text:
    First Trust & Savings Bank, Trustee, Mary J. Shreve, Intervenor, Plaintiff in Error, v. Horace Lowry et al., Receivers, Defendants in Error.
    1. Personal injuries—procedure applicable in action against receiver. If a petition in a chancery receivership is the vehicle by which damages are sought to be recovered, the rules .pertaining to chancery proceedings apply rather than those followed in actions of law, and the verdict of the jury, if one is called, is to be treated as advisory only.
    2. Appeals and errors—ivnen finding o? cnanceuor not aisturoea. The finding of a chancellor on questions of fact will not be disturbed unless manifestly and palpably contrary to the evidence.
    Intervening petition. Error to the Circuit Court of Sangamon county; the Hon. James A. Creiqhton, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    Rehearing denied November 24, 1909.
    Egbert H. Patton and C. J. Christopher, for plaintiff in error.
    Brown, Wheeler, Brown & Hay, for defendants in error; Mastín Sherlock, of counsel.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This writ of error is sued out by Mary J. Shreve to reverse a decree dismissing her intervening petition for the recovery of damages for the death of her husband, which occurred while he was in the employ of the receiver of the Illinois Collieries Co., and which it is charged was occasioned by the negligence of the servants of such receiver. The record discloses that on December 30, 1907, a bill was filed by the First Trust & Savings Bank as trustee, to foreclose a trust deed on the property of the Illinois Collieries Co., which included the coal mine in which the husband of the petitioner was killed. Cien W. Trayer was appointed receiver of said property and was operating the mine at the time the husband of petitioner was killed. He was afterward succeeded as such receiver by the defendants in error herein. After alleging the appointment of Trayer as receiver and the operation by him of the coal mine in question, the intervening petition further alleges that William J. Shreve, the husband of petitioner, was on March 24, 1908, in the employ of said receiver and engaged in mining and loading coal in a certain room of said mine; that there was certain shale and material hanging beneath the rock in the roof of said room in such condition that the same was loose and liable to fall because of the absence of cap pieces on the top of the caps used therein, and that a dangerous condition in said room was thus created; that the said Shreve while at work loading coal under said roof in said condition, was injured by the falling upon him of a large quantity of said material from the roof of said room, and in consequence of said injury thereafter died.

The negligence charged in the petition is the wilful violation of certain provisions of the statute relative to mines and mining, in the following particulars: The first paragraph charges the wilful failure to furnish Shreve and his assistant with certain cap pieces for props which they had demanded from the defendant; to have the mine examiner inspect the room in question, to observe the unsafe condition and place a conspicuous mark thereat, to report his findings to the mine manager; to prevent any one from entering and working in such room until the conditions therein were made safe, and to make a daily record, of the condition of the mine before said Shreve was permitted to enter said room to work; also the wilful failure of the mine manager to see that the dangerous place in said room was properly marked and that danger signals were displayed thereat. The second paragraph charges the wilful failure of the mine examiner to visit and inspect the room in question and to inscribe on the walls of said working place in chalk the date of his visit, and to place a conspicuous mark upon a certain place in the roof of the room as notice to all men to keep out of the same. It further charges that said place was dangerous because of certain loose and heavy material in the roof in such close proximity to the place where said Shreve was at work in said room, as would cause said material to fall upon said Shreve; that the mine examiner wilfully failed to report such condition to the mine manager; to prevent any one from entering the mine and working therein until the conditions were made safe, or to make a record of such' condition in the book kept therefor, before said Shreve entered the mine. The third paragraph charges that the defendant wilfully failed to deliver to said Shreve and his assistant upon demand made therefor, certain props, caps and timbers of suitable length and sizes for securing the roof of said room.

The petition further avers that the deceased left him surviving the petitioner his widow, and his children, Raymond L. Shreve and Earl D. Shreve, all of whom were dependent upon him for support, and asked leave to intervene in the principal cause and that a rule be entered upon the receiver to answer; that the issues of fact be submitted to a jury, and that a decree be entered for such amount as may be found to be legally due her; that the same be made a prior lien upon all the assets and earnings in the hands of the receiver, and that the receiver be ordered to pay the same in due course of administration • of his trust. The receiver answered the petition denying the charges thereof. A jury was selected and sworn, without objection, to try the issues formed upon the petition and answer. Upon the conclusion of the evidence for the petitioner the court, upon motion of the defendant, excluded from the jury the first and second paragraphs of the petition. The jury returned a verdict of not guilty as to the third paragraph. Judgment was thereupon entered dismissing the petition, in bar of the petitioner’s action, and for costs. No question was raised as to the propriety of the general procedure followed in the trial of the cause, which is approved in Shedd v. Seefeld, 230 Ill. 118.

We are of opinion that in proceedings of this character the rules pertaining to chancery proceedings apply rather than those followed in actions at law. The verdict of the jury must therefore be. treated as advisory only, and the chancellor was at liberty either to adopt the same or disregard it and render a decree contrary thereto if he believed justice so demanded. Hardy v. Dyas, 203 Ill. 211. It follows that unless his findings and decree can be said to be manifestly and palpably contrary to the evidence, we are not authorized to disturb the same.

The evidence shows that on March 24, 1908, William D. Shreve, the husband of the petitioner, together with his son Raymond, were working in a room of one of the mines of the Illinois Collieries Co. at Auburn, Hlinois, loading coal into a car, when a large clod of shale and other material fell from the roof and so injured William D. Shreve that he died as the result thereof. It clearly appears from the evidence that a dangerous condition existed in the room immediately prior to the time Shreve was killed; that the mine examiner had, at about two o ’clock on the morning of the accident made an examination of the room, and written the month and day of his visit on the roof thereof; that he neither marked the place as dangerous nor reported such fact nor recorded the same in the book kept for that purpose at the mine. The decisive and controlling issue involved, therefore, was whether or not such dangerous condition existed at the time the mine examiner made his examination, for there is no evidence that if the condition afterward became dangerous he could or should have observed the same. The testimony of the mine examiner, who was called by the plaintiff, was to the effect that he made a careful examination of the room at the time of his visit and found no existing dangerous condition.

Raymond Skreve, a son of the petitioner, testified that on the day before the accident, a projection which formed a part of the clod which fell, “sounded kind of loose there, drumming.”

Whether in this state of the proof the trial judge in a suit at law would have been warranted in directing a verdict of not guilty, under the first and second paragraphs, it is not necessary to determine. His conclusion that the plaintiff had failed to prove by the greater weight of the evidence the guilt of the defendant as charged in said paragraphs, we think was clearly warranted, and they were therefore properly excluded from the consideration of the jury.

In order to recover under the third paragraph of the petition, it was essential that the petitioner should show by the greater weight of the evidence that there had been a. proper demand made for props and caps, and a wilful failure to furnish them in suitable lengths and sizes to secure the roof of the room. Conceding that the evidence shows that a proper demand had been made, we are of opinion that the chancellor was fully warranted in finding that suitable and sufficient props were furnished in response thereto. Five witnesses testified to that effect, and they were not directly contradicted upon the point except by Raymond Skreve. The chancellor heard and saw the witnesses while testifying, and was warranted in finding this issue in favor of the defendants.

There being no error in the record the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    Farmers and Merchants Bank Company, Appellee, v. Elisha B. Sparkman, Appellant.

      Replevin—when defendant should he named in representative capacity. If the taking was by a person in his capacity as a conservator, the action should be brought against such person as conservator.
    Replevin. Appeal from the Circuit Court of Montgomery county; the Hon. Tbuman E. Ames, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed.
    Opinion filed October 25, 1909.
    Lane & Cooper, for appellant.
    T. M. Jett and Amos Miller, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

In an action of replevin the plaintiff recovered judgment for the possession of two horses and for costs of suit. The defendant appeals.

The material facts disclosed by the record are the following: Robert A. Jones on May 31, 1899, was adjudged insane by a jury in the county court, and committed to the hospital for the insane at Jacksonville. The length of time he remained there, or the circumstances under which he left the hospital, are not clearly disclosed by the record. On October 25, 1907, he executed his note to one Herman, and to secure the payment of the same, gave a chattel mortgage on the horses in controversy. Herman thereafter assigned the note to the plaintiff bank. On November 4, 1907, Jones was again adjudged insane by the county court, and recommitted to the same hospital, and on January 2, 1908, the defendant Sparkman was appointed his conservator. Sparkman qualified as such conservator, and letters were issued to him, and he thereupon took possession of the two horses covered by the chattel mortgage, and retained possession of the same until they were replevied by the plaintiff in this ease.

The evidence further discloses that the defendant was appointed conservator of Jones prior to the institution of the present suit, and that he took and held possession of the horses as such conservator and not in his individual capacity; that he so advised the agent of the plaintiff when demand was made upon him by such agent. We are of opinion that under the circumstances, an action for the recovery of the possession of the horses would not lie against the defendant personally, but that it should have been brought against him as conservator.

The judgment of the Circuit Court is accordingly reversed without remanding.

Reversed.


text:
    H. A. Blount, Appellee, v. George H. Roberts, Appellant.
    Appeals and errors—when questions not saved for review. If the trial was before the court without a jury and neither the motion for the finding, the propositions of law nor the exceptions of the complaining party to the rulings of the court thereon, is preserved in the bill of exceptions, no questions except those of pleading are saved for review.

