text:
    John Donahue, Defendant in Error, v. Frank E. Scott Transfer Company, Plaintiff in Error.
    Gen. No. 13,854.
    1. Animals—what essential to recover for injuries inflicted by alleged vicious. Before a plaintiff can recover for injuries inflicted by an alleged vicious animal, it is incumbent upon him to establish by his proofs that the owner of such animal knew that the animal in question wh^Wfcioiis and had^a tendency to bite mankind.
    2. Animals—what precludes recovery for injuries inflicted 6y alleged vicious. Injuries inflicted by an alleged vicious animal cannot Re made the basis of a recovery where it appears that the plaintiff had wantonly irritated and aggravated such animal and that such irritation and aggravation was calculated to have brought about the act which resulted in the injuries.
    3. Verdict—when set aside as_ against the evidence. A verdict which rests upon the testimony of a single witness will not be sustained on review where the testimony of such witness is flatly contradicted by several other equally credible witnesses and by the facts and circumstances appearing at the trial.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed May 18, 1908.
    Rehearing denied June 1, 1908.
    Laokner, Butz & Miller, for plaintiff in error.
    E. R. Thurman and Prank T. Winslow, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff on a trial in the Municipal Court, before a judge and jury, recovered a judgment upon the verdict of the jury for $511.

The bill of particulars, the pleading of plaintiff, claims damages for “personal injuries by being bitten and lacerated and divers bones of his left arm broken by a jackass on September 12, 1906, while plaintiff was working for defendant as stockman in a stable at 402-410 Wabash avenue, Chicago”. Plaintiff was ordered by the foreman of Frank E. Scott Transfer Company to give attention to said jackass, which was a vicious and dangerous animal and so known to be to the defendant, and which facts were unknown to the plaintiff. The defendant wholly failed to warn or in any manner to inform plaintiff of the vicious and dangerous habits of said jackass, and while plaintiff was exercising all due care and caution for his own saftey in discharging his duties, plaintiff was attacked by said jackass and badly bitten, bruised and lacerated, and divers bones of his left arm broken, so that it will remain permanently injured.”

Defendant moved the trial judge, at the close of plaintiff’s case, to instruct the jury to find a verdict in its favor, and renewed the motion at the close of all the proofs. These motions were denied,. and the action of the court in denying them is assigned as error. It is also contended that the verdict and judgment are manifestly contrary to law and the greater weight of the evidence, and that the court erred in not granting defendant’s motion for a new trial.

Before plaintiff can recover it is by law incumbent upon him to establish by his proofs that defendant knew that the jackass was vicious and had a tendency to bite mankind. This is not only the duty cast upon him by the law, but one which he assumes by the averments of his pleading above set forth.

When plaintiff suffered the injuries inflicted by the offending jackass he was performing the duties incident to his employment. He had been taking care of the jackass and fifteen horses for a week preceding the time the animal attacked him. During this work he had become sufficiently acquainted with the habits of the animal to know, as he testified, that the animal was a “trick jackass.” If the animal had vicious propensities it would seem but natural that in feeding, watering and caring for him during the week, the viciousness would have made itself manifest. If it did, and he still continued to care for the animal, may it not be said that he assumed the risk of the dangers arising from his continuing to care for the animal ? Was not an attack of the animal one of the risks of such employment? We do not think plaintiff can shield himself, after a week’s constant contact with this animal, from the assumption of the risk which the law cast upon him, by the pretense that he did not know that the animal was naturally vicious and would bite mankind.

In Farley v. Pickard, 78 Hun, 560, the case of a dog, it was held that the risk of being' bitten was assumed by the plaintiff from the fact of his continuing in the employment with the dog in the barn, and that if the plaintiff did not know the dog was savage and prone to bite mankind, no more knowledge of the dog’s nature and propensities was attributable to the master than to the servant, for by analogy of reasoning a servant coming in contact with an animal daily has a better opportunity of learning the nature of an animal left to his care and keeping than does the master, who, it is plain, had not the advantage of the daily and intimate contact which the servant had. As said in the Farley case, supra, “If he—plaintiff—had no knowledge which imposed a risk upon him, then neither did the defendant have knowledge which imposed a liability upon him.” We regard this reasoning as equally applicable to the relation of the parties in the case at bar. Cooper v. Cashman, 190 Mass. 75.

But plaintiff says that he did not know that the animal was vicious. Still, if he was vicious, such fact is not proven to have been brought to the knowledge of defendant by any evidence saving the remark of • Benson, the foreman, to plaintiff immediately after the happening of the accident—“Yes, I know, the son of a bitch he bit me. ’ ’ How this can shed any light upon the fact of knowledge imputable to defendant that the jackass was vicious and had a tendency to bite mankind, we do not perceive. The remark of Benson certainly did not change the jackass from what he was to a dog; so that Benson’s remark simply amounted to a statement that the jackass bit him. But under what conditions? Was the beast aggravated by Benson, teased or tormented, beaten or maltreated? From one instance of biting, without explanation of the cause which led up to the act, can it be said that the animal had a tendency to bite mankind, knowledge of which is imputable to defendant from such solitary unexplained incident? We are not prepared to go to the extremity of so holding.

The injury to plaintiff was suffered about the hour of seven o’clock in the morning, as he was leaving the jackass after having watered him. The jackass took plaintiff by the wrist with his teeth and pinioned him against the stall and broke the bones of his left arm and lacerated it. The jackass kept plaintiff so pinioned for five minutes and until assistance came to relieve him from his unpleasant and painful predicament. Nothing occurred between plaintiff and the jackass that morning to provoke the assault, so far as plaintiff’s testimony discloses. Of all the times plaintiff had attended on the jackass, nothing of the kind had happened before, according to his testimony, and but for the testimony of Benson and other of defendant’s witnesses the action of the jackass would be inexplicable. But Benson swears that when he put plaintiff to work he cautioned him not to tease or annoy the jackass, because if provoked he might bite him. Benson further testifies that he several times heard that plaintiff had teased the jackass, and that on every such occasion he warned him of his danger; that on the day preceding the accident he warned him. The witnesses Sherrill and Finchley corroborated Benson, testifying that they heard Benson warn plaintiff not to tease the jackass on the occasions Benson swears he warned plaintiff. Sherrill and Finchley also positively testify that it was the daily habit of plaintiff to tease the jackass, and that when teased and annoyed they have seen the jackass snap at plaintiff and try to bite him. It was generally known around the barn that the jackass would bite if teased and provoked. Plaintiff’s method of maltreating the animal was by running a rake over him, prodding him with a pitchfork and hitting him with a strap. There is a good deal of human nature in the jackass, and, while docile enough when kindly treated, the human attribute of resentment and brute retaliation are apt to be aroused when smarting under ill treatment and abuse. These latent instincts of the brute nature are developed by abuse and made manifest under provocation; and they are not confined to the brute creation. The jackass had for days suffered indignities and cruel treatment at the hands of plaintiff, and his attempts to retaliate by snapping and biting at plaintiff had failed. The jackass undoubtedly brooded under the insults of his tormentor and yearned for revenge. He watched his opportunity, and when the tormentor was off his guard and little dreaming of the retribution in store for him, the brute seized him and wounded him as before detailed. In this state of the case we can but voice the rule laid down in Keightlinger v. Egan, 55 Ill. 235, that <£if the plaintiff wantonly irritated and aggravated the dog and the dog bit him in repelling the aggression plaintiff should not be allowed to recover for damages caused by his own wrong.”

Whatever may have been the effect upon the jury of the admission of the evidence that Benson stated, after the accident, that the jackass bit him—which statement Benson denies having made—we doubt the correctness of the admission of such a statement made subsequent to the accident. C. & N. W. Ry. v. Fillmore, 57 Ill. 265; M. C. R. R. v. Gougar, 55 ibid. 503; Same v. Carrow, 73 ibid. 348; McCarthy v. Muir, 50 Ill. App. 510. Still, whether admissible or not, the finding of the jury and the judgment of the court are manifestly against the probative force of the evidence. In this condition of the proof the motion of defendant for a new trial should have been granted. Plaintiff’s main case was unsupported save by his own testimony. He had no corroborative proof, nor were there circumstances in evidence, undenied, to lend corroborative force to any material portion of his proof. On the contrary every circumstance material to plaintiff’s right of recovery was met by positive denial by defendant’s witnesses, and a complete defense is substantiated by defendant’s proofs, which is met with the denial of plaintiff only. A judgment thus resting for its support cannot be maintained. Peaslee v. Glass Co., 61 Ill. 94; Johnson v. Sochurek, 104 Ill. App. 350.

