author: Mr. Justice Baker

text:
    Julius Andalman, Plaintiff in Error, v. Chicago & Northwestern Railway Company, Defendant in Error.
    Gen. No. 14,942.
    1. Bile off exceptions—order extending time to file, construed. An order as follows:- “Complainant’s time to file bill of exceptions * * * extended three days” is an extension of three days from the time of the expiration of the previous order.
    2. Common oabbiebs—who cannot recover excessive freight. One who has merely advanced the freight on merchandise shipped and who has received back such advance, has no standing to recover an excess charge.
    3. Deceit—tohat essential to maintenance of action. In order to maintain an action for deceit it must appear not only that the representations relied on were false but also that they were made by the defendant with the intention that they should be acted upon by -the plaintiff.
    4. Evidence—when agent’s admission not binding. Admissions of agents made long after the transaction in question and in answer to questions not in the usual course of business, are not competent against the principal.
    5. Tendeb—what does not preclude direction of verdict for defendant. Notwithstanding the transcript of the justice before whom an action was instituted contains the following: “Parties appeared and $16.62 tendered to J. C. Everett, J. P., and turned over to John Richardson, J. P.”—a directed verdict for the defendant will be sustained.
    Fbeeman, J., dissenting.
    Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Richabd S. Tuthile, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 1, 1910.
    Samuel J. Andalman, for plaintiff in error.
    W. S. Kies and George F. Holloway, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This action was brought before a justice of the peace and taken by appeal to the Circuit Court, where the court directed a verdict for the defendant, and the plaintiff prosecutes this writ of error to reverse the judgment entered on such verdict.

Defendant in error contends that the bill of exceptions is not a part of the record. The judgment was entered March 11, 1908, and the judgment order concludes as follows: “Sixty days time from this date is allowed plaintiff to file his bill of exceptions.” May 9 an order was entered that “plaintiff’s time to file bill of exceptions be extended three days.” May 14 an order was entered further extending the time for filing bill of exceptions. The contention is that the court had no jurisdiction on May 14 to make an order allowing further time for filing a bill of exceptions. “From” in the original order means after, and the first day of the sixty days allowed by that order was March 12. By the order of May 9 the sixty days was increased to sixty-three. May 13 was the sixty-third day from and after March 11, but under the statute the first day is to be excluded, and the bill might be filed May 14. If the bill might be filed May 14, an order extending the time for filing the bill might be made on that day. We think the bill of exceptions is a part of the record, and that the question whether there is any evidence which, with all reasonable inferences to be drawn therefrom, fairly tends to establish a right of action in the plaintiff against the defendant, is presented for our decision.

One Fisher shipped a carload of rags over a railroad which connected with the road of the defendant, consigned to himself at Chicago, and the defendant brought the car to Chicago. Plaintiff agreed with Fisher to buy said rags at $1.67½ per 100 lbs., Fisher endorsed the bill of lading issued by the receiving carrier and delivered it to plaintiff, and plaintiff presented it at the office of the defendant in Chicago and received from the defendant a freight bill. The bill of lading did not state the weight of the rags in the car. The freight bill stated that the weight was 37,100 pounds and the freight and charges $49.52. Plaintiff surrendered to the defendant the bill of lading, paid the charges, received the freight bill, gave defendant an order to deliver the car to the Pan Handle Railroad, and paid the switching charges. Afterwards, on the same day, plaintiff paid Fisher for 37,100 pounds of rags and was given the following receipt:

“Chicago, III., 12/21/1904.

Harry Fisher,

In account with Mr. Julius Andalman.

37,100 Lbs. rags at $1.67%................. .$621.42

To Freight advanced for Fisher, the consignee. 49.52 Balance..........................$571.90

Received the above amount of $571.90, being the amount due me on the purchase by said Andalman of the above 37,100 lbs. fags, said amount of rags being the weights furnished by Chicago and Northwestern Railway Co. and being the amount upon which freight charges have been paid by me, all of which may be more fully seen by reference to said freight bill hereto attached and made a part hereof.

H. Fisher.”

It was stipulated that the car when delivered by defendant to the Pan Handle Company contained only 26,500 pounds of rags, and plaintiff in error contends that the evidence fairly tends to show a right of action against defendant for the amount paid by him to Fisher for 10,600 pounds of rags, the difference between the weight of the rags stated in the freight bill and the amount of rags in the car when delivered by defendant.

As to plaintiff’s right of action against the defendant for the freight collected in excess of the amount it was entitled to collect on the rags delivered, it is sufficient to say that plaintiff did not pay the freight on said rags. He only advanced the amount stated in the freight bill for Fisher, the amount so advanced was deducted from the purchase price of the rags in his settlement with Fisher, and plaintiff has no right of action against defendant for the money so advanced by him for Fisher.

If the evidence tends to prove any right of action in the plaintiff against the defendant, that action is an action on the case for deceit. The car was in the possession of the defendant. The freight bill delivered to the plaintiff stated that the weight of the rags in the car was 37,100 lbs. On the face of the bill was a statement of the “gross weight,” the. “tare” and the “net weight” of the car. The defendant’s situation and means' of knowledge were such as to make it the duty of the defendant to know the weight of the rags in the car, to know whether the statements of the freight bill were true or false. The plaintiff had not the present opportunity to test or verify the statements of the freight bill and therefore had a right to rely on such representations. Endsley v. Johns, 120 Ill. 469.

But it is not enough to give plaintiff a right of action against the defendant that the statements of the freight bill as to the weight of the rags were false, known by the defendant to be false, and were relied on by the plaintiff to his damage. To make such statements actionable plaintiff was bound to prove an intention on the part of the defendant that such statements should be acted on by the plaintiff. A representation may be made with a view to its being acted on by any one of a class, and to recover in such a case the plaintiff need only bring himself within the class. The plaintiff presented to an agent of the defendant the bill of lading endorsed by Fisher, the consignee. Nothing was said by plaintiff to any representative of the defendant as to any negotiation between plaintiff and Fisher, or as to any purpose or intention on the part of the plaintiff to pay for said rags, or to do any act in respect thereto. All that the evidence shows is that plaintiff surrendered the bill of lading, received the freight bill, paid the amount therein claimed, and gave an order for the delivery of the car. The contention of plaintiff in error that from the evidence the jury might properly find that there was a custom among junk dealers in Chicago to buy carloads of rags on statements contained in freight bills furnished by railroad companies, and that such custom was known to the defendant, cannot be sustained.

The only evidence tending to prove a custom or usage was the following testimony of the plaintiff:

“Q. Were you acquainted with the customs existing between people in your line of business—junk dealers ?

A. I was.

Q. State whether or not there was any custom among the people in your line of business—junk dealers—about buying carloads of freight, carloads of rags, on statements contained in freight bills furnished by railroad companies?

A. Always * * * I did know it and it was always the custom to buy.

Q. Was there or was there not such custom?

A. There was.”

The only evidence tending to show knowledge of a custom by defendant was testimony as to admissions by agents of the defendant made long after the transaction in question and made in answer to questions and not in the usual course of business, and therefore not admissible. In Bissell v. Ryan, 23 Ill. 566, it was held that a custom could not be established by a single witness. The evidence is clearly insufficient either to establish a custom or to show that defendant had any knowledge of a custom.,

The fact that the payment of the purchase price to Fisher was shown to have been caused by the false statements in question, affords no evidence of an intention on the part of the defendant that such statement should be acted on by the plaintiff. Bigelow on Fraud, chap. IV.

In Pasley v. Freeman, 3 Term 51, the right of one damaged by the false representations of another, made with intent to deceive and known to be false, to have his action on the case for deceit, notwithstanding the offender was not benefited by the deceit, and did not collude with the person benefited, was first stated. In his opinion in that case Ashurst, J., said, p. 63: “But it is said that if this be determined to be the law, any man may have an action brought against him for telling a lie by the crediting of which another happens eventually to be injured. But this consequence by no means follows; for in order to make it actionable, it must be with the circumstances averred in this count, namely, that the defendant ‘intending to deceive and defraud the plaintiffs, did deceitfully encourage them to do an act, and for that purpose made a false affirmation, in consequence of which they did the act.,’ ” In Bigelow on Torts, p. 526, it is said: “It follows that where a party complains of false representations, whereby he was caused to suffer damage in a transaction with some third person, it devolves upon him to show expressly that the alleged wrongdoer intended, or, what is the same thing, that he may reasonably be supposed under the circumstances to have intended, that the plaintiff should act upon the misrepresentation ; and that it is not enough to prove that the misrepresentation was made with knowledge of its falsity.” In this case there is no evidence tending to show that defendant either intended, or may reasonably be supposed to have intended, that the plaintiff should act on the statements of the freight bill as to the weight of the rags, and therefore no evidence fairly tending to establish a right of action on the case for deceit.

The transcript of Justice Richardson, before whom the case came on a change of venue from Justice Everett, contains the following: “Parties appeared and $16.62 tendered to J. C. Everett, J. P., and turned over to John Richardson, J. P.” We do not think that this statement as to the tender made it improper for the judge of the Circuit Court to direct a verdict for the defendant.

Finding no error in the record, the judgment will he affirmed.

Affirmed.

