text:
    Frank N. Wood, Appellant, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 16,458.
    1. Instructions—effect of motion for peremptory. A motion for a peremptory instruction is, in effect, a demurrer to the evidence, and admits not only the facts proved, but all the inferences reasonably to be drawn therefrom.
    2. Passenger and carrier—obligation of latter to light right of way. While a carrier is ordinarily under no obligation to light its entire right of way, yet if it habitually stops its trains at some point upon its right of way where there is no station house, and which was unprovided with the ordinary facilities for safely landing its passengers, an injury resulting to a passenger in consequence of a failure adequately to light the place at which such passengers were authorized by its invitation, express or implied, to alight, presents a question for the jury to determine whether such failure adequately to light even a portion of its right of way when taken in connection with the other circumstances constitutes negligence.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Bobert W. Wright, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 12, 1912.
    Rehearing denied March 26, 1912.
    Haeey S. Mecabtney and Eveeett M. Swain, for appellant.
    Calhoun, Lyeobd & Sheean, for appellee; John Gr. Dbennan, of counsel.
   Mb. Pbesiding Justice Baldwin

delivered the opinion of the court.

This is an action for personal injuries received by Frank N. Wood, on September 18, 1903, as he was alighting from a train of the Michigan Central Bail-road Company, running upon the tracks of the Illinois Central Railroad Company at or near its station in Chicago, known as “39th Street.” A jury trial was had, and, at the conclusion of plaintiff’s evidence, the court instructed the jury' to find the defendant not guilty. The court overruled a motion for a new trial and entered judgment against appellant.

From the record it appears that, when the trial judge instructed in favor of the defendant, he gave the reasons for 'such action. The view taken by the trial judge was that, as to contributory negligence, the state of the record was such that it was a question of fact which it was his duty to submit to the jury, but that the testimony failed to show any negligence, either in the operation of the train, or in the matter of lighting the station grounds. Appellant asks a reversal of the judgment and contends that upon the testimony heard, the question of negligence of the defendant, as well as that of the contributory negligence of the plaintiff, were questions of fact which should be determined by the jury.

It appears that at the time of the accident, the station house of what is known as the 39th street station of the Illinois Central Railroad Company, stood along the western right of way of the Illinois Central Railroad Company south of 39th street, and adjacent to and abutting upon Oakwood avenue to the south, the main entrance to the station being a doorway opening directly upon the avenue. Neither 39th street nor Oakwood avenue crossed the tracks but both ended at the westerly right of way line, along which a stone fence of masonry is constructed to the north and to the south of the station house. This stone fence at Oakwood avenue is about seven feet in height from the level of the railroad tracks, hut the level of the tracks is about two or three feet lower than the grade of the roadway in Oakwood avenue at that point. East of the station house were six main tracks of the Illinois Central Eailroad Company, designated and described, for convenience, as follows:

Track No. 1. Local suburban trains from the city.

Track No. 2. Local suburban trains to the city.

Track No. 3. Through trains from the city, used by the Illinois Central and by the Michigan Central and the “Big Four,” lessees, for the through trains.

Track No. 4. Through trains to the city, used by the same roads.

Track No. 5. Express suburban trains from the city, used by the Illinois Central E. B.

Track No. 6. Express suburban trains to the city, used by same company.

Between tracks 1 and 2 (suburban) was a platform sufficiently elevated so that its floor was on a level with the floor of the cars of the suburban trains. This platform was about 300 feet long, having its south end a little to the north of the north line extended east of the station house, and extending north toward Thirty-ninth street. The exit of the station house, near a door-way at its northeast corner, was a. wooden walk, built upon the level of the ground between the tracks, and with its top surface at about a level with the top of the rails, and leading to the space between tracks 3 and 4 (through trains), where it connected with a plank sidewalk, or platform, which was also on the ground level. This plank sidewalk, or platform, between tracks 3 and 4, was about 200 feet long, extending north and south a distance of about 100 feet, respectively, from the middle line of the station house. South from the south end of this sidewalk, or platform, the space between tracks 3 and 4 formed a sort of cinder walk; this sidewalk, or platform, between tracks 3 and 4, with the walk leading into the station, was used as a platform for passengers taking or leaving through trains, the passengers alighting from the inbound through trains on the west, or station-ward, side of the trains.

The interior of the station house was lighted as such places usually are; on the outside of the station house, and either over or near the door-way entrance into Oakwood avenue, was an electric light, which was about 10 feet high, or six or seven feet above the top of the stone wall; at approximately the .center of the elevated platform, between suburban tracks 1 and 2, which extended north from the north line of the station house, there was a sheltered canopy along the edges, of which were incandescent lights, besides which there were two arc lights upon this suburban train platform, and there is some evidence that there was an additional incandescent light on the east side of the station house near its exit trackward, but. there was no light of any kind along or over the through track alighting platform, between tracks 3 and 4, nor along the platform leading into the station house from it, nor were there any lights to the east of it. The light nearest this alighting platform was that over or near the entrance of the station at Oakwood avenue, about one hundred feet away.

In practice, the front end of the north-bound through passenger trains usually stopped about 25 or 30 feet beyond the north line of the station house extended east; the rear cars and Pullmans of the trains stopping at a considerable distance south of the south line of the station house (150 feet or more), dependent upon the length of the train. The testimony of one of the witnesses tended to fix the distance at which the rear or south end of through north-bound passenger trains stopped, at about 266 feet south of the station house.

It was also the practice, when through inbound trains on track 4 were coming to a stop to discharge passengers at 39th street station, if it so happened that a north-bound Illinois Central suburban train was also approaching that station on track 2, the suburban train would come to a stop with its locomotive just south of the south line of the station house, so as to allow passengers from the through trains to pass before it.

On the day in question, appellant, about fifty years of age, in good health, and in possession of his faculties, was a passenger on an inbound Michigan Central train, accompanied by his mother, an aged woman of about seventy, and was returning from Jackson, Michigan, his old home, where he had just taken the remains of his late wife for burial. With the others of his funeral party, when he left Chicago he took the train for Jackson at 39th street, and on their return they were expecting to leave the inbound train at that point. Their train was a through train of seven to nine cars, and he and his mother were seated about the middle of the third or fourth car from the front. When the train approached 39th street, the brakeman went through the car and called “39th street” twice, passing through the car from the front and out at its rear door. It was between 8:30 and 9:00 o’clock in the evening, and very dark.

After the station was called, appellant' and his mother began to prepare for leaving the train. Appellant waited until the train had very little motion, then followed by his mother, he walked to the rear platform of the coach, carrying his valise. He testified that the train had almost stopped, and that when he got to the rear platform, it was very dark; “there were no signs of motion at all; the train seemed to have stopped.” As he looked down over the platform, he described it as being “inky blackness” down below. He looked to the west, or city-ward, and saw across over on track 2 a suburban passenger train which seemed to him standing still, but which was, in reality, going at the same rate of speed and in the same direction as the train he was on. -The cars of his train were not vestibuled and there was no brakeman or conductor upon the rear platform. Supposing the train to be stopped, he stepped down, with one hand holding the rod or rail of the coach, and with the other holding his valise. The train was not stopped, but its motion was such that he was taken off his feet, and, though he hung to the rail of the car with his one hand, his shoulder hit upon something, and his hold on the rail broke, and he fell under the wheels, receiving the injuries complained of. It was found that the train passed about fifty feet beyond the spot where he was found lying.

Appellee’s denial of liability is not based upon the ground that the train upon which appellant was riding, was being operated by its lessee, the Michigan Central Railroad Company. Indeed, it is not contended that its liability is less than it would be if the Michigan Central train, instead of being operated by the lessee of the Illinois Central Railroad Company, had been one of its own trains. But it insists that the evidence in the case does not tend to prove any negligence on its part, but does show that the appellant was clearly guilty of contributory negligence, as a matter of law.

Upon this hearing, we are not concerned with the character and extent of plaintiff’s injuries,—the sole question before us is whether or not, upon the record, the trial court was justified in withdrawing the case from the jury by a peremptory instruction in favor of appellee.

The declaration, in its first count, alleged negligence on the part of the defendant in that the operatives of the train did not direct, warn or assist appellant in alighting therefrom, and that while he was attempting to so alight, the train was negligently jerked and jolted so as to throw appellant to the ground. In the second count,- it was alleged that the appellee failed to provide a station properly lighted. In the third count it was charged that appellant was injured because appellee failed to construct and maintain a platform and lights at “said alighting place.” While the fourth count alleged it to be appellee’s duty to keep the station at 39th._street in a proper and safe condition for passengers to alight, and to maintain proper platforms and sufficient lights for that purpose, and that said stopping place was poorly and insufficiently lighted, and no platform maintained there.

The motion, which the trial judge sustained, when he instructed the jury to find the defendant not guilty, at the close of plaintiff’s evidence, was, in effect, a demurrer to the evidence, and this admitted not only the facts proved, but all the inferences reasonably to be drawn therefrom. Illinois Central R. R. Co. v. Bailey, 222 Ill. 480; Bartelott v. Bank, 119 Ill. 259 (269); Fraser v. Howe, 106 Ill. 563.