Every material matter of proof of plaintiff rests in his testimony, and it is met with contradiction by the defendant’s witnesses Benson, Sherrill and Finchley. The credibility of these witnesses being unchallenged, it is clear that the proof greatly preponderates in favor of defendant’s contentions, and that plaintiff has not only failed to make out his case by a preponderance of the evidence, but that the defendant’s defense is sustained by an overwhelming preponderance of the proof.

The judgment of the Municipal Court is reversed and the cause remanded for a new trial consistent with the views here expressed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    Hydraulic Engineering Works, Defendant in Error, v. Wittenberg Matzoh Company, Plaintiff in Error.
    Gen. No. 13,868.
    1. Appeals and errors—when judgment of Municipal Court not affirmed by denial of supersedeas. A judgment of the Municipal Court is not ipso facto affirmed by the denial of a supersedeas, where the judge upon denying such supersedeas enters an order to the effect that the denial of such supersedeas shall not operate as an affirmance of the judgment in question.
    2. Contracts—when, for construction of machine, hrolcen. Where one party agrees to construct a machine for another pursuant to' the ideas and subject to the approval of a party specified, the failure of such other to supply such ideas so as to enable the construction of the machine, constitutes a breach.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Max Ebebhardt, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed May 18, 1908.

      Benjamin C. Bachrach, for plaintiff in error.
    McArdle & McArdle, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

On application in vacation after the March term, 1907, a justice of this court refused to make the writ of error here sued out for the purpose of reversing a judgment of the Municipal Court for $273.30, a supersedeas. Under the terms of the Municipal Court Act such refusal would operate to affirm the judgment unless an order to the contrary was made. An order that the refusal to make the writ of error a supersedeas should not operate as an affirmance of the judgment being entered, brings the record for review before the whole court.

The cause was heard on oral argument and the briefs of the parties. After attentively listening to the oral arguments of the counsel and diligently reviewing the record and carefully reading the briefs, the court finds no sufficient reason justifying an interference with the judgment of the Municipal Court. There is one crucial, controlling question which disposes of the merits of the whole case. As to this there is no serious dispute. That question rests in the fact that a machine for making unleavened bread partaken of by Jews during their religious observance of the “Feast of the Passover” was to be constructed by defendant in error under the" instruction and direction of Bernhard Levin, the inventor, and acceptable to liim when completed. The contract in this regard provides: “This machine is to be made to the approval of Mr. B. Levin and according to his ideas.” This clause made it incumbent upon plaintiff in error to furnish defendant in error Levin’s ideas in some explicit and understandable form. This it failed to do in any form. Drawings from which the machine could have been constructed were refused on the ground of their expense. A model of the machine which might have been used as a guide to construction was not furnished. The machine could not be builded upon the verbal directions and explanations of Levin, for they were not sufficiently intelligible or understandable for that purpose. Levin finally disposes of the whole question by admitting that the machine could not be finished according to his ideas from any instructions he had given or information furnished by him to defendants in error or to any one for them. Finally Levin quit the service of plaintiff in error, and from that time forth gave no directions and furnished no ideas for the further construction of the machine.

The failure to complete the machine is owing to no fault or dereliction of defendant in error. The completion of the machine was rendered impossible because the inventor, Levin, did not furnish the information essential to enable it to be completed. The failure of Levin in this regard is imputable to plaintiff in error, as under the contract it was incumbent upon it to see that Levin furnished such information. It follows that defendant in error being in no way responsible for the machine not being completed and delivered, is entitled to recover the fair value of all work and material done and furnished by defendant in error entering into the machine in its incomplete condition. This the Municipal Court accorded it in entering judgment upon the verdict of a jury who had determined the facts in favor of the claim of defendant in error.

With this result we see no valid reason to interfere. The merits and justice of the cause are plainly with defendant in error. There are no errors either in rulings on evidence, instructions to the jury or remarks by the court during the progress of the trial, which we can say injuriously affected the merits or impeded any meritorious defense proffered by plaintiff in error.

As the merits of the cause are with defendant in error it is patent that the counter-claim of plaintiff in error is without merit, and such is our conclusion.

As there are neither errors of law nor of fact in this record affecting the merits of the controversy between the parties, the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Joseph H. Strong, Administrator, v. Nathan Soodvoisky.
    Gen. No. 13,872.
    1. Landlord and tenant—when new tenancy does not arise. Where leasing is made from month to month, a re-letting is not deemed to take place at the recurring of each month.
    2. Landlord and tenant—upon whom, obligation to make repairs rests. The obligation to keep premises in repair rests upon the tenant rather than upon the landlord.
    3. Personal injuries—when landlord not liable for. A landlord is not liable for personal injuries suffered by the child of a tenant where he (the landlord) is under no obligation to keep the premises in repair, nor would such liability exist if, after the letting, the landlord makes and breaks a promise to repair, as such a promise would be a mere nudum pactum.

    Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed May 18, 1908.
    John C. King and William J. King, for plaintiff in error; James D. Power, of counsel.
    Adler & Lederer, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff’s intestate, a child nearly four years of age, came to its death by falling out of a window of a flat rented by his mother from defendant, the landlord. The window it is claimed was ont of repair, in that the catch or fastening between the upper and lower sash was broken; that the sash weights caused the window to suddenly ascend, and the child fell out. Just how the accident occurred is not explained by the proofs. What the child was doing at "the window just before he fell to his death the proof fails to disclose. There were no eye witnesses of the accident who testified. The mother of the child was in the room with him at the time and had very shortly before talked with him, but while she was a witness she admits she did not see the occurrence. She was oblivious of the fact that her child had met with an accident until she heard a commotion in the street caused by the child’s falling out of the window to the .street below.

This suit is brought under the statute for compensation to the next of kin for damages suffered by them from the death of the intestate resulting, as it is contended, from negligence attributable to defendant.

On the motion of defendant made at the close of the plaintiff’s case, the court instructed the jury to find a verdict for the defendant. Upon such verdict a judgment of nil capiat was entered, and this action of the court is assigned as reversible error.

Mrs. Prince, the mother of the child, was a tenant by the month of the premises where the accident occurred, and at the time of its happening occupied the premises with her husband and children as a residence. From the testimony of Mrs. Prince it seems she rented the premises in the month of May, 1899, at a rental of seven dollars a month. She paid the rent monthly in advance. The renting rested in parol by a verbal agreement. Mrs. Prince testified that her rent day was on the eighth of the month. She paid one month’s rent on August 11, 1899, and the receipt offered in evidence by plaintiff recites that the seven dollars then paid was rent from August 11th, to September 11, 1899. Mrs. Prince further testified that defendant called for the next month’s rent on September 9, 1899; that defendant said to her, “Well Mrs. Prince, I thought you would take down the rent;’-' she answered, “I want you to come up for it this time.” He asked why, and she said, “I want you first to fix that window; do you see that catch or whatever you call it; it is broken off.” She told defendant further that the catch was half on the window and that half was broken on the left-hand side. Defendant examined it and said it was a little thing, and that he would fix it for her, saying, “I will do it as quick as I can. ’ ’ She paid him ‘four dollars and stated that she would pay the remaining three dollars when the catch was fixed. Defendant thereupon left, and the accident happened two days thereafter and before defendant fixed the catch.

Plaintiff grounds the right to recover upon the claim that the leasing was from month to month, and in law a new term commenced with each succeeding month of the tenancy, and that where a landlord leases premises with a known dangerous place in them, he is liable for resulting injuries as for negligence. That an agreement to repair unperformed makes the landlord liable for injuries following upon a failure to make such repairs.

We do not agree with any of these contentions. In the first place, while the tenancy was by the month, it does not follow that each month of occupancy created a new demise. Such a tenancy is not a reletting at the beginning of each recurring month. Hall v. Sherrod, 97 Ill. App. 298.