      Assumpsit. Appeal from the County Court of McDonough county; the Hon. William J. Franklin, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    Miller and Walker, for appellant.
    No briefs filed by appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in assumpsit by appellee against appellant as indorser of a certain promissory note. A trial, which was had by the court without a jury, resulted in a judgment against appellant for the sum of $214 and costs. The declaration consists of the common counts and a special count, which in substance alleges that by a certain promissory note dated March 7, 190'4, one Beimolds promised to pay to the order of appellant the sum of $250 in monthly installments of $5 each, upon certain dates therein specified; that on the day the note bears date the appellant indorsed and delivered the same to appellee; that the said Beimolds before and at the time and ever since the date of the maturity of said note, had been and was wholly insolvent, and that during all said time a suit to recover the amount due upon said note would have been unavailing as against the said Beimolds; that by reason of the statute in such case made and provided, appellee thereby became liable to pay to appellant the amount of said note.

Appellee pleaded the general issue, to which appellant filed a replication. The only evidence offered by appellee upon the trial as to a demand upon the maker at the maturity of the note, or of notice of dishonor to the appellant as indorser, was the following question and answer: “Q. Did you demand payment of the note! A. Yes, several times after due.” The defendant introduced no evidence. It is disclosed by the common law record that at the close of the plaintiff’s evidence the court overruled a motion by the defendant for a finding in his favor. It is contended by appellant that under the law merchant in order to render him liable as an indorser, the demand for payment should have been made upon Beimolds, the maker, on the day of maturity, and that notice should have been given to appellant as indorser, of the dishonor of the note, within forty-eight hours thereafter.

It will be seen that there was no issues of fact in controversy. The question presented to the court for determination was one of law only. Neither the motion for a finding, the propositions of law, nor the exceptions of the defendant to the rulings of the court thereupon, is preserved in the bill of exceptions. The clerk’s recitals in that respect are of no legal effect. Hotel Co. v. Pinkerton, 217 Ill. 61.

There being no questions of law or fact properly preserved for review by this court, the judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Puteebaugh

text:
    J. A. Gallez, Appellee, v. Kelly Coal Company, Appellant.
    Mines and Minees Act—what wilful violation. If a- mine examination by a proper examiner would have discovered a dangerous condition complained of, bis failure to do so would constitute a wilful violation of the statute by the defendant in that regard.
    Action in case for personal injuries. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the May term, 1909.
    Affirmed.
    Opinion filed October 25, 1909.
    O. M. Jones and Charles Troup, for appellant; Mastín & Sherlock, of counsel.
    Walter V. Dvsart and Thomas A. Graham, for appellee.
   Mr. Justice Puteebaugh

delivered the opinion of the court.

Gallez, who was an entry driver in the employ of the Kelly Coal Co., in one of its mines, recovered a judgment for $250' against said company for injuries sustained by him by reason of a rock falling from the roof of an entry in said mine. The declaration is based upon the statute entitled Mines and Miners. The first count charges that there was a loose, unsafe and dangerous rock in the roof of the entry, and that it had so existed for two days before the accident; that on the morning of the accident the defendant wilfully permitted the plaintiff to go into the mine to work without being under the direction of its mine manager, and before said dangerous condition had been made safe. The third count charges that the dangerous condition referred to in the first count could and would have been discovered by the mine examiner had he made an examination of said entry as provided by law, and that such mine examiner on the morning of the accident wilfully failed and omitted to place a conspicuous mark thereat as notice to all men to keep out, as required by the statute.

The evidence shows that appellee and his brother, A. J. Gallez, were working together driving a certain entry in one of the defendant’s mines, and had gotten about forty feet past the last crosscut. About thirty feet from the face of the entry was a rock in the roof of the mine about two feet square, feathering out all around from the middle, and being the one which afterward fell. The mine examiner testified that he had examined the entry in question the night before the day of the accident; that he sounded the roof its whole length and up to the face of the entry, and found the same solid and in good condition, that the rock in question was not loose at the time, and there was no separate rocks or cracks in the roof. The plaintiff testified that the rock in question was loose two days before the accident; that he did not look at it the following day nor on the morning of the accident; that on that morning he found the mine examiner’s date mark on the wall of the entry, indicating that he had been in there the night before and had examined the entry. A. J. Gallez testified that he had noticed the rock two days before it fell, had examined it with his pick, and found it loose, but not dangerously so; that it was in the same condition on the following day, but that he did not examine it on the day of the accident. The mine inspector testified that he also had examined the roof in the entry from the face back to the neck, on the day before the accident, and that he sounded the roof with his rod and found no loose rock, and that the roof seemed to be solid.

The evidence showed that the rock was about four inches thick in the middle and feathered out on the edge, and several witnesses called by the defendant testified that such rocks, which are known as pot rocks, usually fall within ten minutes to an hour after becoming loose. The evidence further showed that the plaintiff went under the rock to proceed with his work, when the same fell on him, striking one of his legs which had several years before been amputated below the knee, and upon, which he was wearing a peg. He claims that the injury has rendered his knee permanently stiff. If the testimony offered by the plaintiff is to be believed, the rock was loose for at least two days prior to the accident, and if the mine examiner did, as he claims, examine the entry on the evening before the accident, it is manifest that he must have discovered the dangerous condition existing, and was guilty of wilful violation of the statute in failing to mark the place as dangerous.

Although the evidence is in close conflict, we are unable to say that the jury was clearly unwarranted in finding that the roof of the entry was in a dangerous condition on the night before the accident and that if the mine examiner of the defendant had made proper examination to ascertain the condition of the roof he would have discovered its dangerous condition, or that they were not justified in concluding that the mine examiner did not examine the room on that evening, or if he did examine it he discovered its condition and failed to comply with the statute by indicating by proper marks its dangerous condition and noting the same in Ms record, and reporting the same to the mine manager. Mertens v. Southern Coal Co., 235 Ill. 540; Peebles v. O’Gara Coal Co., 239 Ill. 370. We are therefore not at liberty to disturb the verdict.

We tMnk the modification of the defendant’s fourteenth and plaintiff’s fifteenth instructions was proper. If the mine examiner by a proper examination would have discovered the dangerous condition his failure to do so would constitute a wilful violation of the statute by the defendant in that regard. Mertens v. Southern Coal Co., supra; Peebles v. O’Gara Coal Co., 239 Ill. 370.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Justice Putereaugh

text:
    The People of the State of Illinois, Defendant in Error, v. Joseph A. Landes et al., Plaintiffs in Error.
    1. Judgments—when in criminal case erroneous. A judgment in a criminal prosecution which orders both defendants convicted committed to jail until the fine and costs of each of them is paid, is erroneous.
    2. State’s attorneys—when question of propriety of prosecution by, cannot be raised. If the interest of the state’s attorney prosecuting an offense is such as to disqualify him, such question should be raised in the trial court and cannot be first raised on appeal.
    3. State’s attorneys—when disqualified to prosecute. A state’s attorney with a personal interest in the result of the prosecution should not be permitted to prosecute the same.
    4. Libel—what evidence not competent in criminal prosecution. Held, that various items of evidence introduced in a prosecution for conspiracy to libel, were not competent.
    5. Evidence—what not impeachment. A witness cannot be successfully impeached by mere direct contradiction of his testimony. Successfully to impeach a witness by direct contradiction, it is essential that the misstatement of such witness shall have been wilful and that it shall have been related to a material issue in the case.

      6. Instructions—when as to impeachment erroneous. An instruction relative to the impeachment of witnesses is erroneous if it singles out the witnesses of one side.
    7. Conspiracy—effect of declaration of conspirator. The acts and declarations of one conspirator are only binding upon the other where such acts or declarations not only pertain to but are in furtherance of the common object.
    Prosecution for conspiracy to libel, etc. Error to the Circuit Court of McLean county; the Hon. T. M. Harris, Judge, presiding. Heard in this court at the May term, 1909.
    Reversed and remanded.
    Opinion filed October 25, 1909.
    Stone & Oglevee, for plaintiff in error.
    Sigmund Livingston, for defendant in error; James C. Riley, of counsel.
   Mr. Justice Putereaugh

delivered the opinion of the court.

This is a writ of error prosecuted by Joseph A. Landes and George M. McIntosh, defendants, for the purpose of having reviewed a judgment of conviction under an indictment which charged them with having unlawfully and feloniously conspired and agreed together to maliciously defame and impeach the honesty, integrity and reputation of one William R. Bach, by writing, printing and publishing certain false, scandalous, malicious and defamatory libel of and concerning him, the said Bach, with intent thereby then and there to expose the said Bach to public hatred, contempt, ridicule and financial injury, contrary to the statute, etc. The defendants each entered a plea of not guilty.

Upon a trial by jury a verdict was returned finding both defendants guilty. Judgment was entered upon such verdict, and each of the defendants fined the sum of $2000' and costs. The judgment further provided that the defendants should stand committed and that they be confined in the county jail of McLean county until the fine and costs of each defendant was paid.