That the train upon which the appellant was riding, was not negligently jerked or jolted so. as to throw him off, is clearly established by the evidence, and so far as that feature of the case is concerned, the court below was clearly right. Nor did the calling of the station by the conductor or brakeman, standing by itself and taken alone, constitute negligence. Nevertheless, the fact that the conductor or brakeman passed back through the car upon which appellant was riding, and twice called out the station, “39th street,” as the train was approaching that stopping place, was a circumstance which the jury had a right to consider in connection with all the other circumstances connected with the accident, so that, from such consideration of all the surrounding circumstances, it might determine whether or not the defendant was negligent, and the plaintiff free from contributory negligence. B. & O. S. W. R. R. Co. v. Mullen, 217 Ill. 203; Chicago & Alton R. R. Co. v. Arnol, 144 Ill. 261; McNulta v. Ensch, 134 Ill. 46; Ardison v. Illinois Central R. R. Co., 155 Ill. App. 274, affirmed in 249 Ill. 300.

Appellee’s liability, if it exists, was not created merely by the act of the brakeman in calling the station, but because it allowed such conditions to exist at the time and place in question, as, when taken together, constituted negligence on its part. Among the facts and circumstances appearing in the record, which, when considered together and in their relation to each other, seem to us to have a significant bearing, both upon the question of the negligence of the appellee, and the question as to whether or not appellant was guilty of contributory negligence, are the following:

Under the management of appellee, its north-bound suburban train stopped opposite the rear platform of the through trains of the Michigan Central, with the Illinois Central locomotive approximately opposite the middle of the through trains of the Michigan Central; this was evidently done for the purpose of enabling the passengers upon the Michigan Central trains to readily reach the station of the appellee, through which they passed out upon Oakwood avenue. In addition, it appears that at and about the time of the accident, trains on parallel tracks, used by the two roads for their suburban and other business respectively, were permitted to run alongside of each other in approaching 39th street station and slow úp at the same time, and thus produce a condition which might easily create the impression upon passengers, who are preparing to leave the train 'at the station, which appellant testified was produced upon bim,— namely, that of obliterating the sense of motion of the train upon which he was riding, and from which he was about to alight. It' further appears from this record that passengers from the inbound through cars, who chanced to be upon the rear part of the train, were required, or permitted, to alight upon a portion of the grounds, or right of way, of the railroad company beyond the platform, or sidewalk, built for that purpose, and beyond a point at which the approaches to the station ground were adequately lighted.

To hold that appellee was under no obligation to its passengers to do any more than light its station house and the platform immediately adjoining, would, under the facts shown by this record, seem to us to unjustly limit and narrow its obligation. While it is undoubtedly true that the Railroad Company is under no obligation to light its entire right of way along which its cars are,merely passing, yet, if it habitually stopped' its trains at some point upon its right of way where there was no station house, and which was unprovided with the ordinary facilities for safely landing its passengers, and injury should result to any of them in consequence of a failure to adequately light the place at which such passengers were, authorized, by its invitation, express or implied, to alight, we think it would clearly present a question for the jury to determine whether such failure to adequately light, even a portion of its right of way, when taken in conjunction with the other circumstances, constituted negligence.

The contention of appellee is that while it may be true that reasonable minds may believe that the accident to Wood resulted because the regular station was not sufficiently lighted, still appellee is not liable because appellant did not get off the train at the platform provided for alighting passengers, but at a point some distance from it, consequently he was not legally entitled to the benefit of such lights as should have been on the platform, which were provided for the benefit of passengers getting off a train there; they were not there to afford light to mistaken passengers who get off the train on the right of way. If it be true, as we think the evidence tends to show, that passengers, upon incoming through trains, were accustomed to alight, with the tacit approval of the Railroad Company, further away from the station house than the platform extended, we think the company was under legal obligation to light up such portion of their grounds as was thus used by alighting passengers, and that their failure to do so would raise a question of fact for a jury as to whether or not such failure constituted negligence. In our judgment, the mere fact that appellant alighted from the train, under the circumstances shown by this record, while it was still in motion, did not constitute contributory négligence as a matter of law, and we think, therefore, the learned judge, who tried the- case below, correctly held that the question as to whether or not appellant was guilty of contributory negligence was one of fact to be submitted to a jury instead of one of law to be decided by the court; and, under the law of this state, and the case as disclosed by the record, we think the question as to whether or not appellee was guilty of negligence was also one of fact, which appellant was entitled to have submitted to a jury.

The case of B. & O. S. W. R. R. Co. v. Mullen, 217 Ill. 203, was very much like the case at bar. In it the court held that in determining whether its passenger, Mullen, was negligent in getting off one of its trains while still in motion, the facts that it was dark and Mullen felt no motion and believed the train had stopped, and that the place at which he alighted was one which he understood the conductor or brakeman announce as the depot, were proper to be considered by the jury, and that alighting from a moving train in the darkness at the direction of the conductor or brakeman, or upon a reasonable belief that the train had stopped, was not negligence per se.

In that case, it appeared that the station was called; that it was dark; the evidence conflicted as to whether or not the conductor or brakeman was on the platform and informed him as to the location of the station at which he attempted to alight; Mullen stepped' off before this station was. reached. The similarity in the facts between the Mullen case and the one at bar is very marked. In that case the court said:

“Without attempting to distinguish between cases, which seem to hold, that it is negligence as a matter of law to attempt to alight from the car of a train, propelled by steam, while it is in motion, and those, which hold that the question, whether such attempt constitutes contributory negligence or not, is a question of fact for the jury, it is sufficient, for the purposes of the case at bar, to say that, where a passenger alights from a train at a particular point upon the invitation of the conductor, or brakeman, or other employe on board the train, or where such passenger alights from the train under the belief that it is not '■in motion, and the circumstances show that there is reasonable ground for such belief, then these facts may be taken into consideration by the jury in determining whether the plaintiff has or has not been guilty of contributory negligence.” * * * “There are also cases, where the facts show that the party, alighting from a moving train, had reason to believe that the train had stopped. Where such belief has a reasonable basis in the facts and circumstances, surrounding the party at the time of the accident, the act of alighting does not, in and of itself, amount to negligence as matter of law.” Citing cases.

In Ardison v. Illinois Central R. R. Co., 155 Ill. App. 274, the court held that it was not negligence per se, even for a passenger to get off a moving train, when not instructed or directed to do so by some representative of the Railway Company, without regard to the attending circumstances, and that whether or not it is negligence to do so depends upon such surrounding circumstances. In that case, Ardison was a passenger from Freeburg to Wilderman on the railroad company’s- train, consisting of a mail, express and baggage car, a smoking car and two first-class coaches. He had with him a basket of groceries and a can of oil, with which he went to the forward end of the smoking car where he remained until the train arrived at Wilderman. At Wilderman there was a station with a platform about 145 feet long and 12 feet wide, though there was no depot building. On the opposite side of the platform from the main track, there was a wood shed, and at the north end of the platform, (the train in question was going north) there was a small block house used as a telegraph office, with a window on the south side • and two on the east side, and there were no other buildings in the neighborhood near enough to furnish light. The only lights about the platform were two oil lamps inside of the block house, which would illuminate only about two feet of the platform. The train reached Wilderman after dark, about thirty minutes late, and it ran so far north that the north end of the smoker was beyond the end of the platform. When the train was approaching the station, it was called, and the passengers therefor prepared to get off. Ardison, with some others, went out on the north platform of the smoker and held the basket and can in one hand, while with the other he held on to the platform railing. He descended the steps and in alighting, was thrown on the ground north of the platform and under the train. There was no evidence that the train jerked, but Ardison testified that it was going so slow he thought it had stopped. He said that there was no light on the platform; that it was dark and he could not see. No other witnesses seemed to know just how the accident happened, and the court held that under this evidence it was a question of fact for the jury to determine whether or not the absence of sufficient light upon that platform was the approximate cause of his injury, and whether or not, under the circumstances, he was in the exercise of ordinary care. The court said: “The obligation of appellant to the appellee, as a passenger, was to use the highest degree of care for his safety, consistent with the practical operation of its road, and if lighting this platform and premises were necessary to the exercise of that degree of care, it was its duty to have the light.” This judgment the Supreme Court affirmed. Ardison v. Illinois Central R. R. Co., 249 Ill. 300.

We think the facts in that case and the one at bar so similar, that the law laid down in that case governs this. Both upon principle and authority, we think the judgment of the court below was wrong, and it will be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    Julius E. Haschke, Appellee, v. Clair A. Orr et al, Appellants.
    Gen. No. 16,064.
    Malicious prosecution—what does not render order of discharge incompetent. Notwithstanding the discharge of the plaintiff in the criminal prosecution is admitted, the plaintiff has the right to introduce the order of discharge, which constitutes the very best evidence of the fact.
    Appeal from the Superior Court of Cook county: the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed March 12, 1912.
    McCabe, Cloves & Kull, for appellant.
    Symmes & Kirkland, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

In this case there was a recovery of a judgment for $1,000 for an alleged malicious prosecution. The charge in the declaration is that the defendants (the appellants) maliciously procured the arrest of the appellee upon a warrant issued by a justice of the peace, the complaint being that he had feloniously converted to his own use, with intent to steal, property of which he was bailee. There were two trials in the court below. At the time of the first trial only one of the defendants had been served with process. The verdict which was obtained at that time was-somewhat in excess of the second verdict. It was set aside and a new trial granted. Afterwards and before the second trial the other defendant was served, and entered a plea of not guilty.