It is plain that under such a holding the right to occupy could not be terminated upon the part of the landlord except by his giving to the tenant a thirty day notice of his intention to terminate such monthly tenancy. This is the statute law of this state. R. S., chap. 80, sec. 6. Occupation and payment of monthly rent creates a tenancy from month to month. Sebastian v. Hill, 51 Ill. App. 272. This was the relationship between Mrs. Prince and defendant. That the landlord is not bound to repair the demised premises, but that such duty rests upon the tenant, in the absence of an agreement to the contrary, is so well settled in this jurisdiction that it must be regarded as no longer open to question or doubt. Sunasack v. Morey, 196 Ill. 569. In this case the court say: “In the absence of a covenant to repair, the landlord is not bound to keep the building inhabitable; and he is therefore not liable for damages resulting to the tenant by reason of the demised premises being out of repair.”

. But if the contention of plaintiff was well taken there is no evidence that at the commencement of the new monthly tenancy, September 8, 1899, there was any “dangerous place” upon the premises. When the catch got out of repair is not shown, although it fairly appears that the defendant first knew of the condition of the catch by Mrs. Prince’s calling his attention to it after the new tenancy had' commenced. Furthermore, having reference to the nature of the defect, we are not prepared to say that it was of such a character as to fall within the designation of a dangerous place. If the catch had been in a perfect condition of repair the act of leaving the window open might have resulted in the same kind of an accident. For can it be said from the testimony that even had defendant been liable to make repairs to the catch that the delay so to do after knowledge of the defect came to defendant was of sufficiently long duration as to charge him with negligence. It was but two days from the alleged promise to the lamentable accident. Neither can we say, after a careful reading of the testimony, that the accident is attributable to the defective catch on the window sash, or that such defect was the proximate cause of the accident.

It is also the law that an agreement upon the part of the landlord with the tenant to repair the demised premises after the making of the lease and the delivery of possession thereunder, is a nudum pactum and not binding npon the landlord. The agreement to repair, if ever made, was not made at the commencement of the relationship of landlord and tenant between defendant and Mrs. Prince, even upon the theory that a new letting occurred September 8, 1899, the rent day. As said in Borggard v. Gale, 107 Ill. App. 128, “If the defendant promised to repair, the floor after the execution of the lease, such promise was a mere nudum pactum, and no liability would exist for a failure on his part to make such repairs.” On further review this decision was affirmed in 205 Ill. 511.

To a like effect is Fowler Cycle Works v. Fraser & Chalmers, 110 Ill. App. 126.

The judgment of the Superior Court is affirmed.

Affirmed.


author: Me. Justice Adams

text:
    Herman Dahl, Defendant in Error, v. Macdonald Engineering Company, Plaintiff in Error.
    Gen. No. 13,852.
    1. Verdict—when presumption arises that evidence sustains. The presumption is that a verdict is sustained by the evidence where all the evidence which was heard and considered by the jury is not presented to the Appellate Court, as in this case, a model which was before the jury and used by the attorneys for both parties and which is essential to the full understanding of questions and answers.
    2. Instructions—when errors in, will not reverse on appeal from judgment in Municipal Court. Errors in instructions will not reverse a judgment rendered by the Municipal Court unless the Appellate Court is “satisfied” that such judgment “is contrary to the law and the evidence.”
    Action in ease for personal injuries. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed May 18, 1908.

      Statement by the Court. Defendant in error was plaintiff, and plaintiff in error was defendant in the trial court. The plaintiff’s claim, as set forth in his bill of particulars, is substantially for permanent personal injury, which he claims was caused by defendant negligently ordering’ him to work in a dangerous and unsafe place, with unsafe instrumentalities, and that defendant negligently failed to furnish a sufficient number of men, and that his foreman was unskilled and incompetent. The cause was tried by the court and a jury. The jury found for the plaintiff and assessed his damages at $1,000, and the court overruled a motion of defendant for a new trial and rendered judgment on the verdict.
    F. J. Canty, B. J. Folonie and George Peirshing, for plaintiff in error.
    Jacob C. LeBosky, for defendant in error.
   Me. Justice Adams

delivered the opinion of the court.

The plaintiff is a structural iron worker, and had been engaged in that business for twenty-three years at the time of the accident. He was employed by the defendant, the Macdonald Engineering Co., which company was also engaged in the structural iron business, and, at the time of the accident, was engaged in that business at a grain elevator situated on the Chicago river near Ashland avenue in the city of Chicago. November 6, 1906, the plaintiff and one Johnson were at work on a scaffold between two chutes of the elevator, endeavoring to adjust in place an iron platform; which was to be a permanent fixture, around a chute. The plaintiff supported one end of the platform on his . shoulder. The other end of it was propped up by a piece of scaffolding 1 by 4 or 2 by 4, and several feet in length. The machinery of the elevator was in operation at the time. The evidence tends to prove that there was a jar or shaking, and that the piece of scantling holding np the end of the iron platform fell or slipped, and the end which the plaintiff was supporting on his shoulder fell, and his left hand was caught between the platform and a ladder, which he had hold of in order to brace himself, with the result that the index finger of his left hand was permanently injured. The weight of the iron platform is variously estimated by the witnesses at from sixty-five to one hundred and fifty pounds. A model was put in evidence by the plaintiff, without objection by defendant’s attorney, of which plaintiff’s counsel say: “A model of the entire situation was introduced in evidence by the plaintiff. It consisted of ten pieces and showed the iron ‘legs’ or ‘chutes,’ the iron platform, the iron ladder, the shoring of the iron platform, and the parts and construction of the ‘staging’ or ‘scaffolding,’ with its wooden ‘bents’ and wooden ‘legs’. It was upon this scaffolding that the plaintiff was standing at and before the time .in question.”

George Scanlon, witness for plaintiff, testified, referring to the model, which was in the presence of the jury. Dahl, the plaintiff, was examined and cross-examined, referring to the model, and his answers were, in part, by way of indicating places on the model. Northrop, defendant’s witness, referred to the model in his answers, and so also did Johnson, defendant’s witness, both in direct and cross-examination. The presiding judge certifies that the evidence in the bill of exceptions “was all the evidence offered or received on the hearing of the above entitled cause;” yet the bill of exceptions, itself, shows that the model was put in evidence.

It is assigned as error that the verdict is contrary to the evidence; also that it is unsupported by the evidence, and the chief contest between the parties is in respect to these assignments of error.

Now, in order to pass intelligently or safely on these questions, we should have before us the same evidence which was before the jury. The model was before the jury, and they had an opportunity of judging of the safety of the scaffold by seeing or observing the model. It was used by the attorneys for both the parties in examining the witnesses, and in numerous instances the witnesses answered by referring to the model and indicating parts of it, so that the answer of a witness could only be understood by one having both witness and model before him. The evidence was material and, for aught we can know, may have influenced, or even induced the verdict. In this state of the record we cannot say that the verdict is not supported by the evidence, or that it is manifestly contrary to the weight of the evidence. On the contrary, we must presume that it is in accordance with the evidence. Przckwas v. Ill. Steel Co., 82 Ill. App. 309; Holton v. Darling, 84 ib. 488; Miller v. Cobden B’g Ass’n, 119 ib. 39; N. Chicago St. R. R. Co. v. Eldridge, 51 ib. 430, 434; C., B. & Q. R. R. Co. v. Burton, 53 ib. 69; Garrity v. Hamburger Co., 136 Ill. 499, 513-14.

In Leon Christy v. Schwarzschild, Nat. Corp. Rep. April 9, 1908, p. 283, recently decided by the U. S. Court of Appeals for the Seventh District, the following appears in the statement of the case by the court:

“It does not appear just how the cables caught the plaintiff, or whether he was standing within their coils. He says they unwound around him, in around him and alongside of him, and that he did not change his position at any time before the accident. ‘Before the car fell there was no cable around me or in front of me.’ ‘It was right alongside of me, the right side as I was facing the drum.’ He further testified that he assisted Manhoff to straighten out the cables so. far as to get his hands on them and pull them. After he was caught in the cables he says: ‘My feet were in this shape (indicating) and my head was like that (indicating). I should judge my feet were two feet or so above the floor. I was lying on. my side like that (indicating).’ By reason of this inexcusable fault of permitting a witness to ‘indicate’ something which cannot possibly be preserved in the record, it is impossible to get any clear notion of just how the accident really happened.” The court, Mr. Justice Sanborn delivering the opinion, say: “The condition in which the record comes to us makes it also necessary to hold the plaintiff chargeable with contributory negligence. Plaintiff was permitted to ‘indicate’ and ‘illustrate’ his testimony by signs and gestures which are not explained, but which were entirely intelligible to the trial court. It thus happens that important, perhaps vital, evidence is not before us. If this evidence were here it might be clear from the way plaintiff was caught in the cables that he carelessly placed himself in a dangerous position. To authorize reversal error must clearly appear. The trial court, with all the evidence before it, directed a verdict for defendant. Some of the evidence being omitted we cannot say this was error. Consolidated Stone Co. v. Summit, 152 Ind. 297. Although the bill of exceptions is certified to contain all the evidence offered, heard or taken at the trial, yet the omission of matters apparent on its face, which might have been controlling of the decision below, must lead to affirmance of the judgment.”