There was evidence introduced by the People tending to establish each and every material allegation of the indictment. It is not controverted that the defendant Landes wrote, had printed and circulated a number of circulars attacking the official record of William B. Bach, the State’s Attorney of McLean county, as well as his honesty, integrity and reputation as a private citizen. It is contended, however, that the evidence fails to disclose a conspiracy between him and McIntosh as charged in the indictment, and further, that the charges contained in the circulars in question were true and were published with good motives and for justifiable ends, and evidence was introduced by them to establish such defense. It is obvious that if the acts which it is alleged the defendants conspired to do were not wrongful, no conviction could be sustained thereunder, and to this end the court properly permitted the defendants to justify under the statute. Such justification was an affirmative defense, and it was necessary that it should be proved by the defendants and meet the precise charges made. People v. Fuller, 238 Ill. 116.

As the judgment of the Circuit Court must be reversed for errors hereinafter indicated, we shall not detail or discuss the evidence further than to say that the evidence adduced by the prosecution tending to show a conspiracy, was sufficient to warrant the court in submitting the issues to the jury for determination.

The portion of the judgment which orders both defendants committed to jail until the fine and costs of each of them is paid, is clearly erroneous. Under such provision the imprisonment of each might continue not only until his own fine was satisfied, but also •until that of his co-defendant was paid. McDonald v. People, 86 Ill. App. 558; Kanter v. Clerk of Circuit Court, 108 Ill. App. 287.

Inasmuch as the State’s Attorney was for obvious reasons disqualified from acting, the People were represented on the trial by Sigmund Livingston, assistant State’s Attorney and partner of William B. Bach, complaining witness, in the practice of law. One of' the grounds assigned for a new trial was that said Livingston had no right under the law to act as counsel for the People in said proceedings, and such objection is again urged in this court. The question was not raised until after the trial, and cannot now be raised for the first time. If the cause shall be again tried, propriety will require that some disinterested and qualified attorney shall by appointment of the court conduct the case on behalf of the People. Hayner v. People, 213 Ill. 142, 147; Gilbert v. People, 121 Ill. App. 423, 428.

The court over objection admitted in evidence certain reports of a committee of the city council of the city of Bloomington, and of the grand jury, both to the effect that the charges made in the circular letters against Bach were in the judgment of the members of such bodies untrue. This was manifest error. The court also permitted the deputy circuit clerk of McLean county to read from the records of said court a recital of the return of a former indictment against the defendant McIntosh for libel; also admitted in evidence the records of the police court of the city of Blooming-ton showing that the defendant McIntosh had been tried upon the charge of disorderly conduct, found guilty, and fined. Such evidence was so palpably incompetent as not to require the citation of authority. The trial court further erred in permitting the attorney representing the People to cross-examine the defendant McIntosh concerning other alleged misconduct on his part which was wholly irrelevant to the issues on trial. We think exhibit “ J” in connection with the proof of handwriting, was competent as tending to show malice on the part of McIntosh.

Complaint is made of the following instructions which the court gave at the instance of the People:

“6. In determining the guilt or innocence of the defendants you are to consider the entire evidence in the case, but you are at liberty to disregard the statements of such witnesses (if any there be) as have been successfully impeached, either by direct contradiction or by proof of general bad reputation for truth and veracity, unless the statements of such witnesses are corroborated by other credible evidence in the case.
“7. If you believe from the evidence beyond a reasonable doubt that any witness for the defense has wilfully and knowingly sworn falsely to any material fact in issue, then you have a right to disregard his entire testimony except wherein it is corroborated by other credible evidence in the case.
“21. You are instructed that it was not incumbent upon the prosecution to prove that the charges contained in the pamphlets are false, but is the duty of the defendants, if they attempt to justify the libels, to prove them to be true by evidence.”

The sixth instruction is erroneous in that it might lead the jury to believe that a witness can be successfully impeached by mere direct contradiction of his testimony. Successfully to impeach a'witness by direct contradiction it is essential that the misstatement of such witness shall have been wilful and that it shall have related to a material issue in the case. Beedle v. People, 204 Ill. 197; Godair v. Ham Nat. Bank, 225 Ill. 572. The seventh instruction relative to impeachment is misleading for the reason that it singles out the witnesses for the defendants. Had the instruction applied to all witnesses in the case alike it would have been proper to give the same. Godair v. Ham Nat. Bank, supra. The twenty-first instruction is also bad. The acts and declarations of one conspirator are only binding on the other where such acts or declarations not only pertain to but are in furtherance of the common object. Spies v. People, 122 Ill. 15. The eighteenth instruction correctly stated the law. People v. Fuller, supra.

For the errors indicated the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Chytraus

text:
    Illinois Land & Loan Company, Complainant, v. George B. Quigg et al., Defendants. People of the State of Illinois, ex rel. Illinois Land and Loan Company, Appellee, v. George B. Quigg, Appellant.
    Gen. No. 14,435.
    1. Contempt—when allegations of hill taken as true. A party before the chancellor for disregard and violation of an injunction cannot exonerate himself by raising an issue upon the truth of some of the averments of the bill whereupon the injunction was issued and then predicate a lack of jurisdiction, by the court, of the subject-matter upon the theory that the truth lies upon his side of the controverted fact.
    2. Injunctions—when hill of complaint sufficient. A bill of complaint which is informal, recites evidential facts and is unnecessarily verbose is nevertheless, sufficient to support an injunction granted thereon if the evidence in effect and substantial requirements authorize the issuance of such injunction.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Wileakd M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 29, 1909.
    Rehearing denied November 9, 1909.

      John P. McDonald and George B. Quigg, for appellant; E. D. Brandenberg, of counsel.
    Oliver & Meoartney, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

On December 20, 1906, the Illinois Land & Loan Company filed its bill of complaint against appellant George B. Quigg and others. Complainant alleges therein title to and possession of an eighty-acre tract of land. The title, it is alleged, was acquired from various sources by complainant’s immediate grantor and subsequently conveyed to complainant. Becovery of a judgment, on September 5, 1906, against Frank and Joseph Loux, two of the defendants, for possession of the property, in a forcible entry and detainer suit, is also alleged. The bill further sets up that George B. Quigg, Frank Loux, Joseph Loux and other defendants are engaged in a combination and conspiracy to interfere with complainant’s peaceable possession of the land and that, in pursuance of that conspiracy, some of the defendants, including George B. Quigg, have, during a long period of time, repeatedly entered upon the tract, with rifles and shotguns driven away complainant’s custodians upon the tract, destroyed structures and fences thereupon and otherwise continuously and repeatedly trespassed upon the premises. It is also alleged that the defendants are insolvent. Among other things the bill prays that defendants may be forthwith and immediately restrained and enjoined from interfering with, hindering or obstructing complainant’s possession and that upon the hearing such injunction may be made permanent.

Immediately upon the filing of the bill, which is verified, an injunction issued as prayed and was served upon some or all of the defendants. Appellant George B. Quigg is one of those upon whom the injunction writ was then served. The following day, December 21, 1905, all the defendants entered their appearances.

Notwithstanding the injunction and in defiance thereof some of the defendants, including George B. Quigg, after knowledge thereof, went upon said tract of land repeatedly and interfered with, hindered and obstructed the complainant in its possession thereof. Some of the defendants carried rifles and guns and drove deputy sheriffs and complainant’s representatives off the land therewith.

Thereafter, by due procedure not questioned, George B. Quigg, on September 26, 1907, was sentenced by the chancellor to the county jail for a period of ninety days and ordered to pay the sum of $500', as punishment for his aggravated contempt shown for the process of the court. To reverse that order George B. Quigg prosecutes this appeal.

The acts charged, which constitute the contumacious conduct, are not successfully, hardly seriously, controverted. The appellant and other defendants claim that when committing the acts they were acting as agents taking care of the land for some third person who was the owner of the land. Whether or not they acted for some third party as owner it was their duty to obey and show proper respect for the injunction writ issued by the court.

In Flannery v. People, 225 Ill. 62, 68, the Supreme Court held: “It is a well known rule of law that in a proceeding for contempt in failing to obey an order of court the respondent may question the order, which he is charged with refusing to obey, only in so far as he can show it to be absolutely void, and he cannot be heard to say that it is merely erroneous, however flagrant it may appear to be.” Doubtless with this principle of the law in mind, appellant makes a threefold attack upon the validity of the injunction order. Three questions are asked in appellant’s brief in that respect: “Had the court jurisdiction of the subject-matter?” “May a court of chancery issue an injunction without a prayer for such process?” and “Was the proper affidavit to obtain an injunction made and was it legally issued ? ”

Under the first question appellant assumes the bill of complaint is one for an injunction restraining defendants from in any way preventing complainant from acquiring possession of the land. Whatever may develop when the merits are tried the bill alleges that complainant is in possession. No pleading denying the allegations of the bill has been filed by any of the defendants. Furthermore, complainant sets up the recovery of a judgment for possession against two of the several defendants alleged to be conspiring and co-operating together to interfere with the complainant’s possession. Although affidavits have been filed on behalf of respondent and other defendants, that, in the commission of their acts of violence in disregard of the injunction, they were acting as agents of and for and on behalf of some third party who is asserted to be the owner of the land, we must, in the present condition of the pleadings, take the allegations of the bill to be true. A party before the chancellor for disregard and violation of an injunction cannot exonerate himself by raising an issue upon the truth of some of the averments of the bill whereupon the injunction was issued and then predicate a lack of jurisdiction, by the court, of the subject-matter upon the theory that the truth lies upon his side of the controverted fact. Cragg v. Levinson, 238 Ill. 69, sustains the theory of the bill in the case at bar.

