text:
    The Koehring Machine Company, Appellee, v. Chicago Builders Specialties Company, Appellant.
    Gen. No. 17,900.
    1. Damages—breach of contract. Where defendant files a set-off on account of plaintiff having sold a number of machines in territory which by contract it had given exclusively to defendant, the ■ measure of damages is the profit which defendant would have made had it sold the machines at the same price.
    2. Contbacts—construction of contract giving exclusive sale. Where plaintiff by contract gave defendant exclusive sale of its machines in certain territory and agreed to refer to defendant all inquiries relating to their purchase in the territory, and a firm having their main offices in the territory send an agent to plaintiff’s offices outside such territory and afterwards plaintiff sells the firm a number of the machines to be sent to places outside the territory, there is a violation of the contract, and it is error for the court to direct a verdict for plaintiff for an undisputed sum without making any allowance for damages claimed by defendant in his set-off.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed on remittitur.
    Opinion filed January 28, 1913.

      Charles J. Kavanagh, for appellant.
    Montgomery, Hart & Smith, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff, the appellee, entered into a contract with defendant, the appellant, whereby it gave defendant the exclusive right to solicit for orders and to sell its concrete mixers in certain designated territory, including Chicago, and agreed to bill all machines ordered under said contract to defendant at its regular list price less a discount of 25% therefrom, to ship as directed and by such routes and at such times as defendant might instruct, and to promptly refer to defendant “all inquiries relating to the purchase of the Koehring concrete mixer in the territory” thus designated. In consideration thereof, defendant agreed not to become interested in the sale of any other mixers in said territory, except second-hand mixers, and to purchase not less than 25 mixers during each and every year of the contract, with the view of reselling them. Plaintiff brought suit for an undisputed sum of $1,461.53, due on purchases made by defendant under said contract.

While said contract was in force, plaintiff sold four of said mixers to Blome & Company of Chicago, at 10% below their list price of $4,800. Defendant filed a set-off for $1,200, 25% of said list price, and urges that it is entitled to at least 15% ($720) thereof—the profit it would have made had it sold the mixers at the same price, and that the court erred in disregarding such set-off, and directing verdict for plaintiff’s claim of $1,461.53.

Plaintiff had its office in Milwaukee, and Blome & Company had its main office in Chicago and branch offices in other states. The latter company sent one of its employees from Chicago to plaintiff’s office in Milwaukee to investigate plaintiff’s mixers and prices. Plaintiff knew he represented said Chicago company, and later telephone conversations between the two companies relative to the matter were had, and the mixers were bought and shipped to other states as Blome & Company directed.

As we view it, it was immaterial whether such sales were made in Milwaukee or Chicago so long as the inquiry therefor emanated from the Chicago office of the purchaser. The purpose and terms of the contract required plaintiff to refer such inquiries to defendant, and it was the manifest intendment of the contract, as we construe it, that defendant should have the exclusive right to sell not only to all persons in the territory designated, but to all in that territory making inquiries with a view to purchasing said mixers, whether they were to be used in said territory, or elsewhere, for plaintiff was to route them as defendant directed.

That being the case, the actual damage sustained by defendant for breach of the contract was the loss of profit defendant would have made had it sold the machines at the same price, namely, $720. Cincinnati S. L. Gr. I. Co. v. Western S. L. Co., 152 U. S. 201. The court erred in directing a verdict without making such allowance. The facts are undisputed, hence if appellee will within ten days from the filing of this opinion file in this court a remittitur of $720, the judgment will be affirmed, appellee to pay the costs of this court; otherwise the judgment will be reversed and the cause remanded for a new trial.

Affirmed on remittitur.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Joseph P. Junk, Trustee, for use of Frank P. Mies, Administrator, Appellee, v. Frederick Zieske, Guardian, Appellant.
    Gen. No. 17,968.
    1. Mortgages—solicitors’ fees. In an action to foreclose a trust deed it is proper to allow complainant the amount provided in the trust deed for solicitors’ fees where it is reasonable.
    2. Mortgages—solicitors’ fees. In foreclosure it is not error to allow complainant solicitors’ fees where his solicitor was a partner of complainant’s usee, there being no proof that the latter was to share in the fee.
    3. Mortgages—solicitors’ fees. In foreclosure it is not error to allow complainant solicitors’ fees as provided by the trust deed although the minor heirs of one of the grantors are parties defendant.
    4. Costs—for guardian ad litem. Under R. S. ch. 22, § 6, the court has the right to tax costs for guardian ad litem.

      5. Pleading—waiver of replication where there are infant defendants. In a foreclosure proceeding the fact that the defendants are infants does not prevent the waiver of a replication to the answer.
    6. Costs—where there are minor defendants. In foreclosure the complainant is entitled to the usual costs though there are minor defendants.
    7. Mortgages—foreclosure decree. In foreclosure the decree is not indefinite in finding a certain sum due “with lawful interest thereon” from a specific date until paid.
    Appeal from the Superior Court of Cook county; the Hon. William F. Cooper, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 28, 1913.
    Albert Wesley Gottschalk, for appellant.
    N. A. Beck, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

The appeal is from a decree of foreclosure of a trust deed which included an allowance of $100 to complainant for solicitor’s fees, as provided for in the trust deed. Being reasonable it was properly allowed. Abbott v. Stone, 172 Ill. 634. And there was no error in allowing it because complainant’s solicitor was a partner of complainant’s usee, there being no proof that the latter was to share in the fee (Thomas v. Hamill, 106 Ill. App. 524), nor because minor heirs to one of the grantors of the trust deed were parties defendant. They were bound by its legal provisions. The court also had the right to tax as costs $25 for the guardian ad litem. Hurd’s R. S. ch. 22, see. 6.

There is no point in the other contentions that there could be no waiver of a replication to the answer of the infant defendants, and that because there are minor defendants the complainant is not entitled to the usual costs of such a proceeding, and that the decree is indefinite in finding a certain sum due “with lawful interest thereon” from a specific date until paid.

The decree will be affirmed.

Affirmed.


text:
    Leopold Nathan, Trading as Local Improvement and Tax Payers’ Association of Chicago, Appellee, v. David L. Peterson, Appellant.
    Gen. No. 17,975.

      Champerty—action for attorneys’ fees where contract champertous. An attorney does not forfeit his right to compensation for services by entering into a champertous contract, and 'where the illegal contract may be disregarded and recovery had on proof of the reasonable value of the services rendered, he has the right to recover under a quantum meruit count.
    Appeal from the County Court of Cook county; the Hon. John K Owens, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 28, 1913.

      O. C. Peterson, for appellant.
    No appearance for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Appellee brought a suit to recover for services rendered as an attornéy. The declaration included the common counts and a count declaring on a contract for such services properly held by the court to be champertous. The only question arising upon the record is whether or not, proof having been given of the reasonable value of such services, he could recover under the common counts.

In some jurisdictions it is held that an attorney does not forfeit his right to full compensation for services by entering into a champertous contract. 6 Cyc. 880; 5 Am. & Eng. Ency. of Law (2d Ed.) 828. That doctrine was approved in Brush v. City of Carbondale, 229 Ill. 144. Had the proof in the case at bar been confined to the illegal contract and rendition of services thereunder, or had the contract been a necessary part of the case, there could have been no recovery, but if the champertous contract may be disregarded and recovery had on proof of the reasonable Value of the services rendered the right to recover under a quantum meruit would seem to follow. The judgment is accordingly affirmed.

Affirmed.


text:
    Equitable Trust Company, of New York, Appellant, v. C. B. Harger, Appellee.
    Gen. No. 17,990.
    Bills and notes—instrument not negotiable where payee uncertain. Where a written promise to pay a certain amount does not designate with certainty the payee, it is not a negotiable instrument.
    Appeal from the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 28, 1913.
    Percival Steele, for appellant; Harvey L. Cavender, of counsel.
    Frederick Mains, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff’s suit is based upon the theory that the following writing was a negotiable instrument in Illi- . nois at the date of its execution:

“Chicago, Ill., Dec. 15th, 1902.
“Mr. Archibald C. Haynes,
General Agent,
Equitable Life Assurance Society,
25 Broad Street, N. Y;
Dear Sir:
I hereby acknowledge having received from Mr. F. F. Mclver, policy Nos. 1168206, 1168204 and 1168208 —being for $20,000 on my life, in the Equitable Life Assurance Society. You are authorized and requested to place the said policy in force from this date, and I promise to pay the balance of the first premium, amounting to $800 as follows:”
(Here are designated eight instalments of $100 each; one made payable on the 15th of each month for the next eight successive months). Signed, “Very truly yours, C. B. Harger.”

