remain closed during certain hours, evidence held insufficient to show ownership of the saloon by defendant.
    2. Municipal corporations, § 864*—when ownership must he shown in action for penalty. Under a complaint charging that defendant kept open a saloon between one and five o’clock a. m. and sold intoxicants during that period in violation of an ordinance, ownership by the defendant of the offending saloon must be shown, since the gist of the offense charged was the unlawful use and occupation of property by the defendant.
    Statement of the Case.
    Action by the City of Chicago against Clarence E. Creen in the Municipal Court to recover a penalty for the alleged violation by the defendant of a section of the Municipal Code, in keeping his saloon open between the hours of one and five o’clock a. m. To reverse a judgment for the defendant on a trial before the court without a jury, plaintiff brings error.
    William H. Sexton and James S. McInerney, for plaintiff in error; Ulysses S. Schwartz, of counsel.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    John S. Stevens, Defendant in Error, v. Ernest Decker, Plaintiff in Error.
    Gen. No. 20,240.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action by John H. Stevens in the Municipal Court of Chicago against Ernest Decker to recover upon ten promissory notes for $60 each, bearing date December 14, 1909, maturing respectively September 1, 1911, inclusive, aggregating $2,200, being the amount of a loan which defendant secured from Emil H. Seeman, and were secured by a deed of trust on certain real estate owned by the defendant. The notes were payable to the order of the maker and bear the indorsement of himself and one James Graham. At the close of all the evidence the court gave the jury a peremptory instruction to find the issues for the plaintiff and to assess the damages against the defendant at $761.55, and upon such verdict judgment was entered against the defendant. To reverse the judgment entered upon the verdict, the plaintiff prosecutes error.
    Stedman & Soelke, for plaintiff in error.
    Adams, Crews, Bobb & Wescott, for defendant in error.

      see Illinois Notes Dudgist, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Baume

delivered the opinion of the court.

Abstract of the Decision.

1. Bills and notes, § 460 —when question of transfer in due course for fury. Evidence tending to show that plaintiff in an action on a note, who was a clerk in the office of his attorneys who were also attorneys for the payee therein, had received same direct from such payee after maturity with knowledge of its infirmity, and held same merely as a depository for the purpose of enforcing payment, held sufficient to present a question for the jury as to whether plaintiff was a holder in due course under section 52 of the Negotiable Instruments Act (J. & A. If 7691).

2. Bills and notes, § 125*—when negotiable by delivery. A note payable to the maker indorsed by him in blank is under section 34 of the Negotiable Instruments Law (J. & A. If 7673) negotiable by delivery.

3. Evidence, § 202*—when declarations by holder of note admissible. In an action by the transferee of a negotiable note, admissions by the payee therein are admissible only in so far as they were made by him while he was the holder of the note and before its transfer to the plaintiff.


text:
    Pauline Robison, Appellee, v. United States Health & Accident Insurance Company, Appellant.
    Gen. No. 20,249.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. John E. Hillskotter, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action by Pauline Robison in the County Court of Cook county against United States Health & Accident Insurance Company, a corporation, upon a health and accident policy issued by the defendant to the husband of the plaintiff, wherein the plaintiff was named as beneficiary in case of the death of the insured from accidental injury.
    The only evidence in the record tending to show that the insured sustained an accident on January 31, 1912, is the testimony of plaintiff who stated that the insured then lifted a hard coal stove in the front room of their house; that the next day he complained about being ill and that his illness continued until his death. On cross-examination the witness was asked to state the details of how the accident happened and she answered as follows:
    “Well, it was a pretty bad day, and he wasn’t working that day, so I says to him, I say, ‘Jim,’ I says, ‘I have got a zinc and I want to put it under my stove,’ and he says, ‘All right, Pauline, I will help,’ so I catches hold of the zinc, and he catches hold of the stove, and the stove was a hard coal burner, I guess it stood about that high (indicating), and he lifted the stove up, and I pushed the zinc under it, and so all at once he said ‘Oh, my, I feel so funny,’ and so I said, ‘what’s the matter Jim,’ and he sat down, and he said, ‘Oh, I feel awful bad,’ and I says, ‘Do you?’ and he says, ‘Yes.’ Says I, ‘Is there anything I can do?’ and he says, ‘No,’ and he sat there and looked kind of funny, and 1 looked at him and .1 said, ‘Jim, do you want me to do anything for you?’ and he says, ‘No,’ so I didn’t say any more. And the next day I says, ‘Jim, are you going to work?’ and he said, ‘No, I don’t feel like going to work,’ he said; ‘I can’t. There is something bothers me here.’ I said, ‘Maybe you hurt yourself lifting the stove.’ He said, ‘Well, maybe I did; and I felt awful bad ever since I lifted it.’ So I didn’t say any more.”
    Two days later a physician was called who treated the insured for pleurisy, and subsequently the insured presented a claim and was paid $35 on account of such illness. He died April 22, 1912, the first physician who treated him testifying that death was due to Bright’s disease, and a physician who was subsequently called in testifying that he found valvular heart trouble. From a verdict and judgment for plaintiff for $500, defendant appeals.
    Abstract of the Decision.
    1. Evidence, § 83

      —when statements not part of res gesta;. In an action by the beneficiary on a policy of insurance, evidence of a statement made by the insured the day after he claimed to have-been injured as to the cause of the injury, is not part of the res gestee.

    2. Insurance, § 667*-—when evidence insufficient to show death from accident. In an action upon an accident policy where the plaintiff claimed that insured’s death was caused by a strain while attempting to lift a heavy stove, evidence held to show that death was due to causes other than an accident.
    3. ’Insurance, § 437*—when provision for notice of accident inapplicable to beneficiary. Under an accident policy requiring notice to the insurer “within twenty days from the date of any accident or the beginning of disability from illness upon which claim is based,” where the death of the insured occurs more than twenty days after the accident was alleged to have been sustained, the provision as to notice has no application to the beneficiary since she did not become a claimant until the death of the insured.
    4. Insurance, § 646*—when evidence of waiver incompetent. Testimony tending to show waiver on the part of an insurance company of provisions of a policy as to notice of accident is incompetent, where none of the persons with whom the witness claimed to have communicated were shown to have been identified with the insurance company.
    5. Insurance, § 408*—when injury accidental. If the insured’s act was attended with an unexpected and unusual result,—one which could not have been reasonably anticipated, and which he did not intend to produce, that is, was not the natural or probable consequence of his act, and was not the result of design, but was produced unexpectedly and by chance,—the injury was caused by accidental 'means within the meaning of policies of accident insurance.