The purport of the next question is that the bill contains no prayer for a temporary injunction. While the bill may not be a model, either in the body thereof, where the recitals of evidentiary facts are extremely numerous, or in the prayer thereof, which is unnecessarily verbose and tautological, we cannot regard the bill as lacking in the respect complained of. A little more time spent by counsel in the drafting thereof would have saved much labor for this court.

With reference to the third question we think it sufficiently appears from the hill itself that the rights of complainant, according to the bill, would he unduly prejudiced unless an injunction issued immediately. That being so, it was unnecessary to make any showing of facts in the affidavit to the bill, in that regard. We do not wish to be understood, however, as holding that if it did not so appear in the bill itself the lack of the necessary showing in an affidavit would be such an error as to make the chancellor’s order a nullity. We do not pass upon that question.

After the argument upon these questions appellant’s brief and argument proceeds saying: “Counsel will now touch upon the facts in the case at bar.” We have carefully read and considered the part of the brief and argument which follows that statement and find it to be, in substance, an argument upon the merits of the main controversy raised by the bill. Appellant is now not at all con cerned with the merits of that controversy. So far as appellant is concerned the only question is, did he knowingly violate an injunction of the court valid when made and subsisting at the time of the violation. It is none of appellant’s affair at this time whether the injunctional order was erroneous so long as it was valid.

The order of the chancellor questioned by this appeal will be affirmed.

Affirmed.


text:
    People of the State of Illinois, for use of Minnie Hill, Appellee, v. Ignatz G. Schwartz et al. The Title Guaranty & Trust Company, Appellant.
    Gen. No. 14,561.
    1. Measttbe of damages-—in action upon constable's bond. In an action upon a constable’s bond, the measure of damage is compensation. The plaintiff can recover neither exemplary nor punitive, nor remote, conjectural or speculative damages.

      2. Damages—compensatory, defined. In law, compensatory damages are damages estimated as an equivalent for the injury in contradistinction from punitive, exemplary or vindictive damages which are awarded by way of punishment and as a deterrent to others.
    3. Damages—exact computation not essential. The common law does not permit acts of one person toward another, recognized by it as wrongs and injuries committed, to go uncompensated because of the incapability of exact measurement thereof in money. In such instances, it is most peculiarly the function of the jury to estimate the compensation.
    4. Bonds—who may sue upon constable’s. A person not a suitor who has been injured by the misconduct of a constable while acting under cover of his office, may under the statute sue upon the bond of such official.
    Action in debt. Appeal from the Superior Court of Cook county; the Hon. Geobge A. Dtjpuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed July 9, 1909.
    Rehearing denied October 5, 1909.
    Statement by the Court. This suit is an action in debt, upon a constable’s bond, brought by appellee, as plaintiff, against Ignatz G-. Schwartz, a constable, and the appellant company, his surety, as defendants. Schwartz was not served and did not appear. The trial court rendered judgment against the company for $750, and to reverse that judgment the company is prosecuting this appeal.
    The bond is, among other things, conditioned that if Schwartz “shall faithfully discharge the duties of his office as constable * * then this obligation to be void, otherwise to remain in full force and virtue.”
    The Justices ’ and Constables ’ Act, Rev. Stats., chap. 79, sec. 9, provides that these constables’ bonds are for the “benefit of all suitors and others who may be injured or aggrieved by the official acts or misconduct” of constables.
    On November 8,1905, as was shown by the docket of Robert M. Campbell, a justice of the peace, a judgment was rendered against Charles Hill for $20. It also appears, from the same docket, that an immediate ex-edition was issued, upon the oath of the plaintiff or his agent.
    Shortly before 12 o’clock noon, on Friday, November 10, 1905, Schwartz, with two assistants, came to the home of Mr. and Mrs. Hill, with an execution upon this judgment. Schwartz gave Mrs. Hill a copy of the execution. Indorsed upon that copy appears the following: “By virtue of the within I have served a copy of this writ with notice to schedule within ten days indorsed thereon, by delivering the same to within-named defendant this — day of —:--, 190'—.
    I. Gr. Schwartz,
    Constable. ’ ’
    The following indorsement also appears thereupon: “Nov. 10—05! Received payment from Minnie Hill.
    I. Gr. Schwartz,
    Constable.”
    Mrs. Hill testified that the constable had been at her home before the occasion herein complained of. She was alone at home when he came to collect the judgment, and told him that the home and all the furniture in it belonged to her. She refused to let him in and also informed him that the claim had been paid and that her husband, Mr. Hill, had receipts showing the payment. At the trial she testified that the home and the furniture were hers before she married Mr.H3.ll. Notwithstanding all she said to Schwartz, he threatened to enter by breaking down her door, if it was not opened for him. All the entrances to the house were bolted and while Schwartz was at her front door, endeavoring to induce Mrs. Hill to let him in, his two assistants in some way pried open one of the windows in the rear and, having by means of that window entered the house, opened a rear door. Schwartz then went around to that rear door and he also came into the house. They informed Mrs. Hill they would put out the fire in the stove and take the stove. Although Mrs. Hill asked them to wait until she could telephone her husband, they started to take various articles and told her that unless she paid the money they would levy. They remained about an hour or an hour and a half and, during that time, Mrs. Hill’s children, Mr. Hill and some policemen, who had been telephoned for, came. In order to get rid of Schwartz and his assistants, Mrs. Hill went to a neighbor and borrowed $25.90, the amount they insisted upon, and paid it to Schwartz. Plaintiff’s attorney admitted that this money has since been refunded.
    Louis Greenberg, for appellant.
    Blum & Blum, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Appellant contends: That the measure of damages is the actual damages sustained and that no punitive damages are permitted in this action; that it is incumbent upon plaintiff to show the constable had a valid execution and to show that the person who came to Mrs. Hill’s home and committed the acts complained of was the same person as Schwartz, one of the obligors in the bond.

These contentions may all be conceded, and, upon the evidence in this record, we are nevertheless obliged to affirm the judgment.

In such case as this the measure of damage is compensation. Plaintiff can recover neither exemplary nor punitive nor remote, conjectural or speculative damages. She is limited in measure to compensation and in kind to actual damages. Compensatory damages are those allowed as a recompense for the injury actually received. Bouvier’s Law Die. Title “Damages.” In law, compensatory damages are damages estimated as an equivalent for the injury in contradistinction from punitive, exemplary or vindictive damages which are awarded by way of punishment and as a deterrent to others.

In order to entitle a party to have damages estimated as an equivalent for the injury sustained, the loss to be compensated need not always be distinct and definite, capable of exact description or of exact measurement in dollars and cents. Damages are, in proper cases, allowable for injured feelings, bodily pain, grief of mind, injury to reputation and for other sufferings which it would be impossible to make subjects of exact proof and computation in respect to the amount of the loss sustained. Yet these are not punitive damages. The common law does not permit acts of one person toward another, recognized by it as wrongs and injuries committed, to go uncompensated because of the incapability of exact measurement thereof in money. In such instances, it is most peculiarly the function of the jury to estimate the compensation. In Fidler v. McKinley, 21 Ill. 308, an action of assumpsit for the breach of a contract of marriage, the court said (pp. 315-16): “In cases of this character it is almost impossible to lay down any rule, by which the measure of damages can be fixed with any degree of precision. There is no scale by which such damages can be graduated with certainty. They admit no other test than the intelligence of the jury, governed by a sense of justice. Such injuries are accompanied with facts and circumstances, affording no definite standard by which such wrongs can be measured, and, from the necessity of the case, must be judged of, and appreciated, by the view that may be taken of them by impartial jurors. To the jury, therefore, as a favorite tribunal, is committed the exclusive task of examining these facts and circumstances, and valuing the injury, and awarding compensation in the shape of damages. * * And [it is] not till the result of the deliberation of the jury shocks the understanding, and leaves no doubt of their prejudice or passion, that courts find themselves compelled to interpose.”

Meagher v. Driscoll, 99 Mass. 281, was an action for trespass to realty. The action now before us partakes of the nature of such an action. In that case it was contended that as the action was for trespass on real estate the plaintiff could at all events only recover for the actual damages done to such real estate. The court held: “The gist of the action is the breaking and entering of the plaintiff’s close. But the circumstances which accompany and give character to a trespass may always be shown either in aggravation or mitigation. He who is guilty of a wilful trespass, or one characterized by gross carelessness and want of ordinary attention to the rights of another, is bound to make full compensation. Under such circumstances, the natural injury to the feelings of the plaintiff may be taken into consideration in trespasses to real estate as well as in other actions of tort. Acts of gross carelessness, as well as those of wilful mischief, often inflict a serious wound upon the feelings, when the injury done to property is comparatively trifling. We lmow of no rule of law which requires the mental suffering of the plaintiff, or the misconduct of the defendant, to be disregarded. The damages in such cases are enhanced, not because vindictive or exemplary damages are allowable, but because the actual injury is made greater by wantonness. ’ ’

The case at bar is an action of debt and not a tort action. But, in this particular suit, that makes no difference in respect to the measure of damages or kind of damages allowable, for parties may contract for the payment of damages by any lawful measure and of any lawful character, in the event of a breach of the contract by the contracting party. In 1 Sedgwick on Damages (8th Ed.), see. 45, this subject of contracting to recover compensation for mental anguish is discussed. We find there the following language, with reference to the doctrine of recovering damages for mental anguish under a contract, quoted from a decision: “The cases rest upon the reasonable doctrine that where a person contracts, upon a sufficient consideration, to do a particular thing, the failure to do which may result in anguish and distress of mind on the part of the other contracting party, he is presumed to have contracted with reference to the payment of damages of that character in the event such damages accrue by reason of a breach of the contract on his part.” True, the appellant company is but a surety upon the bond of the constable who committed the wrong and injury; but a surety is not so favored in the courts that the plain and natural intent and purpose of his or its contracts is construed into nothing.