Objections are made to the giving and refusal of instructions, which are not necessary to be considered, as by section 23 of the Municipal Court Act we are precluded from reversing a judgment unless we are satisfied that it “is contrary to the law and the evidence.”

The judgment will be affirmed for the reason that material evidence which went to the jury is not before us.

Affirmed.


author: Mr. Justice Adams

text:
    William H. Robinson, Defendant in Error, v. Zalik Alexander, alias, etc., Plaintiff in. Error.
    Gen. No. 13,856.

      Tboveb—measure for damages in action of. The proper measure of damages in an action of trover is the current market value of the property alleged to have been converted, at the time of the conversion, with interest from that time until the time of the trial.
    Trover. Error to the Municipal Court of Chicago; the Hon. Stephen A. Poster, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed May 18, 1908.
    Schuyler, Jamieson & Ettelson, for plaintiff in error.
    Foster, Bradley & Stetson and Bobert B. Clark, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

The claim of the plaintiff, William H. BoMnson, is for damages for the alleged conversion of certain household furniture stored with the defendant, Zalik Alexander, for safe keeping. The defendant filed a claim of set-off for cartage, packing and storage. The case was tried by the court and a jury; the jury found the issues for the plaintiff and assessed his damages at $495.41, and the court, after overruling defendant’s motions for a new trial and in arrest of judgment, rendered judgment on the verdict.

The contentions of plaintiff’s counsel, relied on in argument, are that the court erred in admitting incompetent evidence, and in excluding competent evidence, and in giving and refusing instructions.

The furniture was purchased by the plaintiff from the Hartman Furniture Company, and was used by him a year after he purchased it, and was stored by him with the defendant, who seems to have been doing business in the name of “Liberty Storage Warehouse, ’ ’ October 3, 1903, and defendant receipted for it at that date. The plaintiff never paid any storage charges on the goods. September 27 or 28, 1906, plaintiff, by his agent, made demand on the defendant for the goods, and was informed by the defendant that the goods had been sold for charges.

The defendant testified that the goods were advertised for sale in April, 1905, and were sold in May, 1905. .The question whether or not the defendant had lawful right to sell the goods is not raised by counsel. The plaintiff himself was the only witness as to the damages. He testified, in substance, that he purchased the goods from the Hartman Furniture Company and paid $521 for them, and that all he knew of their value was that he paid that price for them. He used the goods a year before he stored them October 3, 1903, so that he must have purchased them at least as early as October 3, 1902. He demanded return of the goods from the defendant September 27, or 28, 1905, within a few days of three years from the time he purchased them, and after using them as household goods for a year. The price which he paid for the goods is not evidence of their value when purchased, as they may have been greater or less than the market value, or actual ratio. Brewster v. Van Liew, 119 Ill. 554, 562. Even if the price paid in October, 1902, could be held to be evidence of value at that date, it certainly could not be evidence of the value in May, 1905, when the defendant sold the goods, or September 27 or 28, 1906, when demand was made on him, and especially after the goods had been in use by the plaintiff for a year.

It is contended by counsel for plaintiff that no objection to the plaintiff’s testimony as to value was made. Plaintiff testified in chief that the value September 20, 1905, was $521, but, on cross-examination, he said he did not know what the goods were worth September 20, 1906, and on redirect he said he feed the value by the original bills of the Hartman Furniture Co., and stated that, at the time he authorized demand to be made, he would say they were worth what he paid for them, $521, to which counsel for the defendant objected. On recross this occurred:

“Q. You have no recollection on that, other than the reference to the bills; you had no knowledge as to their value without reference to the bills, and your only knowledge is what the bills stated? A. That is the only way I could find that out.”

On redirect he said he did not know what the condition of the goods was September 2D, 1906. It appears from his testimony that he had not seen the goods since July, 1903, before they were stored. We cannot sustain the contention that the evidence was not objected to.

Alexander, the defendant, testified that he saw the goods when they were delivered at the warehouse, before they were packed, and after they were taken out of storage; that he was in the furniture business about seven years, and knew the fair and reasonable market value of household furniture; that before he was in the furniture business he was twelve years in the money loaning business, and in that business was accustomed to appraising furniture, and he knew the fair market value of the furniture in question, at the time it was sold. He 'Was then asked what its value was at the time of the sale, and the court, on plaintiff’s objection, excluded the evidence. This was error.

Sturges v. Keith, 57 Ill. 451, is a leading case in this state on the question of damages for the conversion of chattels. In that case, the court, after elaborate consideration and reference to numerous cases, say: “A majority of the court adhere to the general, well established rule in this state, viz: that the proper measure of damages in an action of trover is the current market value of the property at the time of the conversion, with interest from that time until the time of the trial.” There is no dissenting opinion, and the case has been cited with approval in several subsequent opinions of the Supreme Court. Such being the law, the very question before the court in the present case, was the market value of the property at the time of the sale, which was the time of conversion, on the hypothesis that the sale by the defendant was unlawful—a question which, as before stated, has not been raised by counsel and is not before us for decision. Evidence was introduced by the defendant tending to prove that goods depreciate in value while in storage, and that the goods in question depreciated in value while in storage; but the court excluded the testimony of the witnesses as to how much the goods had depreciated in value. The defendant was not prejudiced by this ruling, as there was no evidence of the market or actual value of the goods when stored, therefore-, nothing from which to deduct depreciation.

It is a question to be determined from evidence, whether household furniture used for a year, as that in question was, is or not known in the market as second-hand furniture, and if so, what is the market value of such furniture, if any market value, and if none, its actual value. We do not deem it necessary to pass on other contentions of counsel for defendant.

The judgment will be reversed and the cause remanded for further proceedings not inconsistent with, this opinion.

Reversed and remanded.


text:
    Chicago Wire Chair Company v. Kennedy & Wright Company et al.
    Gen. No. 13,867.
    1. Appeals and ebbobs—presumptions which aid findings of chancellor. It is presumed that a chancellor ignored incompetent evidence, if any, and the finding of a chancellor will he sustained if the competent evidence appearing in the record is sufficient for that purpose.
    2. Solicitob’s pees—what may he considered hy the court in determining value of. It is competent for the court to consider in connection with the testimony its own knowledge of the value of the services of a solicitor in procuring the dissolution of an injunction.
    3. " Injunctions—power of court to assess damages prior to final hearing. It is within the power of the court to assess damages upon the dissolution of an injunction prior to the final .hearing'of the cause.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed May 18, 1908.
    Statement by the Court. This is an appeal from a decree for damages on the dissolution of a temporary injunction. Appellant, December 20, 1907, filed a bill against appellees, from which it appears that appellant occupied-in its business, the manufacture of wire chairs, the entire first floor of a building in the city of Chicago, and that there were stairs from the upper floors of the building down to the first floor; but said stairway was entirely enclosed at the first floor, and a door, through which, when opened, there was access from the upper floors to the first floor, was' kept locked, before and at the time appellant became a lessee of the first floor. The appellees occupied in their business an upper floor of the building, and one of .them, Monroe J. Friedman, president of the Kennedy & Wright Co., asked appellant for permission for himself and the employes of his company to use the stairway to pass through part of the first floor when coming to and leaving their work in the building, which was refused, when Friedman threatened to break down the door at the foot of the stairway, which he subsequently did, and he and his employes used the stairway to pass and repass to the first floor and across part of appellant’s premises, to and through a street door and to and from the street. To prevent this a temporary injunction was issued, without notice, December 20, 1906, as prayed by the bill, on appellant giving bond in the penalty of $300. December 27, 1906, the injunction was dissolved, on motion of appellees, with leave to file suggestion of damages within ten days. December 29th appellees filed suggestion of damages. March 4, 1907, a decree was rendered, which, after reciting the prior proceedings, proceeds as follows:
    “And said cause having come on for hearing upon the said petition as aforesaid, and evidence having been taken in support thereof upon hearing in open court, the court finds that the defendants have employed solicitors and counsel in this cause for the purpose of procuring the dissolution of the injunction granted upon the filing of the bill of complaint herein, and that the reasonable fees and charges of counsel for the defendants in procuring the dissolution of the injunction as aforesaid amount to the sum of one hundred dollars ($100).
    “The court further finds that there has been a breach of the conditions of the injunction bond hereinbefore mentioned, and that the defendants to this cause have sustained damages by reason of the breach of said bond and wrongful issuance of said injunction (exclusive of their costs) in the sum of one hundred dollars ($100) for the reasonable fees and charges of their solicitors and counsel in procuring the dissolution of the injunction granted upon the bill of complaint as aforesaid.
    “It is therefore ordered and adjudged that the damages accruing to the said defendants because of the breach of the injunction bond hereinbefore mentioned, and because of the issuance of the injunction upon the bill of complaint are hereby fixed, assessed and awarded at the sum of one hundred dollars ($100).”
    The decree concludes with an order that appellees recover of appellant $100.
    D. Wiley McCaughey, for appellant.
    Zeisleb, Feiedman & Mebgehtheim, for appellees.
   Mr. Justice Adams

delivered the opinion of the court.