Indorsed on the back of said instrument is the following :

“Archibald C. Haynes,
Q-en’l Agt.,
By Ralph C. Haynes, Atty.”

We cannot agree with the contention that such instrument designates Haynes as the payee. The instrument itself does not designate with certainty any person to whom payment is to be made. From its context it clearly imports Harger’s liability to the Equitable Life Assurance Society for premiums on policies issued by said society on his life, and his promise to pay them, and clearly indicates that he was dealing with Haynes in the capacity of agent for said society. Unquestionably the latter could have brought an action for said premiums if not paid, and have used such letter as evidence of the obligation. This case is not at all analogous to the cases cited where terms like “agent,” “president,” etc., are merely descriptio personae.

The court below properly found for defendant, and that the instrument was not negotiable, and that it did not designate Haynes as payee.

Affirmed.


author: Mr. Presiding Justice Clark

text:
    Horace P. Deacon, Appellee, v. Kelly-Atkinson Construction Company, Appellant.
    Gen. No. 17,870.
    1. Master and servant—when foreman does not assume to Be a fellow-servant. Where a foreman in special charge of the hoisting machinery of a structural steel construction company caused a hook through which a cable ran to be attached to a tower, ordered plaintiff, a construction workman, to assist in the hoisting, and when the hoisting was started by the foreman’s order the hook became unfastened, resulting in the cable striking the plaintiff, the mere fact that the foreman was not upon the ground and did not initiate the movement of the hoisting apparatus does not tend to show that he had laid aside,his position of foreman and assumed the character of colaborer with plaintiff.
    2. Master and servant—negligence in management of hoisting apparatus. Where a foreman in charge of the hoisting apparatus of a structural steel construction company caused a hook through which a cable ran to be attached to a tower and ordered plaintiff, a construction workman, to assist in the hoisting, and he knew or should have known that the hoisting apparatus was not in condition to permit hoisting in safety or that attaching the hook to the tower was an improper manner of doing the work, and ordered the starting of the engine which resulted in the hook becoming detached and' the cable striking the plaintiff, the foreman is guilty of negligence, and such negligence is that of the company.
    3. Damages—when $6,500 for fractures is not excessive. A plaintiff was thrown from a bridge and received a fracture of the leg which remained out of alignment, of a bone in an elbow, of a rib and of the outer table of the skull. The injuries necessitated eight weeks confinement in a hospital and further treatment thereafter and were likely to be permanent. Held, a verdict for $6,500 was not excessive.
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 28, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Shops, Zane, Busby & Weber, for appellant.
    David K. Tone and H. M. Ashton, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This is a suit for personal injuries, brought by appellee (plaintiff) against appellant '(defendant). There was a trial before the court and a jury. The jury found a verdict in favor of the plaintiff in the sum of $6,500, upon which judgment was entered, and from such judgment this appeal is taken.

The plaintiff was a member of a construction gang employed by defendant in structural steel work upon a railway bridge over the north branch of the Chicago river at Kinzie street, in the City of Chicago. Prior to the accident two steel towers had been constructed on the east side of the river, which there runs north and south, one tower at the northeast corner and the other tower at the southeast comer of the bridge. The towers were about 35 feet apart, and were made up of lattice work or lacings on the side. Between the two towers, across from one to the other, were two girders. The lower girder, upon which the accident happened, was a box girder, about three feet square and about 25 feet from the ground, made up of lattice work. It was hollow on the inside. The upper girder it would appear from the evidence was ten feet or more above the lower girder. At the time of the accident a steel plate was being hoisted. This was done by means of a derrick upon a derrick car, which stood east of the towers, the car having its wheels blocked and being fixed in its place upon the track. The derrick upon. the derrick car consisted of an A frame made up of two upright posts inclined together, between which was a mast -fixed on pivots, and attached to the mast was a boom. G-uiding lines were used to swing the boom and were operated by spools on one of the drums of the engine. There were two drums on the engine, one of which wound and unwound the cable that lowered or elevated the outer end of the boom, and the other wound and unwound the hoisting cable which lifted the load to be hoisted. At the time of the accident the outer end of the boom, which was 75 or 80 feet long, extended upwards from the derrick car above the upper strut or girder and towards the west of the girder. The derrick car had been fixed in its place and the end of the boom had been swung as far north as possible. The hoisting line hung from the end of the boom over a wheel down to the ground and on the west side of the two girders. At this time, one Jones, who was assistant foreman of the work, and who appeared to have had special charge of the operations of the hoisting machinery; stood on the first or lower girder. In order to hoist a steel plate to be used as a brace or stiffener between the two trusses, without changing the position of the derrick car, Jones had previously caused to be attached to the lace work of the tower, some distance above the point where the plate was to be inserted between the girders, a set of blocks.

The plaintiff testified that he had been working putting in bolts just prior to the accident, and was waiting for the plate to come up; that he was then ordered by Jones to come and help; that he started to walk on the girder or strut, towards where Jones was, when he was struck; that he could not say whether it was the cable or chain that struck him, and that he was unable to say what happened after that, until he recovered consciousness at the hospital some days later. Orville Sweeney, a witness for the defendant, and other witnesses testified that the cable struck him.

While the testimony of the witnesses is not entirely harmonious as to the details of the operation of raising the plate, it seems to be clear that the signal to the engineer to start the engine was given by Jones. It is claimed by the defendant to be disclosed by the evidence that Jones was not in position to see the plate, and that he merely passed on to the engineer the signals received from one Fornwald, who apparently was in the hollow of the girder, hammering the plate and otherwise assisting in the endeavor to get it to the required position. One Carl Sweeney directed the course of the plate from below and probably indicated when the plate was ready to be lifted.

Two questions of fact which under the declaration the jury were called upon to determine were, first, whether the hook that was attached to the tower and through which the cable ran when the plate was being hoisted, was insecurely and improperly fastened to the tower, and whether, for that reason, the hook became detached; second, whether the appellant was guilty of negligence in operating the derrick, the plate and the cable at the time of the accident, and in that way caused the fastening of the hook through which the cable ran to give way; and the further question of whether or not plaintiff himself was guilty of negligence contributing to the accident.

It is the contention of the defendant that there should have been a verdict directed for the defendant; that its motion for a new trial should have been granted; that the verdict was contrary to the evidence; that there was contributory negligence on the part of plaintiff; that there was error in the instructions, and that the damages are excessive.

A large part of the argument is devoted to the question as to whether or not Jones and Deacon were fellow servants. In the case of Devine v. Kelly-Atkinson Const. Co., 156 Ill. App. 602, it was held that “if the accident was due to the foreman’s negligence in giving the wrong signal, then the doctrine of assumed risk cannot be invoked, inasmuch as the risk of negligence on the part of the master personally or of his representative, the foreman, not a fellow servant” (the italics are ours) “is not assumed.” The case last referred to was heard in this branch of this court and based upon the authority of Malloy v. Kelly-Atkinson Const. Co., 240 Ill. 102; Casey v. Kelly-Atkinson Const. Co., 240 Ill. 416, and earlier decisions. It is argued that the case now under consideration comes within the principle announced in Chicago & A. it. Co. v. May, 108 Ill. 288, that when a foreman lays aside his position as foreman and assumes the character of a co-laborer with the party injured, he at once becomes a fellow servant; and it is further urged that the opinion in the case of Devine v. Kelly-Atkinson Const. Co., supra, is not a correct statement of the law notwithstanding it would appear that a writ of certiorari was denied by the Supreme Court.

The argument of defendant is, as we understand it, that because the signal to start the engine was given by Fornwald and passed on to the engineer by Jones, that therefore Jones was acting merely as a fellow servant with Fornwald and also with the plaintiff and other employees who were about the work at that time.