Mr. Justice Freeman dissenting.


source: Caselaw Access Project

license: Public Domain

text:
    Michael Chry, Appellee, v. Griffin Wheel Company, Appellant.
    Gen. No. 14,955.
    1. Master and servant—when latter hound to obey order. A servant is as much bound to obey the order of an assistant foreman as he is to obey the order of the foreman himself.
    2. Master and servant—duty of former as to elevator. If a plaintiff uses an elevator in control of his master in obedience to an order of such master in the course of his employment and in furtherance of its object, the master is bound to the exercise of reasonable care to see that such elevator is reasonably safe for the use of such servant.
    3. Master and servant—duty of inspection. If from the evidence the jury might properly find that beams were unsound and defective and that such an inspection as the master in the exercise of reasonable care was required to make, would have disclosed such defective and unsound condition and the master failed to make such inspection, then from such facts the jury might properly find the defendant guilty of negligence.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 1, 1910.
    Rehearing denied March 14, 1910.
    Frank M. Cox and R. J. Fellingham, for appellant.
    F. W. Jaros and Francis J. Woolley, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $4,250 recovered by plaintiff, a laborer in the foundry of defendant, in an action on the case for personal injuries. Plaintiff was on the cab of a freight elevator in said foundry and after the cab had ascended about twenty feet the beams from which it was suspended broke and the cab fell and portions of the broken beams and appliances fell on plaintiff and thereby he sustained the injuries for which he recovered.

The first count of the amended declaration alleged that defendant negligently, etc., permitted said beams to be and remain rotten, partially decayed, weak and insufficiently strong to support said elevator, etc.; that defendant by due care, etc., would have known of the defects, etc.; that plaintiff was ignorant of such defects; that by reason of such negligence, while plaintiff, in the regular course of his employment and in the exercise of ordinary care, etc., was in said elevator, certain of said beams, by reason of their defective condition, broke, fell, etc., and thereby plaintiff was injured, etc.

In the foundry were five elevators and three cupolas. The elevators were used to carry materials from the ground floor to the floor on a level with the tops of the cupolas called the charging floor. Plaintiff’s work was to take scrap iron in buggies from the yard where the materials were stored to the charging floor, and he ordinarily used the elevator called the scrap elevator. Tracks for the buggies ran from the yard to a turn-table and from the turn-table to each elevator shaft on the ground floor. On the charging floor -similar tracks ran from each elevator shaft to each cupola. In the discharge of his duties, under usual conditions, plaintiff put a load of scrap iron on a buggy, ran it on a track to the turn-table, thence to the scrap elevator and went on the cab with the buggy. He then started the elevator and when the cab reached the charging floor stopped the elevator and ran his buggy to the proper cupola and threw its load into the cupola.

The elevator which fell was called the south elevator and was used to carry up pig iron and broken car wheels. The man or men who ran a buggy loaded with such materials on that elevator, did not go up on the cab, but gave a signal to a man on the charging floor and he . started the elevator. . When the cab reached the charging floor it stopped automatically and the buggy was taken off by men on that floor, unloaded and the empty buggy sent down on the elevator to the first floor. On the day of the accident plaintiff and his helper started iip with a loaded buggy on the scrap elevator. When the car had gone up about seven feet it stopped on a level with a platform. Plaintiff and his helper left the cab and by way of the platform and a stairway returned to the first floor. They there loaded another buggy and brought it to the foot of the scrap iron elevator shaft, and found that the cab was in the same place that it was when they left it. The testimony is conflicting as to what occurred between the time plaintiff came to the scrap iron elevator shaft with such loaded buggy and the time the elevator fell. Plaintiff and other witnesses called a buggy load of iron a “charge.” Plaintiff testified that he stood at the scrap elevator shaft with his charge five minutes; that “Mike,” the foreman of the charging floor, then called to him from that floor to push the charge to the south elevator. The “Mike” mentioned by the plaintiff was Michael Sael, who was called as a witness for the defendant and testified that he was general foreman on the charging floor and had full control over the men, that Butler was his assistant down in the yard, and had direct charge of the men who took the material to the elevator and sent it up to the charging floor. Plaintiff further testified that on receiving such order he took the buggy to the turn-table, thence to the south elevator, placed it on the cab and went on the cab with his helper; that he started the elevator, ran it to the charging floor and then ran the buggy to the cupola into which he had been unloading iron, and unloaded it, and in doing so passed within eight feet of Sael; that he then returned to the elevator, went down on it, reloaded his buggy and went with it to the scrap elevator; that that elevator was just as he had left it, and he then went with his buggy by way of the turn-table to the south elevator, went on the cab with the buggy and his helper and started the elevator; that the cab went up fifteen or twenty feet and then fell. Plaintiff’s helper, who was on the cab when it fell, was a Hungarian who began work that day, and he was not called as a witness.

For the defendant Sael testified that he did not direct plaintiff. to go to or use the south elevator. 0 ’Brian, who had charge of the elevators- and their machinery, testified that the scrap elevator stopped because a certain heavy belt was off; that it stopped fifteen or twenty minutes before the south elevator fell; that he went to the machine shop and got six or eight men to put the belt on; that when he came into the foundry he saw plaintiff and his helper on the south elevator with a load of scrap iron; that he told them they could not use that elevator and to go to their own elevator; that they took the buggy off and took it to the scrap elevator; that he went upstairs and got the belt on and had the motor started, but the belt came off; that he ran down stairs and found plaintiff and his helper going back with the buggy to the south elevator; that he told them to go back to their own elevator, that they could not take it up on the south elevator, and that he helped to push the buggy part way back towards the scrap elevator; that the men got the belt on again, and a very short time afterwards the south elevator fell. Kennedy, a witness for defendant, testified that he saw O’Brian motion with his hands to plaintiff to keep off from the south elevator. Plaintiff on rebuttal testified that 0 ’Brian did not tell him or motion to him to keep off of the south elevator.

Plaintiff’s testimony as to how he came to use the south elevator was consistent and reasonable. He was paid by the day. When the scrap elevator stopped he went to the yard and brought another loaded buggy to the scrap elevator, and could do nothing more without using an elevator. Unless ordered to use another elevator no reason appears why he should not have waited at the scrap elevator until that elevator was again ready for use. Plaintiff’s conduct as described by O’Brian was most remarkable. Ordered to take his buggy off from the south elevator and take it to the scrap elevator, he obeyed the order and yet was seen by 0 ’Brian a few minutes later going back to the south elevator, again ordered to go back to the scrap elevator and told that he could not use the south elevator, he started back towards the scrap elevator, 0 ’Brian helping to push the buggy some distance, and then again went back to the south elevator.

Sael was plaintiff’s foreman. It is immaterial that Butler was Sael’s assistant and in direct charge of plaintiff and the men with whom plaintiff worked. Plaintiff was as much bound to obey a direct order of Sael as he was an order given to him through Butler. Plaintiff’s act in using the south elevator was not an act done for his own benefit or convenience, but one done for the defendant and in the furtherance of the objects of his employment.

We think that from the evidence the jury might properly find that plaintiff used the south elevator in obedience to the order of the defendant, in the course of his employment and in furtherance of its objects. The defendant therefore owed to the plaintiff the duty to use reasonable care to see that said south elevator was reasonably safe for the use plaintiff was directed to make of it.

At the corners of the elevator shafts- were posts. Beams ran from one comer post to the post diagonally opposite and rested on the tops of the posts. These beams were of yellow pine, were about fifteen feet long, six inches thick, sixteen inches wide, and stood on edge, five inches apart. From these beams the cab of the elevator was suspended, and plaintiff’s injury was the direct result of the breaking of said beams. The beams had been in use fifteen years. The usual weight of the loads of car wheels carried on the south elevator was about 7,000 pounds. The load when the elevator fell was about 3,000 pounds exclusive of the two men. The evidence for the plaintiff tended to show that an examination of the broken ends of the beams after they fell showed that the beams were rotten, worm eaten, and showed evidences of old cracks and breaks. ■ The evidence for the defendant tended to show that the breaking strength of the beams was 45,000 pounds; that with bearings eleven feet apart they ought to sustain eight or ten tons; that an inspection of the broken ends of the beams disclosed no evidence of rottenness, old breaks, cracks or other defect of any kind. Defendant carefully preserved in a vault the broken beams for a considerable time, but having occasion to use the vault for other purposes, the beams were removed and it was claimed were lost, and they were not produced at the trial.

The evidence for the defendant wholly fails to explain or account for the breaking of the beams. It is true that Butler testified that he saw two fresh marks on the ends of beams next to the elevator shaft, and it is contended by appellant that pieces of iron from plaintiff’s buggy became wedged between the cab and the end of the beams and that this caused, the breaking of the beams. Opposed to this testimony was the testimony of defendant’s witness O’Brian, that he noticed marks on the ends of the beams at the places mentioned by Butler, and that they were old marks covered with dust and dirt; the testimony of Basener, another witness for defendant, who had charge of the repairs on the elevators, that he went over all the wood-work to see whether the elevator caught anywhere and so might have caused the accident, and found only old marks; found nothing that appeared as if it might have had anything to do with the accident, and the testimony of plaintiff that no piece of iron was between the cab and any timber on the side of the shaft. Clearly on this evidence the contentions of appellant cannot be sustained. The breaking strain of the beams, if sound, was 45,000 pounds; in that condition and with the bearings eleven feet apart they would carry eight to ten tons. Yet these beams broke with a load of only about 3,500 pounds, under usual conditions and circumstances. We think that the fact that the beams broke under such conditions, together with the other evidence was evidence from which the jury might properly find that the beams were not sound, but were defective and unsound, as alleged by plaintiff.