Appellant’s counsel contends: (1) That the damages are excessive; (2) that there is no evidence of the usual and customary charge, in the city of Chicago, for such services as were rendered by appellees’ solicitors; and (3) that the court erred in entering a decree for damages prior to the final hearing on the merits.

Appellant’s counsel says that appellees were permitted to recover damages for services not rendered by their solicitors on the motion to dissolve the injunction. The notice of the motion to dissolve the injunction was served December 21, 1906, and December 26, 1906, appellant served notice on appellees that, December 27, 1906, it would move the court for leave to amend the bill and to file additional affidavits, and also served on appellees copies of the proposed amendment and the affidavits.

Appellant’s counsel says, in substance, in his argument, that appellees were permitted to recover for time spent by their solicitors in examining the proposed amendment to the bill, the affidavits in support thereof, and an affidavit which seems to have been prepared to be used in support of a motion for a rule on appellant to show cause why it should not be punished for contempt. The witnesses for appellees, on the hearing of the suggestion of damages, were Mr. Zeisler and Mr. Gardner. The appellant introduced no evidence. Mr. Zeisler testified, among other things, that it took him about two hours to read the affidavits above mentioned, namely, the affidavits in support of the bill and the affidavit for a rule to show cause. The fact, however, that counsel testified to having spent some time in the consideration of matters which it may not have been necessary to consider in preparing for the motion to dissolve, does not warrant the conclusion that the court, in assessing damages, considered the time so spent. It must be presumed that the chancellor ignored incompetent evidence, if any, and if, excluding the incompetent evidence, if any, there is sufficient competent evidence to support the decree, it will not be reversed. Dowie v. Driscoll, 203 Ill. 480, 487. It is evident from the record that the court had in mind the rule as to the proper evidence on the hearing. After Mr. Zeisler had stated, in answer to a question, that he performed services in Chicago Wire Chair Co. v. Kennedy & Wright Co., the following occurred:

“Q. State, Mr. Zeisler, the work that you did in connection with the case? A. As I recall it, the bill was called to my attention one afternoon.

Mr. McCaughey: I object to the form of the question, and ask that the question be limited to the work that was done in regard to the dissolution of the temporary injunction.

The Court: I will sustain the objection to that. The question will be confined to the work that was done by Mr. Zeisler with reference to the dissolution of the temporary injunction.”

It also appears from Mr. Zeisler’s testimony that, in preparing for the motion to dissolve, he examined the bill and the affidavit in support of it, and was of opinion that the affidavit was defective. On this testimony appellant’s counsel bases the proposition that it was not necessary for appellees’ counsel to spend any time in the examination of the bill. We think it sufficient to say, without comment, that we cannot concur in this proposition.

Counsel for appellant is mistaken in saying there was no evidence that the solicitors’ fees allowed by the court were such as are usual and customary in such case as the present. Mr. Zeisler was questioned and answered as follows:

"Q. Are you familiar with 'the usual and customary charges of attorneys in the county of Cook? A. I think I am thoroughly familiar with them.

Q. Have you ever been engaged in cases where it was necessary to have injunctions dissolved? A. A great many of them.

Q. I would then like to ask your opinion as to the fair, usual and customary charges of attorneys in the county of Cook for the dissolution of the injunction in this case, where ten to twelve hours were spent in procuring the dissolution. A. In a case of this kind, and having in mind exactly the work that was done, I believe that any lawyer of my standing would charge, and would be entitled to charge, not less than $150. In this particular instance, however, the president of the defendant corporation is a brother of my partner, and as we are charging that client very reasonable fees, on account of the relationship, we did charge the defendant corporation $100 for our services, and I regarded that as a very low and most reasonable charge, according to what lawyers of this bar charge under similar circumstances. ’ ’

The matter was heard by the chancellor on the testimony of witnesses in open court, and in such case the chancellor’s finding of facts will not be set aside, unless clearly and manifestly against the weight of the evidence, which the finding in question is not. Hess v. Killebrew, 209 Ill. 193. In the present case the appellant offered no evidence. It was competent, for the court to consider, in connection with the testimony, its own knowledge of the value of the services of appellee’s solicitors in procuring a dissolution of the injunction. McMullen v. Reynolds, 209 Ill. 504, 507.

Appellant’s third contention, that the court erred in assessing and decreeing damages before the final hearing, is fully answered in Keith v. Henkleman, 173 Ill. 137; Wing v. Dodge, 80 ib. 564, and Darst v. Gale, 83 ib. 136.

The decree will he affirmed.

Affirmed.