We do not agree with this contention. We think it was the duty of Jones, as foreman, to see that the hoisting apparatus was in proper shape to permit the load safely to be carried. From the record it would appear that he was in a position where he could see the hook that was attached to the lattice work of the tower and through which the cable ran. The evidence tended to show that it was he who gave the order to attach the set of blocks to the lace work of the tower and it is substantially admitted that it was he who ordered the engineer to start the engine. The mere fact that he was not upon the ground and did not initiate the movement of the hoisting apparatus does not, in our opinion, tend to show that he had laid aside his position of foreman and assumed the character of a co-laborer with the plaintiff. Thomas Reilly, the general foreman in charge of the work, testified that “Jones had authority to give orders to the men and when he gave those orders they were supposed to obey them. ’ ’

Jones, if plaintiff’s testimony is to be believed, ordered plaintiff to leave his other work and come to where the plate was to be placed. If at that time Jones knew or should have known that the hoisting apparatus was not in condition to permit the plate to be hoisted in safety, or that attaching the hook to the tower was an improper manner of doing the work, and notwithstanding that ordered the engineer to start the engine, we think he was guilty of negligence and that such negligence was the .negligence of the company.

The one instruction complained of was tendered by the plaintiff, and the criticism of it relates to the question as to whether or not Jones was a fellow servant.

We think the instruction was properly given.

We do not think the damages awarded are so excessive as to require a reversal of the judgment. The plaintiff was thrown from the bridge and received a fracture of the leg, and also a fracture of a hone in elbow, a fracture of the rib and of the outer table of the skull. These ailments required eight weeks’ confinement in the hospital and further treatment thereafter. There was also testimony tending to show that the bone of the leg after the accident was “out of alignment. ’ ’ ■ The evidence further showed that plaintiff sustained injuries, which are likely to be permanent.

The question of contributory negligence was one properly submitted to the jury, and we find nothing in the record tending to indicate that there was negligence on plaintiff’s part which contributed to the accident.

The judgment will be affirmed.

Affirmed.


text:
    Josephine Picek, Appellee, v. The Modern Brotherhood of America, Appellant.
    Gen. No. 17,885.
    1. Insurance—when examining physician is not agent of applicant. An examining physician did not remember whether a question whether any of the applicant’s relatives had been affected with tuberculosis, to which he placed the answer “No,” was so answered by the applicant. The question was translated and not asked in the exact language inserted in the application, and if an applicant did not have the knowledge the examiner used his own judgment and usually put down “No.” There was evidence that the insured stated she did not know of what various relatives died. Held, the physician was acting as agent for the insurer.
    2. Insurance—validity not affected by false answers inserted by an agent. Where one makes true answers to the questions in an application for life insurance, the validity of the insurance is not affected by the falsity of the answers inserted by the agent of the company.

      3. Insurance—when answer in application is not that of applicant. The father and uncles of an applicant for life insurance had died of quick consumption. The examining physician did not remember whether a question whether any of the applicant’s relatives had been affected with tuberculosis, to which he placed the answer “No,” was so answered by the applicant. The question was translated and not asked in the exact language inserted in the application, and if an applicant did not have the knowledge the examiner used his own judgment and usually put down “No.” There was evidence that applicant stated that she did not know of what disease the relatives died. The insured died of tuberculosis. Held, in an action on the death benefit certificate, the jury were warranted in finding that the answer was not that of the applicant.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 28, 1913.
    George M. Boyd, for appellant.
    Otto Keener and DeWitt C. Jones, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Eecovery was had in this case by appellee upon a death benefit certificate issued to her daughter, Eose Sevcik, taken out for the benefit of the mother by the daughter in The Modern Brotherhood of America, the appellant. The application was made on September 16, 1908, and the certificate issued nine days thereafter. Eose Sevcik died on June 8, 1910, and a certificate of the Department of Health of the City of Chicago was introduced in evidence, certifying that the death was caused by pulmonary tuberculosis.

The basis of the defense of the suit is the charge that in the application for membership a false answer was made by the applicant to the following question: “Has either of your parents, or any of your brothers, sisters, uncles, aunts or grandparents been affected with rheumatism, insanity, tuberculosis, scrofula or any hereditary disease?”, the answer being “No.” The certificate provided that “the application for membership, including the physician’s report, a copy of which application and report is hereto attached, shall together constitute the exclusive contract between this society, the member and the beneficiary.” It is asserted by the appellant that the proof shows that the father and uncle of Bose Sevcik died of consumption. The testimony tends to show that John Sevcik, the father of Bose, died in January, 1910, when Bose was less than ten years of age; that he, the father, was treated ten days for consumption; that her uncle, Karel Sevcik, died of quick consumption in 1905, after treatment of one week; and that another uncle, who after being treated four or five times for pneumonia, died in 1905 from quick consumption resulting from the attack of pneumonia. The examining physician testified that he did not remember whether the question to which he placed the answer “No” was so answered by the applicant. The parties were Bohemian, and the physician testified that it would have been of no use to put the question in the language inserted in the application, because the applicant would not understand it; that he translated it and asked whether or not any relations ever had consumption or died of consumption; that usually applicants knew; that if an applicant said “No” or that he did not know, the witness used his own judgment and usually put down “No.”

A witness for appellee testified that she was selected at the lodge meeting to take the applicant, Bose Sevcik, to the doctor for examination; that she was present at such examination, and that the applicant said that she had brothers and sisters; that her father was dead; that she was a young child when her father died and did not know what he died of, but had heard that he died of pneumonia; that she did not know of anybody in her family who had consumption or rheumatism; that her mother and sisters were living; that she was asked as to her uncles, and answered that she did not know any, so that she did not know whether they had any such disease or not; that her grandparents were still living.

It is clear that the physician was acting as agent for appellant. Royal Neighbors of America v. Boman, 177 Ill. 27. The case cited is also authority for the proposition that where one makes true answers to the questions in an application for insurance, the validity of the insurance is not affected by the falsity of the answers inserted by the agent of the company. It has been held that where there is testimony that the answers written by the society’s examining physician do not correspond with those given by the applicant, and were not read over to the applicant, and this testimony is not denied by the examining physician, who was a witness, the contract may not be canceled. Arnhorst v. National Union, 179 III. 486.

We think the jury-were warranted in reaching the conclusion that the answer “No” to the question heretofore set forth was inserted by the examining physician, and that it was not the answer of the applicant, Bose Sevcik. Having come to this determination, it is unnecessary for us to consider other questions raised in the brief such as the distinction between representations and warranties; whether or not there was a misrepresentation of a material fact by the applicant; whether or not the disease from which Bose Sevcik died is to be classed as an “hereditary disease,” etc.

We have carefully examined the record, and are of the opinion that there was no error in the charge of the court to the jury, or in the admission or rejection of testimony, such as should call for a reversal of the judgment. The judgment will therefore be affirmed.

Affirmed.


text:
    George R. Kershaw, Trading as George R. Kershaw & Company, Appellee, v. Booth Fisheries Company, Trading as Booth Cold Storage Company, Appellant.
    Gen. No. 17,903.
    1. Warehouseman—surrender of warehouse receipt before action necessary. Where a negotiable warehouse receipt has been issued with, the consent of the owner of the goods to a third party, surrender of the receipt, or enjoining its negotiation, or causing it to be impounded by the court, is necessary before an action can be. maintained against the warehouseman for conversion.
    2. Replevin—where warehouse receipt not surrendered, replevin does not lie. Under sections 25 and 54 of the act respecting warehouse receipts, a warehouse company must be given the benefit of all provisions of the act which are made for its protection, and these provisions should be construed as liberally as is consistent with a fair interpretation of the language employed, and where the receipt is held by a third party and not surrendered when no decree has been obtained enjoining such party from transferring the receipt, or the warehouse company been otherwise secured against its negotiation, action of trover or replevin will not lie.
    Appeal from the Municipal Court of Chicago; the Hon. Max Ebebhabdt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed January 28, 1913.
    Rehearing denied February 11, 1913.
    Winston, Payne, Strawn & Shaw, for appellant; M. H. Whitney, Walter H. Jacobs and J. Sidney Condit, of counsel.
    H. C. Lust and Felsenthal & Beckwith, for appellee; H. C. Lust, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this case judgment was obtained by the plaintiff (appellee) against the defendant (appellant), on a finding that plaintiff have and retain possession of 320 boxes of Spitzenburg apples, and in addition thereto recover from the defendant damages in the sum of $800, with costs. The damages, it would appear, include the value of 310 boxes of apples alleged to have been wrongfully converted by the defendant. In a recitation of the facts the dates are important, and will therefore be given with some particularity.