The duty of inspection was on the defendant. If from the evidence the jury might properly find that the beams were unsound and defective and that such an inspection as the defendant, in the exercise of reasonable care, was required to make would have disclosed such defective and unsound condition, and that the defendant failed to make such inspection, then from such facts the jury might properly find the defendant guilty of negligence.

There is no evidence that the defendant ever made any inspection as to the condition of the beams other than by having an inspector go on or near the beams and look at them; no evidence that defendant ever caused them to be struck with a hammer or scratched with an awl or other small piece of iron or steel, or ever used any of the means in common use by ship carpenters and other workers in wood to determine whether a beam or other piece of timber is sound through and through. We think that the question whether such an inspection as the defendant, in the exercise of reasonable care, was required to make of the beams in question, in view of their situation and use, would have disclosed the defective condition of the beams, was a question of fact for the jury, on which the verdict must be held conclusive. We cannot, on the evidence in this record, say that the verdict is against the evidence or not supported by sufficient evidence, nor that the damages are excessive.

We find no reversible error in the rulings of the court on evidence or in the instructions to the jury.

The record is in our opinion free from reversible error, and the judgment will be affirmed.

Affirmed.


text:
    Joseph H. Strong, Administrator, Appellee, v. Robert J. Gunning, Appellant.
    Gen. No. 14,963.
    1. Contracts—when deemed written. An acceptance of an assignment of a written lease makes a contract in writing between the lessor and the assignee of the lessee.
    2. Judgments—when non obstante veredicto would be justified. If an immaterial issue has been formed a judgment non obstante veredicto might properly be rendered.
    3. Variances—when lease properly admitted. Held, that it was not necessary to set out all the provisions and covenants of a lease to avoid an objection of variance and that the lease offered under the declaration in this case was properly admitted.
    4. Practice—when propositions of law should be presented. Propositions of law should be tendered to the trial judge prior to the announcement of his finding, and a party is not entitled as a matter of right to be allowed time, after the decision of the court was announced, for the presentation of propositions of law.
    Assumpsit. Appeal from the Circuit Court of Cook county; the •Hon. John A. Gray, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 1, 1910.
    Rehearing denied March 21, 1910.
    Henry W. Wolseley, for appellant; Wolseley & Barker, of counsel.

      H. H. C. Miller and W. S. Oppenheim, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $2,867 recovered against him by the plaintiff as administrator of Paul J. Sorg, in an action of assumpsit.

The declaration contains two counts. The first is as follows: “For that whereas the said Paul J. Sorg, heretofore, to wit, on the 28th day of February, 1890, at Chicago, in said County, demised by a written lease to one William J. Gunning, a certain messuage and premises with the appurtenances, to have and to hold the same for the term of 99 years to wit, from the 28th day of February, 1890, until the 28th day of February, 1989, yielding and paying for the said messuage and premises the yearly rental of $1,800, payable in quarterly installments of $450 each in advance, upon the first day of each and every quarter of said term until the completion of said term by virtue of which said demise the said William J. Gunning entered into the premises and was possessed thereof from thence until, to wit, the 10th day of March, 1890, upon which said last mentioned date the said written lease was assigned by the said William J. Gunning to the defendant, Bobert J. Gunning, and the written assent of the said Paul J. Sorg was given to such assignment, and thereupon, the defendant, Bobert J. Gunning, entered into the premises and was possessed thereof and kept and retained possession of said premises until, to wit, the 23rd day of July, 1898, when a large sum of money, to wit, the sum of $3000.00 became and was due and payable from the said defendant to the said Paul J, Sorg.”

The second count is the common count for use and occupation, and alleges that the defendant was indebted to plaintiff’s intestate for the use of certain lands, etc.

The pleas were, first, non-assumpsit; second, a plea of the Statute of Frauds to the first count; that the agreement in that count mentioned was not to be performed within one year, and that there was no agreement in writing in respect thereto, etc.; third, that the assignment of the lease in the first count mentioned was a contract for the sale of an interest in lands for a longer term than one year, and that there was no agreement in writing in respect thereto, etc., and fourth, that the said causes of action in the declaration mentioned did not accrue within five years next before the commencement of the suit, etc.

To the second plea the plaintiff replied precludi non, “because he says that each and every one of the said several promises was an agreement in writing, and signed by the said Paul J. Sorg, as alleged in the first count of the plaintiff’s declaration, and assigned and delivered to the defendant as therein alleged, and accepted by the defendant, and this plaintiff prays may be inquired of by the country, etc.”

To the third-plea he replied precludi non, “because he says that the assignment of said lease mentioned in the first count of plaintiff’s declaration, was in writing, and signed by Paul J. Sorg, as alleged in said first count, and delivered to the defendant, and accepted by him, and of this the plaintiff puts himself upon the country, etc.”

To the fourth plea plaintiff replied that the said causes of action did accrue within five years, etc., concluding to the country.

Defendant demurred to the replications to the second and third pleas and his demurrers were overruled.

The cause was tried without a jury and the court found the defendant “guilty” and assessed plaintiff’s damages at $2,857 and gave judgment on the finding.

The first count avers that the written lease from Sorg to William J. Gunning was assigned by the lessee to the defendant, who entered into possession, etc. An acceptance of the assignment of the written lease by defendant made the lease a contract in writing between Sorg and defendant, and the first count is therefore a count on a contract in writing. We think the court did not err in overruling the demurrers to the replications to the second and third pleas.

The plea that the causes of action did not accrue within five years was no bar under the statute, because the first count counted on a contract in writing. From this state of the pleadings it follows that the issue made by the replication to the fourth plea was an immaterial issue. The plea confessed but did not avoid the cause of action stated in the first count, and therefore if there had been a verdict for the defendant on this issue, plaintiff would, if entitled to judgment on the issue joined on the first plea, be entitled to judgment non obstante veredicto and is in no worse condition than if there had been a verdict found against him on this issue.

The suit was brought July 3,1905, defendant’s pleas were filed March 9, 1906, and the cause was called for trial July 7, 1908. Defendant then moved for a continuance on the ground that no copy of the instrument sued on was filed with the declaration, and his motion was denied. He was not entitled, several terms after filing his pleas, to a continuance under the provisions of section 32 of the Practice Act.

The lease offered in evidence by the plaintiff was a lease by Paul J. Sorg and S. Jennie Sorg, his wife, to William J. Gunning, and the lease counted on was a lease by Paul J. Sorg to said lessee. The lease offered in evidence contained numerous covenants by the lessee, while the declaration alleged only the cove-' nant to pay rent. Defendant objected to the introduction of said lease on the ground of variance, and his objection was overruled and the lease admitted. We think that as the lease was for the term of 99 years, the wife of Paul J. Sorg will be presumed to have joined in the lease for the purpose of releasing her right to dower, and that the lease was aptly described as a lease whereby Paul J. Sorg demised, etc., and that it was not necessary to set out all the provisions and covenants of the lease to avoid the objection of variance.

Plaintiff put in evidence, over the objection of defendant, the lease mentioned on which was endorsed the consent in writing of Paul J. Sorg to the assignment thereof by the lessee to the defendant, dated March 10, 1890, and also put in evidence, over the objection of defendant, an intervening petition filed by said Paul J. Sorg in a certain suit in chancery in the Circuit Court, and an interlocutory and a final decree made in said cause. No' other evidence was, offered tending to show either an assignment of said lease of the lessee to the defendant, or that defendant was at any time in possession of the premises demised by said lease. The objection to the admission of said assignment was that it was executed only by Paul J. Sorg. We think that for the reasons already stated the court did not err in admitting said assignment in evidence.

The suit in chancery was a bill filed by one Phillips against Eobert J. Gunning, Paul J. Sorg and others. The intervening petition of Paul J. Sorg made Eobert J. Gunning a defendant thereto and related to the lease in question and to the assignment thereof by the lessee, William J. Gunning, to the defendant here, Eobert J. Gunning, and to the amount of rent due Sorg from Eobert J. Gunning.

The defendant here prayed and was allowed an appeal from said decrees.

We think that the petition and decrees in the chancery cause were admissible in evidence in this case, although not referred to in any pleading therein.

The findings in the decrees so admitted in evidence are sufficient to support the finding and judgment in this case.

After the court had announced the finding, defendant’s counsel asked the court to wait a day so that he might present propositions of law for the court to pass on, and the court denied the request and at once entered judgment. We cannot say that the defendant was entitled, as a matter of right, to be allowed time, after the decision of the court was announced, for the presentation of propositions of law, and therefore cannot say that the refusal of the court to allow time for such purpose is ground for reversal of the judgment.

The record is, we think, free from error, and the judgment is affirmed.

Affirmed.


text:
    Louis Klugman, Appellee, v. Sanitary Laundry Company, Appellant.
    Gen. No. 14,969.