text:
    Jesse O. Steele v. John P. Hohenadel.
    Gen. No. 13,871.
    1. Decree—when rule that, must he supported hy specific findings or evidence does not apply. A consent decree need not be supported by specific findings of fact or by evidence preserved by a certificate of evidence.
    2. Children—consideration determining custody of. When the question involved is the custody of an infant, the prime consideration, and that which takes precedence of all other considerations, is the welfare of the infant. When a guardian has been appointed and circumstances have so changed since the appointment as to make it to the infant’s interest that a different guardian be appointed, a court of chancery has ample power to make the change and will not hesitate to remove the former guardian and appoint another.
    3. Children—who natural guardian. The father is the natural guardian of his infant child and his right to its custody is prima facie before that of all others.
    4. Appeals and errors—effect of appeal upon decree appointing guardian and awarding custody of child. The sole effect of an appeal appointing a guardian and awarding the custody of a child is to suspend its operation pending the determination of the appeal.
    5. Jurisdiction—when court without power with respect to appointment of guardian and awarding of custody of child. Where a decree has been entered appointing a guardian and awarding the custody of the child and has been appealed from and the appeal perfected, the court which rendered such decree is without jurisdiction to enforce the provisions of a former decree which is changed by the provisions of the decree appealed from.
    6. Contempt—when punishment for, erroneous. Where a writ is issued ordering that a party be brought into court to show cause, if any he has, why he should not be committed for contempt, it is error to refuse to permit him to answer and show cause, if any he has.
    Bill in chancery. Error to the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed May 18, 1908.
    Statement by the Court. May 14, 1906, John P. Hohenadel, defendant in error, filed a bill against Jesse 0. Steele, plaintiff in error, averring, in substance, that his daughter, Julia A. Steele, wife of Jesse O. Steele, died April 29, 1906, leaving her surviving, as issue of her marriage with Jesse O. Steele, Elizabeth Yinni Steele, who will be four years old July 20, 1906. It is then averred that the defendant, Jesse O. Steele, shortly after his marriage, commenced to ill-treat his said wife, and continued so to do till April 10, 1906, frequently striking and beating her; also that he ill-treated said child, Elizabeth Yinni Steele, slapped her on several occasions and struck her with a leather strap. April 7, 1906, defendant struck his said wife, ordered her to leave his house and take her said child with her, and said that if she would not have so left by April 15, 1906, he would forcibly eject her and her child. Julia Steele thereupon left defendant’s residence, taking with her her said child, and came to complainant’s home, where she remained till the time of her death, and since April 10, 1906, said child has remained in complainant’s family and has been properly cared for. Then follow averments of facts intended to show that defendant is not a proper person to have the custody of the child. The bill avers that the child has a small personal estate, $250, the proceeds of an insurance policy. The bill prays that complainant be appointed guardian of the child, and for general relief. It is unnecessary to refer to the bill more particularly, for reasons which will hereafter appear. The defendant, plaintiff in error here, answered the bill, denying all its material allegations in respect to his unfitness to have the custody of the child, and filed a cross-bill, which the complainant answered. Replications were filed to the answer to the bill and the answer to the cross-bill. The cause was referred to a master to take proofs and report the same, with his conclusion thereon. The master made a report, which, omitting the preliminary formal part, is as follows:
    “I beg to further report that upon the conclusion of the evidence, and during the arguments of counsel thereon, I took the liberty of suggesting to the parties and their counsel that it appeared to be for the best interest of the child, Elizabeth Vinni Steele, who was the subject of their unfortunate contentions, that they attempt to reach an amicable agreement regarding the custody, care and maintenance of said child; that thereupon the parties agreed to a disposition of said case in the manner set forth in the draft of a decree submitted with this report, which bears the 0. K. of the solicitors for the parties, and also bears the evidence of my examination and approval thereof. Said solicitors thereupon stipulated that, in view of the agreement thus reached, the testimony introduced before me, which, pursuant to a stipulation of said parties, was taken down in shorthand by a court reporter, to be thereafter transcribed, should not be transcribed, so as to save unnecessary expense, and that in place of making a formal report of my findings of fact and law upon the evidence introduced, I should merely report to the court as to whether the agreement reached between the parties should be approved by the court. Accordingly, I herewith report that I find it to be for the best interest of the said child, Elizabeth Vinni Steele, that said agreement be approved by the court, and I therefore recommend that the decree hereinabove referred to and submitted herewith be entered.”
    June 16,1906, the court, the Hon. Charles M. Walker presiding, rendered a decree, in which, after reciting that the cause came on to be heard on the pleadings and the master’s report, the master’s report is approved, the court finds that it has jurisdiction, and that it is for the best interest of the child that she remain, until her majority, under the joint guardianship of complainant and cross-complainant, and that her home, during her minority, be with John P. Hohenadel, and that the cost of caring for her be jointly borne by John P. Hohenadel and Jesse 0. Steele. The decree then proceeds as follows:
    “It is decreed that John P. Hohenadel and Jesse 0. Steele be appointed joint guardians of the person of said child until her majority, and that the home of their ward shall be in the home of said John P. Hohenadel until her majority; that when said child shall arrive at the proper age, not prior to her sixth birthday, she shall be placed in a Roman Catholic school, and attend until eight years of age, when she shall be sent to the boarding school known as the Christian Sisters of Charity, the Josephenum, or some similar Roman Catholic boarding school, to be selected by said guardians, and the expense shall be borne by both; that Jesse 0. Steele shall, commencing July 20, 1906, have the right and privilege to' take said child from her home with John P. Hohenadel to his home or elsewhere within the jurisdiction of this court, and retain her in his custody, care and control for a period not exceeding thirty days, and then to return her to the home of John P. Hohenadel, and afterwards to call again and take her for a like visit to his home or to the country in the summer time, not exceeding thirty days’ duration; after thirty days shall have expired from the time of the preceding visit of said child, and so to continue until said ward attains her majority; that John P. Hohenadel shall have the right to take said child for six or seven weeks during July and August of each year into the country, the time to be selected after a visit to the father; that the provision as to said visit shall not apply when said child shall be attending any boarding school; that when attending. such parochial school Jesse 0. Steele shall have the right to take said child to his home on the first and third Saturday and Sunday in each month, and shall safely return her to her home with John P. Hohenadel on or before the evening of each Sunday on each of said visits; that said guardians shall have the right to visit said child at all times; that said child shall not be removed from the jurisdiction of the court, except for said summer vacations, without the consent of each of said guardians; that upon the death of either, the guardian surviving shall be the sole guardian; that the costs be taxed one-half against each party.”
    April 18, 1907, Jesse 0. Steele filed a petition praying that the decree of June 16, 1906, be changed and modified so as to give him the sole custody of the child. The court dismissed this petition; but gave leave to the petitioner to file an amended petition within five days, and June 27, 1907, he filed, by leave of court, an amended petition. The petition avers, in substance, that it is averred in the original bill that John P. Hohenadel is a widower and has living with him his mother, two daughters and a son, who are devotedly attached to the child, and that petitioner is an electrician, and has no home or female relatives in Chicago who could give proper care and attention to the child. Since' July 16, 1906, John P. Hohenadel’s mother has ceased to live with him, and now resides elsewhere, and the child’s care is now confined to Hohenadel’s unmarried daughters, and he is away from home every day from' morning till evening, except on Sunday, etc. The petition is quite lengthy, and avers reasons why the petitioner should have the sole custody of the child, and prays that the decree of June 16, 1906, may be so changed that he may have such custody. The petition is verified by the oath of the petitioner. Hohenadel answered the petition under oath. Numerous affidavits were filed in support of the petition and also in support of the answer, and May 14, 1907, the cause was heard on the petition, answer thereto, and affidavits, and the court, the Hon. Thomas G. Windes, presiding found and decreed as follows:
    “And the court having heard read in evidence the sworn amended petition of Jesse 0. Steele, and the sworn answer thereto of John P. Hohenadel, and affidavits in support of said amended petition and answer, and having considered the matter, and being fully advised in the premises, doth find: That since June 16, A. D. 1906, there hath been a material change in the situation of the parties in the above entitled cause, and in the situation of the said Elizabeth V. Steele, the ward of this court, in the above entitled cause; that since the entering of the order or decree herein, on June 16, A. D. 1906, appointing John P. Hohenadel and Jesse O. Steele joint guardians of Elizabeth V. Steele, and awarding the partial custody of said child to John P. Hohenadel, the mother of the said John P. Hohenadel has ceased to reside continuously with him, and that the said mother of John P. Hohenadel has not been an inmate of his home, and has not been a member of the household or resided in the home of said John P. Hohenadel since the month of July, A. D. 1906; and that her place of abode has been elsewhere and other than the home of the said John P. Hohenadel, and is so at the present time; that there has been a further change in that since the month of July, A. D. 1906, the said Jesse O. Steele has had and now has residing with him, and occupying the house with Mm and making their residence and home with Mm, Ms mother, Elizabeth Steele, and his sister, Véme Oletto Steele.
    Further the court doth find that under the said decree entered herein June 16, 1906, the said Jesse 0. Steele has had possession and custody of said Elizabeth V. Steele each alternate thirty days, and that the balance of said time she has been in the home of said John P. Hohenadel; and that said Elizabeth V. Steele is a child of tender years, to-wit: less than five years of age, and that it interferes with her education and discipline; that it is prejudicial and detrimental to her interest that she be in the custody of two different persons alternately, as provided for in the said decree of June 16, 1906.
    Further this court doth find from the evidence that Jesse O. Steele, the surviving parent of the said Elizabeth V. Steele, is now a competent person to transact his own business, and is a fit and proper person to be entitled to the custody of the person, and the care, control and education of said Elizabeth V. Steele; that he is now maintaining a suitable home for his said child; that he loves said child, is kind to her, and is by temperament and intelligence a fit person for her to be associated with; that he is able to suitably provide her with necessary clothing and food, and provide for her care and custody and for her education, and that the best interests of said Elizabeth V. Steele require that she should be under the sole care and custody of her father, Jesse O. Steele, and that she should be and remain in his home continuously and under his sole care and guidance, direction and control.
    Wherefore, it is ordered, adjudged and decreed that the order or decree entered in the above entitled cause on June 16, A. D. 1906, be modified and vacated insofar as it provides that the home of Elizabeth V. Steele during her minority should be with' and in the family of John P. Hohenadel, or in any home or school other flan the home of Jesse 0. Steele; and it is ordered and decreed that it is for the best interests of said child, Elizabeth V. Steele, that her home and permanent place of abode be with and in the family of Jesse 0. Steele, her father; further it is ordered, adjudged and decreed that the said Jesse 0. Steele have the sole care, custody, education ánd control of said Elizabeth V. Steele, and of her person, and that she remain and reside and have her permanent abode in the home of said Jesse 0. Steele until the further order of this court.
    Further it is ordered, adjudged and decreed that all other parts of the said order or decree of June 16, A. D. 1906, insofar as they conflict with the provisions of this order entered herein, be modified or annulled.”
    June 24, 1907, John P. Hohenadel filed a petition, addressed to the Hon. Thomas Gr. Windes, for the custody of the child, in pursuance of the decree of June 16, 1906, which petition the court, Judge Windes presiding, dismissed.
    July 18, 1907, Hohenadel, defendant in error, filed another petition in the Circuit Court, addressed to the Hon. Eichard S. Tuthill, in which, after stating the decrees of June 16, 1906, and May 14, 1907, it is averred that petitioner prayed and was allowed an appeal from the decree of May 14, 1907, and that, at the time the order allowing the appeal was entered, it was stated in open court, and was understood by the parties, that the decree of June 16, 1906, should remain in force, notwithstanding the order modifying the same, until the appeal should be determined by the Appellate Court, and a provision was inserted in the appeal bond requiring compliance with the decree of June 16, 1906, pending the appeal, and said appeal bond was approved and filed May 18, 1907, and a certificate of evidence was signed and filed June 12, 1907. It is then averred in the petition substantially as follows: May 14, 1907, said child was in'petitioner’s custody and so remained till June 16, 1907, when Steele took possession of her, and it was the duty of said Steele, under the decree of June 16, 1906, to return said child to petitioner June 16, 1907, which he refused to do, and retains the custody of the child, and declares his intention not to return her to petitioner. The decree of July 16, 1906, is in full force and effect, and the delivery of the child by petitioner to Steele was solely in obedience to said decree. Petitioner prays for an order directing said Steele to return the child to him, etc. The petition was sworn to by petitioner, and is substantially the same as the petition filed June 24, 1907, which was dismissed by Judge Windes.
    July 18, 1907, the day the petition was filed, the following order was made by the court, Judge Tuthill presiding: “On hearing- the petition of said Hohenadel, this day filed, it is ordered that the said defendant, Steele, forthwith deliver the child Elizabeth to said Hohenadel, to be held in the custody of said Hohenadel as provided in the decree entered herein on June 16, 1906, until the Appellate Court render its decision on the appeal taken from the order modifying the original decree. ’ ’
    July 19, 1907, the court entered an order, in which, after reciting that Jesse O. Steele had been served with a copy of the order of July 18, 1907, and that he had wilfully failed and refused to comply with it, it is ordered as follows: “It is therefore ordered that said Jesse O. Steele stands in contempt of this court, and it is further ordered that a writ of attachment issue out of this court, directed to the sheriff of this county to execute, commanding him that he bring the body of said Jesse O. Steele before the bar of this court to show cause, if any he has, why he should not be punished for contempt of this court in wilfully failing and refusing to comply with said order of this court entered herein on June 18, A. D. 1907.
    It is further ordered that the said John Hohenadel take possession of said child, Elizabeth Vinni Steele, and have the care, custody and control of said child, Elizabeth Vinni Steele, until the further order of this court.”
    On the same day, July 19, 1907, the court entered an order in which, after reciting that the cause came on to be heard on the writ of attachment served on Jesse 0. Steele, who was present in court, the court finds that said Steele wilfully refused to obey the order of July 18, 1907, and that he is no longer fit to be guardian of the child, and orders as follows: “It is therefore ordered and adjudged that said Jesse 0. Steele is in contempt of this court for wilfully refusing to obey said order of July 18, 1907. It is further ordered and adjudged by the court, and the court hereby orders and adjudges, that the said Jesse 0. Steele be committed to the common jail of said Cook county, there to remain for the term of thirty days, unless sooner discharged by law, for his said contempt of this court and wilfully refusing to comply with and obey the order of this court entered herein July 18, 1907.”
    William Slack and Jacob C. LeBosky, for plaintiff in error.
    Todd & Morrison, for defendant in error.
   Mr. Justice Adams