The alleged errors discussed by the appellants in their argument relate to the admission and exclusion of evidence, the denying of appellants’ motion for a new trial and the motion in arrest of judgment, and the giving of and refusal to give instructions.

The appellee, the plaintiff below, had a patent upon a storage battery for use in electric automobiles, and undertook to interest the defendants in the same, the negotiations resulting in the drawing of several agreements. By the first agreement the appellants, the defendants below, undertook upon the plaintiff’s giving them an option on a half interest in his patent, and equipping a specially built car with his patent batteries and demonstrating to the defendants’ satisfaction that the battery was “far superior to any other on the market,” to pay him $1,000 and to furnish a sum not to exceed $2,000 for equipping a factory and garage. The defendants were to allow plaintiff $2,000 out of the profits, and were to take half the stock in a corporation which was to receive all of the plaintiff’s interest in his patents. Later on the defendants advanced $500 to the plaintiff, and took as security a bill. of sale on an electric' touring, car owned by the plaintiff.

The third document signed was a formal agreement prepared by the attorneys for the defendants, in which the plaintiff agreed to sell to the defendants a half interest in the battery, also a half interest in the inventions and improvements, and all patents to be issued for an electric boat propellor, and a half interest in all future inventions and improvements in and to the battery and electric boat propellor. He further agreed to equip an automobile with a storage battery to operate the car to the satisfaction of the defendants. By the third paragraph of the ' agreement the plaintiff further covenanted and agreed to transfer, assign and set over to a corporation known as the Haschke Compound Storage Battery Company, or such other corporation as the parties might mutually agree to form, all interest in his letters patent issued to tbe plaintiff or to be issued to him upon the two mentioned devices. He further agreed to devote his time to the promotion of the business. The defendants agreed to pay the plaintiff the sum of $1,000 when he should have equipped an automobile with the battery. They further agreed to furnish a sum not to exceed $2,000 for the purpose of equipping a factory and garage, for the manufacture of the battery and business pertaining to automobiles. There are other provisions in regard to the division of the stock of the Haschke Compound Storage Battery Company, which is stated to be a corporation organized under the laws of the District of Columbia, with a capital stock of $100,000. The agreement further provided that the plaintiff should receive out of the first profits of the business the sum of $2,000, and be paid a salary of $75 per month for one year from the date of the commencement of the business.

After the execution of the last agreement a lease was taken of property on Ashland boulevard in Chicago ; some machinery was purchased; the plaintiff invested about $500 in the enterprise and the defendants about $640. The agreement last referred to was executed on April 21, 1905. In July of that year the defendants requested plaintiff to sign a form of contract which they presented to him, in which it was recited that all of the provisions in the contract of April had been fully performed by the defendants; that they had equipped and opened an electric garage at 79 Ashland boulevard, which was by them fully equipped and put in perfect condition for business; that whereas there had been long delay entailing large expense and great loss of business and time in the manufacture of the batteries described in the contract, which delays had not been occasioned by the defendants, that therefore the second clause of the April contract should be waived by all parties and that the garage theretofore established should be closed and the defendants have the right to remove all the personal property placed by them in the garage, and that no garage should be established, equipped or operated -by the parties except upon the mutual consent and agreement in writing of the parties.' This agreement appears to have been signed by Orr and Weyl, but plaintiff refused to sign it, claiming at the time that the defendants had agreed to give him $2,000 and a salary of $75 per month, which amounts had not been paid him. He testified that he proposed to the defendants that if they would release his automobile he would “call things square.” This proposition was declined by the defendants.

It does not appear clearly in the record whether business was being done by the corporation heretofore referred to, or by the plaintiff individually. It seems, however, that he rented the premises, and that about the time he was asked to sign the agreement submitted to him by the defendants as heretofore stated, the rent of the premises was in arrears and a suit for possession had been instituted. It further appears that the plaintiff asked the defendants to advance money to pay the arrears in rent and offered to do what was fair to adjust matters and have an accounting; that he offered to go to their lawyer or to take them to his adviser, but that the defendants did not accede to this. He testified that he consulted counsel for a second time, and thereafter removed the property to a warehouse; that one reason for doing so was his fear of distraint for rent, and another was that he had been advised by his counsel to retain the property for his own protection. In August following the defendants made a demand upon the plaintiff for the possession of the property, having theretofore demanded of the plaintiff information as to where it had been stored. This plaintiff refused to divulge unless a settlement was reached and his automobile, released.

The complaint upon which plaintiff was arrested was sworn to by an office boy, said to be sixteen years of age, employed in the office of,the attorneys for the defendants, one of the attorneys being a brother of one of the defendants. Upon a hearing, the justice of the peace who issued the warrant decided there was not probable cause justifying the issuance of the same, and the plaintiff was discharged.

The contention is made by the defendants that the verdict of the jury was wrong, in that the jury did not give sufficient weight to the testimony with regard to the defendants having acted upon the advice of counsel, and also because it was not clearly shown that the office boy was authorized by the defendants to make the .complaint. Both of these questions were apparently determined adversely to the defendants' by the jury, and the finding of the jury has been approved by the trial judge. We cannot say that their determination was against the weight of the evidence...

• The plaintiff-contends, and, we think, with reason, that the advice given by the attorney was not'based upon a full disclosure of the facts to him. It seems that the complaint was made on the same date as the demand, viz, August 21, 1905. The office boy, Schein, testified that one of his employers, the attorney, Mr. Wentworth, told bim that he, Wentworth, expected a telephone call giving information as to Haschke’s whereabouts, and that Schein as soon as the telephone message was received was to take the complaint to a justice of the peace and swear to it. Mr. Went-worth testified that he had already arranged with a constable to make the arrest, and had told him that the warrant would be placed in his hands as soon as Haschke had been located. Haschke was arrested about 6 or 7 o’clock in the evening and taken to the court, where he was detained most of the evening. The matter seems to have been before the justice at several sessions of court, at one of which there was a long hearing.

It is insisted by the defendants that their objection to the admission of the complaint and warrant should have been sustained for the reason that there was a variance between the allegations of the declaration and the proof so offered.

The declaration charged the defendant with having “caused and procured” the issuance of the warrant. We think there was sufficient evidence that the office boy who swore to the complaint was acting for the defendants to justify the admission of the complaint and warrant. Conroy v. Townsend, 69 Ill. App. 61.

We do not think that there was error, as alleged, in the admission of the record showing the termination of the criminal prosecution in favor of the plaintiff. It is true the defendants admitted that the criminal case had resulted in the discharge of the plaintiff, but the plaintiff had the undoubted right to introduce the order of discharge, which constituted the very best evidence of the fact. Millar v. Sollitt, 131 Ill. App. 196.

The defendants offered in evidence the common law record in a replevin suit brought by them against the plaintiff in this suit for the recovery of the property heretofore referred to, or some of it. This suit was not brought until a month after the termination of the criminal proceedings. It appears that with the record and as part of it, instructions given to the jury in that suit were offered. Clearly the instructions are no part of the record until made so by bill of exceptions. It would seem also that the replevin suit included the automobile of which, as has heretofore been stated, the defendants had a bill of sale to secure a loan. It further appears that the plaintiff, in this proceeding, had the right to retain the machine until October 5, 1905. At the time the criminal proceeding was instituted in August the plaintiff was, under the agreement, still entitled to the possession of the automobile. We do not think, therefore, that the record of the replevin suit should have been received in evidence. The court did not err in excluding it.

It is next urged that the court below should have directed a verdict for the defendants at the close of the plaintiff’s case, and also, as that was not done, that such an instruction should have been given when all of the evidence had been taken. In our opinion there was sufficient evidence to warrant the court in submitting the case to the jury.

Some complaint is made of instructions given to the jury, as tendered by the plaintiff, and of the refusal to give four instructions offered by the defendants. Eight instructions as tendered by the ■ plaintiff, and nineteen offered by the defendants, some of them of considerable length, were given. The court also read to the jury an instruction prepared by himself. We think these instructions fully and fairly advised the jury as to the legal propositions which should govern them in arriving at their verdict, and that no error was committed by the court in giving the instructions as tendered by the plaintiff, or in refusing to give the four additional instructions requested by the defendants.

We find no error in the record such as should cause a reversal of the judgment, and the same is therefore affirmed.