      Verdicts—when set aside as against the evidence. If the evidence does not justify on the facts the verdict as rendered, it will be set aside on review.
    Action on the case. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed March 1, 1910.
    Rehearing denied March 17, 1910.
    Clark Varnum and Sears, Roos & Boeger, for appellant.
    Mark J. Sullivan, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $1,200 recovered by the plaintiff in an action on the case for the loss of the services and society of his wife through and as the result of injuries alleged to have been wrongfully inflicted on her by the defendant by its agent or servant. The contention of appellant that the declaration does not state a cause of action because the averment that the wrongful act complained of was committed by the servant of defendant, “in the scope of his employment,” is but the statement of a conclusion of the pleader, is without merit. The averment of the amended declaration is that the defendant by its servant, “in the scope of his employment” committed the wrongful act. If the words, “in the scope of his employment,” be disregarded, the count avers that the defendant by its servant committed the wrongful act, and this is sufficient. 2 Chitty Pleadings, 708 note n.

From the evidence the jury might properly find that McCrea, who, according to the contention of plaintiff committed the wrongful act, was at the time the act is alleged to have been committed in the service of the defendant, and that if the wrongful act alleged to have been committed by McCrea was in fact committed by him, it was committed under such circumstances as to make it the act of. the defendant.

The wrongful act alleged in the declaration was that defendant by McCrea, its servant, wrongfully, etc., assaulted plaintiff’s wife and struck and injured her, etc., by means whereof, etc. The decision in the case therefore turns on the question whether from the evidence the jury might properly find that McCrea wrongfully struck, or otherwise wrongfully injured plaintiff’s wife, as alleged in the declaration. The defendant offered no evidence. The plaintiff called four witnesses—McCrea, who it is alleged committed the wrongful act complained of, Mrs. Gershuny, Mrs. Boss and Dr. Blech. Neither Mrs. Boss nor Dr. Blech was present when it is alleged the wrongful act was committed. Much of the testimony of McCrea stands uncontradicted either by positive testimony or by any proven act or circumstance. From his uncontradicted testimony and other uncontradicted testimony it appears that the day before the assault is alleged to have been committed, McCrea, for the defendant, delivered a bundle to plaintiff’s wife and collected the charges thereon. The next day he was given by defendant a package of collars to deliver to her on which he was directed to collect charges amounting to twelve cents. Plaintiff then lived with his family in the front part of the third floor of a flat or apartment building in Chicago. McCrea went to the door of plaintiff’s apartment and his wife came to the door. He presented the package and asked her for the amount of the charges thereon. She insisted that she had paid for the collars the day before, and he told her that there were charges on the package and that he would have to take it back to the laundry and get instructions before he could leave it without collecting the charges. He held the package in his hand and plaintiff’s wife caught hold of it and he held onto it, and finally the wrapping was broken, the collars fell on the floor and McCrea then went away.

McCrea further testified that he did not either strike or push Mrs. Klugman. Asked by plaintiff’s counsel if there was not some scuffle, he answered that there was. Mrs. G-ershuny testified that she lived on the same floor the plaintiff lived on; that she was in the hall and saw the laundryman standing in the door leading to plaintiff’s kitchen; that she heard some quarreling about money; that she went back to her own kitchen; that she heard a scream and ran to plaintiff’s kitchen door; that she saw the laundryman “over to the door, he wanted to go out at the same time he pushed Mrs. Klugman towards the table and ran out-at the same time;” that Mrs. Boss then came and they put Mrs. Klugman to bed, and the witness then went for a doctor and when she came back she saw that Mrs. Kingman’s clothing and everything she was lying in, “was in blood.” On cross-examination she again stated that when she heard the scream and ran to plaintiff’s room, that she saw the lanndryman push Mrs. Klugman towards the table and run out; that he pushed her against the table; that her back was towards the table.

“Q. "When he pushed her towards the table she struck her back against the table?

A. Tes, sir.”

The witness admitted on the cross-examination that she was a witness on the trial of a suit brought by Mrs. Klugman against defendant, growing out of the same occurrence, and was then asked by plaintiff’s counsel to tell in her own way all that she knew about the case; that her answer was that when she heard Mrs. Klugman screaming she ran out from her rooms; “and I saw her laundryman running from her house, and I ran in her house and saw Mrs. Klugman bending down on her table, and she felt terrible bad and pale.” Doctor Blech testified that he saw plaintiff a few hours after the occurrence; that she was then five or six months advanced in pregnancy; that he saw black and blue spots on her abdomen, “evidently due to some sort of a blunt injury.” Mrs. Boss testified that as she went up stairs she saw the laundryman going down, and only testified as to Mrs. Kingman’s condition after witness reached her apartments. The evidence further tended to show that Mrs. Klugman was ill and in bed for several months after the occurrence; that at the end of five or six weeks she had a miscarriage, and several months later had an operation for injuries to her womb.

Mrs. Klugman had no right to take the collars from McCrea by force, and if she attempted to do so, he might lawfully hold onto them to prevent her taking them from him, and if in an effort to take the collars from him by force she was injured, plaintiff would have no right of action against defendant for the consequences of such injury.

McCrea was called as a witness by the plaintiff, and examined by him as to the entire occurrence. His testimony is in direct conflict with the testimony of Mrs. Gershuny. On the trial of a suit growing out of the same occurrence Mrs. Gershuny, although asked to state all that occurred, did not testify that she saw McCrea push Mrs. Klugman against or towards a table.

In the opinion of the majority of the court, not in eluding the writer of this opinion, the jury might not from the evidence properly find that McCrea pushed Mrs. Klugman against the table, or that he pushed her at all, or that he struck her, or was guilty of any wrongful act or conduct towards her and therefore might not properly find the defendant guilty of the wrongful acts and conduct towards Mrs. Klugman alleged in the declaration.

The judgment of the Superior Court will therefore be reversed.

Reversed.


text:
    Edward Y. Eltonhead, Appellee, v. Walter S. Found et al., Charles Turgrimson, Appellant.
    Gen. No. 15,822.

      Usury—when hill of complaint does not show right to relief against. Held, that the bill of complaint in this case, does not, without amendment, entitle the complainant to relief.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed March 1, 1910.
    Charles R. Napier and Charles S. McIlvaine, for appellant.

      Samuel A. Strauss, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

Appellee filed his bill in chancery against appellant Turgrimson iand three other defendants. The intention of the pleader apparently was to allege that complainant in 1906 borrowed of defendant Found $500 and gave his note therefor, which note was in part for usury; that he renewed said note several times, and that each renewal note was in part for usury; that defendant Found transferred the last renewal note to the South Side Savings Bank, a defendant, before maturity, for the purpose of depriving complainant of the defense of usury to said note. The bill contains averments as to the giving of new notes by complainant to the South Side Savings Bank similar to the averments as to Found, and avers that said Savings Bank transferred the last note so given to it by complainant to defendant Hollingsworth before maturity, for the purpose of depriving complainant of the defense of usury to said note. The bill also contains similar averments as to giving new notes to Hollingsworth, and avers that Hollingsworth transferred the last note given to him by complainant to defendant Turgrimson before maturity, for the purpose of depriving complainant of the defense of usury thereto. The bill further avers that Turgrimson took judgment by confession against defendant for $715.37; that under an agreement with Turgrimson complainant paid Turgrimson $107 and gave him a new note for $617.37; that complainant gave Found as collateral security for his first note a warehouse receipt for certain property and the same had been transferred and held as security for each -renewal note and is so held by Turgrimson; that complainant paid Found $250, said Bank $126, Hollingsworth $133 and Turgrimson $127, and that Turgrimson still holds said note for $617.37, a large portion of which is usurious interest.

On the filing of the bill an order was entered granting a temporary injunction restraining Turgrimson from transferring said note for $617.37 and from making any sale of the collateral security therefor or doing any act prejudicial to complainant in the premises, and from that order Turgrimson appealed.

If each defendant other than Turgrimson received usury from complainant and then transferred complainant’s note before maturity to an innocent holder, and complainant is compelled to pay the last note to Turgrimson, then equity will require each of said defendants to pay to complainant the usury so received over and above legal interest. Woodworth v. Huntoon, 40 Ill. 131; House v. Davis, 60 id. 367. In the case first cited Chief Justice Walker, after stating the rule that where the whole debt is voluntarily paid, the debtor is estopped from recovering usury, said: “While in this case (where notes on which the holder had received usury were transferred by him to an innocent holder before maturity) it is involuntary, and by the transfer of the note before its maturity to a bona fide purchaser without notice, the defense is cut off. Nor can a debtor in such a case resort to a court of equity for relief by injunction of the usurious portion of the debt, as by the assignment before maturity the assignee acquires the note freed from all defense, either legal or equitable. As the payment is compulsory and by the assignment of the note the payee has, to say the least, obtained an unfair advantage, a court of equity will give relief, and it maybe that the maker has a remedy at law for money paid for the use of the payee.” In this case, according to the allegations of the bill, Turgrimson took the note transferred to him by Hollingsworth before maturity, and the note, the collection of which is sought to be enjoined, was given in renewal of that note. We think that under the authorities cited the complainant was not entitled to relief by injunction against Turgrimson.

In House v. Davis, supra, p. 371, it was said that in a case where a note including usury was transferred to an innocent holder before maturity and judgment entered against the maker on such note, “The maker of the note should be permitted to bring the amount of the judgment and interest thereon into court for the benefit of the bona fide holder, and then he would be entitled to recover the usury against the payee.”