The condition of the bond here involved, which is an official bond, is, in substance, that if Schwartz should fail in faithfully discharging the duties of his office, then a liability would arise. The statute that requires these bonds to be given expressly states that they are given for the benefit of all suitors and others who may be injured or aggrieved by the official acts or misconduct of the constable. As a general proposition a public official is not- liable to a particular individual for any wrongful act of omission or commission in connection with his public duty unless the act involves, also, an individual wrong to such extent that the particular individual suffers a special and peculiar injury other and different from any suffered by the general public. Gage v. Springer, 211 Ill. 200. The office of constable is a public office and a constable is a public officer. Here, while such officer and under color of his office, Schwartz misconducted himself and acted unlawfully. In his obligations and duty as a faithful public officer he failed, in connection with the particular writ entrusted to him, here involved. That he is under legal obligation to make good the loss or damage sustained no one will deny. Such misconduct and unlawful action was, also, in breach of his official bond. Mrs. Hill suffered injuries, special and peculiar to her, and the statute expressly provides that those not suitors, as she was not, who may be injured or aggrieved by the “misconduct” of a constable shall be entitled to the benefit of his official bond. Knowing the law to be such, the appellant company executed this bond. We see no difficulty in finding appellant liable for the misconduct and unlawful acts of the constable, Schwartz, committed under color of his office. The liability embraces compensatory, but not punitive, damages for the injuries Mrs. Hill sustained.

The rule which affords the measure of damages is to be supplied by the presiding judge, the amount of the damages is a question for the jury and, unless the damages are so excessive as to lead to a conclusion of passion or prejudice, neither the presiding judge nor an appellate tribunal can rightfully interfere with their verdict in respect to amount. Here the learned trial judge instructed the jury correctly as to the measure of damages. For an invasion of private rights by a public official, under the circumstances here shown, a jury can best determine the amount that will compensate one who has been both “injured” and “aggrieved” by the official misconduct of the constable. We see no reason for interfering, on account of the amount of the judgment.

There is ample evidence of the issuance of a valid execution. The copy of the execution given Mrs. Hill was given under the Exemption Act, chap. 52, sec. 14, Revised Statutes, and was given as an official act. The copy so given was primary and original evidence of compliance with the statute, by the constable. Such his official act and the copy are in evidence for all purposes, and the contents of the original execution is thus proven. The evidence in the record as to the identity of Schwartz we regard as sufficient.

Finding no error in the proceedings of the trial court, the judgment will be affirmed.

Affirmed.

Mr. Justice Mack took no part in the consideration of this case.


author: Mr. Justice Mack

text:
    August Waedanz, Plaintiff in Error, v. Chicago, Burlington & Quincy Railroad Company, Defendant in Error.
    Gen. No. 14,453.

      Negligence—when doctrine res ipsa loquitur does not apply. The doctrine res ipsa loquitur does not apply in favor of a servant injured by a gasoline explosion which occurred upon a sleeping car in which, with the aid of a fellow-servant, he was engaged in cleaning the carpets.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Robebt W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 29, 1909.
    E. A. Meter, for plaintiff in error.
    Chester M. Dawes and Joseph A. Connell, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

The single question presented in this case is whether there is any evidence that would have justified a submission of the cause to the jury. The plaintiff was injured by a gasoline explosion that occurred on the railroad sleeping car of the defendant, in which the plaintiff was engaged in cleaning the carpets with the assistance of a fellow-servant. The cleaning was performed, by direction of the foreman, with gasoline, but without specific direction as to how it should be done. There is no evidence whatsoever in the record as to how the explosion occurred. While- the declaration states that there was a heated stove in the car and that the explosion was due to the contact of the gasoline with the heat of the stove, there is not a word in the testimony as to whether or not the stove was in fact heated. The only testimony that in any manner bears on this point one way or the other is that the stove was in a corner surrounded by screening, the windows were open and the car was cold.

The sole witnesses for the plaintiff were his physician and himself. His fellow-servant, though available, was not called. The plaintiff testified that he did not know what the fellow-servant, who was also injured, was doing at the time of the explosion.

No evidence of any kind of negligence on the part of the defendant is shown. Under these circumstances, unfortunate as is the result to the plaintiff in this class of cases, without legislative provision changing the law of employers’ liability and throwing the burden of accidents, with or without neglect, on the business,' the courts must apply the law as it now is.

We find no error in the direction of a verdict for the defendant, and the judgment must therefore be affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Harty Bros. and Harty Co., Appellee, v. Samuel Polakow, Appellant.
    Gen. No. 14,074.
    1. Pleading—when recovery cannot he had under common counts. An action which is founded upon an obligation created by statute cannot be recovered upon under the common counts; the declaration in such an action must allege all the essential elements provided by the statute from which such obligation arises.
    2. Judgments—must conform to pleadings. A judgment must conform to and be supported by the pleadings in the cause.

      Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Henby C. Beitleb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 29, 1909.
    Rehearing denied November 9, 1909.

      Max M. Grossman, for appellant; H. J. Rosenberg, of counsel.
    Bulkley, Gray & More, for appellee.
   Mr. Justice Smith

-delivered the opinion of the court.

The substantial facts of this case are stated in the opinion of this court in Harty Bros, and Harty Co. v. Polakow, 141 Ill. App. 570; and in the same case on appeal 237 Ill. 559, and need not be here repeated.

The Supreme Court has disposed of three questions involved in the case, namely (1), that the Municipal Court had jurisdiction to hear and determine the cause, (2) that there is an implied contract under the mechanics lien law between the owner and the subcontractor by which the owner, when a subcontractor has complied with the requirements of the lien law so as to create a lien in his favor, to pay the subcontractor all such amounts as he may be entitled to recover from him and under section 28 of the lien law, and (3) that an action of assumpsit is the proper remedy on such contract.

Appellant Polakow now contends that there can be no recovery by appellee in this case under the common counts; second, that the judgment in this case is void; and, third, that under the evidence nothing was due and payable to the contractors at the time this suit was brought and, therefore, there can be no recovery against appellant.

In the view we take of this case it is unnecessary for us to consider and determine but one of these questions, namely, whether or not there can be a recovery in this case under the common counts filed. The counts necessarily relied upon are for goods sold and delivered, and for money due and owing from the defendant to the plaintiff.

This action is founded' clearly upon an obligation created by the statute—the implied contract raised by the statute on the part of the owner of the premises. The declaration on such a cause of action must allege all the essential elements provided by the statute from which the obligation arises. It is said in Pace v. Vaughan, 1 G-ilm. 30: “It is a general rule in pleading, that in an action founded on á statute, the declaration should, show specially that the case comes within the provisions of the statute. * * * The defendant ought to he notified particularly of the grounds of the action. 1 Chitty’s Pl., 405; 6 Comyn’s Dig., 88; Cole v. Smith, 4 Johns 194; Benton v. Dale, 1 Cowen 160; Livingston v. Plainer, ib. 175.” See also St. L. A. & T. R. R. Co. v. Hill, 11 Ill. App. 248.

In Porter v. Drennan, 13 Ill. App. 362, the court said, referring to Hilborn v. Artus, 3 Scam. 344: “We regard that case as holding, that where the liability is created by statute, or where it depends upon something required by the statute, the declaration must allege that the conditions so imposed have been performed.”

The cause of action set out in the declaration does not depend upon the mechanic’s lien law nor does it have any reference to that statute. It is a different cause of action from that recovered upon, and set out in the judgment of the court. This is a violation of a fundamental rule of pleadings and practice, which is that a court cannot properly put upon its record a judgment which is not a proper sequence to the pleadings. A judgment must conform to and be supported by the pleadings in the case. Reynolds v. Stockton, 140 U. S. 254; Gutsch Brew’g Co. v. Fischbeck, 41 Ill. App. 400; Quinn v. McMahon, 40 id. 593. Facts proved hut not pleaded will not support the judgment.

The evidence offered in the record would have been excluded properly as not admissible under the declaration on a motion to exclude. To have overruled such a motion would have been error. The same point was raised, on the trial before the court without a jury, by submitting to the court, to be held as the law governing the disposition of the cause, proposition number 2, to the effect that no recovery can be had in this case under the common counts against the defendant Polakow. The judgment in this case is not responsive to the issues tendered by the pleadings. These issues did not require the court to find the facts essential to entitle the plaintiff to a mechanic’s lien on the property described in the judgment and that the plaintiff had a lien on the property. Under proper pleadings the judgment required by the statute would be responsive to the declaration and a proper sequence thereto.

The trial court should have held the proposition submitted. For the error indicated, the judgment is reversed and the cause is remanded.