On October 10, 1910, the Northwestern Fruit Exchange of Portland, Oregon, shipped to itself at Chicago from Byron, Washington, a carload of apples via. Northern Pacific and Chicago & Northwestern railways, the bill of lading containing the words, “Notify George E. Kershaw & Company, care of Booth Cold Storage Company.” The car arrived in Chicago, as shown by the testimony offered by the plaintiff, on November 1, 1910, Kershaw & Company were notified by a representative of the railway company of the arrival on November 1st, and again on November 3rd and 4th. On the afternoon of the 4th the railway company was directed to “have car put to Booths’ Cold Storage,” and,from the evidence it would appear that on November 7th the car was unloaded into the warehouse and a negotiable warehouse receipt issued to one Sylvan Newhall.

It is insisted by plaintiff that there is no evidence in the record that such a negotiable warehouse receipt was issued by the defendant. The plaintiff, Kershaw, when on the stand was asked if he knew whether New-hall had a negotiable warehouse receipt covering the property, and answered in the affirmative. The plaintiff seems to have been a law student for ten years, and acted to some extent as his own attorney in the trial court. One Williams, a witness for the defendant and an employe of Newhall, was cross-examined by Kershaw himself and was asked the following question: “And during a conversation you were present, and Mr. Newhall was present, and I was present, and I asked Mr. Newhall for the negotiable receipt, did I not?” Answer: “Yes, sir.” Other questions of a similar nature were asked by the plaintiff himself, in all of which, it was assumed that a negotiable receipt had been issued. In our opinion it is quite clear from the record that the trial was had upon the assumption by both parties and the court that a negotiable warehouse receipt had been issued to Newhall.

. It appears that a surrender of the bill of lading was not required by the railway company.

Witnesses for the defendant testified in substance that an arrangement was made by the plaintiff with Sylvan Newhall, a commission man, that the apples should be stored in the defendant’s warehouse, in space for which Newhall had alreadly contracted; that Newhall should pay the freight and was to make plaintiff an advance on the apples, insure them, and take out a negotiable warehouse receipt in his (Newhall’s) name. The witnesses referred to were Newhall himself, and two of his employees. Their testimony was denied by Kershaw, as was also the statement of one of the witnesses, Williams, that Kershaw had gone with Williams to the warehouse after the car had been unloaded, and the testimony of Newhall that under the arrangement Newhall was to sell for Kershaw the car of apples in controversy. On cross-examination the plaintiff admitted that he had had previous dealings with Newhall; that the latter had sold for him one car of apples, and three weeks before had permitted him to store in his space in defendant’s warehouse two carloads of apples, for which warehouse receipts were issued to Newhall.

We think it was shown by the preponderance of the evidence that Newhall at Kershaw’s request paid the freight and caused the apples to be stored and the negotiable warehouse receipt to be issued in the former’s name.

On November 29th the plaintiff notified the defendant that he claimed the ownership of the apples, and a formal letter was written by plaintiff to the defendant on November 30th to the same effect. The letter also made demand for the property. Defendant delivered 100 boxes of the apples to Newhall on November 28th, and 210 boxes on different dates in January following. The refusal by the defendant to deliver to plaintiff was stated to be that it had issued a negotiable warehouse receipt and, therefore, under the law, could not deliver without a surrender of such receipt.

On December 3rd, three days after making demand upon the defendant, plaintiff commenced suit against the defendant company, Newhall and the Chicago & Northwestern Railway Company in trover, for the alleged conversion of the property involved in this suit. That suit was pending at the time the present action was brought, but its pendency was not pleaded in bar.

The question to be determined in this case is whether the plaintiff, not having surrendered the negotiable warehouse receipt to the defendant, enjoined its negotiation, or caused it to be impounded by the court, may maintain the proceeding.

Section 25 of the act respecting warehouse receipts, in force July 1, 1907, reads as follows:

“If the goods are delivered to a warehouseman by the owner or by a person whose act in conveying the title to them to a purchaser in good faith for value would bind the owner, and a negotiable, receipt is issued for them, they cannot thereafter, while in the possession of the warehouseman be attached by garnishment or otherwise, or be levied upon under an execution, unless the receipt be first surrendered to the warehouseman, or its negotiation enjoined. The warehouseman shall in no case be compelled to deliver up the actual possession of the goods until the receipt is surrendered to him or impounded by the court.”

' We think this suit may not properly be maintained. The act by other provisions imposes very strict obligations upon the warehouseman and severe penalties for their violation. By section 54 of the act it is made a crime for any warehouseman, or any officer, agent or servant of a warehouseman, to deliver goods out of the possession of the warehouseman, knowing that a negotiable receipt, the negotiation of which would transfer the right to the possession of such goods, is outstanding and uncanceled, without obtaining possession of the receipt, unless the receipt is proven to a court to be lost, under section 14 of the statute, or the warehouseman sold the goods to satisfy his lien or because of their perishable nature, under section 36 of the statute.

Counsel have been unable to find any authority directly bearing upon the situation confronting us in this proceeding. We are not aided by many authorities to which we have been cited, which were rendered prior to the enactment of the statute, and which necessarily do not take into consideration the negotiability of a receipt which is provided for and defined in the present act. The purpose of the act was evidently to render the title to and right of possession of property stored in warehouses more easily convertible, and in order to do so it became necessary to place upon the warehouseman much greater responsibility. A warehouseman, having assumed the responsibilities imposed upon him by the act, must be given the benefit of all provisions of the act which are made for his protection, and these provisions should be construed as liberally as is consistent with a fair interpretation of the language employed. In our opinion the plaintiff, having rendered it possible for Newhall to obtain from the warehouseman a negotiable receipt, should not, under section 25 of the act, be allowed to recover the goods taken in replevin and in trover the value of the goods not taken without having previously obtained a decree enjoining Newhall from transferring the receipt. By his own admission, the plaintiff had had other transactions with the defendant, and had arranged for the storing by Newhall of other cars of fruit in defendant’s warehouse, and had consented to, if he did not arrange for, the issuance of negotiable receipts to Newhall for such fruit. In our opinion, also, although by certain provisions of the act a warehouseman is enabled to protect himself as against different claimants for goods in storage, by a bill in the nature of a bill of interpleader, etc., he is still entitled to the protection provided by section 25 of the act.

Appellee in argument insists that the last sentence of the section, wherein it is provided that the “warehouseman shall in no case be compelled to deliver up the actual possession of the goods until the receipt is surrendered to him or impounded by the court,” does not apply in the case of a suit in replevin, for the reason that the prior sentence of the section, wherein it is provided that goods for which a negotiable receipt has been given, may not, while in the possession of a warehouseman, be attached by garnishment or otherwise, or be levied upon under an execution, does not mention the action of replevin. We think this is too narrow a construction to be given to the language. The plaintiff, in our opinion, by some proper process either should have obtained from Newhall the negotiable receipt or insured to the defendant that it had not been or would not be negotiated by Newhall. This might have been done by a proceeding in equity enjoining its negotiation. The action in trover heretofore referred to brought by plaintiff against Newhall and others prior to the beginning of the present suit could not have had this effect.

The judgment will be reversed.

Reversed.


text:
    Moritz Ertl et al., v. Samuel Lehmann et al. Mathias Freres, Appellee, v. Samuel Lehmann et al., Defendants. On Appeal of Louis Henry et al., Appellants.
    Gen. No. 19,085.
    Appeals and errors—dismissed when parties have no interest. When the appellants are shown to have no interest in the subject matter of the suit, the appeal will be dismissed on the court’s own motion.
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Appeal dismissed.
    Opinion filed January 28, 1913.
    Joseph Kohn and Henry & Robinson, for certain appellants.
    Fred Plotke and George E. Swartz, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

On September 26, 1910, Moritz Ertl and Max Robinson, as trustee, brought suit for the foreclosure of a second mortgage or trust deed given by Samuel Lehmann and Mary Lehmann, without making the owners of a first mortgage or trust deed parties defendant. Thereafter David J. Berlin was appointed receiver to collect the rents, etc. On September 26, 1911, Mathias Freres brought suit for the foreclosure of the first mortgage. Thereafter the cases were consolidated, and on October 7, 1912, an order was entered which among other things provided “that the receivership of said David J. Berlin, receiver, in the case of Moritz Ertl et al. v. Samuel Lehmann et al., be and the same is hereby extended to cover and include the cause of Mathias Freres v. Samuel Lehmann et al., in accordance with the prayer of complainant’s bill of complaint, and that said David J. Berlin be, and he is hereby appointed receiver under the prayer of the bill of complaint in said cause of Mathias Freres v. Samuel Lehmann et al.”