We think it not improper to say that the bill should be amended and the facts relied on as entitling complainant to relief distinctly stated. There are in the present bill no distinct averments that the only consideration for the first note was the $500 borrowed by complainant of Found; nor that each new note was given in renewal of the preceding note and for no other consideration; nor that Found was the real owner of the note in which Finch was payee; nor any averment as to the ownership of notes by the South Side Savings Bank or Hollingsworth, in each of which notes, according to the allegations of the bill, a person not a defendant was the payee.

The order for an injunction will be reversed.

Reversed.


author: Mr. Justice Freeman

text:
    Lamb-Davis Lumber Company, Appellant, v. The Great Western Cereal Company, Appellee.
    Gen. No. 14,933.

      Instructions—when peremptory erroneous. It is error peremptorily to instruct for the defendant if there is evidence which tends to support the plaintiffs cause of action.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanaqh, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 1, 1910.
    Ralph F. Stern, for appellant.

      Adams & Froehlich, for appellee; Edward H. Stearns, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a suit by appellant to recover $3843, the price of five carloads of box-shooks shipped to defendant by plaintiff and not paid for. There is no dispute as to the delivery of the goods nor as to the price. At the conclusion of the evidence the Superior Court directed a verdict for the defendant and entered judgment accordingly, from which plaintiff appeals.

It appears that plaintiff had some business relations with an agency existing on the Pacific Coast prior to November, 1906, known as the Northern Box Manufacturers Agency. This agency apparently made contracts to supply purchasers with box-shooks and then apportioned the contracts among manufacturers, who had no direct dealings with the purchasers, but only through the agency. It appears that on January 16, 1906, the Northern Box Manufacturers Agency wrote plaintiff stating, that it had taken a contract with the defendant herein and asking plaintiff if it would furnish fifty carloads of boxes or one carload a week on that contract. To this the plaintiff replied on January 20, 1906, that it was “willing to take the fifty cars that you offer us,” providing the Agency was able to give it orders for twenty or twenty-five carloads of packing cases. To this the Agency replied on January 22, 1906, that it expected to be able to obtain orders for the packing cases and that its “people in the east are working on this matter now.” It appears from a letter written by the Agency to plaintiff dated November 26, 1906, and introduced in evidence that the Agency claimed that only a part of that order-had been filled by plaintiff, and that thirteen cars out of the fifty to be furnished by the plaintiff still remained to be shipped. It appears, however, that the plaintiff claimed to have filled its contract for the whole fifty cars. In another letter of the same date, November 26, 1906, the Agency returned to plaintiff an invoice of goods shipped defendant, saying, “We will ask you that you invoice the same direct to them and make your own collection, as we are endeavoring to liquidate the financial affairs of the Agency and therefore do not care to put any more accounts upon the books.” A previous letter to the same effect, dated November 22, 1906, had been sent plaintiff by the Agency. Thereupon plaintiff wrote direct to the defendant of date November 26, 1906, enclosing two invoices, stating, that it (the plaintiff) had been requested to bill direct to defendant and saying: “We have taken the liberty of booking you for two cars more on the same terms, as we have already cleaned up the old orders and would like to hear from you confirming this; as we understand it, this transaction will go to you direct in the future. ’ ’ To this the defendant replied of date December 1, 1906, that it would credit the shipments “against the orders we gave the Northern Box Manufacturers Agency,” that it had no objections to plaintiff’s assuming part of that contract, if agreeable to the Agency, and asking plaintiff to state “how much of that contract you wish to assume.” To this plaintiff answered December 7, 1906, enclosing an invoice for another car of boxes and saying it would finish another car for defendant “about the middle of next week and then all our contracts for your boxes will be filled;” that it had no more orders on its books received through the Agency. On January 2, 1907, the defendant wrote the Agency to the effect that defendant understood the Agency was to be disbanded and that was probably the reason the plaintiff had been sending, defendant the invoices direct, “although we have been applying them against your contract,” and that fearing its interests were not being taken care of as they should be by the Agency, defendant would be obliged to hold up Lamb-Davis & Co.’s bills “until this matter of future shipments is settled.” A copy of this letter to the Agency was enclosed to plaintiff, defendant explaining that it understood plaintiff was “interested in the Agency,” that defendant did not consider it had received very good treatment, that the Agency “obligated themselves to furnish us with a certain number of cars of boxes within a certain time,” and that “now we cannot get any satisfaction from them.” To this on January 7, 1907, plaintiff replied: “We found it possible to make a few cars after we had filled our order to them (the Agency) and advised you direct that we had booked them and asked you to advise us if this was not satisfactory. We received no reply from you to the contrary and considered that we had these booked to you irrespective of the Northern Box Mfrs., Agency, and we must ask that you make settlement to us direct.” The defendant answered of date January 19, 1907, that it would “dislike very much to have any controversy over this matter, and do not believe there is any occasion for it, providing you would exert yourself in straightening us out with the Northern Box Manufacturers Agency matter.” There was subsequent correspondence between the plaintiff and defendant, which however throws no new light on the controversy.

It is insisted in behalf of plaintiff that the court erred in directing the jury at the close of all the evidence to find the issues for the defendant. In this contention we are obliged to concur. It appears from the evidence and is admitted by counsel for the defense that on November 17, 1906, the plaintiff shipped to the defendant a carload of the cereal boxes which the defendant paid for to plaintiff directly, on the 19th of December, 1906. The payment was made by check to the plaintiff’s order, which check was duly honored by the defendant. It was for the jury to consider in connection with all the evidence the bearing of this payment upon the question whether the defendant’s acceptance of the six carloads shipped directly to it by plaintiff and payment for one of them, created an implied contract of sale and purchase between plaintiff and defendant independent of defendant’s relations with the Box Manufacturers Agency. The shipments of the cars in controversy began November 13, 1906, and the last was made and invoiced to defendant December 13, 1906. There is evidence tending to show that all the boxes shipped on plaintiff’s contract with the Agency had been applied on the Agency’s contract with defendant; that plaintiff claimed to have furnished the Agency all it had agreed to furnish, and had notified defendant in its letter of November 26, 1906, enclosing two new invoices, that it had “already cleaned up the old orders.” It appears that the five cars in question were shipped and invoiced directly to defendant by plaintiff and not through the Agency.

It is urged by counsel for defendant that “to entitle the plaintiff to recover, it must show some contract with the defendant, and a party has a right to select and determine with whom he will contract and cannot have another person thrust upon him without his consent.” Whether there was a contract between the plaintiff and defendant is, as we have said, a question of fact for the jury, and it was taken from their consideration by the instruction directing a finding for the defendant. There is plainly evidence tending to show such a contract. When the defendant accepted the carloads sent it it did so on the terms and conditions upon which it was informed the shipments were made. It could not, after accepting the shipments, retain the goods, change the contract with its acceptance implied, refuse to pay for them and then exonerate itself on the ground it had applied the goods on a contract it had with another party, without the consent of the shipper. There is no evidence tending to show, so far as we discover, that the plaintiff ever did or said anything implying such consent. In defendant’s letter of December 1, 1906, to plaintiff it wrote it had no objection to plaintiff’s assuming part of the Agency’s contract if agreeable to the latter and that if plaintiff “will kindly correspond with them and advise how much of that contract yon wish to assume,” defendant would be only too glad to have the cars so applied. It is evident from the correspondence that defendant was anxious to have plaintiff assume a part at least of the contract between defendant and the Agency. Plaintiff, however, refused to do so and replied of date December 7, 1906, that it had no more orders on its books for defendant from the Northern Box Mfrs. Agency, and defendant must look to the Agency for information on that matter. Nevertheless defendant kept the carloads it had received and continued to receive and keep such as came afterward and refused to pay for them for the alleged reason that “We are obliged to refuse payment for these boxes until such time as the contracts are taken care of. As you also were a member of this Association we must assume that you as well as the other members are responsible for the obligations assumed by the Agency.” The President of the plaintiff Company testified “there was no arrangement whereby the Northern Box Manufacturers Agency was authorized to contract in the name of our company. We were not under any obligation to fill orders and we would reject or accept them as we saw fit.” There is also evidence in plaintiff’s behalf that there was no contract between plaintiff and defendant for the boxes contracted for by the Agency.

The theory of the defendant seems to be that plaintiff having accepted an order to furnish fifty cars to the Agency to be applied by the latter on its contract to furnish seventy-five cars to the defendant, the latter had a right to seize plaintiff’s property and hold plaintiff liable for the Agency’s alleged default, and any alleged damage thereby suffered, without reference to whether plaintiff was responsible for such default or not and without legal evidence, so far as we can discover, tending to show that the Agency had authority to act for and bind plaintiff by its contract with defendant, and without evidence tending to show the amount of the alleged damages.

Defendant’s counsel argues that “nowhere in the record is there any evidence of any acceptance or direction from the appellee to appellant to ship any merchandise whatsoever.” There is no question however that defendant accepted and retained the merchandise in controversy, and has not paid for it. The evidence should have gone to the jury.