      Jeffery & Campbell, for appellant; Herbert J. Campbell and Charles V. Clark, of counsel.
    No appearance for appellee.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

6. Insurance, § 418 —when injury from lifting stove accidental. Injury from the act of lifting a stove which was claimed to have caused valvular trouble of the heart, subsequently resulting in death, held an accidental injury within the terms of an accident policy.

7. Insurance, § 408*—when accident cause of disease. If a diseased condition was caused from an accident, or existed prior to the accident and had no causal connection with the injury or death resulting from the accident, the accident is to be considered as the sole cause, but if the disease existed. at the time of -the accident and co-operated with the accident to cause an injury or death, the accident is not the sole cause.

8. Instructions, § 118*—when erroneous as not based on evidence. An instruction in an action on a policy of insurance directing, the jury to provisions as being contained in such policy which are not therein is improper.


author: Mb. Presiding Justice Baume

text:
    Sigmund Glaser, Defendant in Error, v. Thomas Schrader, Plaintiff in Error.
    Gen. No. 20,257.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 28, 1915.
    Rehearing denied May 12, 1915.
    Statement of the Case.
    Action by Sigmund Glaser in the Municipal Court of Chicago against Thomas Schrader to recover one thousand dollars as liquidated damages for the alleged breach by the defendant of a written contract.
    The "contract was as follows:

      “State of Illinois!
    County of Cook.] ss"
    Agreement made this 25th day of October, A. D. 1910, by and between Sigmund Glaser, formerly of Philadelphia, now of Chicago, party of the first part, and Thomas Schrader, of Chicago, Illinois, party of the second part, Witnesseth :
    “That, "Whereas, party of the first part has purchased from party of the second part a certain business located at Number 366 E. 43rd Street in Chicago, Illinois, said business being a retail candy, ice cream and confectionery business, for a consideration of Two Thousand Dollars ($2,000.00); and
    “Whereas, a further consideration for the purchase of said business by the party of the first part from the party of the second part was the agreement on part of the party of the second part not to engage in the same or a similar business for a period of ten (10) years within a certain locality in which the said business is located.
    “Now, Therefore, in consideration of the covenants and agreements herein contained, and the payment of One Dollar ($1.00) from the party of the first part to party of the second part, receipt whereof is hereby acknowledged, party of the second part hereby agrees that he will not for a period of ten years from this date, by himself or in conjunction with others, directly or indirectly, either as manager, agent, owner or employe, engage in the retail ice cream, candy and confectionery business in the City of Chicago, Cook County, Illinois, within a radius of eight (8) blocks, the central point of which shall be Number 366 East 43rd street in said city, and the said party of the second part hereby agrees that in case he violates the terms or spirit of this agreement, that party of the first part shall be entitled to the sum of One Thousand Dollars ($1,000.00) as liquidated damages, which party of the second part agrees to pay in case of such viola-' tion.
    “It is hereby mutually agreed that the store conducted by party of the second part at number 363 E. 47th Street in Chicago, Illinois, shall be excepted from the prohibited territory above described.
    Abstract of the Decision.
    Damages, § 88

      —when contract provides for liquidated damages. Stipulation in a contract providing for the payment of one thousand dollars as liquidated damages, in the event of a breach by the defendant of a contract not to engage in business within a certain distance from a particular location for a stipulated period, construed as providing for liquidated damages and not a penalty.
    “Witness the hands and seals of the parties hereto, this 25th day of October, A. D. 1910.
    Sigmund Glasee (Seal) Thomas Schbadeb (Seal).”
    From a judgment for plaintiff for one thousand dollars, rendered on a directed verdict, defendant brings error.
    William A. Jennings, for plaintiff in error.
    Haase & Howard, for defendant in error.

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

   Mb. Presiding Justice Baume

delivered the opinion of the court.


text:
    Ellen Barrett, Administratrix, Appellee, v. Annie Marschak, Administratrix, Appellant.
    Gen. No. 20,312.
    Abstract of the Decision.
    1. Replevin, § 195

      —who may sue on bond on death of sheriff. The right of action upon a replevin bond given to the sheriff in an action is vested on the death of the sheriff in his administratrix and not in his successor.
    2. Judgment, § 680*—when plea defective as not showing former adjudication on merits. A plea in an action upon a replevin bond that does not show that a former adjudication upon such bond, in an action by the successor in office of the sheriff who had since died, was upon the merits is open to demurrer.

      (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action by Ellen Barrett, administratrix of the estate of Thomas E. Barrett, deceased, in the County Court of Cook county against Annie Marschak, administratrix of the estate of Joseph Marschak, deceased, in debt on a replevin bond. A trial by the court without a jury resulted in a finding against the defendant for one thousand dollars debt and one thousand dollars damages, the debt to be satisfied on payment of the damages, and judgment was entered upon such finding. The defendant appeals.
    Samuel Kerr and James P. Graham, for appellant.
    Jacob Levy and Josiah Burnham, for appellee.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

3. Replevin, § 204 —when receipt admissible in connection with return. 'Where the return of the sheriff to a writ of replevin specifically refers to the receipt thereon indorsed for a description of the property returned, such receipt may be considered as part of the record in connection with the return, and is admissible in evidence in an action upon the bond for the purpose of showing that all of the property mentioned in the writ was not in fact delivered to the replevin plaintiff.


text:
    Anna Stapleton, Appellee, v. National Council of the Knights and Ladies of Security, Appellant.
    Gen. No. 20,341.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clabence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action by Anna Stapleton in the Superior Court of Cook county against the National Council of the Knights and Ladies of Security to recover the benefit of a certificate issued to Anna A. Stapleton, the deceased daughter of the defendant, wherein a trial by jury resulted in a verdict and judgment against the defendant for $801.50. To reverse the verdict of the jury and the judgment thereon, defendant appeals.
    A. W. Fulton, for appellant.