Affirmed.


author: Mr. Presiding Justice Baldwin

text:
    Thomas Trohey, Appellee, v. Chicago City Railway Company, Appellant.
    Gen No. 16,428.
    New trial&emdash;when scurrilous newspaper articles charging impeding administration of justice require. If at the time a jury retires to consider of their verdict, two of their number had with them newspapers containing articles charging one of the parties with seeking to impede the fair administration of justice, a verdict against such party should be set aside, even' though the articles in question were in no wise inspired by the other party to the cause and even though there be no direct evidence that any of the jurors read such articles&emdash;no showing having been made that the jurors did not in fact read such articles.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Fajrlin Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 12, 1912.
    John E. Kehoe and C. Le Boy Brown, for appellant.
    George E. Gorman and McGoorty & Pollock, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is an appeal from a judgment for $12,000 entered against appellant after the court had required appellee to remit $3,000 from a verdict of $15,000. The action was for personal injuries sustained November 27, 1902. Plaintiff claimed he was thrown from his wagon by reason of its being struck by a street car of defendant. Defendant denied that any car struck plaintiff’s wagon and claimed that no street car had anything whatever to do with the accident. The case has been tried three times. The first trial resulted in a verdict for $8,000. A new trial was granted and the case was tried a second time, resulting in a disagreement of the jury.

The declaration contained one count and alleged that defendant negligently ran and operated a southbound car upon Clark street and that’ said car collided with a wagon being driven on said street by plaintiff. The ad damnum was $15,000.

The accident took place November 27, 1902. Trokey was a teamster. At that time he was driving a two horse wagon hauling crushed stone from the plant of his employer at Nineteenth and Lincoln streets to the corner of Twenty-second street and Archer avenue. His course ,in making deliveries was from Lincoln to Eighteenth, east on Eighteenth to Clark and south on Clark to Twenty-second. Trohey’s wagon itself weighed 3,100 pounds and it was loaded with four tons of crushed stone. When he reached, and turned south in, Clark street, he fell from his wagon and two wheels of it passed over him. Clark street at and about its intersection with Eighteenth street was well paved both inside and outside the street railway tracks. The paved space between the west rail of the west track in Clark street and the west curb was 17 to 20 feet wide and there was nothing to prevent any one driving in that portion of the roadway.

Trohey claimed that when he turned south from Eighteenth street in Clark street, he made the turn in the west or south-hound track and then proceeded southward in that track; that when he reached Clark street, he saw approaching him, and about a half a block north, a south-bound car, and that, after seeing it, he continued to drive south in the track until he reached a point about fifteen feet south of the south walk on Eighteenth street, where he began to turn out; he testified that he did not look back from the time he first saw the car approaching and did not know whether the wheels of his wagon were in the street or were in the track at the time he felt a jolt or jar and fell from his wagon; nor did he know whether or not the car struck his wagon. Other witnesses, on his behalf, however, testified that a southbound car did strike his wagon. A larger number of witnesses, on behalf of defendant, testified that plaintiff turned south in Clark street and started to drive in the open, newly-paved space between the west track and the west curb, and that at, a point near the south line of Eighteenth street, he fell forward between his horses without the street car touching or having anything whatever to do with his wagon.

The principal controversy at the trial was over the question whether or not any of defendant’s cars came in contact at all with Trohey’s wagon. Defendant denied that there was any such contact, and insists that the testimony for plaintiff does not affirmatively show either negligence on the part of the railway company, nor that plaintiff himself was in the exercise of ordinary care for his own safety.

At the time of the trial, there was some public excitement because of charges made by the state’s attorney that the jury commissioner’s office was corrupt, and that jury tampering on an extensive scale was being practiced. During the trial of the cause and on the morning it was submitted to the jury, the “Chicago Examiner” published an article seriously reflecting ■upon appellant, and it appeared that at the time the jury retired, two of the jurors took with them to the jury room copies of the paper containing the article. After being out several hours, the jury returned a verdict for $15,000.

Appellant seeks a reversal here, and contends: That the manifest preponderance of the evidence is to the effect that plaintiff fell from his wagon without any contact with any car of or negligence on the part of the defendant; that the court committed reversible error in rulings upon the admission and rejection of evidence; that the jury was prejudiced against appellant by the scurrilous “Examiner” article, and by other incidents of the trial; and that the damages are grossly excessive.

After an extended and careful examination and consideration of the case made in the court below, and of the briefs and arguments submitted, we have reached the conclusion that the judgment must be reversed and the cause remanded for another trial. This conclusion is based upon the ground- that the court below should have granted a new trial because certain of the jurors took with them to the jury room copies of a newspaper containing an article, seriously reflecting upon appellant.

The ease had been tried twice before. It involved a sharp conflict in the testimony for the respective parties; and it was of vital importance to the orderly administration of justice between the parties that no improper influence should be brought to bear upon the jury.

In support of its motion for a new trial in the court below, appellant filed the affidavits of John E. Kehoe, Esq., its attorney who tried the case, and Michael Eyan, an investigator and clerk connected with its law department, respectively. From these affidavits it appeared that, when the jury retired to consider its verdict, at least two of the jurors carried with them copies of that morning’s “Chicago Examiner,” a Chicago morning newspaper, in which there appeared upon its first page, with large conspicuous headlines, an article as follows:

“Chicago Examiner
Wednesday, October 6, 1909.
Trails Jury Fixers to Traction School — Wayman locates ‘Claim Agents’ Offices Where Witnesses Are Bribed.
Begular Line of Training — List of ‘Bight’ Jurors Drawn from Dives and Furnished By Keepers.
Invading the skyscraper buildings in which the Chicago City Railway and the Chicago Bailways Company maintain ‘schools for witnesses,’ the state’s attorney’s investigators declare they have drawn a step nearer the fountain source of most of the jury-fixing, and a great deal of the graft that Mr. Wayman has started to destroy.
“For several hours yesterday the Wayman detectives searched the buildings at Dearborn and Monroe' streets and La Salle and Monroe streets in which so-called ‘business’ offices are maintained as blinds, but which are in reality the quarters of the traction companies’ claim agents.
It is expected these quarters will be shown to be the rendezvous of organized bands of jury-fixers, and that the claim agents and their henchmen will ultimately be revealed as the rats of the jury-fixing business.
“Keeping Witnesses in Good Humor.
“In the curriculum of the witness schools a leading place is given to a set of courses designed to ‘keep the witnesses in good humor.’ Facilities for amusements at cards are provided. There are special schools for women witnesses. In these the classes are mostly devoted to bridge whist. It is the regular practice to take the ‘scholars’ to theatres and gardens, and give them a royal good time so long as their testimony is likely to be useful.
“Hotel bills and traveling expenses are paid and liberal pocket money provided. When it is desirable to have the witnesses close at hand they are taken ont regularly to dine at the best restaurants.
“After receiving the latest reports from his investigators last night Mr. Wayman said:
“ ‘The jury fixing, with the corruption of all sorts that it involves, gets worse and worse as we progress. The only question is — how many persons are guilty?’
“Divekeepers Recruiting Agents.
“It is expected that divekeepers who paid protection money to grafters in the police department will be shown to have recruited in the levees for the gangs of jury-fixers.
“The resort keepers are declared to have kept lists of habitues of their dives from whose number the ‘fixed’ juries were regularly drawn by the jury tamperers of the jury commissioners’ office. For these lists of ‘desirable undesirables’ the interests benefited by the jury fixing paid a stated price. Thus the dive-keepers have been able to recoup considerable of the losses sustained through payment of tribute for political and police protection.”

That such an article, published in a newspaper of general and wide circulation, was well calculated to strongly prejudice the jurors against the defendant in the case, we think too clear to admit of question; and, while there is no intimation that the plaintiff was in any way responsible for the fact, its probable effect upon the jurors must have been exceedingly harmful. It is true, there is no. positive and direct evidence that the jurors read the article, but we do not regard it as necessary that such a showing should be affirmatively made. In Meyer v. Cadwalader, 49 Fed. 32, a new trial was granted upon substantially the same showing that was made in this case without any direct evidence being offered that the jurors had read the objectionable matter. In passing upon the question the court said:

“It is idle to say that there is no direct evidence that the jury read these articles. They appeared in the daily issues of leading journals, and were scattered broadcast over the community. The jury separated at the close of each session, and it is incredible that, going out into the community, they did not see and read these newspapers. That these public statements were well calculated to prejudice the jury against the plaintiffs and deprive them of a fair trial is a proposition so plain that it would be a sheer waste of time to discuss it. Good ground, therefore, here appears for setting aside the verdict.”

In People v. Stokes, 103 Cal. 193, the court was considering the effect of similar newspaper publications upon a jury, and was passing upon the question whether or not it must be affirmatively shown that the jury were actually influenced thereby, and the court said that “the rule laid down by the foregoing cases, namely, that where an irregularity is shown that may have influenced the result, it is for the successful party to show as a matter of fact it did not, rests upon sound principles” (citing Section 27, Hayne on New Trials and Appeals).

In West Chicago Street Railroad Company v. Grennell, 90 Ill. App. 30, this court passed upon the probable effect upon a jury of an article seriously reflecting upon the railroad company, against which a verdict was recovered in the court below, and Mr. Justice Adams, delivering the opinion of the court, said: “The articles also plainly intimated that witnesses for appellant were bribed and were, for other reasons, unworthy of credit.”