delivered the opinion of the court.

Plaintiff in error has assigned errors and defendant in error has assigned cross-errors.

The propositions advanced and argued by counsel for plaintiff in error are: That the decree of June 16, 1906, is erroneous and should be reversed; that the decree of May 14, 1907, is correct; that the order of June 18, 1907, rendered on the petition of defendant in error, is void for want of jurisdiction, and because the right to answer was denied; and that the order committing plaintiff in error to prison is void.

Counsel for plaintiff in error argue that the decree of June 16, 1906, is erroneous and must be reversed, because it is neither supported by specific findings of fact in the decree, or by evidence preserved by a certificate of evidence, citing cases. It is the general rule that a decree must be supported in at least one of the ways mentioned; but, manifestly, the rule cannot apply to a decree by consent, in a case in which the court has jurisdiction, and the jurisdiction of the court in the present case is not questioned and cannot be successfully questioned. Cowles v. Cowles, 3 Gilman 435; Ames v. Ames, 148 ib. 321, 338; Ames v. Ames, 151 ib. 280.

Counsel object further that it is impossible to determine from the record whether the decree recommended by the master is the decree entered by the court. We dissent from this view. The decree recommended by the master is a part of his report, and is identified by the O. K. of the solicitors for the parties. The master says in his report, “Thereupon the parties agreed to a disposition of said case in the manner set forth in the draft of a decree submitted with this report, which bears the O.K. of the solicitors for the parties, and also bears the evidence of my .examination and approval thereof.” Add to this that both of the parties admit their consent to the decree and both acted in pursuance of and as ordered by it, until the rendition of the decree of May 14,1907. Plaintiff in error Steele, in his affidavit in support of his amended petition for a change of the decree of June 16, 1906, says of that decree, ‘1 that he was, then and there, induced to enter into some verbal arrangement respecting the custody of said child; that this was done on the solicitation of the master in chancery, and that this arrangement was entered into by this affiant in the fear that he might be wholly deprived of the association of his said child, and was upon the assurance that any arrangement then made would be subject to the revision of this honorable court at any time thereafter.”

Defendant in error, in his answer to the amended petition of plaintiff in error, filed May 11, 1907, says, “That upon the said order of reference, the parties to said priginal bill and cross-bill appeared before the said master and submitted a draft of a decree, which had been agreed upon between them, to said master, which was approved by said master, and the said parties then and there agreed, before the said master, that the substance of said agreement should be embodied in the report of said master and filed in this court as the report of the master in this cause; all of which fully appears from the master’s report filed herein. This respondent, further answering, says that on the sixteenth day of June said final decree w;as duly entered in this cause, and is now in full force and effect.” We do not think counsel for plaintiff in error are in a position to question the validity of the decree of June 16, 1906, and we cannot perceive how plaintiff in error is interested in questioning it, inasmuch as he relies on the decree of May 14, 1907, which grants to him the custody of the child. While counsel for plaintiff in error insist that the decree of May 14, 1907, is valid, counsel for defendant in error have assigned that it is erroneous, and have so argued.

Counsel for defendant in error do not question the jurisdiction of the court to modify, or change the decree of June 16, 1906. When the question involved is the custody of an infant, the prime consideration, and that which takes precedence of all other considerations, is the welfare of the infant (Petition of Smith, 13 Ill. 138), and when a guardian has been appointed, and circumstances have so changed since the appointment as to make it the infant’s interest that a different guardian shall be appointed, a court of chancery has ample power to make the change, and will not hesitate to remove the former guardian and appoint another. In Carmack v. Marshall, 211 Ill. 512, 525, cited by counsel for - defendant in error, the court quote with approval this language from Spelling on Extraordinary Belief: “An application for the writ will be denied, in the absence of new and subsequent facts being presented, by which the state of the case, or the relative claims of the parents to the custody of the child, are altered in some material respect. Where, however, new and important facts can be presented, there is no estoppel upon a second or an indefinite number of applications, even in the cases of children. ’ ’ This is said in respect to writs of habeas corpus involving the question of the custody of infants, but is equally applicable to such cases as the present. Cowles v. Cowles, 3 Gilm. 435, 441, is to the same effect..

We do not understand counsel for defendant in error to question the law as stated; but they say there was no substantial change of conditions to warrant the change of the custody of the infant made by the decree of May 14, 1907.

The petition of plaintiff in error filed April 27,1907, sets forth a substantial change in conditions affecting the interest of the infant, and the affidavits in support of the petition tend to prove its averments, and while it is true that the affidavits in support of and against the petition are conflicting, it was for the court to decide in this conflict of evidence, and we cannot say that the court’s finding is manifestly against the weight of the evidence. The father is the natural guardian of his infant child, and his right to its custody is prima facie before that of all others. 2 Bishop on Marriage, Divorce and Separation, sec. 1162. “As to the control of the person of a minor, the father is guardian by nature.” Perry v. Carmichael, 95 Ill. 519, 530. This prima facie right of the father may, however, be forfeited by misconduct, or by his being or becoming an unfit person to have the custody of the child, the interest of the child being always the primary consideration. Bishop on Marriage, Divorce and Separation, sec. 1163; Schouler’s Domestic Relations, 3d ed., sec. 248.