      Abstract of the Decision.
    1. Insurance, § 338

      —when insurer hound by acts of physician. A life insurance company is bound by the acts of its regular examining physician who acts within the scope of his authority in filling out the application for insurance.
    2. Insurance, § 904*—when evidence shows statement of true age at time of application. Evidence in action on a benefit certificate held to sustain plaintiff’s claim that insured in applying for insurance gave her true age to defendant’s physician, but the latter inserted an incorrect age, the applicant at the time having been about two months under the minimum age required for membership.
    3. Appeal and error, § 1256*—when party cannot complain of error. A party to an action cannot complain of an instruction in his favor.
    Gorman, Pollock, Sullivan & Livingston, for appellee.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. John R. Brown, Plaintiff in Error.
    Gen. No. 20,546.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Ery, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded with directions.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Prosecution by The People of the State of Illinois in the Municipal Court against John B. Brown for the violation of an order of the Municipal Court to pay his wife ten dollars per week. To reverse the final order of judgment of the court,- defendant brings error.
    Abstract of the Decision.
    1. Criminal law, § 39

      —when appearance referable to recognizance and not attachment. Where a party who has entered into a recognizance for his appearance in court in case he violates an order of the court makes his appearance in court after a writ of attachment has been issued against him for-the violation of such order but not served, his appearance is not properly referable to the command in the writ but to the provisions of the recognizance.
    2. Husband and wife, § 275*—when judgment erroneous on prosecution for abandonment. Where in a prosecution for wife abandonment the court ordered defendant to pay a certain amount weekly to his wife, and thereafter, on information that defendant had defaulted in his payments, entered final judgment sentencing him to the House of Correction, such judgment, to be valid, must contain "a recital finding that defendant had violated the prior order by defaulting in his payments.
    3. Husband and wife, § 272*—how Wife Abandonment Act construed. The Wife Abandonment Act being a criminal statute must be strictly construed.
    4. Cbiminal law, § 601*—when not remanded for new trial on reversal. In a prosecution for wife abandonment, if there are no assignments of error which question the proceedings prior to the entry of final judgment, on appeal the case will not be remanded for a new trial, but the judgment will be reversed and the cause remanded with leave to defendant to move for a proper judgment.
    William B. Denmark, for plaintiff in error; George H. Sugrue, of counsel.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Harry Martin, Plaintiff in Error.
    Gen. No. 20,605.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Prosecution by The People of the State of Illinois in the Municipal Court of Chicago against Harry Martin, on an information charging that the defendant was an idle and dissolute person; was a pilferer; did habitually neglect his employment and calling and did not provide for himself; was an idle and dissolute person and neglected all lawful business and did habitually misspend his time by frequenting houses of ill fame and tippling shops without giving a good account of himself; is known to be a thief, or pickpocket, having no lawful means of support, and was habitually found prowling around places of public amusement, stores, shops or crowded thoroughfares, cars, tippling houses, contrary to the form of the statute and against the peace and dignity of the People of Illinois. To reverse a judgment of conviction, defendant brings "error.
    W. A. Lantz, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson and John E. Herren, of counsel.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

Abstract of the Decision.

1. Vagrancy, § 1 —when information sufficient after verdict. An information charging vagrancy substantially in the language of the statute, held sufficient after verdict, no objection having been interposed below, nor demand for bill of particulars filed.

2. Criminal law, § 416*—when objections to evidence must be made below. Questions relating to the competency of evidence cannot be raised for the first time in a court of review.

3. Vagrancy, § 1*—when evidence sustains conviction. In a prosecution for vagrancy, where the State shows that defendant had no employment and no visible means of support, the facts being peculiarly within his knowledge, in the absence of any credible proof by him of such fact the jury are warranted in finding that he had no lawful means of support.


text:
    Joseph R. Dunn and George Hight, Appellees, v. B. K. Block, trading as The Empire Distillery Company et al., Defendants, on appeal of The Note, Bond & Mortgage Company of New York, Appellant.
    Gen. No. 21,176.
    (Not to be reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed April 28, 1915.
    Rehearing denied Stay 12, 1915.
    Statement of the Case.
    Action by Joseph R. Dunn and George Hight in the Circuit Court of Cook county against B. K. Block trading as The Empire Distillery Company, The Note, Bond & Mortgage Company of New York, a corporation, and Anton J. Cermak, a bailiff of the Municipal Court of Chicago, on appeal of The Note, Bond & Mortgage Company of New York, a corporation, from an interlocutory order of the Circuit Court overruling appellant’s motion to dissolve a temporary injunction.
    Abstract of the Decision.
    Bills and notes, § 406*—when burden on transferee to show that he was a holder in due course. Bill seeking to enjoin the collection of notes by a transferee, alleging that the payee therein secured the execution of the notes upon the agreement that the maker could elect to cancel same if under certain circumstances, within two days after their delivery and, on exercising such election, the payee refused to return the notes, held to state facts showing that the payee’s title was defective within the meaning of section 55 of the Negotiable Instruments Act (J. & A. If 7694), placing the burden upon the transferee of showing that he was a holder in due course under section 59 of that act (J. & A. V 7698).
    Rosenthal & Kurz, for appellant Note, Bond & Mortgage Company.
    E. H. Wright and W. G. Anderson, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.


author: Mr. Justice Graves

text:
    Gertrude Isbitz, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,330.
    1. Records, § 7

      —when need not be in English language. A memorandum of the list of “papers filed and writs issued” kept by the clerk of the court from which papers and writs a record thereof is made is not a record and the constitutional provision with reference to the preservation of court proceedings in the English language does not apply.

      2. Records, § 7

      —when cannot be objected to. An objection to the sufficiency of a record which is referred to in the certificate to a bill of exceptions as “a record” is without merit where the transcript of the record which contains the first bill of exceptions is certified to be “a true, perfect and complete transcript of the record in this case,” etc., and is on its face a complete record from the initial step therein to final judgment.
    3. Appeal and error, § 1289*—when adoption of rule by Municipal Court presumed. Under section 28 of the Municipal Court Act (J. & A. IT 3340), which requires the practice in actions of the first class to conform to practice in the Circuit Court until otherwise provided for by the rules of the Municipal Court, in the absence of a showing that such rule was not adopted by that court, it must on appeal be presumed that one was so adopted, particularly where both parties in the lower court apparently proceeded on that theory.
    4. Municipal Court of Chicago, § 13*—ivhen statement of claim sufficient. A statement of a claim presumably filed under the rules of the Municipal Court, if it apprises the defendant of the nature of the plaintiff’s claim, is sufficient after verdict.
    5. Municipal Court of Chicago, § 13*—when statement of claim, sufficient though treated as a declaration. Statement of claim in an action of the first class for injury to a passenger caused by the sudden starting of a car as she was in the act of alighting, held sufficient after verdict, even though considered as a declaration.
    6. Carriers, § 309*—lohen relation created. When a person boards a car of a street car company, at the place where it usually stops for taking on passengers, for the purpose of becoming a passenger for hire, a contractual relation exists.
    7. Municipal Court of Chicago, § 13a*—when ownership need not be proved. Failure of plaintiff to prove that defendant was the owner or operator of the car upon which plaintiff was a passenger is not available where ownership was not denied in the affidavit of merits, and was in fact admitted.
    8. Municipal Court of Chicago, § 13*—when defenses not set up in affidavit of merits waived. Where an affidavit of merits is filed specifying the nature of the defense relied on, all defenses, the nature of which are not set out in the affidavit, are considered waived.
    9. Damages, § 34*—what are requisites to recovery for future suffering. In an action for personal injuries, present damages for apprehended future consequences of an injury cannot be recovered unless there is such a degree of probability of their resulting as amounts to a reasonable certainty that they will result therefrom.
    10. Appeal and error, § 1623