And, upon a showing that newspapers, containing the articles in question, came into the hands of the jurors, this court reversed the judgment of the court below, and said: “In short, the probable effect of the articles on the mind of the ordinary juror would be to prejudice him against the appellant and its witnesses, and to intimidate him, and swerve bim from an impartial consideration of the case.” * * * “It has been held in cases like the present, that direct evideuce that newspaper articles prejudicial to one of the parties were read by the jurors, or some of them, is not necessary to warrant the granting of a new trial; that it may be inferred from circumstances that the jury read the articles.” * * * “That the reading by jurors of newspaper articles prejudicial to one of the parties is cause for a new trial, we regard as well settled. People v. McCoy, 71 Cal. 395; People v. Stokes, 103 id. 193; Cartwright v. The State, 71 Miss. 82; Walker et al. v. The State, 37 Tex. 366; Carter v. State, 77 Tenn. 440.” * * * “No affidavits of jurors were produced denying the reading of the articles in question, although it is familiar law that the affidavits of jurors to sustain their verdict are admissible. We are of the opinion that on the affidavits in respect to the articles in question, the court should have granted a new trial.”

Counsel for appellee, in the case at bar, does not, in his brief and argument, deny that the article in question would undoubtedly have a prejudicial effect upon the minds of the jurors. He made no attempt, in the court below, to show that the jurors had not read the article in question, though their affidavits to that effect were admissible, their tendency being to sustain their verdict. But appellee contends here that appellant was not sufficiently prompt in making objection to the trial court, but that it waited, speculating upon the verdict, before calling the court’s attention to the situation. However, it appears from both the affidavits filed in this case, that it was not until just as the jury were retiring from the court room to consider of their verdict, that the affiants became aware that the jurors had in their possession copies of the paper containing the objectionable article, and, even at that moment, neither of affiants knew the character of the article in question. It is, therefore, difficult to see upon what ground we could hold that the prejudicial error was waived by appellant. We tbiuk the court below committed reversible error in declining to set aside tbe verdict and grant a new trial.

As to the objections made to tbe rulings of tbe court below upon tbe admission and rejection of evidence, while we think that some of them are well taken, others are not, and none are of sufficient importance to justify extended comment in view of tbe fact that, upon another trial, it is altogether probable that tbe same questions will not be raised.

For tbe reason given, tbe judgment of tbe court below will be reversed, and the cause remanded for another trial.

Reversed and remanded.


text:
    Charles F. Dunbar, Appellant, v. Warren Springer et al., Appellees.
    Gen. No. 16,446.

      Contracts — effect of ratification of manner of performance. Even though performance of a contract is not such as a party is entitled to, yet if he ratifies the performance as made having full knowledge of all the facts and of the extent of his interest, he cannot subsequently complain.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetiain, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 12, 1912.
    George TJ. Spunner and H. N. Bell, for appellant.
    Charles L. Bartlett, Sherman C. Spitzer, Seymour Edgerton, Thomas W. Prindeville and Douglas C. Gregg, for appellees.
   Mr. Presiding Justice Baldwin

delivered tbe opinion of tbe court.

On tbe 18th of March, 1908, appellant, Charles F. Dunbar, filed a bill in the Superior Court of Cook County, against Warren Springer, James B. Brougham, and the Chicago Title & Trust Co., appellees, the objects of which were:

1. To set aside a settlement of Dunbar’s against Springer as carried out and acted upon under an escrow agreement, dated November 30, 1904.

2. To revive the notes representing Dunbar’s claim, which had been canceled by the Chicago Title & Trust Co. under the escrow agreement.

3. To have delivered up for cancellation the release of Dunbar’s claim against Springer which the Chicago Title & Trust Co. had delivered to him.

4. To obtain a personal decree against the defendant for the amount of Dunbar’s claim, — ag'ainst Springer as upon the original claim as revived; as against Brougham upon his agreement with Springer in writing to pay Dunbar’s claim among others; and against the Chicago Title & Trust Co. for its improper cancellation of Dunbar’s trust notes without authority, in failing to follow the terms of the escrow agreement.

Answers were filed by the several defendants, and an extended hearing had before the Chancellor, who entered a decree dismissing the bill for want of equity, from which decree Dunbar appeals to this court.

From the pleadings and proof, it appears that on the 26th of December, 1903, Dunbar loaned Springer $4,362.75, and took his judgment note therefor, bearing six per cent interest. About the 13th of July, 1904, Springer induced Dunbar to exchange this note for three other notes of Springer’s, each for $2,133.33, for which he pretended to give security upon certain land in the state of Kentucky. Dunbar subsequently ascertained that Springer owned no land in Kentucky, and the alleged security was fraudulent, and he so notified Springer, who had then about consummated an arrangement with a number of his creditors to accept notes, aggregating $72,000, for his indebtedness to them, secured oh property in Chicago by deed of trust to the Equitable Trust Company. Springer offered to Dunbar four of these notes, each for $1,108.14, Numbered 5, Series 'A. B. C. So D. respectively, which notes, it was alleged, were subsequently improperly canceled by the Chicago Title & Trust Company.

At the time of the transaction, Springer’s total indebtedness was about $500,000. On April 4, 1904, the bankruptcy court adjudged him solvent, and the bankruptcy proceedings, then pending against him, were dismissed. He was said to then own property worth at least $100,000 in excess of his liabilities. On September 17, 1904, Springer conveyed certain property to Brougham in consideration of his agreement, among other things, that Brougham would satisfy and cause to be released the trust deed to the Equitable Trust Company, securing the $72,000 of trust notes of which four had been" assigned to Dunbar. In pursuance of this agreement with Springer, Brougham settled Dunbar’s claim as represented by the four notes at the escrow department of the Chicago Title So Trust Company, on November 30, 1904, and it is the settlement thus made which the bill was filed to set aside.

At that time, Dunbar was represented by attorneys Furber So Wakelee, and the terms of the agreement, or settlement, were arranged between Brougham on one side and these attorneys, representing Dunbar on the other. Dunbar alleges that he understood that he was to receive in this settlement twenty-seven per cent, of his claim in cash, sixteen per cent, thereof in property designated as Park avenue property, and the balance in land in La Grange.

Pursuant to this settlement agreement of November 30, 1904, an escrow agreement was entered into by which there was deposited with the Title & Trust Company Dunbar’s four notes as representing his claim. The agreement provided that the Title & Trust Company should cancel these notes when it should receive title to an interest for Charles F. Dnnbar in and to land therein described, which interest was not to vest in Dunbar until the Trust Company had received from the Citizens’ National Bank of Paintsville, Kentucky, the so-called “Kentucky” notes; when the Kentucky notes were to be delivered to Springer, together with the release of Dunbar’s claim against him, and at the same time a declaration of trust, showing Dunbar’s interest in the real estate under the escrow agreement so to be delivered to him. No interest in the La Grange land mentioned was conveyed to the Title & Trust Company for complainant after November 30, 1904, the date of the escrow agreement; but on that date, the Trust Company held title to the land in question under a deed from one Deiber and wife, in which deed it was provided that the Trust Company should have full power and authority to manage or dispose of the property in any manner it deemed wise, and that no beneficiary, under said conveyance, should have any interest in the land itself, but only a personal or chattel interest in the proceeds of sale thereof. This deed was dated on the 19th of November, and was acknowledged and recorded on the 26th day of November, 1904. On the 9th of the following month, the Title & Trust Company executed its declaration of trust, reciting that it had acquired title to the property in question and held it in trust for various persons having varying interests therein, and showing that the interest of Dunbar was 38/100. The declaration, however, clearly showed that under it, the beneficiary acquired no interest whatever in the real estate, but became entitled only to a proportionate share of the proceeds of the property when disposed of by the Trust Company. About the 7th of December, 1904, the so-called Kentucky notes were received by the Trust Company to be delivered when an attached sight draft against Dunbar for $10 should be paid, of which the Trust Company notified Dunbar. At about this time, the Trust Company cancelled these four so-called Kentucky notes, and delivered them to Springer and released him from all further liability to Dunbar, but retained in its possession the Kentucky notes because of the failure of Dunbar to pay the draft of $10, and delivered to Purber & Wakelee, attorneys for Dunbar, the declaration of interest in the land mentioned in the escrow agreement above referred to.

Subsequently, when Dunbar saw the declaration of interest at the office of his attorneys and was informed by them that he was not entitled to any portion' of the land, and learned that he was not to receive the twenty-seven per cent, of his debt in cash and sixteen per cent, in Park avenue property as he had supposed he would, he refused to accept the declaration of interest, or to be bound by the settlement. He severed his relations with Purber & Wakelee, his attorneys, and consulted various other attorneys, and, at length, engaged the counsel who filed the bill and have since conducted the litigation.

Prior to the filing of the bill, Brougham contended that Dunbar’s claim was entirely settled by the interest in the La Grange land, to” which Dunbar was entitled under the deed to the Trust Company and its declaration of trust, which had been delivered to Purber & Wakelee, his attorneys, and that Dunbar was not entitled to receive the twenty-seven per cent, cash, or any other cash at all, nor the sixteen per cent, of the claim in Park avenue property. However, in his answer, he admitted that Dunbar was entitled to receive, in addition to the interest in the La Grange land under the deed to the Trust Company and its declaration of trust, twenty-seven per cent, of his claim in cash, and he declared his willingness to pay it. At the close of the trial, Brougham tendered to Dunbar, in open court, as and for the twenty-seven per cent, of his claim, the sum of $1,177.94, upon condition that Dunbar would assign to Brougham his interest in about two acres of the La Grange land, as described in the escrow agreement and declaration of trust, it being claimed that Dunbar’s interest had included these two acres because of an error in computation.