For the reasons indicated the judgment of the Superior Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Henry Fortier, Plaintiff in Error, v. The Fair, Defendant in Error.
    Gen. No. 14,939.
    1. Contributory negligence—when not defense. If a child under the age of sixteen years is injured in consequence of his employment in violation of the statute in an occupation “that may be considered dangerous” to his life and limbs, contributory negligence is no defense.
    2. Employer’s Liability Act—tohat not dangerous employment. The fact that the employment required of a child under the age of sixteen years made it necessary for him to ride up and down an elevator once or twice a day, cannot be deemed necessarily and as a matter of law to constitute an employment dangerous to his life or limb.
    3. Employer’s Liability act—lohen master not liable. A master is not an insurer of the safety of his employes for injuries caused by their own negligence merely because they may have been under the age of sixteen years.
    Action in case for personal injuries. Error to the Superior Court of Cook countythe Hon. Theodore Brentano, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 1, 1910.
    Rehearing denied March 17, 1910.
    Henry S. Wilcox, for plaintiff in error; Jesse Wilcox, of counsel.

      Hans L. Howard, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action to recover for personal injury. Appellant was employed as an usher in the toy department of the defendant on the fourth floor of its building in Chicago. At the time of the accident, July 12, 1906, plaintiff had been so employed about two weeks. It is claimed in plaintiff’s behalf that he was then fifteen years of age and inexperienced in the work. There is evidence, however, tending to show that at the time plaintiff was employed by defendant he represented himself to be sixteen years of age and that he had worked on Saturdays as a cash boy in another store for about a year while he was still going to school.

The work in which he was employed required plaintiff as a part of his duty to take goods sold in defendant’s toy department from that department on the fourth floor to the eighth floor of the building, where they were packed or wrapped for delivery. In doing this plaintiff used a small truck to carry the goods in, which he pushed upon an elevator to be conveyed to the eighth floor. After they were there packed or wrapped, he put the goods back in the truck, which he pushed again upon the elevator to be taken back to the fourth floor, or to where they were to be delivered or shipped, the plaintiff riding with them upon the elevator. There is evidence tending to show that during his employment by defendant he was accustomed to make trips to the eighth floor and back, averaging one or two trips a day.

The accident in question occurred about fifteen days after plaintiff began work for the defendant. That day he took a truck load of goods to the eighth floor, and after the goods had been packed or wrapped and replaced on the truck he pushed the truck back to the elevator entrance on said eighth floor. The shaft in which the elevator ran up and down was enclosed. The doors of the shaft were composed of heavy corrugated iron, and divided horizontally into two parts, which met at a height of about four feet from the floor, when the doors were closed. When opened the lower of the two parts slid downward and the other upward. It appears that on the eighth floor at that time the lock on these doors did not catch and this permitted one standing outside of the elevator .on that floor to open the doors. There was no bell on that floor nor other means of stopping the elevator except by calling or making a noise on or with the doors of the elevator shaft. There is evidence tending to show that some of those on that floor were accustomed to open the doors sufficiently to put théir heads into the opening and call for the elevator, a practice, however, of which the superintendent testifies he had no knowledge. At the time the plaintiff was ready to descend on the elevator at the time of the accident the doors were closed. Plaintiff’s statement is, “I stuck my two hands between the doors and opened them just enough to put my head in there. I stuck my head in there to call the elevator, and the elevator struck me. I saw the elevator wasn’t down and I went to take my head out of it as soon as it started and the elevator struck me.” Plaintiff’s scalp was cut and it is claimed that some nervous disorders resulted.

There is evidence tending to show that employes were forbidden to open the doors and put their heads in the shaft in this way, and that plaintiff had been warned not to do so; that other employes were in the habit of calling the operator through the closed doors and by rapping on or shaking them and otherwise making a noise, and that the operator had no difficulty in hearing them even when he was at the bottom of the shaft; that there was a small space between the doors at the top and bottom through which one waiting for the elevator could see up or down, and that there were electric lights in the shaft. There is evidence also tending to show the elevator was usually kept running up and down continuously, stopping at the various floors except when already full. The elevator operator testifies that he had once before seen the plaintiff stick his head between the doors of the elevator on the eighth floor, three or four days before the accident, and had told hinl several times not to do it, that it was against the rules, and had threatened to report plaintiff to the superintendent if he did it again. Plaintiff denies that he had ever been warned or instructed by any one in authority how to call the elevator and denies that he had been warned by others. There is some conflict in the evidence as to whether one could see into the shaft at the top and bottom of the elevator doors on this floor without pushing the doors back slightly at top and bottom.

Two counts of the declaration are apparently based upon the statute providing that “no child under the age of sixteen years shall be employed at” (certain employments specifically mentioned) “nor shall they be employed in any capacity whatever in operating or assisting to operate any passenger or freight elevator; nor shall they be employed in any capacity whatever in the manufacture of goods for immoral purposes or any other employment that may be considered dangerous to their lives or limbs, or where their health may be injured or morals depraved.” R. S. chap. 48, sec. 20. It is assumed in plaintiff’s behalf that the plaintiff was employed in violation of the statute in an occupation “that may be considered dangerous” to his life or limbs. If this is true then the defendant would be liable without regard to whether the injury was caused by contributory negligence of the plaintiff or whether he assumed the risk of injury. American Car Co. v. Armentraut, 214 Ill. 509-512; Swift v. Miller, 139 Ill. App. 192-196; Strafford v. Republic Iron Co., 238 Ill. 371-378. The jury were told by instructions given at the request of plaintiff’s counsel that plaintiff would be entitled to recover regardless of negligence on his part if the jury should believe from the evidence that he was under sixteen years of age and that his employment was dangerous to his life or limb. The jury expressly found that he was under sixteen years of age, and by their general verdict found that the employment was not thus dangerous.

We are of opinion no other verdict could properly have been rendered under the evidence in this case. There is no evidence in" this record to which our attention has been called tending to show the plaintiff’s employment was dangerous to his life or limb within the meaning of the statute. The fact that the employment required plaintiff to ride up and down in an elevator once or twice a day cannot be deemed necessarily and as a matter of law to constitute it an employment dangerous to his life or limb.' All means of transportation, whether in elevators, street cars, railroad trains, automobiles or even carriages drawn by horses, is attended with some chance of accident and injury. So are even the most harmless occupations. They are not, however, merely because of such chance of accident, rendered “dangerous to life or limb”' in the statutory sense to one of plaintiff’s years. He must be presumed to have been of ordinary intelligence for one of his age (Heimann v. Kinnare, 190 Ill. 156-161) and was not in fact injured while riding on the elevator pursuant to his employment, but by reason of his own act in putting his head under the descending elevator. This seems to have been done without the knowledge of his employer and there is evidence tending to show it was done in disobedience of orders and in disregard of warnings from other employes. This was certainly no part of his duty under his employment. We are of opinion plaintiff was not entitled in any event to recover under the counts of his declaration based upon the statute referred to.

If there was any liability on the part of the defendant it could only be based upon evidence of negligence on the part of the employer causing the injury. If there is evidence in the record tending to support such charge, the question is one of fact and must be deemed to have been settled against the plaintiff by the verdict of the jury, whose province it is to settle controversies of fact.

Complaint is made of instructions, of alleged errors in the admission of testimony, and it is urged that the verdict is contrary to the weight of the evidence. What has been said sufficiently disposes of the last of these objections. As to the others, it must suffice to say we find no material or harmful error in the testimony complained of nor in the instructions, in view of the evidence. Bach party was entitled to have the jury instructed with reference to such theory as the evidence justified. The master is not an insurer of the. safety of his employes from injuries caused by their own negligence merely because they may be between fifteen and sixteen years of age. It was said in Smith v. Foster, 93 Ill. App. 138-140: “The master had used reasonable care and prudence in providing instrumentalities which were ordinarily safe when properly used. In this he had performed the duty which the law required of him. The fact that a machine may be dangerous if improperly used or that it actually injures * * * is not the test of liability. If the machinery be of ordinary character and such as can with reasonable care be used without danger to the employe, it is all that can be required from the employer.” It is impossible to devise and operate powerful machinery which will not injure one who deliberately gets in its way, and when one does this, the fact that he is an employe and a minor not quite sixteen years old, does not of itself relieve him from the obligation of ordinary care to avoid dangers which he is able to know and appreciate.

Some of the instructions complained of may be subject to criticism but we find no substantial and harmful errors such as would justify a reversal of the judgment. It will therefore be affirmed.