      —when admission of evidence not curable by remittitur. Improper admission of evidence as to the probability of future suffering held incurable by remittitur.
    11. Evidence, § 434*—when hypothetical question erroneous. A hypothetical question in an action for personal injuries where there is nothing in the question from which the witness could assume that each and all of the conditions named in it did not exist prior to the accident complained of is improper.
    12. Evidence, § 437*—when hypothetical question must be based on evidence. A hypothetical question requiring the witness to base his opinion in part on what he found by his examination of the patient, and not confined to what he testified that he found, is erroneous.
    13. Damages, § 213*—when instruction erroneous. An instruction to jurors that they might assess the measure of damages in an action for personal injuries from the facts and circumstances in evidence in connection with their general knowledge, observation and experience in the business affairs of life in determining the amount of time that the plaintiff lost was error, such element being capable of pecuniary measurement.
    14. Appeal and error, § 1655*—when erroneous instruction not curable by remittitur. A remittitur will not cure error in instructions permitting recovery on an element of damages as to which there was no evidence, there being no basis in the evidence on which the court „could determine how much should be remitted.
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed April 28, 1915.
    Rehearing denied May 12, 1915.
    Warren D. Bartholomew and Charles Le Roy Brown, for appellant; Leonard A. Busby, of counsel.
    Edward M. Ames and H. W. Standidge, for appellee.

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

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

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

   Mr. Justice Graves

delivered the opinion of the court.

This is an appeal from a judgment in the Municipal Court in an action of the first class. Appellee filed the following statement of claim as the basis of her action:

“Plaintiff’s claim is for injuries received on the twenty-first day of April, A. D. 1911, while a passenger on one of the defendant’s street cars then and there being operated by one of the defendant’s employes at the intersection of West Sixty-first street and South Ashland avenue, City of Chicago, after plaintiff had given notice of her intention to get off the car at the crossing, and while she was in the act of getting off, said employe suddenly started up said car in negligent and careless manner, whereby the plaintiff was thrown violently to the pavement and seriously, dangerously and permanently injured, and while she was exercising due care and caution for her own safety.”

Without in any way challenging the sufficiency of that statement of claim, appellant filed an affidavit of meritorious defense in which it denied liability for two reasons only: First, that neither the fall of appellee nor the injury, if any, sustained by her by reason thereof, was caused or brought about by reason of any negligence on the part of appellant or any of its agents; second, that at the time of said fall appellee was not in the exercise of due care for her own personal safety. The issues so made were submitted to a jury without objection by either party, upon evidence introduced by them in support of their respective contentions, and resulted in a verdict for appellee assessing her damages at $3,500. Motions of appellant for a new trial and in arrest of judgment were successively made and overruled, and on November 23, 1912, judgment was entered on the verdict. Appellant then prayed and was allowed an appeal and was given thirty days, afterwards extended to sixty days, in which to file its appeal bond and sixty days in which to file its bill of exceptions. On December 23,1912, appellant again came into court and presented its motion to vacate the judgment entered November 23,1912, on account of the insufficiency and inadequacy of the record thereof, which motion was denied by the court, and thirty days was allowed within which appellant might file a bill of exceptions showing said motion and the ruling of the court thereon. On January 16, 1913, an appeal bond for an appeal from the judgment of November 23, 1912, was filed. On January 29, 1913, a transcript of record was certified by the clerk of the Municipal Court to be a true, perfect and complete transcript of the record in this cause, except that the original bill of exceptions filed with that clerk, on January 28, 1913, nunc pro tunc as of January 16, 1913, was embodied in the transcript instead of a copy thereof. In this transcript is included the praecipe on which was a demand for a jury trial; the summons and the return thereon; appellee’s statement and affidavit of claim; appellant’s affidavit of meritorious defense; the empaneling of a jury; the trial and verdict of the jury; the motion for a new trial and the ruling of the court thereon; the motion in arrest of judgment and the ruling of the court thereon; the judgment on the verdict; the prayer for an appeal; the orders of the court in relation thereto; and the original bill of exception filed January 28, 1913, all in amplified and complete form. On February 25,1913, another transcript of record in this cause was certified to by the clerk of the Municipal Court as a transcript of the additional record therein. This so-called additional record purports to show what took place at the time the motion made December 23,1912, to vacate the judgment entered November 23, 1912, was made and disposed of and includes what is called a bill of exceptions signed by the judge on January 31, 1913, and filed in the Municipal Court on February 20, 1913, nunc pro tunc as of January 31, 1913. This so-called bill of exceptions contains a coloquy between court and counsel for the respective parties in regard to the motion to vacate the judgment of November 23, 1912, in which the judge of the court stated to counsel that he had seen certain records in this case prepared by the clerk in abbreviated form; a copy of the records the court said he had looked at; rule 32 of the Municipal Court; an order of the Chief Justice of the Municipal Court in regard to what a record written in certain abbreviated forms should be construed to mean in amplified language; and the order of the court overruling the motion to vacate the judgment of November 23, 1912. Neither the rule, order or forms were introduced in evidence by either party.