From the order referred to, this appeal has been taken by Louis Henry, David J. Berlin as receiver, and Max Robinson as trustee. It is claimed that the court erred in entering this order without requiring Mathias Freres, the' complainant in the second suit, to file a bond under the provision of section 53, chapter 22 of the Revised Statutes.

Appellant David J. Berlin was the receiver appointed, as heretofore stated, on the application of the complainants in the first bill, and accepted the appointment giving the required bond. "We fail to see that he has an appealable interest in the present proceeding. The appellant Max Robinson, trustee, was a trustee in the second trust deed securing the notes owned by Ertl. He was a mere nominal party, and he, likewise has no appealable interest. The third appellant is Louis Henry, who was made a .defendant to the foreclosure of the first mortgage, the bill alleging that he claimed to have some interest, the nature of which was ■ not known. He filed no answer, but by stipulation of counSel the bill in the Ertl case was made to stand as his answer in the Freres case. His name was not mentioned in the bill in the Ertl case, and therefore it does not appear that he has any interest in the proceeding. The property involved in both cases is the same, and the suits were properly consolidated.

As none .of the appellants is shown to have any interest in the subject-matter of the suit, we find it unnecessary to discuss the question as to whether or not the statute requiring a complainant’s bond applies in a consolidated case where a receiver has already been appointed at the instance of the complainants in the proceeding first instituted. It would appear that the real parties in interest are in no way prejudiced by the order as entered. It is fully within the power of the chancellor to control the application of the rents collected by the receiver, and it must be assumed that this power will be properly exercised.

Other parts of the order are objected to by the appellants, but they are not matters which can be inquired into by this court under the provisions of the statute with respect to appeals from interlocutory orders.

No motion to dismiss the appeal has been made by the appellees, but we deem that the proper order to enter in the case. The appeal will therefore be dismissed.

Appeal dismissed.


author: Mr. Justice F. A. Smith

text:
    Joseph Falvai, Appellee, v. Calumet & South Chicago Railway Company, Appellant.
    Gen. No. 17,869.
    1. Appeals and errors—questions of fact. The Appellate Court will not set aside a verdict in an action for personal injuries not manifestly against the evidence as to defendant’s negligence and plaintiff’s contributory negligence, though. the court might have found differently as to plaintiff’s contributory negligence.
    2. Evidence—testimony in rebuttal. It is not error for the court in its discretion to permit plaintiff to testify in rebuttal, in an action for personal injuries, concerning a matter not covered in his original examination but covered by some of his witnesses.
    3. Appeals and errors—harmless error. Repetition by witnesses of testimony given in chief by them when called in rebuttal should not be permitted, but may not call for reversal.
    4. Master and servant—instructions. Where in an action for personal injuries the evidence tends to support the theory of plain- - tiff, who helped in handling a ladle containing molten metal used in soldering street railway rails and in pouring the metal remaining into sand piles, that snow which lodged upon such piles was partly scraped off and fresh sand spread thereon and that the metal when poured into a certain pile, as negligently ordered by defendant’s foreman, came into contact with the snow and exploded, injuring plaintiff, it is not error to give an instruction which defines the foreman as a superior servant for whose negligence defendant is liable.
    5. Master and servant—when knowledge of unsafe condition 6y foreman presumed. If snow lodges on a sand pile into which molten metal used in soldering street railway rails is poured, and is partly scraped off and fresh sand placed thereon so thinly that the metal will come in contact with the snow, knowledge thereof by the foreman in charge of the work is presumed.
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 28, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Shops, Zane, Busby & Weber, for appellant.
    David K. Tone and H. M. Ashton, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiff, appellee, had judgment in the Superior Court against appellant, hereinafter called defendant, for $11,000 for personal injuries, from which judgment this appeal is prosecuted.

The defendant was the owner and operating a line of street railway upon Torrence avenue in the City of Chicago, and on January 25, 1910, was engaged in the rehabilitation of the railway tracks across and near 109th and 110th streets, by placing new rails along its tracks and soldering the joints where the ends of the rails came together. In the prosecution of that work, the defendant used molten metal which was carried along the tracks by means of a cupola car, so-called, and taken from the car at each of the joints by a ladle. The ladle was carried by certain servants of the defendant, and the molten metal poured into the joints. The portions of the molten métal remaining in the ladle after each joint had been soldered, were poured into or upon piles of sand which were placed near each one of the joints. The plaintiff was in the employ of the defendant, engaged in assisting in carrying the ladle from joint to joint, and in pouring the metal that remained after soldering the joints into the piles of sand.

The condition of the weather was such that there was considerable snow, ice and moisture in the street along Torrence avenue. On the day in question, the plaintiff was one of four men who carried the ladle of molten metal and poured it into the joints under the direction of defendant’s foreman. After pouring a joint, plaintiff, with the other men, carried what remained of the molten metal in the ladle to a sand pile and poured it either into the middle of the pile, or in such a manner that it ran over the outside of the sand pile and came in contact with the snow and ice on the street, and an explosion was thereby caused as a result of which particles of the metal came in contact with the plaintiff’s eyes and person, totally destroying the sight of his eyes.

The principal questions of fact in controversy in the evidence are: (1) whether the sand in the sand pile was dry, or whether it contained ice and snow; (2) was the sand sufficiently deep at the bottom of the sand pile so as to make it safe to pour the molten metal into the pile if it was poured properly; and (3) was the hot metal poured into the sand pile with due care, or was it carelessly poured over the side of the pile of sand in such a manner that it ran upon the sides thereof and came in contact with the frozen ground, snow and ice at the side of the pile whereby the explosion took place ?

The evidence shows that there was a foreman in charge of the work for the defendant; and there is evidence tending to show that the foreman ordered the men to pour the molten metal remaining in the ladle into a certain pile of sand, and that in obedience to the order of the foreman, they did so pour the metal and the explosion in question occurred.

Upon the questions of fact involved in the case, the evidence is conflicting and irreconcilable, and we are unable, upon an examination of the record, to say that the clear preponderance of the evidence is against the verdict and judgment of the court below,—either upon the question of the negligence of the defendant, or upon the question of the contributory negligence of the plaintiff. Being unable to come to the conclusion that the manifest weight of the evidence is against the verdict and judgment of the court below, we are not at liberty under the law to set aside the judgment and verdict even though we may think that upon the question of the plaintiff’s contributory negligence we might have found differently from the jury if we were sitting as jurors.

It is contended by the defendant that the court erred in permitting plaintiff to testify in rebuttal as to how long the sand piles had been upon the street prior to the accident. Evidence upon . that point had béen offered by two of plaintiff’s witnesses, but the plaintiff himself did not testify in his original examination upon that point. The testimony of the plaintiff was somewhat contradictory, and, therefore, unsatisfactory. The court, in its discretion, permitted the plaintiff to be recalled in rebuttal. We do not think the court committed error in permitting the evidence of the plaintiff in rebuttal. It was within the discretion of the court. Two other witnesses were called in rebuttal, who gave some testimony as to how long the sand piles had been on the street, and it is urged that this evidence was a repetition of their evidence given while they were testifying in chief when the original case of the plaintiff was being put in. The court should not have permitted the repetition of testimony given in chief, in rebuttal, but we do not think the effect of it was such as to call for reversal of the judgment.

The defendant further urges that in admitting evidence as to how long the sand piles had been in the street, the court committed error for the reason that under the declaration no claim was made connecting any such condition of the sand piles with the particular sand pile at which the explosion was shown to have happened. We think the point is not well taken under the averments of ihe declaration.