Affirmed.


text:
    Dennis McNulty, Appellee, v. McMahon Cracker and Biscuit Company, Appellant.
    Gen. No. 14,949.
    1. Contributory negligence—when question not one of law. Unless it can be said that the plaintiff’s conduct was so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent, the question of whether he was guilty of contributory negligence is one of fact to be determined by the jury.
    2. Master and servant—what not assumed rislc, as a matter of law. The danger that an operator will forget and therefore fail to perform his promise to hold up his elevator while the plaintiff is doing work in the pit of the shaft, is not a danger open and obvious, and it is for the jury to determine whether the doctrine of assumed risk should have application.
    3. Master and servant—who not fellow-servants as a matter of law. A servant employed in working in the basement of a building, held, under the evidence, as a matter of law, not a fellow-servant of an elevator operator.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed March 1, 1910.
    Rehearing denied March 14, 1910.
    Statement by the Court. This is an action to recover for personal injuries. The plaintiff was employed by the defendant in its factory at Chicago, and was foreman in charge apparently of two of defendant’s employes working in the basement of the factory. Among the plaintiff’s duties was that of keeping clean the elevator pits in the basement. There were two of these, the “east” and the “west” elevators. Sometimes the cleaning was done by the employes who were under plaintiff’s orders. In such case it was plaintiff’s custom to have one man hold the rope which regulated the movements of the elevator, and thus prevent it from descending into the pit while the man in there was cleaning it. On other occasions the plaintiff himself went into the pit to do the cleaning and when going in alone for this purpose the plaintiff was in the habit of telling the elevator operator that he was about to go in and request such operator not to come down to the basement while the cleaning was being done. This had occurred on a number of occasions prior to the accident. The elevator boy was not under plaintiff’s control. On the day of the accident, January 10, 1907, the west elevator, by which the injury was inflicted, had come down to the basement and while there plaintiff had asked the operator not to come down again for a few moments, as he was about to clean the pit. The plaintiff testifies that the elevator boy nodded his head, said “all right,” and took the elevator up to the floor above. Plaintiff thereupon entered the pit and had just begun to sweep it out when the elevator came down on him inflicting the injuries complained of. The elevator boy had been running that elevator regularly for about a year before. Plaintiff states that he went into the pit alone on that occasion, the two men under him being engaged in other work and he “did not have them to spare” to watch the elevator for him. The elevator boy testified for the defense. He corroborated the plaintiff as to the precautions usually taken by the plaintiff and the men under him to prevent the elevator descending on them when cleaning out the pit, but denies that in this instance the plaintiff requested him a few moments before the accident not to come down for a few minutes, and says, “He didn’t say anything at all to me. At least I didn’t hear him.”
    The second elevator, known as the “east” elevator, was used and operated most of the time by plaintiff and his men in carrying material to and from the' basement. The issues were submitted to a jury, which returned a verdict in favor of plaintiff, assessing his damages at $3,000, upon which judgment was entered. Defendant appeals.
    Frank M. Cox and R. J. Fellingham, for appellant.

      B. J. Wellman, for appellee; George McMahon, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

It is urged in behalf of the defendant that the trial court should have directed a verdict of not guilty, that the injury resulted from plaintiff’s disregard of precautions he himself enforced as to others. There is, however, evidence tending to show that the injury was caused by the negligent act of the elevator operator in disregard of the notice he had received from plaintiff that the latter was about to enter the pit, and that this notice to the elevator operator was one of the customary precautions in use to prevent injury when plaintiff was cleaning out the pit. It was a question for the jury to determine from the evidence whose was the negligence, if any there was, responsible for the accident, and it would have been error to direct a verdict for the defendant where, as here, it cannot be said that plaintiff’s conduct was so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent. L. S. &. M. S. Ry. Co. v. Johnsen, 135 Ill. 641; L. S. & M. S. Ry. Co. v. Kelsey, 180 Ill. 530-533.

It is argued that the plaintiff assumed the risk in doing the work, relying on his alleged notice to the operator of the elevator and the alleged promise of said operator not to allow the elevator to descend for a few moments while plaintiff was cleaning out the pit. If, however, plaintiff did in fact give the elevator boy notice of his intention to clean the pit and ask him to hold up the elevator for “a couple of minutes,” the only risk plaintiff encountered was that the operator might fail to do what there is evidence tending to show he promised to do. It was for the jury to determine controverted questions of fact. It cannot be said as a matter of law that the method of guarding against injury employed by plaintiff, according to his evidence, constituted assumption of risk on plaintiff’s part. The latter testifies it was not the first time he had done the same thing in the same way. If he had set a man to watch the elevator while he was in the pit, he would have taken the same kind of risk, yiz, that such watcher might negligently forget or fail to see the descending elevator. Plaintiff had safely relied upon the operator to hold up the elevator under precisely the same circumstances on a number of former occasions. He had no reason so far as appears to suppose the operator would fail him on this occasion. There is no assumption of risk unless the danger is open and obvious, and the danger that the operator would forget or disregard a notice so given him cannot reasonably be said to have been open and obvious. This question was submitted to. the jury by instructions and must he deemed settled in plaintiff’s favor by the verdict.

It is urged that plaintiff and the elevator operator were fellow-servants. This question also was submitted to the jury by instructions. There is evidence tending to show that each was employed and under direction of the same foreman. They were not, however, in the same line of employment. Plaintiff was foreman in the basement. The operator’s employment and duties were confined to running the west elevator. This duty did not bring him into habitual association with plaintiff as there is evidence tending to show. There is no serious dispute as to the nature of their respective duties nor as to the manner or frequency of their coming in contact. There was no co-operation between them in any department of the employer’s business, and they seldom came in contact in their work. The alleged fact that plaintiff had requested the operator to keep the elevator from descending into the pit for a few minutes while it was being swept out and that the operator had agreed to do so, did not change their relative situations. It was the duty of the operator still to run the elevator and there is undisputed evidence that he was doing this from floor to floor above the basement after plaintiff entered the pit and began sweeping it out. When on other occasions the elevator descended into the basement the two occasionally met, but as we have said, were not brought into association in their work promotive of mutual caution. They never worked together in any legitimate sense and they had no occasion in their ordinary work to look out for and avoid injuring each other. Ordinarily the plaintiff and his men used the east elevator. When they went up in the west elevator they were simply passengers. It cannot be said in view of the evidence that they were fellow-servants, as a matter of law. The question was one of fact for the jury and the evidence amply warranted the finding against defendant’s contention. Gathman v. The City of Chicago, 236 Ill. 9-15; Lyons v. Ryerson, 242 Ill. 409-413, and cases there cited.

We find no reversible error in the instructions nor in the rulings on evidence. There is evidence warranting the verdict and judgment and for the reasons indicated the judgment of the Superior Court will be affirmed.

Affirmed.


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    Theresa Battel, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,957.

      Evidence—when, as to effects of personal injuries incompetent. Testimony that hysteria has an “awful marked effect” is incompetent if it does not appear from the evidence either that such marked effect had occurred in the particular case or that there was a reasonable probability that it would occur.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 1, 1910.
    Rehearing denied March 17, 1910.
    B. F. Richolson and Watson J. Ferry, for appellant.
    Jure F. Brower and Samuel B. King, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a suit to recover damages for personal injury. Appellee hoarded a street car operated by the defendant railway company about ten o ’clock on the night of September 10, 1904, at the corner of 51st street and Wentworth avenue. She rode east to State street, transferred there to a State street car going north and at 47th street took a car going east, upon which she rode as far as Woodlawn avenue, where the accident occurred causing the injury complained of. She testifies that she told the conductor when she got on the 47th street car she wished to get off at Woodlawn avenue, that nearing Woodlawn. avenue, she arose in her seat, that the conductor saw her and the car stopped at or near the corner of Woodlawn avenue, that she then “started to step on the footboard,” that she was “just in motion to step on the footboard,” when there was a sudden jerk and she fell. She does “not remember striking the ground.” She received, as there is evidence tending to show, a scalp wound from an inch and three-quarters to two inches in length at the prominent part of the back of the head, and claims to have suffered also internal injuries causing hysteria and other troubles. There is testimony in behalf of the defense tending to show that plaintiff jumped off the car at Woodlawn avenue while it was in motion and without giving notice of her wish to stop there.

It is conténded in behalf of appellant that the verdict is against the weight of evidence, that the trial court erred in the admission of evidence over appellant’s objection, and that there are reversible errors in the instructions. Inasmuch as the cause must be remanded for a new trial, we refrain from considering at length the weight and effect of the evidence.

Errors complained of in the admission of evidence relate to questions to and answers by an expert medical-witness called in behalf of plaintiff. This witness having been asked by plaintiff’s counsel what his prognosis of the case was, answered, “in time with good care, that she will recover ultimately.” The question was then put, “You have spoken of hysteria. What is hysteria?” and the answer was that it “is a condition where ideas control the mind;” that its producing causes “may be hereditary, especially in delicate people of a nervous temperament, or it may follow some early sickness in childhood, or it may be traumatic hysteria, may be caused by trauma, or sudden fright or injury.” * * * The following then occurred;

“Did you form any diagnosis or opinion as to this case?

A. I did in this respect. I think she is suffering from hysteria. It may be traumatic or otherwise.

Q. What if any are the effects upon the system of hysteria?

A. Hysteria has an awful marked effect. It may go along with non-organic condition. Hysteria is what is called a functional disease. No organ seems to break down itself, but it may go hand in hand and so something may set up a number of things, Bright’s disease, heart trouble or kidney trouble or anything and that would be an organic trouble, leaving symptoms of hysteria. There is no breakdown or pathological evidence of any hysteria whatever. But hysteria may assume a form from any little thing that comes along. There are these characteristics—

Me. Bicholson : I ask that be stricken out.

The Court : He is defining hysteria.

A. Yes, I am defining the condition of hysteria.

Mr. King : Proceed as if the interruption had not occurred.

A. There is one of the characteristic symptoms which is intense pain, and from that they begin to worry about the condition and any little idea that comes into their heads seems to control them. They may go from that into complete coma. It may develop into complete paralysis.

Objected to by counsel for defendant, who moves to strike out the same. Which motion was overruled by the Court. To which ruling of the Court the defendant by its counsel then and there duly excepted.

Q. Proceed, doctor?

A. It may develop into paralysis which may recover in a short time, as though they never had it. They may lose their voice. They may, and as a rule do, have melancholia, lose weight, lose strength, lose comprehension and everything else.”