Appellant contends the record of the .Municipal Court is insufficient, because not made in the English language. As a part of the so-called second bill of exceptions, a copy of a page of a book kept by the clerk of the Municipal Court and marked “Municipal Court, First District, First Class, Volume No. 202, Case Nos. 201,001 and 202,000” appears, which book the bill of exceptions recites “was a record.” This page is divided into three parts: First, the title of the case with the names of the attorneys representing the respective parties. This is written out in full. Second, a list of “papers filed and writs issued” with the dates of such filing or issuance. This list is made up of abbreviations of both words and sentences. It is in no sense a record of any orders of court. It is in reality but a memorandum of original papers in the case from which original papers a record thereof is made. The constitutional provision with reference to the preservation of court proceedings in the English language does not apply to minutes and notes which are no part of the record, but are mere memoranda from which the record is made. People v. Petit, 266 Ill. 628. Third, a list of “orders entered” with the dates thereof. These orders are entered in the abbreviated forms prescribed by the Chief Justice of the Municipal Court, who also at the same time prescribed what these abbreviated orders shall be con-: strued to mean in amplified language. We think this record, if it were the only one in 'the case, would be sufficient under the holding of the Supreme Court in the case of City of Chicago v. Coleman, 254 Ill. 338. However that may be, the certificate to that bill of exceptions does not say that the record there contained is the only record in the case, but merely that it is “a record.” On the other hand, the transcript of the record which contains the first bill of exceptions is certified to be “a true, perfect and complete transcript of the record in this case,” etc., and is on its face a full and complete amplified record of every step in the case from the filing of the praecipe to the final judgment and allowance of an appeal. As there is nothing to show that the same was not written out in full at the time the occurrences there recorded took place, we must presume that it was. The contention that the record of the Municipal Court is not sufficient is, therefore, without merit. Richter v. Burdock, 257 Ill. 410-417.

It is next urged that as this is an action of the first class, the filing of a statement of claim does not conform to the provisions of section 28 of the Municipal Court Act (J. & A. ¶ 3340), which requires the practice in actions of the first class to conform to the practice in the Circuit Court until otherwise provided by the rules of the Municipal Court, for the reason that in the Circuit Court one bringing a suit must file a declaration, and no rule of the Municipal Court authorizing the substitution of a statement of claim for a declaration is shown to have been adopted. If, in fact, no such rule has been adopted by the Municipal Court, a failure to file a declaration would undoubtedly be fatal to the right of appellee to recover, when such right was tested by motion in arrest of judgment. Danley v. Hibbard, 222 Ill. 88; Henning v. Sampsell, 236 Ill. 375-382. However, in the absence of a showing that such a rule was not adopted by that court, it must on appeal be presumed that one was so adopted. It is for the party who asserts that an error has been committed to show it. Hedrick v. Bell, 84 Ill. App. 523-525. A judgment of a nisi prius court will be presumed by an Appellate Court to be regular and supported by the evidence and warranted by the pleadings, unless the contrary is affirmatively made to appear. Hawthorne v. Cartier Lumber Co., 121 Ill. App. 494; McIntyer v. Houseman, 108 Ill. App. 276.

In Union Book Co. v. Robinson, 105 Ill. App. 236, it was held that in the absence of any showing to the contrary it will be presumed that the trial court complied with its own rules.

In Seidschlag v. Town of Antioch, 207 Ill. 280, it was held that an order overruling a motion to dismiss for want of a written complaint will not be reviewed, where the record does not show that a written complaint was not filed.

In Bellinger v. Barnes, 223 Ill. 121, the Supreme Court held that an order dismissing a bill in chancery was not reviewable where there was nothing in the record to show that such action was improper.

In Weske v. Chicago Union Traction Co., 117 Ill. App. 298, it was held that all orders necessary to sustain a judgment will be presumed to have been entered in the absence of a showing that they were not so entered.

In Village of Franklin Park v. Franklin, 231 Ill. 380, it was held that although the statute requires instructions to be given in writing, and they were not so given, in the absence of a showing to the contrary, it will be presumed that parties consented that they should be given orally.

In this case there was no showing that the Municipal Court had not adopted rules dispensing with the filing of a declaration in cases of the first class and authorizing the substitution therefor of the statement of claim authorized by statute in cases of the fourth class. Such a rule, that court was expressly authorized by statute to adopt. The statement of claim filed in this case was such a one as might have been authorized by such a rule if adopted, and such as is filed in the Municipal Court in actions of the fourth class. Appellant filed to it an affidavit of defense in conformity to the practice in actions of the fourth class. The case was tried and judgment entered by the court without complaint being specifically made to the fact that the practice pursued was not such as obtained in the Circuit Court. Even the motion in arrest of judgment was orally made and no specific reasons were presented why it should be allowed, so far as this record shows. 'We think the incidents of the trial strongly support the presumption which the law raises, that a rule of the Municipal Court, in force at the time of the trial of this case, authorized the filing in actions of the first class of a statement of claim in lieu of a declaration.

The statement of claim as such, presumably filed under the rules of the Municipal Court, authorizing the practice in first and fourth class cases to be uniform, appraised appellant of the nature of appellee’s claim, and was sufficient after a verdict. Gamble-Robinson Commission Co. v. Union Pac. Ry. Co., 180 Ill. App. 256; Kelleher v. Chicago City Ry. Co., 256 Ill. 455. While the parties to a suit are limited to the case made by the plaintiff’s statement of claim and the defendant’s affidavit of meritorious defense, the formalities of pleading have been abolished. Walter Cabinet Co. v. Russell, 250 Ill. 416. This statement of claim amounts to a charge that appellee, while a passenger on one of appellant’s street cars, and while she was with due care and caution for her own safety attempting to alight therefrom, appellant by its servants, in violation of its implied contract to use all care and diligence consistent with the practical operation of its car to safely carry appellee to her destination and to permit her to safely alight therefrom, negligently, carelessly and suddenly started said car, whereby she was thrown to the ground and injured. This statement of claim, even if it be treated as a declaration, we think is sufficient after a verdict to sustain the judgment. In Kelleher v. Chicago City Ry. Co., 256 Ill. 454, the declaration charged that the plaintiff was injured while attempting to board a car of this defendant, and it was held that, while it would have been bad if tested by a demurrer, it was sufficient after a verdict, although it was not charged that he was boarding the car to be carried as a passenger.

Appellant next argues that there was no evidence to support a finding that the contractual relation of carrier and passenger existed between it and appellee at the time of the injury. The proof shows that appellee had taken a car on Sixty-third street from Halsted street to Ashland avenue; that she paid her fare on that car and was given a transfer; that at Ashland avenue she left the Sixty-third street car and boarded a northbound car; that she gave her transfer to the conductor and that he accepted the same and permitted her to ride to Sixty-first street where some one signaled the car to stop and it did stop at the usual place for discharging passengers; that she then attempted to alight and while in the act of so doing, the car was started and she was thrown to the ground and injured.

"Where a street car is stopped at the usual place for receiving passengers, that act is an implied invitation to all persons there to become passengers on that car, and if a person then boards it for the purpose of being carried as a passenger for hire, the acceptance of that implied invitation establishes the relation of carrier and passenger between such person and the street car company, .even before the fare is collected. Petersen v. Elgin, A. & S. Traction Co., 238 Ill. 403. Certainly, after the conductor has accepted the fare or transfer offered by such person, the company cannot be heard to deny that such relation exists.