At the trial, Brougham also tendered in open court the sum of $372.75, being the difference between the claim of Dunbar and the value figured at the agreed amount per acre for the interest in land secured to Dunbar by the declaration of trust, which tender was refused by complainant, and thereupon the court dismissed complainant’s bill.

In reaching the proper conclusion upon the questions brought before us by this record, we have been aided by oral arguments and briefs and printed arguments made by appellant and each of appellees.

At the threshold of the controversy, appellant’s right of action is contested upon the ground that, with full knowledge of the situation, he definitely ratified and approved the settlement of which he now seeks to complain. To correctly decide this contention has required of us a careful examination of the entire record, including the testimony of Dunbar himself, that of his attorneys, Furber and Wakelee, respectively, that of the witnesses for the other parties to the controversy, and the various exhibits in the case. From such examination we think that under the deed to the Chicago Title & Trust Company and its declaration of trust, appellant did not acquire that interest in the land which the escrow agreement contemplated, and to which he supposed himself entitled. Accordingly, had he done nothing which could amount to ratification, ■and had he promptly disavowed his acceptance of the conditions, and instituted proceedings to set aside the settlement and to secure relief similar to that prayed in this bill, he might have ma'de a case entitling him to the relief prayed. However, we do not decide that question, because we find that appellant has, by his conduct, clearly waived his right to complain of the agreement which was made on his behalf by Furber and Wakelee, his attorneys. Upon this record, we think it altogether possible that Dunbar did not originally intend such an agreement as was actually consummated, but if, with full knowledge of the situation, he saw fit to ratify an arrangement which diverged from his original intention and understanding, he cannot now be heard to complain, because he elected to accept and ratify the arrangement as made. It appears that Brougham made an agreement by which he was to settle with Springer’s creditors. For the purpose of raising money to do this, he made sales of the Springer real estate. While thus endeavoring to dispose of the real estate, in September, 1904, he called upon Attorney Furber of Furber & Wakelee, to get Furber to induce his father, a wealthy investor in Chicago real estate, to purchase some of the Springer real estate. Attorney Furber then told Brougham that they had a client, Dunbar (appellant), who had a claim against Springer, which would have to be settled, whereupon Brougham stated that in consideration of Furber’s assistance in inducing his father to become a purchaser of some of the Springer property, he would see that Dunbar’s claim was taken care of.

Sometime afterward, Brougham proposed to Furber & Wakelee, the attorneys for Dunbar, to settle the Dunbar claim by giving twenty-seven per cent, thereof in cash, and for the remainder an interest in the so-called La Grange land, which was to be put in at a valuation of $350 an acre. At the time this proposition was made to Dunbar in the presence of his attorneys, he was furnished a legal description of the land in question, and its location upon a map, then given to Trirn, was explained, and he was directed by his attorneys to examine the property and ascertain its value. This he did, and reported to his attorneys that he had been informed that the land was worth much more than $350 per acre; and although at first he declined to say whether or not he would accept the proposition, his attorneys testified that within a week or two, he did say he would accept it.

From the testimony, it appears that the escrow agreement in question was afterwards drawn up and discussed by a representative of the Trust Company with Mr. Wakelee, representing Mr. Dunbar, by Mr. Springer’s attorney, and by Mr. Dunbar himself, and the terms of the escrow agreement were read over to him, and were discussed in his presence, and he thoroughly understood the import of the agreement; and, afterwards, on about the 9th of December, 1904, the Trust Company, pursuant to the trust agreement, sent to Furber & Wakelee, his attorneys, for Dunbar, the declaration of interest. Upon receipt of this,'Mr. Dunbar was called into their office and the legal effect of the declaration of interest was explained to him. It is important also to note that at the time, when the declaration of interest was explained to Mr. Dunbar by his attorneys, and also when the trust agreement was signed in the office of the Trust Company, it was observed by Dunbar’s attorneys, and by them explained to Dunbar, that an error had crept into the escrow agreement, and also the declaration of interest, respecting the amount of the interest in the La Grange land which Dunbar was to receive. This error consisted in the recital that Mr. Dunbar was to receive a 38/100 interest in the La Grange land, when, in fact, he was entitled to .3033 thereof. By agreement, Mr. Dunbar was to receive twenty-seven per cent, of his claim in cash, and the balance, seventy-three per cent, of his claim, in an interest in the La Grange land, to be taken at an agreed valuation of $350 per acre. The La Grange tract contained thirty acres, at an aggregate agreed value of $10,500; seventy-three per cent, of Dunbar’s claim is $3,184.81. It is easy to see, therefore, that the escrow and the declaration of interest were erroneous to the extent indicated. Almost a year after this * transaction Dunbar called upon his attorneys, Furber & Wakelee, with respect to having the settlement carried out. To avoid any misunderstanding as to what their client directed them to do, his attorneys made a written memorandum of the instructions given them by him on that occasion. It seems that the memorandum, as originally drawn, showed “25%” (figures only), as being the amount he was to receive in cash, which was there changed to twenty-seven per cent. Dunbar’s attorneys, Furber & Wake-lee, both testified as to the conversation then had with Dunbar, and of their then making a memorandum of their instructions, which was offered in evidence, and which reads as follows:

“Go to Brougham, try and secure readjustment of proportions of land and cash so as to make the cash item 27% of claim. Then collect the money, and let Western Springs property agreement stand, whereby Mr. Dunbar will receive 27% cash and the remainder of interest in Western Springs property. Dated November 4, 1905.”
On the opposite side of this paper was the following:
“This paper was read to Mr. Dunbar by H. J. Furber and afterwards by H. W. Wakelee, who at the request of Mr. Dunbar eliminated the words 4 25%’ when it appeared.
(Signed) H. J. Furber, Jr.,
H. W. Wakelee.
November 4, 1905.”

Acting upon these instructions, his attorneys arranged with Brougham to prepare a paper to correct the error in the declaration of interest, by which paper, Mr. Dunbar was to convey to Mr. Brougham an undivided 7/100 interest (that being the excess over what he was entitled to) in the La Grange land. This paper was subsequently given to Mr. Dunbar by his attorneys, who told him that when he executed it, he would receive the twenty-seven per cent, of bis claim in cash, and it was with reference to effectuating the correction of the error in the escrow agreement and in the declaration of interest, and to comply with the terms of his agreement, that Brougham made bis tenders, above referred to, at the time of the trial.

From the testimony it appears that on the 23rd of December, 1904, Dunbar’s attorneys had sent him a bill for $1,000 for professional services in the matter of the Springer controversy. He called at their office and negotiations were had, resulting in their making a settlement of their claim against him, and on January 20, 1905, he paid them $500 in money, and they gave him a receipt which embodied the. terms of their agreement on that date. This receipt reads ■ as follows :

“Deceived of Charles F. Dunbar $500.00 on account, for legal services in the matter of the Warren Springer notes. $125.00 further is payment in full to be paid contingently, either upon the adjustment of this claim upon the basis of the cash and land settlement now pending, or upon the restitution to the client of said notes, as client may elect.”

Mr. Wakelee, one of his attorneys, testified that the statement in the receipt, that $125 further was to be paid upon the adjustment of the claim “upon the basis of the cash and land settlement now pending” meant the twenty-seven per cent, cash, and the balance in La Grange land, and that the settlement involved the correction of the papers so that Dunbar’s interest in the La Grange land would be reduced from 38/100 to .3033. This document here in evidence, in connection with the testimony of the witnesses, clearly convinces us that Dunbar fully understood the situation in December, 1904, and in January, 1905, and that nearly ten months afterwards, he definitely and clearly instructed his attorneys to secure a readjustment of the proportions of the land and cash so as to make the cash item twenty-seven per cent, of the claim, and that, whether or not he had previously affirmatively and clearly assented to the agreement, he must be held to have expressly ratified and approved it at this time.

Having reached this conclusion, it follows that we must hold that the court below properly dismissed the bill, and its decree will, therefore, be affirmed.

Decree affirmed.


text:
    Charles Blind, Defendant in Error, v. J. Ellsworth Griffin, Plaintiff in Error.
    Gen. No. 16,336.
    1. Municipal Court — how form of action determined in cases of the 4th class in the Municipal Court. Written pleadings are not required, and if the court has jurisdiction of the subject-matter and the parties such judgment may be entered as the circumstances of the case may require.
    2. Res judicata — when judgment not. If the maker of a note the consideration of which has failed, pays the same to one who he believes at the time is an innocent holder for value, he may subsequently, upon finding out that such party Was not an innocent holder for value, recover the amount paid, though the note in question had been reduced to judgment under a power to confess.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 12, 1912.
    Charles Daniels and Sumner C. Palmer, for plaint-in error.
    E. J. Kelley, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the plaintiff, Charles Blind, against the defendant, J. Ellsworth Griffin, doing business as J. Ellsworth Griffin & Company, for money theretofore paid out by the plaintiff on two notes given by him to the defendant. The case was tried before the court without a jury, and- there was a finding upon which judgment was rendered. The ease is brought here by the defendant, Griffin, by a writ of error.