The defendant urges that the instruction given at the instance of the plaintiff, defining the foreman to be a superior servant for whose negligence the defendant was liable, was improperly given, for the reason that the sole negligence claimed was an unsafe condition of the sand pile, and if the sand pile was not unsafe the order to pour into it, alleged to have been given by the foreman, could not be negligent; and if the sand pile was as a matter of fact unsafe, the order to pour into the sand pile, whether negligent or not, was immaterial. The instruction given was approved in Casey v. Kelly-Atkinson Const. Co., 240 Ill. 416. The evidence on behalf of the plaintiff tended to show, and that was a part of the theory of the plaintiff’s case, that the sand pile had been upon the street some time prior to the accident, and that, in the meantime, there had been snowstorms and that snow had lodged upon the sand piles; and that prior to the accident some of the snow had been scraped off and fresh sand had been spread over the snow on the sand piles, but so thinly spread over that the molten iron when poured upon the sand pile came in contact with the snow, ice and moisture in the sand pile. If this was the condition of the sand pile the foreman would be presumed to know it. There was further evidence that the defendant ’s foreman ordered the plaintiff and those handling the ladle With him to pour the molten metal in the ladle upon this sand pile so prepared, and if so it would follow that the order was a negligent order. Upon this theory of the evidence in the case we think the instruction complained of was applicable. In our opinion the court did not err in giving the instruction.

The judgment is affirmed.

!"Affirmed.


text:
    Joseph Lach, Appellee, v. Pleas Concrete Construction Company, Appellant.
    Gen. No. 17,902.

      Damages—when verdict not excessive. A verdict for $3,500 is not excessive where the evidence shows that the injuries inflicted when a plank weighing two hundred pounds fell against plaintiff’s -head and shoulders are very serious.
    Appeal from the Superior Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 28, 1913.
    Rehearing denied February 11, 1913.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and Charles J. McFadden, of counsel.
    F. W. Jaros and Francis J. Woolley, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The plaintiff, Joseph Lach, appellee, recovered a judgment of $3,500 against appellant, Pleas Concrete Construction Company, hereinafter called defendant, for personal injuries.

Defendant was the subcontractor for the concrete construction work in the roof over the boiler room of a building which Darling So Company were erecting on and prior to July 30, 1909. The boiler room was 95 feet long from east to west, and from 45 to 50 feet wide from north to south; the roof was 35 or 40 feet high. In the center of the room there were four boilers which were already in operation at the time of the accident, and one water pump machine, located at the west end of the room back of the boilers. North of the boilers there was a pile of coal along the north wall of the building from which Darling So Company’s servants were feeding the boilers. There was also a pump or air compressor at which the plaintiff was working at the time he was injured. It was a new one and was being installed on the east side of the boiler room about three feet from the east wall. This compressor was about 6 or 7 feet long and extended from north to south along the east wall.

The boiler room was spanned with iron beams about 20 feet or more above the floor, running both north and south and east and west. One of the beams ran along east and west north of the boilers, and another still farther north in the same direction about 4 feet from the north wall across the whole building. These two beams were from 12 to 15 feet apart, and every 10 feet from east to west there were cross-beams between them.

Prior to the accident, defendant constructed the cement roof or ceiling of the boiler room upon temporary work made of %" boards. To take down this temporary work of the ceiling, defendant used a scaffold made of two horses, each about 10 feet high and 12 feet long, and sixteen planks each about 2" thick* 12" wide and 16 feet long. The horses were set on planks which rested on the iron cross-beams; three of the planks lay on the cross-beams running east and west on the south side, and the other three on the north side on the crossbeams, and the horses were set thereon so that they ran north and south. The horses were set about 12 feet apart. On the top of the horses were put two planks across from east to west, and on these two other planks were placed running from north to south so that defendant’s employes while working on the scaffold, could reach the temporary work constructed in the roof or ceiling.

The night before the accident, defendant’s employes discovered a knot in one of the 2" planks which they were using. They discarded this plank and replaced it with a very heavy 3" plank which weighed 200 pounds. The weight of this plank and the consequent difficulty in handling it, led to the immediate negligence which caused the accident.

On the morning of the day of the accident, July 30, 1909, plaintiff was ordered by the master mechanic of Darling' & Company, his employers, to install the compressor pump in the boiler room. At that time there were men finishing up the cement work under the compressor machine, and two men were tearing down the boards from the ceiling and throwing them down about 40 feet away from where plaintiff and the machinist were at work on the compressor. This they did with a hammer in one hand while holding the boards with the other, and then they threw the boards down alongside of the north wall of the boiler room, the boards falling about 40 feet from where plaintiff was working. While plaintiff was at work on the compressor and cleaning the same between the two fly-wheels thereof in a stooping position, with his back towards the men on the scaffold, the 3" plank, the position of which defendant’s servants were changing, was allowed to fall on the cement floor from which it fell over and struck plaintiff on his head and back, seriously injuring him.

The negligence charged in the declaration is that the servants of the defendant negligently allowed the board or plank to slip from their hands and fall upon the plaintiff.

It is insisted that plaintiff was guilty of such contributory negligence as to preclude his recovery; and that defendant was not guilty of negligence which was the proximate cause of the injury. We have examined the evidence upon these questions with care, and yre do not find that the verdict of the jury is against the manifest weight of the evidence.

It is urged that the court erred in refusing instructions, and certain instructions given are pointed out as erroneous on various grounds, and that instructions tendered by the defendant were erroneously refused. Upon a consideration of the instructions, we think that the case was properly submitted to the jury by the court by its instructions; and we think no error was committed in refusing the tendered instructions offered by the defendant. It would serve no useful purpose in this opinion to take up seriatim the instructions given and upon which the defendant predicates error, and the like may be said as to the refused instructions. We think no reversible error, either in giving or refusing instructions, was committed by the court.

The question of the amount of damages is pressed upon our attention, and it is claimed that the verdict is excessive. The injuries are shown by the evidence to lie very serious. We do not regard a verdict of $3,500 as any too large for the injuries shown in the evidence. There is a contention that the injuries were simulated to a considerable extent. That was a question for the jury. There is some conflict in the testimony of the experts as to the extent of the injury; but, allowing for this conflict of testimony, we cannot say that the finding of the jury, that the plaintiff was seriously injured, is manifestly against the weight of the evidence. The plaintiff was on the witness stand and testified to his sensations and his condition as far as he could describe it. The jury had an opportunity to study him as a witness and to form conclusions upon the testimony of plaintiff, and the testimony of the experts, and to observe all the witnesses as they testified, —their bearing and manner upon the stand. We think the verdict as to the amount of damages should not be interfered with.

The judgment is affirmed.

Affirmed.


text:
    Frederick E. Ohnesorge and George D. Stuart, Administrators, Appellees, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,910.
    1. Negligence—when imputed to child. Where a parent is present with a child of tender years at the time of an injury, and the negligence consists of some act or omission on the pare of parent, the negligence of the parent which contributes to an injury resulting to the child is imputable to the child and if established will prevent a recovery.
    2. Stkeet bailways—negligence of parent imputable to child. Where a father having hold of the hand of his three-year-old son sees two street cars approaching him from opposite directions, the one at the greater distance being eight hundred feet away, starts to cross the street at a crossing and finding his way blocked by the car at the shorter distance coming to a standstill passes around the rear of such car without looking farther and with his son is struck by the car coming from the greater distance, the father, if not negligent per se in law, is negligent in fact, and his negligence will be imputed to the child and prevent a recovery by the child’s administrators.
    3. Street railways—duty of pedestrian to looh. A pedestrian passing behind one car and in front of another at a street crossing owes the duty to look before stepping on a parallel track, and failure to do so is negligence.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed January 28, 1913.
    Franklin B. Hussey and C. LeRoy Brown, for appellant ; Leonard A. Busby, of counsel.
    James C. McShane, for appellees.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Appellees, as administrators of the estate of William A. Ohnesorge, deceased, recovered a judgment of $2,500 against appellant. The suit is brought for the benefit of Frederick E. Ohnesorge, the father of the deceased, and his mother and a brother.

The accident causing the death of deceased happened at the intersection of 61st and Halsted streets in the City of Chicago, December 20,1908, about 5:30 o ’clock in the evening. It was Sunday, and there were no vehicles at the crossing at the time the car collided with Ohnesorge and his son.

The declaration contained one count and alleges general .negligence by the defendant in running and operating a north-bound car upon Halsted street at the 61st street crossing, which resulted in the deceased being struck and injured so as to cause his death.