In the present case the chancellor was, as we think, warranted by the evidence in finding that plaintiff in error was a fit person to have the custody of the child, and that it is for the child’s interest to remain with her father. Counsel for defendant in error say: ‘ ‘ The appeal of Hohenadel, the grandfather, from the decree of May 14, 1907, did not act as a supersedeas on the decree of June 16, 1906, hut left that decree in full force and effect, as a determination of the rights of the father and grandfather, and did not affect the status of the child as a ward of the court, or the status of Steele, the father, as a guardian jointly with Hohenadel, the grandfather.” In another part of the argument of the same counsel they say of the decree of May 14,1907, it “nullified the decree of June 16, 1906, divested Hohenadel from all share in the custody of the child, as provided in the decree of June 16, 1906, and gave to Steele the entire custody of the child.” This is unquestionably true, and the question is, whether the appeal of defendant in error from the decree of May 14, 1907, changed in anything the effect of that decree on the decree of June 16, 1906, so succinctly described by counsel. We are of opinion that it did not. The sole effect of the appeal was to suspend further proceedings under the decree of May 14, 1907, pending the appeal. The decree was not vacated, nor was its effect in any way changed by the appeal. Dawson v. Cunning, 50 Ill. App. 286; Bank of Commerce v. Franklin, 88 ib. 198; Oakes v. Williams, 107 Ill. 154; Walker v. Doane, 108 ib. 236; Shirk v. Gravel Road Co., 110 ib. 661; Moore v. Williams, 132 Ill. 589.

The petition of defendant in error filed July 18,1907, was, in substance, that the court would enforce the provisions of the decree of June 16, 1906, in respect to the joint guardianship of the child, and so the court understood the petition, as evidenced by the order granting it. The petition is substantially the same as that filed by defendant in error June 24, 1907, and which the court, Judges Windes presiding, dismissed.

The appeal bond of the defendant in error, on the appeal from the decree of May 14, 1907, was filed and approved May 18, 1907. Instantly, on the approval and filing of the appeal bond, the cause was pending in this court. Owens v. McKethe, 5 Gilman 79; Reynolds v. Perry, 11 Ill. 534; Swafford v. Rosebloom, 92 Ill. App. 106.

The main question on the appeal from the decree of May 14, 1907, is whether it is erroneous in changing the provisions of the decree of June 16, 1906, as to joint guardianship of plaintiff in error and defendant in error, and that question is argued in the present case by counsel for defendant in error, and is raised in their cross-assignment of errors, and is also raised by them in their appeal from the decree of May 14, 1907, which appeal has been consolidated with this case for hearing. We are of opinion that the court was without jurisdiction to enforce the provisions of the decree of June 16, 1906, in reference to the joint guardianship of the child, as the- order of July 18, 1907, purports to do. The question whether that order should be enforced could not be before the Circuit Court and this court at the same time. Elgin Lumber Co. v. Langman, 23 Ill. App. 250; Smith v. Chytraus, 152 Ill. 664, 669; Helm v. Boone, 6 Marshall (Ky.) 351; Levi v. Karrick, 15 Iowa 444; Boynton v. Foster, 7 Metc. 415; Elliott on Civil Procedure, sec. 541. This author says: “The overwhelming weight of authority is that an appeal, properly perfected, removes a case wholly and absolutely from the trial court, and places it in the higher tribunal. It is difficult to conceive how it could be otherwise, since it is not possible that two courts can have authority over a single case at the same time.”

Counsel rely on the provision in the condition of the appeal bond expressed in these words: “And also abide by and comply with the terms of said final decree entered June 16,1906, during the time said appeal above prayed is pending in said Appellate Court, then the above obligation to be void,” etc. Assuming that this condition of the appeal bond of defendant in error is binding on him and his surety, a question which we do not decide, it certainly is not binding on plaintiff in error and cannot be enforced against him. But even though we should assume that the court had jurisdiction to make the order of July 18, 1907, we would be compelled to reverse the order committing plaintiff in error to jail for contempt. June 19, 1907, a writ of attachment issued, by order of the court, “directed to the sheriff of this county to execute, commanding him that he bring the body of said Jesse 0. Steele before the bar of this court, to show cause, if any he has, why he should not be punished for contempt of this" court, in wilfully failing and refusing to comply with the order of this court entered herein on July 18, 1907. ’ ’ It appears, by the bill of exceptions, that when plaintiff in error was brought into court on the writ, his attorney asked leave to answer, which the court refused, saying, among other things, “Obey the order first, and then you can make answer.” The writ was issued to bring plaintiff in error into court, to show cause, if any he had, why he should not be punished for contempt, and the refusal to permit him to answer and show cause, if any he had, was error. His alleged offense was not committed in the presence of the court, and he had a right to be heard. On this subject, Bapalje, in his work on Contempt, sec. 611, says: “Contempt of court is of two kinds; that which is committed in open court, and that which is committed out of the view and hearing of the court. For the punish7 ment of the first by commitment and fine, no proceeding need be taken contradictorily with the offender. But for the punishment of the latter, by the same means, the offender must be allowed to offer evidence and argument in his defense, otherwise any judgment which the court may pronounce will be absolutely void.”

In State v. Judges, 32 La. Ann., year 1880, the court holds that to punish for constructive contempt, without an opportunity to be heard, is contrary to the law of the land, and say: “The charge of contempt should not, in any case, be followed by sentence and imprisonment, unless after a rule to show cause has been granted and the party defendant therein heard and permitted to offer evidence and argument. A party in such case may have defenses which the offended authority may not conceive of. Such party would have a right, as any accused in a criminal case, as, for instance, to prove an alibi or a want of identity. It is only after such party has been heard that the court has authority to determine whether the act charged as constructive contempt is so, and if such, to punish by fine or imprisonment, or both, or otherwise, the defendant in the process for contempt.”

While it may be the more orderly practice to enter a rule to show cause, we are not prepared to hold that, in this jurisdiction, an attachment may not issue, in the first instance, on a proper showing. In other respects we concur in the language of the Louisiana court.

We do not think it due process of law, or in accordance with the genius of our institutions, to condemn one without an opportunity to be heard, on a charge of constructive contempt, especially when, as in the present case, he is notified by the process served on him, to show cause, if any he has, why he should not be punished. This, to use the language of Mr. Justice Field, in Windsor v. McVeigh, 93 U. S. 274, 278, “would be like saying to a party, ‘Appear and you shall be heard, ’ and, when he has appeared, saying, ‘Tour appearance shall not be recognized, and you shall not be heard’.” See, also, Ex Parte Kilgore, 3 Tex. Ct. of Appeals 247.

The decree of May 14,1907, will be affirmed, and the order of July 18, 1907, ordering Jesse 0. Steele to deliver the child, Elizabeth Vinni Steele, to John P. Hohenadel, will be reversed, and the order of July 19, 1907, ordering “that the said Jesse O. Steele be committed to the common jail of said Cook county, there to remain for a term of thirty days, unless sooner discharged by law,” will be reversed.

Decree of May 14,1907, affirmed, and the order of July 18,1907, and the order of July 19,1907, that Jesse O. Steele be committed to jail, will be reversed.


text:
    John P. Hohenadel v. Jesse O. Steele.
    Gen. No. 14,086.
    This case is controlled by the decision in Steele v. Hohenadel, ante, p. 201.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Richaed S. Tuthibl, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed May 18, 1908.
    William Slack and Jacob C. Lebosky, for appellant.
    Todd & Morrison, for appellee.
   Mr. Justice Adams

delivered the opinion of the court.

This is an appeal from a decree entered May 14,1907. The validity of the decree was involved in the case of Jesse O. Steele v. John P. Hohenadel, ante, p. 201. Counsel for appellant in this cause assigned cross-errors in that cause, which are the same as the errors assigned by them in this cause, and their argument in the two cases is substantially the same. The two causes were consolidated for hearing. In Steele v. Hohenadel, general number 13871, we affirmed the decree of May 14, 1907, and the judgment will be the same in this cause.

The decree will be affirmed.

Affirmed.