Prom the record it appears that the defendant, J. Ellsworth Griffin, was president and treasurer of an Illinois corporation known as the Illinois Securities Company. C. Edward Smith was vice-president of the same company. In July, 1904, while these two men were occupying their positions as such officers of the Illinois Securities Company, Smith offered to sell to Charles Blind, the plaintiff, forty shares of stock of the par value of $50 for the sum of $250, and to take his notes therefor. Two notes were made out to the order of J. Ellsworth Griffin & Co., one for. $100 and one for $150. Afterwards these notes were endorsed by Griffin, and apparently came into the possession of two different persons, named Braughan and Kaplinsld, who afterwards began suit upon them. The notes included powers of attorney to confess judgment. The plaintiff, Blind, made payments on the $150 note to one of the attorneys of record in this case who acted for Kaplinsld. On the $100 note Blind paid the full amount of the note, interest and costs, to a constable. Part of the amounts it seems was paid prior to the rendition of judgments, and the rest after judgments had been entered.

It is claimed that because judgments were entered and no defense interposed by Blind that he may not maintain his suit, because the judgments are res adjudicata. It is true Blind testified that he knew when he sued all of the facts as testified to by him in the hearing of the case now before us. However, in this case there is no testimony, so far as we have been able to discover, that Blind knew or had reason to know that Kaplinsld and Braughan were not holders for value.

In his answers to written interrogatories propounded to him prior to the trial of the case, Griffin declared that he did not recollect whether on July 19th, or at any other time, he received the two notes; that he knew C. E. Smith, but did not know that he was the one referred to whose name appears on the note for $100 mentioned in the statement of claim; that Smith was not employed by him during the month of July, 1904; that he had some business' dealings with Smith during 1904, but the exact details he did not recollect; that he did not recollect that previous to September 18, 1904, or at any other time, he endorsed the note for $150 and delivered the same to Kaplinski; that he did not recollect that, previous to September 18, 1904, or at any other time, he endorsed the note for $100 and delivered the same to Braughan or any other person; that he did not know whether the attorney referred to represented Kaplinski, and did not recall whether one Williams or Blair or the Imperial Credit Company represented him in the matter of the collection of the $150 note; that he did not recollect that he received any money paid by Blind on account of said notes from Kaplinski, the said attorney, or any one else; that it was not a-fact that he agreed to give Blind any stock of the Illinois Securities Company; that he did not recall ever having authorized any person to commence suit on the $150 note in the name of Kaplinski, or the $100 note in the name of Braughan.

When called as a witness in his own behalf at the trial, Griffin stated that Smith was vice-president in •July, 1904, and that he, Griffin, was president and treasurer of the Illinois Securities Company; that both were selling stock in the company; that he had no private relations with Smith; that Smith was selling stock as' an officer of the company, and that he, Griffin, was also doing so; that Smith brought these two notes to him, and as they were payable to him he endorsed them, and gave one back to Smith and turned the other over to the company as a part of its assets; that he himself never received any money on either of the notes. It is noteworthy that in his affidavit of meritorious defense filed in the suit he states the following:

“That the plaintiff paid said money to this defendant on said notes voluntarily; that this defendant was an innocent bona fide holder of said notes before maturity and paid value therefor; that said notes were given for good and valuable consideration; that the consideration never at any time failed; that said notes were executed and delivered by plaintiff for stock in an incorporated company; and that said stock was and is ready for delivery to said plaintiff on demand.”

Blind testified that he had demanded the stock of both Smith and Griffin and that it had' never been received by him. From the defendant’s, Griffin’s own testimony it would seem that Smith also was selling the stock for the Securities Company. Why the notes should have been made out to Griffin (as Griffin & Co.) individually and not to the Securities Company is not explained. It is apparent that Griffin endorsed the notes in blank and put it into the power of Kaplinski and Braughan to coerce the plaintiff into paying them,- and that the- plaintiff was compelled to pay them. Of course if he had known at the time suits were brought upon the notes that Kaplinski and Braughan respectively were not innocent holders for value, Smith should have interposed the defense suggested. Allen v. Haley, 169 Ill. 532.

The case before us being one of fourth class in the Municipal Court of Chicago, it is immaterial whether the basis of the action is contract or tort. Written pleadings are not required, and if the court has jurisdiction of the subject-matter and the. parties such judgment may be entered as the circumstances of the case may require. Edgerton v. C. R. I. & P. Ry. Co., 240 Ill. 311.

We think the plaintiff in this case was defrauded out of the amount of money for which judgment has been rendered, and that the defendant, Griffin, participated in such fraud. The glaring discrepancies and contradictions in his testimony, the answer to interrogatories, and in the affidavit made by him and filed in the case, tend very strongly to confirm us in our opinion in this regard. We find no error in the record, and the judgment is affirmed.

!Affirmed.


text:
    Michael Murphy, Defendant in Error, v. Jones & Laughlin Limited, Plaintiff in Error.
    Gen. No. 16,361.
    Master and servant — when doctrine of assumed rislc applies. If the risk is apparent to the servant, and the danger is appreciated by him, and he proceeds, notwithstanding, the risk is deemed to have been assumed and will bar a recovery by him if injured.
    Action in ease for personal injuries. Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed March 12, 1912.
    H. H. C. Miller and W. S. Oppenheim, for plaintiff in error.
    Wing & Wing and Fred W. Bentley, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

In this case there was a recovery of $1,000 in favor of the defendant in error, hereinafter called the plaintiff, and against the plaintiff in error, hereinafter called the defendant, in a suit for damages for personal injuries received by the plaintiff while in the employ of the defendant in June, 1896. There was a trial before the court and a jury in October, 1909, the jury rendering a verdict in the sum mentioned, on which judgment was thereafter entered.

The declaration charges that the defendant had a derrick which it used in the conduct of its business, upon a part of which there were certain steps or cleats, forming a ladder; that it was the duty of plaintiff to ascend and descend the steps or cleats, and therefore the duty of defendant to use all reasonable care towards providing and maintaining them in a reasonable and proper condition of repair; that the defendant, not regarding its dnty, negligently and improperly permitted one of the steps or cleats to be removed, thereby rendering the ladder in an unsafe condition to be used in ascending and descending on that part of the derrick; that in the discharge of his duty the plaintiff was descending the ladder and that as a result and in consequence of the cleat or step being removed from the derrick, and while plaintiff was in the exercise of due and ordinary care, he fell from the derrick to the ground, sustaining the injuries complained of.

The plaintiff'testified that he climbed up the ladder and came to where the cleat was missing and saw that it was not there; that he did not examine it, and never say any nails there; that he pulled himself over the place where the cleat was missing; that he then reached a padlock which he unlocked, and allowed the beam to swing out; that when he went down he knew the cleat was missing.

The only matter of dispute between the parties as to the accident seems to have turned upon the question as to the length of time that Murphy had been employed about, the derrick prior to the accident, and the use that he had previously made of it. One of the witnesses for the plaintiff testified that he had seen Murphy work the derrick a good many times, — twenty or thirty times. There was testimony tending to show that the cleat had been off the derrick for some time before Murphy was injured. There is no proof that it was known to the officers of the defendant company. The plaintiff himself insisted that he did not know the cleat was missing until ascending the derrick on the day of the accident; that he had not worked upon the derrick for some time, and that when he last worked upon it the cleat was there. On the other hand, there were several witnesses called by the defendant who in substance testified that Murphy had been working about the derrick frequently during several months prior to the accident. The superintendent of the defendant company testified that after the accident Murphy said to him: “Mr. Simpson, I knew,- the cleat was off well enough, but I went up the boom and I had the key in my hand, opened the padlock, let the bolt fall, put the key in my mouth; I had the key in my mouth, and I put my hand up to put it in my pocket, and when I' came to the place where the cleat was out I fell.” Other witnesses for the defendant testified that they were present when this conversation was had, and corroborated the superintendent in regard to it. The plaintiff however denied making the statement.

The plaintiff testified further, as to the manner in which the accident occurred, that some of the nails that had been used in tightening the step or cleat still remained in the beam, and that they caught him in the leg; that when his leg caught on the nails he lost his balance and fell. A motion was made to strike out this testimony on the ground of variance.

The contention of the plaintiff is that the proximate cause of the accident was that stated in the declaration, that is to say, the absence of a cleat or step; that the missing cleat was the cause of the exposed nails, and, being the first cause of the dangerous condition, was' therefore the proximate cause. The cases of Pullman Palace Car Co. v. Laack, 143 Ill. 242, Houren v. C. M. & St. P. Ry. Co., 236 Ill. 620, and Seith v. Commonwealth Edison Co., 241 Ill. 252, are cited in support of this contention. In the case last mentioned Mr. Justice Cartwright, speaking for the court, uses the following language: “The negligent act or omission must be the cause which produces the injury, but it need not be the sole cause nor the last or nearest cause. It is sufficient if it occurs with some other cause, which, in combination with it, causes the injury, or if it sets in motion a chain of eircnm-stances and operates on them in a continuous sequence, unbroken by any new or independent cause.” In our opinion the testimony in the,case before us was not improperly admitted.