The material facts are that the father with the deceased, his son, about three years of age, were standing upon the southwest corner of 61st and Halsted streets. They were on their way to their home on the north side of 61st street, east of Halsted street. The father testified that on reaching the corner, he looked up and down Halsted street. He saw a southbound car a little north of 61st street. He then looked south and saw a north-bound car which he thought was at a point about 800 feet away. He also saw an automobile at about the north cross-walk of 61st street, about 35 feet ahead of the south-bound car. He waited at the southwest corner until after the automobile went by, and then left the sidewalk, leading his boy by the hand. He started east from the west sidewalk before the south-bound car stopped at the south side of 61st street. As Ohnesorge walked out to the west side of the car it stopped in such a manner as to block the south cross-walk. Ohnesorge testified that the side of the car itself,—not the platform,-—was in front of him. He then turned and walked north to go behind the standing car. The car was 48 feet long and its platform 7 feet 8 inches in length. On reaching the rear end of the standing car, he then crossed to the east and in walking across was about four feet behind the standing car. In walking across, the father took the little hoy by the hand, the boy being on the south side of the father, and the father’s right hand holding the boy’s left. They continued on east across' the space between the east and west tracks of Halsted street, walking at a slow and leisurely gait. Although Ohnesorge had seen the north-bound car before he left the side walk, he did not look to the south until the car was right on him, or until the instant they were struck. At the time he was struck, he was at or on the north-bound track. The last thing that Ohnesorge was conscious of before he was struck, was jerking the boy back and then being struck himself. Both the father and the child were struck by the car. The child was found opposite the front truck on the west side of the north-bound car; the father was found on the east side of the car.

Several grounds are urged for the reversal of the judgment. The first one, and the only one that we find it necessary to consider, is that a recovery is barred by the contributory negligence of the father of the deceased.

In our opinion, where the parent is present with a child of tender years at the time of the injury, and the negligence consists of some act or omission on the part of the parent, the negligence of the parent which contributes to an injury resulting to the child is imputable to the child, and, if established, will prevent a recovery. Chicago & A. R. Co. v. Logue, 158 Ill. 521; Chicago City Ry. Co. v. Wilcox, 138 Ill. 370; City of Pekin v. McMahon, 154 Ill. 141.

The question then is, was the father in this case guilty of negligence in leading the child around behind the south-bound car when he knew of the approach of the north-bound car, without looking for that car before leading the child upon the track in front of it? In our opinion, a person passing behind one car and in front of another at a street crossing owes the duty to look before stepping on a parallel track, and that failure to do so is clearly negligence. Burke v. Chicago City Ry. Co., 153 Ill. App. 388; Von Holland v. Chicago City Ry. Co., 148 Ill. App. 320; Brown v. Chicago City Ry. Co., 155 Ill. App. 434. These decisions are in harmony with the decisions of the leading states of this country. It is useless for a pedestrian to look when a standing car is obstructing his vision. It is often too late to look after the pedestrian has stepped upon the parallel track because the approaching car may be so near at hand as to make escape impossible. The time when ordinary prudence requires a pedestrian to look is when he closely approaches and comes to the farther line of the standing car. Hornstein v. United R. Co. of St. Louis, 195 Mo. 440. If by the exercise of ordinary care on Ohnesorge’s part, he could have seen the approach of appellant’s north-bound car as he emerged from behind the southbound car and approached the track on which the car was running, the law made it his duty to see the car under the facts disclosed by his own'testimony, and if he failed in that duty, as we think he did, his failure would bar a recovery in this ease. Chicago & N. W. Ry. Co. v. Dunleavy, 129 Ill. 132. His failure to look to the south in the direction from which he knew the car was approaching as he emerged from behind the south-bound car and before he stepped upon its track, if not negligence per se in law, was negligence in fact. If there were no conditions or circumstances shown by the evidence which excused him from looking, as appears from the testimony of appellee and others, without controversy, a jury is not warranted in finding that such failure to look is not negligence. Illinois Cent. R. Co. v. Batson, 81 Ill. App. 142, and cases there cited; Cotter v. Chicago City Ry. Co., 141 Ill. App. 101.

There is no evidence in the record tending to show wilful or wanton negligence on the part of appellant, and it is, therefore, unnecessary to examine the proof of negligence of the appellant.

The judgment is reversed.

Reversed.


text:
    Ella D. Harper, Administratrix, Appellee, v. Owen H. Fay Livery Company, Appellant.
    Gen. No. 17,950.
    1. Evidence—presumption that services are rendered for compensation. There is a rebuttable presumption of law that where services were rendered by one in his calling, trade or profession, the person rendering such services did so for a compensation to be paid to him.
    2. Evidence—presumption that livery company's carriage was hired by or for occupant. Where a person returning from a funeral in a conveyance belonging to a livery company engaged in the business of letting conveyances and drivers for hire, and driven by the company’s driver, is killed in a collision, and in an action against the company there is no evidence by the other occupants of the conveyance or by any one that the conveyance was hired, it' will be presumed that it was hired by the intestate or by some one in his behalf, especially as the company, who alone knew the circumstances of the letting, offered no testimony on the question.
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 28, 1913.
    Rehearing denied February 11, 1913.
    William D. Munhall, for appellant.
    William B. Jarvis, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This is an appeal from a judgment recovered in an action brought by Ella D. Harper, administratrix of the estate of Henry Harper, Jr., deceased, against the Owen H. Fay Livery Company, and the receivers of certain railroads, to recover damages on behalf of the next of kin of said deceased, by reason of the death which it was alleged was caused by the negligence of defendants.

The declaration avers general negligence against defendants. The general issue was filed by the defendants. On the trial the jury returned a verdict in favor of the plaintiff against the livery company, assessing plaintiff’s damages at the sum of $6,500, and finding the receivers of the respective railroads not guilty.

Appellant urges that there is no proof of the hiring of the horses and carriage in which the. deceased was riding at the time of the accident or collision. The evidence tends to show that the collision occurred at about 5:30 p. m., January 15, 1909. The carriage in which the deceased, with others, was being conveyed, was proceeding south on Douglas boulevard on the north side of the railroad track. Douglas boulevard is a public thoroughfare running north and south, 300 to 400 feet in width. The boulevard was crossed by the railroad of the Chicago Terminal Transfer Railroad Company. The Great Western Railway Company operated its trains on this road. The course of the tracks was east and west. The intestate, Harper, together with Burke, Hohenadel and Kruse, were returning from a funeral at Concordia Cemetery in a conveyance belonging to appellant, and driven by one Johnson, appellant’s driver. Appellant was in the general livery business, letting out horses and carriages and automobiles. The carriage started out from appellant’s place of business and conveyed the parties to the Concordia Cemetery on the occasion of a funeral. On the return from the funeral, the driver stopped at various places as directed by the people in the carriage. There was no testimony offered by appellant as to how or when the carriage was hired, or by whom.

As the carriage approached the railroad crossing, the cover was up and the occupants were engaged in conversation. They heard some one shouting, and felt the effect of' the collision of the tongue of the carriage with the third car in the train from the engine. The train consisted of about 14 cars going west on the middle or west-bound track. The team became frightened and turned west and ran down the right of way of the railroad company. Henry Harper, Jr., the deceased, with the other occupants, alighted from the carriage. Harper, the deceased, in doing so, was struck by a truck or some portion of the train, receiving the injuries from which he died.

In our opinion, there is a presumption of law that where services are rendered by one in his calling, trade or profession, that the person rendering such services did so for a compensation to be paid to him. This is a disputable presumption which stands and is controlling unless rebutted. It is founded upon the experience of human conduct in the course of trade. The evidence shows that the livery company was engaged in the business of letting carriages and drivers for hire. The intestate was using the carriage as is usual by one who hires a carriage and driver of a liveryman. The three other occupants of the carriage testified that they did not hire the rig. The only remaining occupant, the intestate, or some one else in his behalf, must' be presumed to have hired the carriage, and especially is this so when the appellant, who alone knew the circumstances of the letting of the carriage, offered no testimony on that question. Greenleaf on Evidence (6th Ed.) chap. 4, secs. 33, 34, 38.