It is next urged that there is no proof that appellant was the owner and was then operating the car from which appellee was thrown. Such ownership was not denied by appellant in its affidavit of meritorious defense, or in any other manner, and was, therefore, not an issue in the case. In actions against a street railway company for injuries, allegations in relation to the defendant’s ownership of the road and cars are mere matters of inducement which need not be proved by the plaintiff, unless specifically denied by the pleadings. Chicago Union Traction Co. v. Jerica, 227 Ill. 95. When an affidavit of merits is filed specifying the nature of the defense relied on, all defenses, the nature of which are not set out in the affidavit, are considered waived. Kadison v. Fortune Bros. Brewing Co., 163 Ill. App. 276. In Walter Cabinet Co. v. Russell, 250 Ill. 416-420, the Supreme Court said: “While the formalities of pleadings have been abolished by statute, it is still the law in the Municipal Court, as in other courts, that a party is limited in his evidence to the claim he has made; that he cannot make one claim in his statement and recover upon proof of another, without amendment. The issue is made by the statement of claim, and the evidence must be limited by that statement. The issue cannot be enlarged by oral claims * * * .” What was there said was sufficient for the disposition of the question there presented, but we see no reason why for a like reason it should not be held that the issues to be tried and upon which evidence must be introduced are those made by the statement of claim and the affidavit of meritorious defense, and that when in an affidavit of meritorious defense the defendant places its defense on particular grounds therein specified, proof of all other averments in the statement of claim either of substance or of inducement are waived.

The affidavit of defense in this ease not only places its defense upon a denial of negligence of appellant and an averment of contributing negligence on the part of appellee, but expressly admits that the car was the property of appellant. It is there stated:

“Charles E. Troxell, being first duly sworn, deposes and says that he is an agent of the defendant in the above entitled cause and is duly authorized to make this affidavit in its behalf; that he verily believes the defendant has a good defense to the whole of the plaintiff’s claim in the above entitled cause in that although a lady did fall at or about the time of alighting from a car of the defendant, on the 21st day of April, 1911, at the intersection of Ashland avenue and West 61st street, in the City of Chicago, Illinois, yet such fall was not caused or brought about by reason of any negligence on the part of the defendant or any of its agents on said occasion, and if said lady was injured by reason of such fall, such injuries were not caused or brought about through any negligence on the part of the defendant or any of its agents.

“Affiant further says that at the time of said fall the said lady was not in the exercise of due care for her own personal safety.”

Whatever is admitted by the pleadings need not be proved.

One of the issues submitted to the jury was whether the servants of appellant were guilty of any negligence which resulted in the injury to appellee complained of. Appellant insists that the proof in this record is not sufficient to warrant a finding by the jury that the injury was the result of any negligence on the part of its servants, but that on the contrary it shows that the car was started by the motorman in response to a signal given by a stranger who was standing on the rear platform. The proof certainly strongly tends to show that such was the case, but it is not of such a conclusive character as to warrant us in finding it to be true as an ultimate fact.

The law is well settled that in order to entitle a plaintiff to recover present damages for apprehended future consequences of an injury, there must be such a degree of probability of their resulting as amounts to a reasonable certainty that they will result therefrom. It is not enough that they may result or even that they are likely to develop. Only evidence of such consequences as are reasonably certain to follow an injury can properly be admitted for the purpose of enhancing the damages to be awarded. Lauth v. Chicago Union Traction Co., 244 Ill. 244; City of Chicago v. Jarvis, 226 Ill. 614; Lyons v. Chicago City Ry. Co., 258 Ill. 75.

In violation of this rule, Dr. McMurtry was allowed to testify over objection, in regard to the chances of hernia resulting from the injury, as follows:

“It might be without her supporter, if she were on her feet very much, the abdominal wall would give way. It looks as if it would because it is very thin over those regions.”

Further testimony by the same witness in relation to the chances of miscarriage in case of pregnancy, of inability of the plaintiff to retain her urine and of prolapsus of the uterus, nearly as objectionable, was given. The harm of this testimony cannot be estimated, neither can it be overcome by a remittitur. Lyons v. Chicago City Ry. Co., 258 Ill. 75; Lauth v. Chicago Union Traction Co., 244 Ill. 244; Murphy v. Boston & A. Ry. Co., 167 Mass. 64.

The following hypothetical question was asked of Dr. McMurtry over the express objection of counsel for appellant that it was incomplete and furnished no basis for a competent opinion:

“Assuming, doctor, that on the 22nd of April, 1911, while attempting to alight from a car the car had been started and she had fallen in the street, and shortly after the falling was in the condition that you found her in at her home that night, and that you made this examination a few days later and found this condition that you found her in at her home that night, and that you made this examination a few days later and found this condition of the prolapsus of the uterus and this condition of the bladder you have described, and that the conditions with reference to the menstrual flow and the inability to hold the urine continued afterwards as you have described, what, in your opinion, doctor, was the cause or is the cause of those ailments 1”

There is nothing in this question from which the witness could assume that each and all of the conditions named in it did not exist prior to the fall from the car. Certainly, if they did so exist, they could not be attributed to the fall. The question further requires the witness to base Ms opinion in part on what he found by his examinations of the patient and is not confined to what he had testified that he found. A hypothetical question should be based on facts shown in the record and on no other, so that another expert witness can be called upon to express an opinion on the same state of facts. If it is based on facts that are locked in the breast of the witness to whom it is put, no means are open to the opposite side to test the correctness of the opinion expressed by the witness. It was error to permit the question as framed to be answered.

Several of the given instructions are criticised. These criticisms we think are for the most part hypercritical. At least one is substantial. In the instructions in regard to the measure of damages, the court first told the jury they might assess such damages from the facts and circumstances in evidence in connection with their general knowledge, observation and experience in the business affairs of life and then told them they might take into consideration, among other things, in fixing the damages the value of any time appellee had lost on account of the injuries received, and what effect such injuries will have in respect to her power to earn money and to labor. The rule that jurors may assess damages from their general knowledge, observation and experience in the business affairs of life, without proof of the amount of such damages, applies to physical injuries, suffering of mind and body, future suffering, loss of health or permanent injury, which are not capable of pecuniary measurement, but does not apply to physicians’ and nurses’ bills, medicine and other necessary expenditures, loss of earnings, or other matters that are capable of proof. Such elements of damage must be based on proof. There was no proof of the value of time lost by appellee in consequence of the injury complained of. Yet the court instructed the jury that the value of any time she had lost was one of the elements of damages to be considered by them. Under the facts in this case the instruction was erroneous.