Reversed and remanded.


author: Mr. Justice Smith delivered

text:
    Adolph Schneider, Administrator, Defendant in Error, v. Chicago Terminal Transfer Railroad Company, Plaintiff in Error.
    Gen. No. 14,425.
    1. Trespassers—who upon railroad trades not. Persons upon railroad tracks at a point which was a thoroughfare in general use by the public are not trespassers where it appears not only'that the company made no effort either to restrict such use to any particular person or classes of people but that it invited persons to pass over the same.
    2. Negligence—when railroad company owes duty to persons upon its trades. A railroad company owes a duty of care towards those upon its tracks either at its invitation or allurement. Held, under the evidence in this case, the verdict of the jury finding that there was a failure to exercise such care by the company was justified by the evidence.
    Action in case for death caused by alleged wrongful act. Error to Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed July 9, 1909.
    Rehearing denied October 5, 1909.

      Statement by the Court. This writ of error is prosecuted to reverse a judgment of the Circuit Court in favor of the administrator of Adolph Schneider, Jr., deceased, and against the Chicago Terminal Transfer Railroad Company, plaintiff in error, for $2500.
    It appears from the record that Ewing avenue near Ninety-fourth street in the city of Chicago runs in a northwesterly and southeasterly direction. Ninety-fourth street is not opened west of Ewing avenue. The railroad tracks of the plaintiff in error are west of Ewing avenue near Ninety-fourth street. The tracks run on a curve from the northwest toward Ewing avenue until they reach a point about 2501 feet north of Ninety-fourth street, where the tracks are about forty or fifty feet west of Ewing avenue. From this point the railroad tracks continue on a curve in a southerly direction.
    About 200 feet north of Ninety-fourth street a private driveway, leading from Ewing avenue west across the railway tracks to the Hibben & Co. boiler works and the Riverside iron works on the west side of the railroad tracks, had existed about seventeen years. This driveway where it crosses the railroad tracks is planked about twelve feet wide for teams to cross to deliver materials to the boiler works and the machine shop adjoining. Still further west is a vacant place where the boys played ball, and also a coal yard on the river. Many people and teams daily crossed the railroad tracks over this driveway and no attempt seems to have been made to stop them.
    The deceased was five years old at the time of his death. His mother left him at home in the charge and care of his grandmother, then sixty-five years of age, about fifteen or twenty minutes before the accident, and the father was at the time working out on Lake Michigan. The mother left home to obtain some wood; but did not caution the child about leaving home before she went away.

      The deceased was seen just before the accident on the west side of the railroad tracks running east on the driveway towards his home. Before the accident three cars were standing on the railroad tracks between the crossing in question and Ninety-fourth street. A locomotive was attached to a number of other cars and, without warning of any kind, pushed the cars attached to it against the three cars above mentioned, in order to couple on to them, and in "doing so moved the three cars several feet. The car next to the crossing struck the deceased and he was found pinned down by the car wheel from a foot to two feet from the south end of the planking.
    An action was brought by the administrator against plaintiff in error for negligence in causing the death. On the trial, at the close of plaintiff’s evidence, the defendant submitted a motion in writing for a peremptory instruction for the defendant. This motion was denied, and the case was submitted to the jury- on the plaintiff’s evidence, the 'defendant offering no evidence. The jury returned a verdict for the plaintiff for $2500. After overruling a motion for a new trial, and a motion in arrest of judgment, the court entered judgment on the verdict.
    Jessie B. Barton, for plaintiff in error.
    Mason & Mason, for defendant in error.
   Mr. Justice Smith delivered

the opinion of the court.

The main contention of plaintiff in error is that the decedent was a trespasser, or at most a licensee, and under the declaration, which did not aver wantonness or wilfulness in injuring him, there could be no recovéry. In support of this proposition the following cases are cited: Wabash R. R. Co. v. Jones, 163 Ill. 167; I. C. R. R. Co. v. Eicher, 202 id. 556; Bartlett v. Wabash, R. R. Co., 220 id. 163; Thompson v. C. C. C. & St. L. Ry. Co., 226 id. 542, and certain Appellate Court decisions. In these cases it was held that, “A railroad company owes no duty to a person walking along its tracks without its invitation, either expressed or implied, except to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to bim after he is discovered to be in peril; and it makes no difference in that respect whether he is a trespasser, a mere licensee or one who is on the tracks by mere sufferance, without objection of the company.”

The facts of this case, however, differ very materially from the facts in the cases cited; and in our opinion they raised a duty on the part of plaintiff in error toward the decedent in the operation of its railroad at the crossing in question quite different from that which a railroad company owes to a person walking along its tracks without its invitation, either expressed or implied.

The evidence in this record shows that the crossing in question was used as a driveway for those doing business with the manufacturing plants west of the railroad. The employes of those industries and the Great Lakes Dredging Company and the local public generally in that neighborhood used the crossing as a foot passageway from Ewing avenue on the east of the railroad across the railroad tracks to the plants mentioned. At certain seasons of the year, also, boys and young men crossed at this place to reach a ball ground west of the railroad tracks. Altogether it appears that large numbers of people used this crossing daily. As one witness states it, “I have seen thousands of people besides teams and wagons cross there.” From the undisputed testimony we think the jury was warranted in reaching the conclusion that it was a thoroughfare of general use by the public, and that not only no effort to restrict its use to any particular persons or classes of people was made by the plaintiff in error, but that it invited persons to pass over its property. The evidence shows that it had been so used for sixteen or seventeen years; that it was not a casual or occasional passageway, but that it was a prepared crossing, planked for a wagon way, and that it was used by teams and people on foot at the same time, those on foot walking at the sides of the planked driveway.

The decedent had been playing with other boys west of the railroad tracks, and was seen just before the accident running toward his home in the direction of the planking across the railroad tracks. As he approached the crossing, there were some unattached cars standing just south of the crossing. The train of plaintiff in error at this moment approached the crossing around a curve and without any notice by bell, whistle, gates, flagman or switchman, and with the locomotive some twelve or fourteen car lengths away and on a curve, bumped against the standing cars for the purpose of making a coupling, and knocked the boy down and killed him.

“The books draw a distinction between cases where there is a mere naked license or permission to enter upon or pass over an estate, and cases where the owner or occupant holds out any enticement, allurement or inducement to persons to enter upon or pass over his property.” L. S. & M. S. Ry. Co. v. Bodemer, 139 Ill. 596; Sweeney v. Old Colony & N. R. R. Co., 10 Allen, 368.

We think that under the circumstances disclosed by the evidence the jury were warranted in finding that by the planking placed on its right of way, and by the unrestricted use of the crossing by the public which the plaintiff in error permitted, it directly or by implication induced persons to enter on and pass over its tracks at this crossing. This was a question for the jury, and if the plaintiff in error did so invite or induce persons to enter on and pass over its right of way, it thereby assumed an obligation that its premises were in a safe condition suitable for such use, and for a breach of this obligation it is liable in damages. A dangerous place at this crossing was thereby created, which was well known to plaintiff in error’s servants, and it existed at the time of the accident. As said in C. & A. R. R. Co. v. Dillon, 123 Ill. 570, at page 579: “Without regard to the statute, it is the duty of those having charge of trains to give notice of their approach at all points of known or reasonably apprehended danger. This is almost universally done by the ringing of a he'll or sounding of the whistle, and frequently both. In exceptional cases, where the highest degree of care is deemed advisable, flagging is resorted to.”

In C. & A. R. R. Co. v. Sanders, 55 Ill. App. 87, the action was for personal injuries caused by a train at a private farm crossing. The court said at page 92: “This crossing had been long established and the track so cut the farm as to make its use necessarily frequent. Appellant therefore had notice that it might be in use at any time of a working day, especially as against a wild train. From the fact that the statute did not expressly require it to whistle or ring for a private crossing as it did for a public highway, it would not follow that the circumstances of a particular occasion might not. Notwithstanding the statute, reasonable notice of the approach of a train should be given at all points of known or reasonably apprehended danger, and the means by which it is usually given are the bell, the whistle or the flagman.”

In our opinion the circumstances in this case were sufficient to make it a fair question for the jury whether the servants of plaintiff in error in charge of the train did or did not fail to use such care on their part as the law required of them to avoid the injury inflicted upon decedent, causing his death. The evidence tended to show that no notice of any kind was given by them, and no measures were adopted to avoid the injury. The motion to instruct the jury to find for the plaintiff in error was therefore properly denied.

It is suggested rather than argued on behalf of plaintiff in error that the negligence of the parents of the decedent contributed directly to produce the injury, and that therefore there can he no recovery. On the evidence in this record the verdict of the jury must be regarded as final upon that question.

In our opinion the original declaration stated a cause of action, though imperfectly. The amendments do not state a different cause of action. The abstract of record shows no action or ruling of the court on the plea of Statutes of Limitation. No question on the plea is before us.

Finding no error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.

Mb. Justice Mack took no part in the consideration of this case.


text:
    Annie O’Hern, Administratrix, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 14,430.
    1. Contributory negligence—when question of law. The question. of contributory negligence becomes one of law for the court only where from the facts admitted or conclusively proven there is no reasonable chance that reasonable minds would reach different conclusions as to negligence.
    2. Contributory negligence—when person seeking to cross in front of street car guilty of. A person who sees the approach of a street car and deliberately seeks by running to pass in front thereof, if injured is barred of recovery by his contributory negligence.
    3. Contributory negligence—effect of, to bar recovery. Notwithstanding a defendant may have been guilty of negligence, the plaintiff cannot recover if he was not in the exercise of ordinary care for his own safety.
    4. Appeals and errors—when ordinance no part of record. An ordinance contained in the transcript but not set forth in or properly made a part of the bill of exceptions, is not a part of the record and will not be considered on review.
    5. Appeals and errors—effect of absence of exception. A ruling of the trial court not excepted to is not subject to review upon appeal.