It is apparent, as urged by appellant’s counsel, that the testimony to the effect that hysteria “has an awful marked effect” and what it might lead to, was incompetent. There is no claim, and so far as we discover no evidence, tending to show that the plaintiff has or had Bright’s disease, heart or kidney trouble, or paralysis, complete or incomplete. There is no evidence, whatever tending to show that whatever “awful marked effect” hysteria may ever have had, it has had any such effect in this case. This and other testimony of like character in the record is mere speculation, having no relation so far as appears to the facts in the case before us. It is not pretended that any such conditions will necessarily result from the injury complained of or that such conditions are reasonably certain to occur. On the contrary the same witness expressed an opinion that plaintiff would fully recover. The cases cited by plaintiff’s counsel (C. U. T. Co. v. Roberts, 229 Ill. 481, and Fuhry v. C. C. Ry. Co., 239 Ill. 548) are not in point. In those cases the testimony was that the injury might or could cause a condition which there was evidence tending to show actually existed. In the case at bar the testimony is to the effect that certain conditions might follow, none of which in fact so far as appears exist at all. Apparently there is no proof tending to show a reasonable probability that they ever will exist, much less a reasonable certainty. In C. & M. E. Ry. Co. v. Ullrich, 213 Ill. 170-173, it is said: “A plaintiff cannot recover damages for future suffering which is not reasonably certain to result from his injury. A mere possibility or even a reasonable probability that future pain or suffering may be caused by the injury or that some disability will result therefrom is not sufficient to warrant an assessment of damages.” Cases in point are City of Chicago v. Jarvis, 226 Ill. 614-618; P. F. & C. R. R. Co. v. Moore, 110 Ill. App. 304-310; Strohm v. R. R. Co., 96 N. Y. 306; Eckels v. Jasinski, 131 Ill. App. 451-454, and cases there cited.

In view of the conclusion stated.it is not necessary to consider other alleged errors. For the reasons stated the judgment of the Circuit Court must be reversed and the cause remanded.

jReversed and remanded.


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    National Biscuit Company et al., Appellees, v. Consolidated Agencies Company et al., Appellants.
    Gen. No. 15,861.
    1. Equity—when hill not defective in failing to offer to do equity. In a bill to enjoin the collection of a judgment at law and the institution of suits predicated upon a claim as to which the complainant has been discharged in bankruptcy, it is not necessary that he should offer to pay the debt.
    2. Assignment of wages—how far effective. An assignment as security for a loan, of wages to be earned during a then existing employment, does not cover wages earned in a subsequent employment.
    3. Municipai Court—when jurisdiction exclusive. In cases of the class known as fourth class cases, the jurisdiction of the Municipal Court as to a defendant corporation having its principal office in the city of Chicago, is exclusive.
    4. Injunctions—when lie to prevent multiplicity of suits. Equity will take jurisdiction to sustain the commencement of a number of actions which hut for the injunction would be instituted, in violation of the plain provisions of the statute.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed in part and reversed in part.
    Opinion filed March 1, 1910.
    Statement by the Court. This is an appeal from an interlocutory order granting an injunction. The bill alleges inter alia that complainant Walsh was on or about June 5, 1908, in the employ of the complainant, National Biscuit Company, under a contract from week to week at a salary of $60 a week; that he was at that time indebtéd to one Robert J. Jeffs, and to secure payment of such debt, made an assignment in writing to said Jeffs of “all wages and claims for wages earned and to be earned and claims and demands due or to become due Wm. C. Walsh from National Biscuit Company * * * or any other firm, person, company or corporation by whom he may hereafter be employed or who may owe him money for any consideration whatever up to and including the........day of.............” It appears the employment of Walsh with the Biscuit Company terminated about September 12, 1908, and he left the city. He returned later and about March 19.1909, again entered the employ of the Biscuit Company upon a similar contract as to wages. On the 29th of March Walsh filed a petition in bankruptcy and among the liabilities scheduled was the indebtedness to Jeffs, who in the meantime had assigned and transferred his claim, together with the assignment of wages made to him by Walsh to secure the same, to the defendant, Consolidated Agencies Company. Upon June 28.1909, Walsh was duly discharged in bankruptcy.
    March 24, 1909, the Consolidated Agencies Company caused a notice of that date to be served upon the Biscuit Company to the effect that it, the Consolidated Agencies Company, held the assignment and power of attorney executed by Walsh to Jeffs, and upon April 1, 1909, brought suit upon said assignment of wages before one Willis Melville, a justice of the peace in and for the town of Proviso, Cook county, in this state. The prosecution of that suit was restrained by the Federal Court in which the bankruptcy proceedings were pending. Subsequently on July 23rd, after the discharge of Walsh in bankruptcy, judgment was entered by said Justice Melville for $120, representing two weeks’ salary, against the complainant Biscuit Company. Later, in July, 1909, another suit was brought by the Agencies Company against the Biscuit Company before Justice of the Peace Hoig, another justice of the town of Proviso, upon the same assignment of wages. The bill of complaint avers that nothing was due said Walsh from the Biscuit Company when he left its employment in September, 1908, or when he re-entered its employ March 19, 1909, but that said Biscuit Company holds $200 wages earned by Walsh since he re-entered its employment in March, 1909. The injunction complained of issued July 31, 1909, and restrains the justices of the peace from further proceedings to enforce or enter any judgments against the Biscuit Company in favor of the Agencies Company, and restrains the Consolidated Agencies Company from attempting to collect the judgment entered by said Justice Melville, and from commencing or bringing any suit or proceedings against the complainants or either of them, until the further order of court.
    Charles R. Napier and Charles S. McIlvaine, for appellants.
    David & Zillman and William D. McKenzie, for appellees.
   Mr. Justice Freeman

delivered the opinion of the court.

It is sought to reverse the interlocutory order granting the injunction, on the ground, first, that the complainant does not offer to pay the debt of Walsh to Jeffs which the latter assigned to the Consolidated Agencies Company, and yet seeks to restrain the collection of such debt, and that seeking equity complainants must do equity, citing Wenham v. Mallin, 103 Ill. App. 609-612. That case is not in point. Walsh was discharged from the payment of the debt in bankruptcy. The security given by assignment of wages remained good. The discharge, however, was a legal suspension of the right of action against him personally for the debt; and what he seeks by this bill is not a further release from the debt, nor to be relieved “from the effect of a security he gave, valid for all the money he actually obtained,” as in the Wenham case supra, but to prevent interference with his wages outside of that security by vexatious litigation having no basis in the assignment. The assignment of wages to Jeffs was undoubtedly good when made so far as it created a right in the assignee against wages to be earned in a then existing employment and Walsh was at the time in the employment of the Biscuit Company earning . $60 a week. The then existing employment ceased, however, September 12, 1908, and thereupon the assignment by Walsh of wages to be earned after that time had no validity. Mallin v. Wenham, 209 Ill. 253-257; Wenham v. Mallin, 103 Ill. App. 609-611.

It appears from the bill that appellants brought suit upon the assignment against complainant. National Biscuit Company, a corporation having its principal office for doing business in Illinois in the city of Chicago, before the defendant Willis Melville, a justice of the peace of the town of Proviso, Cook county, Illinois, on the 1st of April, 1909, and eventually on the 23rd of July, 1909, obtained a judgment before said justice upon the assignment in question. The Municipal Court Act (section 29, chap. 37) provides that “if the defendant happen to be a corporation having its principal office in the city of Chicago ’ ’ cases of the fourth class under that Act shall be brought “in the district in which its principal office is located.” By section 60 of the Act, “the jurisdiction of justices of the peace in the territory of the county of Cook outside the city of Chicago * * * is hereby limited to the territory of said county outside of said city.” Under the statute the Municipal Court is given jurisdiction in cases of this character exclusive of all other courts except courts of record. It affirmatively appears therefore that Justice Melville had no jurisdiction over the Biscuit Company and any judgment rendered by him in the premises was and is void. For the same reason the suit brought before Justice William T. Hoig of the same town of Proviso, whether the Biscuit Company was served with summons issued by said justice or not, conferred no jurisdiction over the defendant upon said Hoig, and any proceedings in the cause before him or by him are likewise void and of no effect.

It is urged, however, that justices of the peace should not be enjoined, since the jurisdiction of equity in restraint of actions at law is exercised not over the courts of law but only upon the parties litigant therein; and it is said that while “equity may in proper cases enjoin suitors in another court from proceeding with their cause, the injunction cannot operate upon or run against the judge of such court.” High on Injunctions, vol. 1, chap. 2, sec. 46. It is conceded that the justices of the peace are not in this case necessary parties to the bill and that an injunction against the defendant, Consolidated Agencies Company, restraining it from proceeding in cases before the justices would suffice. It is clear that a multiplicity of vexatious actions of the kind under consideration brought in violation of the plain provisions of the statute before justices of the peace outside of the city, ought not in equity and good conscience to be tolerated. “The bringing of repeated suits weekly for the recovery of wages claimed to be due an employe weekly under a contract for labor has been held sufficient to warrant an injunction to prevent a multiplicity of suits.” 1 High on Injns., 4th ed’n, chap. 2, sec. 63.

For the reasons indicated the injunction order appealed from will he affirmed except so far as it applies to the Justices Melville and Hoig, and as to them it will be reversed.

Affirmed m part and reversed in part.