The damages awarded were quite substantial. How much of the verdict was' for loss of earnings or time there is no means of knowing, but that such element entered into the computation and may have constituted a substantial part of it, is quite possible, if not likely. Even if a remittitur would cure this defect, there is no basis in the evidence on which the court could determine how much should be remitted. The only remedy is a retrial.

For the errors enumerated, the judgment is reversed and the cause is remanded to the Municipal Court for another trial.

Reversed and remanded.


author: Per Curiam.

text:
    Lyle D. Taylor, Appellant, v. Arthur L. Currey, Appellee.
    Gen. No. 18,832.
    Abstract of the Decision.
    1. Fraud, § 57

      —when consideration paid recoverable in assumpsit. One purchasing stock on the strength of fraudulent representations may, on rescinding the contract promptly after the discovery of the fraud, recover the consideration paid in assumpsit for money had and received.
    2. Principal and agent, § 174*—when agent liable for fraud though acting as agent. The fact that one procuring the sale of corporate stock by means of fraudulent representations acted as agent of the corporation is no defense in an action of assumpsit against him to recover the consideration paid.

      (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John McGoorty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed April 28, 1915.
    Statement of the Case.
    Action by Lyle D. Taylor in the Circuit Court of Cook county against Arthur L. Currey, in assumpsit on a claim for $1,500, paid for fifteen shares of the capital stock of the South Farm Company, a corporation. To reverse a judgment rendered without a jury, on the motion of the defendant to exclude the evidence of the plaintiff and render judgment in his favor, plaintiff appeals.
    Donald L. Morrill and Egbert W. Millar, for appellant.
    Abel L. Allen, for appellee.

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

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

   Per Curiam.

3. Assumpsit, action of, § 44 —when action for money had and received lies. The action for money had and received is an equitable action and lies for money had and received by the defendant which in equity and • good conscience he should not retain, but should pay to plaintiff, and the right of recovery depends upon showing that defendant actually received' the money, and that in equity and good conscience he should pay it to plaintiff, in which case the law implies a promise, although there is no privity between the parties.

4. Principal and agent, § 174*—when agent liable for fraud though receiving no benefit. In an action for money had and received, by one who purchased corporate stock, on the strength of fraudulent representations by the defendant, the fact that the latter, acting as agent of the corporation, turned the consideration paid over to the corporation and obtained no direct benefit himself is no defense.

5. Fraud, § 23*—when representations relate to existing or past facts. Misrepresentations inducing the purchase of corporate stock which related to the value and purchase price of land owned by the corporation,- the value and income on a lease held by it, the disposition of the proceeds of the sale of stock, absence of promotion profits and the like, held to refer to existing or past facts.

6. Fraud, § 4*—when fraudulent intent shown. Misrepresentations inducing the sale of corporate stock held to have been made with intent to deceive.

7. Fraud, § 9*—when negligence not shown. One purchasing corporate stock in reliance on defendant’s fraudulent representations is not chargeable with negligence, where he had no means of further investigation.


author: Mr. Presiding Justice Barnes

text:
    Jerome G. Leavitt, Plaintiff in Error, v. H. B. Lusch, Defendant in Error.
    Gen. No. 20,492.
    1. Injunction, § 299

      —when question as to depreciation in value of collateral after sale enjoined material. On a suggestion of damages by the pledgee of stock, pledged as collateral for a debt of the pledgor, based on the theory of a lost opportunity to sell the stock pursuant to the terms of the pledge, such loss of opportunity being alleged to have been caused by the pledgor’s act in securing an injunction against the sale of the collateral which he subsequently dismissed, the questions as to the value of the stock at the time the injunction was issued and whether it subsequently depreciated are material.
    2. Injunction, § 299*—when evidence insufficient to show depreciation in collateral after sale enjoined. Evidence examined in suit to recover damages claimed to have accrued through loss of opportunity to sell pledged stock by reason of pledgor having secured injunction against sale, and held insufficient to show depreciation in value of the stock after the issuance of the injunction.
    3. Injunction, § 301*—what evidence inadmissible to show value of corporate stock. The amount bid for corporate stock at a public vendue is not- legal evidence of its value.
    Error to the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed.
    Opinion filed May 11, 1915.
    Statement by the Court. Plaintiff in error, Leavitt,- filed his bill of complaint seeking among other things an injunction enjoining defendant in error, Lusch, and others from selling certain stocks held by Lusch as collateral security to three of Leavitt’s demand promissory notes for $12,000, $6,500 and $17,500 respectively, aggregating $36,000. The first two notes were secured by 80 and 105 shares respectively of the capital stock of the Twin Tree Lumber Company, and the other note by 100 shares of the Leavitt Land & Lumber Company.
    Notice had been given that the stock would be sold on August 15, 1912, and on that date the bill was filed and a temporary injunction granted restraining sale of the stock. On December 27, 1912, the bill was dismissed on Leavitt’s own motion “without prejudice,” and thereupon the injunction was dissolved and defendants were given leave to file suggestions of damages. Notices of sale were again given, pursuant to which the stock was sold at auction on January 2, 1913, to Lusch, the only bidder, for $18,000. Later Lusch filed suggestions of damages, based on the theory of “a lost opportunity” to sell the stock for the amount due on the notes, his claim being that but for the issuance of the injunction the stock could and would have been sold August 15, 1912, for said amount pursuant to an agreement between Lusch and three other stockholders of the Twin Tree Lumber Company. The agreement was to the effect that if within ninety days from its execution, May 21, 1912, the holders of Leavitt’s outstanding notes (including a note not here involved), amounting approximately to $48,000, secured by 245 shares of the Twin Tree Lumber Company and 100 shares of the Leavitt Land & Lumber Company, should offer said securities for sale, then Adams, one of the parties to the agreement, was authorized to purchase the same for their “joint account not exceeding the total sum of $48,000 for all said securities.”
    The matter was referred to and heard by a master in chancery, whose findings and conclusions were in accordance with such theory of damages, and who found them to be $19,679.91, being the difference between the principal and interest of the notes and the amount bid for the stock. The court’s decree overruled most of the exceptions to the master’s report and assessed the damages at $18,000 (the difference between said bid and the principal of said notes), conditioned, however, on the right of Leavitt to redeem said stock by satisfying the notes and costs of reference within ninety days. This writ of error seeks a reversal of said decree.
    Bulkley, Gray, More & Tallmadge, for plaintiff in error.
    Edmund S. Cummings, for defendant in error; Harry G. Colson, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

It is unnecessary to consider any of the points urged as error except whether any damages were proven. If we assume that an injunction will be deemed as wrongfully sued out where complainant dismisses his bill of complaint without consent of the defendants and without adjudication of its merits, still the record before us discloses no adequate proof of damages and also that they were assessed upon an untenable theory.