      Action in case for death caused by alleged wrongful act. Error to the Circuit Court of Cook County; the Hon. Julian .W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 29, 1909.
    C. S. O’Meara, for plaintiff in error.
    John E. Kehoe and 0. Le Eot Browh, for defendant in error; John E. Haerihgtoh, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The questions presented on this record are whether the trial court erred in its rulings on evidence or in directing a verdict of not guilty at the- close of plaintiff’s evidence, in an action on the case for negligence.

The evidence shows that plaintiff’s intestate was killed at the intersection of Fifty-first street and Union avenue in the city of Chicago, by a street car operated by defendant in error, on the night of September 4, 1903. The night was dark, and there were no lights or street lamps of any kind at the crossing. A person could be seen only a few feet away. The deceased had been visiting Deyo, a saloonkeeper, in his saloon at the southeast corner of the streets named. It was a few minutes after twelve o ’clock at night and the last street car of defendant in error going west was about due. O ’Hern, the deceased, said he wanted to take the last car home and left the saloon to take this car. Deyo accompanied him to the sidewalk in front of the saloon on Union avenue. They stood there conversing for a few minutes when they heard the bell of the car. O’Hern said to Deyo, “Here comes my car;” and Deyo repjied, “That is the last car, John.” O’Hern left Deyo and started to go to a point on the west side of Union avenue and north of the north or westbound track.

There were two car tracks on Fifty-first street; which runs east and"west. O’Hern started with a “little hop, skip and jump,” according to Deyo’s testimony, but later when the ear was getting near to him Deyo noticed he was walking, and fearing he was not going to get across the track, Deyo called out to him, “Look out, John. ’ ’ 0 ’Hern then ‘ ‘ started to go a little faster, and tried to hurry across it, but it caught him before he got across.”

While O’Hern and Deyo were standing on the sidewalk, the" witness Fagan passed east on Fifty-first street. Fagan was acquainted with O ’Hern and spoke to him as he passed him. As he was leaving he heard O’Hern make the remark, “Here comes my car.” Fagan passed on east on the south side of Fifty-first street, and noticed the car coming near Sherman street, a short block or half a block east of Union avenue. Fagan says he heard D'eyo say: “He won’t catch that, he won’t make.it, or something to that effect.” Fagan thereupon turned around and saw O’Hern running. He had crossed the south track and was on the north track about fifteen feet east of the crosswalk when the car struck him. The car was stopped with its front end about thirty feet west of the crosswalk.

Both of these witnesses testified that the car was lighted and that its headlight was burning. Deyo saw the reflection of the light on the rails of the track. The. car was running fast, the estimated speed being about fifteen or sixteen miles an hour. It was a small open summer car, and its rattling was plainly heard as it moved.

The main argument in support of the errors assigned is devoted to the proposition that the court erred in directing a verdict of not guilty.

In passing upon this question we must assume the evidence offered on behalf of the plaintiff, with all reasonable inferences in favor of the plaintiff to be drawn from it, are true. The evidence itself is consistent, uncontradictory and clear. The inferences to be drawn from it are therefore more obvious and conclusive and, it may be said, we think, that all doubt as to the ultimate facts proven is eliminated.

The declaration and each count thereof alleges, as the law requires, that plaintiff’s intestate was in the exercise of due care for his own safety. This is an essential averment of the declaration and must be proved on the trial in order to justify a recovery. This proof need not be made by direct evidence, but if it can be inferred from any proof made in the case that O’Hern was exercising due care for his own safety, the question of contributory negligence was a question of fact for the jury, and not a question of law for the court. In actions of this character the question of contributory negligence on the part of the plaintiff, or plaintiff’s intestate, becomes a question of law for the court only where from the facts admitted or conclusively proven, there is no reasonable chance that reasonable minds would reach different conclusions as to negligence. Hermann v. Kinnare, 190 Ill. 156; Cicero & P. St. Ry. Co. v. Meixner, 160 id. 320; T. H. & I. R. R. Co. v. Voelker, 129 id. 540. The rule is otherwise stated in Chicago & Joliet Ry. Co. v. Wanic, 230 id. 530, as follows : “The question of contributory negligence is ordinarily one of fact for the jury, and only becomes one of law where the undisputed evidence establishes that the injury resulted from the negligence of the injured party. If there may be a difference of opinion on the question so that reasonable minds will arrive at different conclusions, then it is a question of fact for the jury. (Chicago City Ry. Co. v. Nelson, 215 Ill. 436.) ”

We think that all reasonable minds would conclude from the evidence in this case that O’Hern knew that the car which struck him and caused his death was coming. The taking of that car had been a matter of special consideration and mention by him before the accident. He knew it was the last car for him to take that night to go to his home, and he knew that it started from Wallace street a short distance east of Union avenue. When the sounding of the gong signalled its approach he expressly announced to Deyo and Fagan that it was coining, and immediately started in haste to reach the place where he must take it before the car should arrive there. As he traveled the eighty or ninety feet from the point where he ctarted to the place where the car struck him, he had an unobstructed view of the car with its lights. The movement of the car made a loud rattling noise. The car was therefore plainly to be seen by him and heard by him. Eeasonable men can reach only one conclusion that before he turned north and stepped upon the north or westbound track he must have known of its close proximity to him not only from the above facts but from the warning shouted to him by Deyo. This inference is further warranted by the fact that he quickened his gait from a fast walk to a run at this point. That he knowingly incurred the danger of being struck by the car when he dashed in. front of it, is the only inference from the facts proven, whatever may have been his hopes of reaching a place of safety on the other side of the track. The only inference, in our opinion, which can be drawn from this evidence is that 0 ’Hern was guilty of a failure to exercise ordinary care for his own safety.

The evidence fails to show, or to give the slightest foundation for the inference, that during the time that 0 ’Hern was traversing the eighty or ninety feet along the south track and then over upon the north track, with the knowledge that the car was approaching, he took any precaution to learn how near the car was to him before he tried to cross the north or westbound track on which the car was running. This was contributory negligence because there were no circumstances which excused his failure to look at that time. It is quite likely that O’Hern thought that he could cross the track ahead of the car in his desire to stnn the car and ride to his home on it. His act, however, is to- be judged, not by what was running in his mind, but by what he knew, and therefore had reason to expect; and so considered, it is apparent he did not exercise ordinary care, but was guilty of contributory negligence. Illinois Cent. R. R. Co. v. James, 67 Ill. App. 649. Taking the most favorable view of the evidence for the plaintiff, the indisputable facts remain that O’H'ern knowingly and negligently undertook to cross the track in front of the ear and was struck by it in the attempt, and these facts preclude a recovery. We think that deceased “was so clearly and palpably negligent that all reasonable minds would so pronounce it without hesitation or dissent. In such cases the court may so pronounce it as a matter of law by instructions to the jury.” Hoehn v. C. P. & St. L. Ry Co., 152 Ill. 223-229; Lake St. Elevated R. R. Co. v. Gormley, 108 Ill. App. 59; Lee v. Chicago City Ry. Co., 127 id. 511.

Savage v. Chicago & Joliet Elec. Ry. Co., 238 Ill. 392, is cited on behalf of plaintiff in error and relied upon, to the effect that under the circumstances and facts of that case /the court could not say, as a matter of law, that the deceased was guilty of negligence, and that the ease at.bar is similar in all respects to that case. We see clear distinctions between that case and this, although some of the facts in the cases are similar; and we do not think it is an authority for the contention that the contributory negligence of the deceased in this case was a question for the jury.

It may be conceded that there is evidence tending to show that defendant in error was operating its car negligently. But this fact, if it be a fact, does not relieve the plaintiff in the case from proving the exercise of due care on the part of deceased, as averred in the declaration, nor does it affect in any way that question.

It is urged that the trial court erred in excluding the testimony of Deyo to the effect that the car was going at full speed, and Chicago City Ry. Co. v. McDonough, 221 Ill. 69, is cited in support of the contention. We do not understand that the McDonough case holds that such evidence is admissible. It holds rather that under the state of the evidence in that case it was not reversible error to admit the evidence, other witnesses having testified more specifically as to the speed of the car. But whether the ruling was erroneous or not, the witness was asked immediately afterwards to state how fast the car was going and answered, “I don’t know, I should judge the car was going fifteen or sixteen miles an hour, ’ ’ and this testimony was allowed to stand. In our opinion, there was no reversible error in excluding the testimony.

The court excluded a city ordinance requiring street cars to stop at street intersections, and the ruling is claimed to be erroneous. In the first place, the bill of exceptions does not contain the ordinance or any statement of its substance. We find attached to the record what purports to be sections of an ordinance marked “Plaintiff’s Ex. B. for identification.” This is not attached to the bill of exceptions, except that the original bill of exceptions is made a part of the record by stipulation and a certified copy of these sections is attached to' the record. This is pot sufficient to make it a part of the record. City of Chicago v. South P. Comm’rs., 169 Ill. 387. But waiving that point, and considering the copy of the sections as properly in the bill of exceptions and apart of the record, no exception was preserved to the ruling of the court excluding the ordinance, and therefore no question is presented for review in this court. Chicago Great Western Ry. Co. v. Mohan, 187 Ill. 281; McGuire v. Gilbert, 180 id. 96. We do not mean by this to intimate that there was any error in excluding the evidence.