The remaining question to be determined is whether or not the risk was one that was assumed by the plaintiff. In our opinion it was. The fact that the cleat was off was apparent to him as he ascended the ladder. He could have refused to go to the top of the ladder until this cleat was nailed on. In Gunning System v. Lapointe, 212 Ill. 274, the rule is stated thus: “While, as a broad, general proposition, the master is required to furnish the servant a reasonably safe place in which to work, it is also true that if the defect is so open and obvious that the servant does see and know of the existence of the defect, and the danger arising therefrom is apparent and known to him or within thé observation of a reasonably prudent man in his situation, and the servant enters upon and continues the work, he is held to assume the risks and hazards of the employment due to such conditions.”

In the following cases recovery was denied, although there was evidence tending to show that the master had been informed of the defect and promised to repair it: Illinois Steel Co. v. Mann, 170 Ill. 200; Webster Mfg. Co. v. Nisbett, 205 Ill. 273; Kistner v. American Steel Foundries, 233 Ill. 35; Meador v. L. S. & M. S. Ry. Co., 138 Ind. 290.

In the present case it was not shown that the master had knowledge of the defect or had promised to repair it.

We think the motion at the close of all the testimony should have been granted and the jury instructed to find a verdict for the defendant. The judgment, for the reasons stated, will be reversed.

Reversed.


text:
    Ernst Tosetti Brewing Company, Defendant in Error, v. Henry C. Wagner et al., Plaintiffs in Error.
    Gen. No. 16,365.
    1. Judgment — when against one defendant improper. In an action of assumpsit where one defendant is in default and the other has appeared and demanded a jury trial, a judgment against the defendant in default should not he entered until such time as the issue joined by the other defendant appearing has been determined.
    2. Judgments — when two improper. In an action of assumpsit two judgments should not be entered against the same defendant.
    3. Municipal Court — when without jurisdiction to amend. After the lapse of thirty days from the time of the final order in a cause, the Municipal Court is without jurisdiction to amend its record.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 12, 1912.
    George H. Sugrue, for plaintiffs in error.
    MacChesney, Becker & Bradley, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

On May 25, 1909, the Ernst Tosetti Brewing Company, a corporation, defendant in error, filed a praecipe and statement of claim in the Municipal Court of Chicago, and on that day summons was issued against Henry Wagner, doing business as George Wagner, the summons being returnable June 3, 1909.

On June 1st Henry Wagner entered a special appearance and demanded a trial by jury, at the same time filing an affidavit of merits reciting that he had a good defense to the suit, upon the merits, to the whole of the plaintiff’s demand, and setting np as a special defense that he was employed by George F. Wagner under a stipulated salary per week and acted as manager, and therefore “desjoins” liability.

On June 1st an amended statement of claim was made and a summons was issued to George F. Wagner.

On July 10th a motion was made by the plaintiff Brewing Company for leave to amend the statement of claim by making George F. Wagner additional party defendant. This motion was allowed, and on July 12th an amended praecipe and statement of claim was filed. This is entitled “Ernst Tosetti Brewing Co. (a corp.) vs. Henry Wagner, doing business as George Wagner, and George F. Wagner,” the affidavit of plaintiff’s claim being dated May 24, 1909, and reciting that the nature of plaintiff’s demand is for “cash advanced and for goods, wares and merchandise sold and delivered by plaintiff to defendant at Ms special request up to and including April 21st, 1909, and that there is due to plaintiff from the defendant after allowing to the defendant all his just credits, deductions and set-offs, the sum of $443.50.”

On the same day an “amended and additional” writ of summons was issued. This appears to have been served on George F. Wagner on July 13, 1909.

On July 22nd the appearance of George F. Wagner was entered, but no affidavit of defense was filed.

On August 6th an order in the form of a judgment was entered, which recites that:

“It appearing to the court that the plaintiff herein has filed, as provided by law and the rules of this court, an affidavit showing the nature of the plaintiff’s demand and the amount claimed to be due the plaintiff from the defendants after allowing to the defendants all just credits, deductions and set-offs, and that this cause is a suit upon a contract for the payment of money, and that the defendant George F. Wagner herein is in default for want of an affidavit of merits or defense in this ease, it is, on motion of the plaintiff, ordered by the court, that judgment be entered herein against said defendant George F. Wagner by default for want of such affidavit of merits. And as to the damages sustained by the plaintiff herein, the court finds that there is due to the plaintiff the sum of money shown in said affidavit of claim to be due, and assesses the plaintiff’s damages at the sum of Four Hundred and Forty three dollars and Fifty cents ($443.50).

“This cause coming on for further proceedings herein it is considered by the court that the plaintiff have judgment on the default and assessment of damages herein and that the plaintiff have and recover of and from the said defendant George F. Wagner, the damages of the plaintiff amounting to the sum of Four Hundred and Forty three dollars and Fifty cents ($443.50) in form as aforesaid assessed, together with the costs and charges by the plaintiff herein expended, and that execution issue therefor.”

On October 15, 1909, an affidavit of merits was filed by Henry 0. Wagner, denying liability as to the whole of the plaintiff’s demand.

On the same day the record shows that there was a trial before the court and a jury and a verdict rendered for the amount claimed. The verdict is entitled “Ernst Tosetti Brewing Company (a corp.) v. Henry 0. Wagner.”

On October 23rd a motion for a new trial was overruled, and a judgment upon the verdict was rendered against the defendant Henry C. Wagner.

On December 28, 1909, the following order was entered :

“Ernst Tosetti Brewing Company, a corporation, vs. Henry Wagner doing business as George Wagner, and George F. Wagner.
‘ ‘ On motion of the plaintiff, due notice thereof having been given to said defendants, who are represented herein by their attorneys, it appearing to the court from the record herein that on August 6, 1909, a default for failure to file an affidavit of merits and a judgment for $443.50 and costs were entered against said defendant George F. Wagner; and that on October 15, 1909, another judgment on the verdict rendered herein for the same amount was entered against said defendant Henry C. Wagner; and it appearing that said first judgment was prematurely entered and before the issues had been submitted to the jury, and was therefore void; and that the second judgment as recorded by the clerk is not in form such a judgment as should have been rendered herein, it is therefore ordered that said judgment of August 6, 1909, except the default, be and the same is hereby set aside, and that the said judgment of October 15, 1909, be and the same is hereby amended so that it shall appear to have been rendered against both defendants, to-wit Henry O. Wagner and George F. Wagner, instead of Henry 0. Wagner alone.”

On January 21, 1910, the following order was» entered :

“This day come the parties to this cause, by their attorneys respectively, and thereupon the defendants move the court to vacate the order entered herein on the 28th day of December, A. D. 1909, and the court after hearing the arguments of counsel and being ■fully advised in the premises doth overrule said motion.
“It is further ordered by the court that the amount of stay of execution bond herein be fixed at the sum of Five Hundred Dollars ($500).”

On January 27,1910, a writ of error was caused to be issued from this court by Henry C. Wagner, doing business as George F. Wagner, and George F. Wagner. Assignments of error are filed which call in question practically every order entered in the case.

The order of August 6, 1909, was erroneous, because at that time the suit being against two defendants there ought not to have been a judgment rendered against one of them alone. The proper order would have been merely one of default against George F. Wagner for want of an affidavit of merits; but the assessment of damages should have been left until there was a trial before a jury, as demanded by the defendant Henry Wagner, at which time the issues should have been tried as between the plaintiff and the defendant Henry C. Wagner, and the jury should have been sworn to assess damages, if any, and should have assessed them against both defendants if any were found.

The order of October 23, 1909, was erroneous because it purports to enter a judgment in favor of the plaintiff and against both defendants, whereas a judgment had previously been rendered against one of the defendants, viz, Henry C. Wagner, and thus two judgments appear of record against him upon the one claim.

The order of December 28th was erroneous because it purports to amend a judgment entered October 15, 1909, whereas no judgment was entered on that day, the one referred to apparently being that of October 23rd. The court was also without jurisdiction to enter the order. Section 21 of the Municipal Court Act provides that the court may within thirty days after the entry of a judgment, order or decree, final in its nature, vacate, set aside or modify the same. The section makes the jurisdiction like that of the Circuit Court during a term. The act then provides that if no motion to vacate, set aside or modify any such judgment, order or decree shall be entered within thirty days after the entry of such judgment, order or decree, the same shall not be vacated, set aside or modified excepting upon appeal or writ of error, or by a bill in equity, or by a petition to said Municipal Court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by bill in equity. No petition was filed, and under the section of the. statute referred to the court had lost jurisdiction to modify or amend the judgments.

Forthe reasons stated, the judgment entered August 6,1909, against the defendant George F. Wagner must be reversed; also the judgment of October 23, 1909, against both defendants; also the order of December 28, 1909, — all for the reasons stated. There should be a hearing before a jury on the issues as between the plaintiff and the defendant Henry G. Wagner, and the jury should be sworn in that connection to assess the damages against both defendants, if by their verdict they shall find for the plaintiff.

Reversed and remanded.