The theory upon which the master reached his conclusions and the court approved his report was a mistaken one. It was that the value of the stocks was not material to the issues and that damages were assessable upon the theory of “a lost opportunity.” Such theory might be applicable where performance of a contract for sale of stock by the owner thereof is prevented and defeated by an injunction wrongfully sued out, and loss ensues from depreciation in its value or from inability thereafter to obtain as good a price; but that is a situation entirely different from the one presented here, where the right of sale is not incident to ownership but to the power to sell collaterals. In such a case, the real question is what was their value when a sale was prevented and was there any subsequent depreciation thereof ?

Even if the theory of a lost opportunity were applicable, still the agreement which furnished the basis of the theory was one merely for the protection of the parties to it and not one for the sale of stock. It did not obligate Adams to purchase the stocks for a specific sum. It merely authorized him to pay “not exceeding $48,000,” manifestly contemplating payment of no greater sum than necessary to acquire them in the event they were offered for sale. Adams having testified that he was able to comply with the agreement, the master found he could and would have bid an amount equal to the principal and interest of the notes in question, amounting to $37,679.91, had he been the highest bidder at the proposed sale; but, in the absence of any other proof on the subject, or that others intended to and would have bid against him, it was not a legitimate inference that Adams would in any event have bid such sum, or, as found and held by tiie master and sustained by the court, that because Lusch had the right to bid he would have bid against Adams until the latter had bid said amount. Such testimony was not only incompetent, but did not justify the conclusion that the injunction prevented the realization of that amount on August 15, 1912, or any other time. The theory, therefore, on which damages were assessed was not only untenable but unsupported by proof. Damages assessed upon such a theory could not be deemed otherwise than remote or speculative. “Damages recoverable for the wrongful suing out of a writ of injunction must be such as naturally and approximately result therefrom, and remote or speculative damages cannot be taken into consideration.” Chicago Title & Trust Co. v. City of Chicago, 209 Ill. 172; Sutherland on Damages, vol. II, p. 69; High on Injunctions, vol. II (2nd Ed.) sec. 1663.

The true test of whether damages were sustained by issuance of the injunction was whether the stocks depreciated in value while it was in force, But of that there was absolutely no proof. The stocks had no established market value. In such event resort must be had to the next best evidence by showing the value of the property and business of the corporation less the amount of its liabilities (Cook on Corporations, vol. II (5th Ed.) sec. 581; McDonald v. Danahy, 196 Ill. 133); and it is competent to prove the value by the opinion of witnesses who have the requisite knowledge, or by such facts as exist tending to show value. Sutherland on Damages, vol. I, pp. 798-800.

Evidence was adduced by respondent tending to show that the value of the Twin Tree Lumber Company stock was worth from $250 to $300 per share, and that there was no depreciation thereof while the injunction was in force. The evidence consisted of detailed statements of the assets of the corporation and its liabilities by its officers, and their testimony and that of another experienced timber man as to values. The list of assets and values need not be here set forth, but the net value testified to exceeded three times the company’s capital stock. The evidence also tended to show that said stock had in fact appreciated in value.

In rebuttal there was received in evidence, as exhibits, subject to objection, the company’s trial balances for the four years previous to January 2, 1913, and its auditor’s report made three years previous thereto, which Lusch testified were sent to him as a stockholder. They have not been preserved in the record among the other exhibits. We have, therefore, no means of determining what they contained except as revealed on cross-examination of defendant in error’s witness Goodman, who, as an expert on stock values, was permitted to base his opinion thereon. But we fail to see their admissibility unless they tended to impeach the testimony of the officers as to what were the actual assets and liabilities of the corporation and the values of such assets. There is nothing in the record to indicate that they had any such tendency and they, therefore, do not appear to have been competent evidence. If they were not competent, then the testimony of the so-called expert based thereon was not competent. These trial balances do not appear to have been based on actual values for there was undisputed testimony that no inventory had been taken of the company’s property within three years. It is difficult to see how a trial balance not based on inventoried assets would have any tendency to disprove direct and positive evidence of the actual assets and their values.

But, even if it had such tendency, direct evidence of so many witnesses personally familiar with the business and the nature and value of the assets, would not be deemed overcome by evidence that was by no means conclusive or even convincing. Goodman, basing his opinion thereon, valued the stocks at $50 per share. But an analysis of his testimony discloses that it was in part based upon assumptions rather than evidence, and even if his opinion was correct, neither his testimony nor the trial balances, so far as the record discloses, showed any change in the value of the stocks after the issuance of the injunction. In any view of the evidence it fails to disclose the thing essential to show damages, namely, a depreciation of the value of the stocks after injunction was granted.

As the evidence adduced before the master in support of the claim for damages consisted in the first instance merely of proof of said agreement, the ability and willingness of Adams to comply therewith on August 15, 1912, the sale of the stocks on January 2nd for $18,000, and the ownership of the notes by Lusch on which nothing had been paid, respondent might well have declined to introduce any proof on his part. But he having seen fit to prove by competent and the best evidence the value of the Twin Tree Lumber Company stock and the fact that it had not depreciated in value, and that evidence not having been directly controverted or impeached by competent or convincing evidence, and there having been no proof of the depreciation of the Leavitt Land & Lumber Company stock, whatever its value, there was no adequate proof, if any at all, that any damages were sustained by reason of suing out the injunction. The court should have sustained the exceptions to contrary findings and conclusions of the master.

It is unnecessary to discuss other questions, but it might be added that the amount bid for stock at public vendue is not legal evidence of its value. The fact that Lusch bid $18,000 for the stock on January 2nd, when he was the only bidder, could not be taken as proof of its value on that date, or used as a basis for determining a loss even on the theory of a lost opportunity. For aught that appears in the record, too, the stock might have been sold for more than the indebtedness it was pledged to secure, and, there being no proof of plaintiff in error’s insolvency, the notes may have been collectible without loss even if the collateral had been worthless. The decree will be reversed.

Reversed.