Finding no error in the record the judgment is affirmed.

Affirmed.

Mr. Justice Mack took no part in the decision of this case.


text:
    Anna M. Trenchard, Defendant in Error v. Joseph Trenchard, Plaintiff in Error.
    Gen. No. 14,531.
    1. Divorce—when allegations of extreme and repeated cruelty sufficient. Held, that the averments of the bill of complaint in this case were true and warranted a decree of divorce upon the ground of extreme and repeated cruelty.
    2. Divorce-—when findings sustain decree. If a decree finds that one of the specific statutory grounds for divorce has been proved, it is sufficient.
    3. Pleading—when replication waived. If the parties proceed to a hearing and testimony is taken without objection, they will be deemed to have waived the filing of a replication which is a mere formal pleading averring the truth of the allegations of the b-ill, and denying the truth of those of the answer.
    Divorce. Error to the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed October 29, 1909.
    Matthew P. Beady, for plaintiff in error.
    Albert H. Meads, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

On July 25,1907, defendant in error, Anna M. Trenchard, filed her bill against plaintiff in error, Joseph M. Trenchard, in the Circuit Court, for a divorce on the ground of extreme and repeated cruelty, specifying the acts of cruelty.

Plaintiff in error answered the bill, admitting the allegations as to residence in the county and State, the marriage and the birth of the child, but denying each and every specific act of cruelty set up in the bill. No replication was filed.

October 27, 1907, the cause was heard upon the bill and answer and testimony taken in open court, and a decree was entered finding “that the defendant has been guilty of extreme and repeated cruelty as charged in the complainant’s bill of complaint,” and adjudges and decrees a divorce.

No certificate of evidence was filed in the case.

Plaintiff in error contends that the decree should be reversed because the case stated in the bill does not warrant the decree. We think the averments of the bill, if true, warrant the decree. Sharp v. Sharp, 116 Ill. 509; Ward v. Ward, 103 id. 477.

The second ground of error for which it is contended that the decree should be reversed is that the cause having been heard on the bill and answer, without replication, and all the allegations of fact being clearly and unequivocally denied by the answer, the allegations of the bill are to be taken as disproved," and therefore the decree is manifestly wrong'.

The answer to this contention is that the cause was not set down for hearing on the bill and answer, but, it appears from the decree itself that testimony was heard in open court in support of thé bill. The bill expressly waived answer under oath, and the answer must be considered as a mere pleading for the purpose "of joining issue on the allegations of the bill. If the parties proceed to a hearing and testimony is taken without objection, they will be deemed to have waived the filing of a replication which is a mere formal pleading averring the truth of the allegations of the bill, and denying the truth of those of thé answer. Jameson v. Conway, 10 Ill. 227, 2301; Durham v. Mulkey, 59 Ill. 91; Chambers v. Rowe, 36 id. 171; Jones v. Neely, 72 id. 449; Unity Co. v. Equitable Trust, 204 id. 595.

It is further contended that the decree is not supported by evidence preserved in the record by a certificate of the evidence given, at the hearing, nor by specific findings of facts in the decree, proved on the hearing, and it must therefore be reversed for want of such support.

We are of the opinion that the finding of the decree above set forth is sufficient to sustain the decree, without a certificate of the evidence. Milashwskis v. Milashwskis, 140 Ill. App. 501. We think that the finding in this decree is very different from the findings before the court in Ohman v. Ohman, 233 Ill. 632, where the decree found “that the allegations in the said bill contained are true as therein stated, and the equities of this cause are with the complainant,” In the decree before us one of the statutory grounds for divorce is specifically found.

Finding no error in the record, the decree is affirmed.

Affirmed.


text:
    Great Northern Manufacturing Company, Defendant in Error, v. Alexander C. McNeill et al., Plaintiffs in Error.
    Gen. No. 14,591.
    1. Bonds—quantum of proof in action upon fidelity bond. In a civil action upon a fidelity bond, recovery may be had upon proof establishing the plaintiff’s ease by a preponderance of the evidence.
    2. Bonds—when proof sufficient to sustain action upon fidelity. Held, that the evidence in this case, which showed the unexplained departure of an employe without making an account of the funds in his possession was sufficient to sustain the judgment in favor of the employer upon a fidelity bond.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed October 29, 1909.
    David & Zhjjvtan, for plaintiffs in error.
    Charles Daniels and Sumner C. Pálmer, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the Municipal Court of Chicago against plaintiffs in error on a bond of indemnity executed by plaintiffs in error, as sureties, and one Walter H. Fleming, as principal.

The record shows that the defendant in error in July, 1907, was engaged in selling premium goods and merchandise through traveling agents or solicitors; that Fleming, having applied for employment with the defendant in error, was required to give a fidelity bond, and that thereafter the plaintiffs in error, together with Fleming, executed and delivered the bond to defendant in error. It appears that on September 7, 1907, Fleming was entrusted by defendant in error with a sample case containing dishes, crockery and other merchandise, valued at $15, and was also given $35 for expenses. He was directed by defendant in error to go to Decatur, Illinois,, there to meet one Say-er, another employe of the defendant in error, and was to proceed to work under his' directions. Fleming, after departing from the office of the defendant in error on September 7, 1907, has not been heard from.

Defendant in error in December, 1907, commenced suit on the bond in the Municipal Court of Chicago, against plaintiffs in error. The appearance of plaintiffs in error was filed.

By the condition of the bond sued on it was provided that the surety should, at the expiration of three months next after satisfactory proof of the pecuniary loss, as therein mentioned, reimburse the employer to the extent»of the sum of one hundred dollars and no further, for such pecuniary loss as the employer shall have sustained by any act of larceny or embezzlement on the part of the employe in the performance of the duties of the office or position in the service of the employer, as the same may be stated in writing by the employer to the company, and occurring during the continuance of the bond and discovered during said continuance or within ten days thereafter.

The only question raised on the record is whether or not the unexplained absence of Fleming from September 7,1907, to the date of suit makes a prima facia case against his sureties, plaintiffs in error, on the bond.

It is contended on behalf of plaintiffs in error that the evidence is not sufficient to support the finding and judgment because the fraudulent or dishonest acts insured against by the terms of the bond are acts amounting to larceny or embezzlement on the part of the employe in connection with the duties of his office or position, and that a criminal offense must be proved against Fleming; and Reed v. The Fidelity & Casualty Co. of New York, 189 Pa. 596, and Williams v. U. S. Fidelity & Guaranty Co., 66 Atl. Rep. 495, are cited and relied upon. We think, however, that in a civil action on the bond, the rule of evidence is not the same as in criminal cases and that the offense need not be proved by evidence which leaves no reasonable doubt in the minds of the court or jury. But, however that may be, we think the evidence in this record is sufficient to" support the judgment.

In Murphy v. The People, 104 Ill. 528, Murphy was jointly indicted with one Fay for the crime of larceny. The proof on the trial was that one Coskey and a friend accompanying him entered a saloon kept by Fay and procured drinks, and Coskey, not having the exact amount of money with which to pay for the drinks, handed Fay a twenty dollar gold coin, United States coinage, for the purpose of making change. Fay could not “change” it, and thereupon pushed the coin towards Murphy, who was standing at the bar, and requested him to go and get the coin “changed,” Murphy took the coin, left the saloon and never returned or accounted for the money. The court held the proof sufficient, citing Farrell v. The People, 16 Ill. 506; and Welsh v. The People, 17 Ill. 339. In the Welsh case it was said: “Where, as in this case, the alleged larceny is perpetrated by obtaining the possession of the goods by the voluntary act of the owner, under the influence of false pretenses and fraud, when the cases are carefully examined and well understood, there is no real difficulty in deducing the correct rule by which to determine whether the act was a larceny and felonious, or a mere cheat and swindle. The rule is plainly this: if the owner of the goods alleged to have been stolen, parts with both the possession and the title to the goods to the alleged thief, then neither the taking nor the conversion is felonious. It can but amount to a fraud. It is obtaining goods under false pretenses. If, however, the owner parts with the possession voluntarily, but does not part with the title, expecting and intending that the same thing shall be returned to him, or that it shall be disposed of on his account, or in a particular way, as directed or agreed upon, for his benefit, then the goods may be feloniously converted by the bailee, so as to relate back and make the taking and conversion a larceny. The pointed inquiry in such a case must always arise, did the owner part with title to the things, and was the title vested in the prisoner?” The court held that no ground was apparent upon which it could be held that the conviction of Murphy was not sustained by the evidence, and that the proof on behalf óf the prosecution made a ease. The intent may be inferred from the circumstances. Stinson v. The People, 43 Ill. 397.

No presumption of death can be indulged in to relieve Fleming from the imputation of criminal intent cast upon him by the facts shown by the evidence. The proof in this case appears to be sufficient under the authorities cited to warrant the finding and judgment in this case.

Evidence was introduced tending to show that Fleming was employed on a commission basis. The evidence does not show the contract of employment. The point is made, however, that an agent or employe working on commissions cannot embezzle or steal the funds that he works with, even though the greater part thereof belongs to his principal. The cases cited in support of this contention are not annlicable to the case at bar. The contention itself is without merit in this case.

The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.