In Pittsburgh, Ft. W. & C. Ry. Co. v. Callaghan, 50 Ill. App. 676, it was said: “In such a case the general course of business may be judicially noticed oh the principle quoted in Fisher v. Jansen, 30 Ill. App. 91, that ‘ courts will not pretend to be more ignorant than the rest of mankind.’ * * * Weak evidence becomes strong by the neglect of the party against whom it is put in, in not showing by means within easy con trol of that party, that the conclusion drawn from such evidence is untrue. Great Western R. Co. v. Bacon, 30 Ill. 348; Germ. Fire Ins. Co. v. Klewer, 129 Ill. 559.” We think the undisputed facts raise a presumption that appellant was hired to convey the deceased to the funeral and return.

Appellant contends that the trial court erred in giving instructions 1, 5 and 6 requested by the plaintiff. We have examined these instructions, together with the other instructions given in the case, and we think that, taking all the instructions together, it appears that the jury were fairly instructed on the material points which were in issue and in dispute on the trial. It is urged as to the first instruction that there was no evidence to base it upon, because there was no evidence, express or implied, of any hiring of the carriage by Harper or by any one in his behalf. We have sufficiently covered that point in what we have said above. We find no material error in the instructions objected to.

Upon a review of all the evidence, we think the verdict of the jury against appellant is clearly sustained by the evidence in the record.

The judgment is affirmed.

Affirmed.


text:
    Niels Esperson, Appellee, v. Arthur O. Fox and T. B. Wagner, Appellants.
    Gen. No. 19,096.
    1. Injunctions—against action at law. Where the defendant in an action at law on a sealed instrument files a hill in equity showing fraud in respect to the consideration, prosecution of the action at law will be enjoined and the controversy decided in the chancery suit.
    2. Fbaud—contract under seal. Fraud relating to the consideration of the contract is no defense in an action at law upon an instrument under seal.
    3. Pbactice—service of notice in chancery on attorneys in action at law. Where the summons in a bill in equity to restrain prosecution of an action at law is returned “not found,” and the defendants are nonresidents and do not file their appearance, service of notice of application for such temporary restraining order, when served on the attorneys of record for defendants in their action at law, satisfies all requirements of the statutes.
    4. Injunctions—hond. Where no special damages can accrue from restraining an action at law other than those occasioned by mere delay, and recovery may be had in the chancery suit, the court does not abuse its discretion in ordering that temporary injunction issue without bond.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed January 28, 1913.
    Gregory, Poppenhusen & McNab, for appellants; Edward E. Johnston, of counsel.
    Zane, Morse, McKinney & McIlvaine, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This is an appeal from an order entered October 10, 1912, restraining appellants, until the further order of the court, from prosecuting a certain action at law then pending in the Circuit Court of Cook County against appellee. The suit of Fox and Wagner against Esperson, further prosecution of which is enjoined by the order appealed from, was instituted May 28, 1912, for the recovery of the sum of $10,000 under a contract entered into between the parties to the suit, dated September 7, 1911.

From the bill it appears that appellant, Arthur O. Fox, is a resident of Madison, Wisconsin; appellant T. B. Wagner resides in New York City, and Niels Esperson, the complainant in the bill, is a resident of Houston, Texas. The summons, issued pursuant to the prayer of the bill, was returned “Defendants not found in the County of Cook.” No appearance was entered by appellants in the chancery proceeding, and no steps were taken by them therein other than filing an appeal bond with the clerk of the circuit court. It appears from the record that written notice of the application for the restraining order was given to the attorneys of appellants of record in the action at law, and by the affidavit of John C. Lyons it appears that the notice was served by leaving a true and correct copy thereof with Mr. Conrad H. Poppenhusen at the office of Gregory, Poppenhusen & McNab, 1103 Title & Trust Building, Chicago, Illinois, before the hour of 4:00 p. m., on October 9, 1912.

The restraining order recites that the court heard and considered the sworn bill of complaint herein, and that it appeared to the court that the defendants, and each of them is not a resident of this county or state, and that notice of the application for this order had been given to the attorneys of record in the action at law then pending in that court.

The bill of complaint is very voluminous, and it would serve no useful purpose to set forth its averments in detail. It is sufficient for the purpose of this appeal to say that it sets up a contract of September 7,1911, upon which the action at law is predicated, and that there was fraud in the agreement in respect to the consideration, and showing that if the averments are true the complainant is not indebted to Fox and Wagner, or either of them, for any amount under the contract of September 7, 1911.

Appellants urge that the court erred in entering the interlocutory order appealed from without requiring due notice to appellants of the time and place of the application. We are of the opinion that under the facts and circumstances shown by the record the notice, which was given, satisfied all the requirements of the statute. The subject-matter of the order, namely, the suit at law pending in Cook County, being within the charge and control of the attorneys of record in that action, the notice which was given to the attorneys of record, was entirely sufficient to justify the court" in proceeding to the hearing of the motion for the injunction. Notice to the attorneys was notice to their clients. Coryell v. Klehm, 157 Ill. 462. The statute requires service of notice only on such of the defendants “as can conveniently be served,” and the facts appearing in the bill show that the statute was better and more completely satisfied by the notice which was given, than it would have been by any other reasonable and convenient method. Section 3, chap. 69, Hurd’s R. S. Illinois.

The complainant in the bill, according to the facts shown by the bill, was unable to make his defense in the action at law, and was in a situation that judgment by default would have been entered against him for $10,000 and interest in that case unless proceedings therein were enjoined. This appears clearly from the face of the bill, and it further appears that the judgment, if entered, would have been unjust. We, therefore, think that sufficient grounds appear for entering the temporary injunction order. Fraud relating to the consideration of a contract is no defense in an action at law brought upon a sealed instrument. McCoull v. Herzberg, 33 Ill. App. 542; Johnson v. Wilson, 33 Ill. App. 639; Papke v. Hammond Co., 192 Ill. 631; Robinson v. Tetter, 238 Ill. 320.

It is. urged that the court erred in ordering that the injunction should issue without bond. We are of the opinion that under the facts and circumstances shown in the bill of complaint as to the nature of the relief sought, and situation of the parties, complainant and defendants, the court did not abuse its discretion in ordering that the injunction issue without bond. No special damages could result to appellants from restraining the prosecution of the action at law other than those occasioned by mere delay; for, if they are entitled to recover upon the contract sued on, the recovery may be had in this chancery proceeding, proper pleadings being filed as a basis for such recovery. If upon a sufficient showing an injunction bond should be required, the chancellor before whom the case is pending, may order a bond to be given upon such terms and conditions as may be just and equitable. That is a matter still within the control of the chancellor, and we must assume that it will be properly exercised. (High on Injunctions, sec. 1620.)

The order is affirmed.

Affirmed.


author: Mr. Justice Baume

text:
    E. Orris Hart, Trading as E. Orris Hart & Company, Appellee, v. Gustav Ehrhardt, Appellant.
    Gen. No. 16,718.
    1. Bbokers—when entitled to commission. Where a broker produces a prospective purchaser and his principal gives the exclusive agency to another broker and closes a deal through the latter with such purchaser, when it is shown that the principal has not been neutral or fair between the two brokers but wrongfully prevented his first broker from bringing about an agreement, he is liable to him for commission.

      2. Brokers—must bring about agreement, except when. A broker, in order to be entitled to his commission, must bring about an agreement, unless he is wrongfully prevented by his principal from so doing.
    Appeal from the Municipal Court of Chicago; the Hon. Max Ebebhardt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 29, 1913.
    Mark R. Sherman, for appellant.
    F. L. Salisbury and M. Marso, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit instituted in the Municipal Court by the appellee, E. Orris Hart, doing business as E. Orris Hart and Company, against the appellant, Gustav Ehrhardt, to recover a commission for services as a real estate broker. A trial by jury resulted in a verdict and judgment against appellant for $1,850.

It is insisted that the verdict is contrary to law and against the manifest weight of the evidence.

On May 7, 1908, appellant addressed a written communication to appellee, wherein he stated that he was the owner of a certain apartment building known as the Bon Air, situated on the northeast corner of Leland and Winthrop avenues; that his price on the property was $85,000, and the same was incumbered for $40,000; that he would consider in part payment for his equity vacant property in good location. The communication contained a somewhat detailed description of the property and concluded with a request to appellee, if he should have a prospective purchaser, to confer with appellant. This communication appellee subsequently brought to the attention of Henry F. Knipp and F. E. Rutledge, two of his employees or subagents, who proceeded to find a purchaser for the property. In June, 1909, appellant, at the solicitation of Knipp, examined some property located at 3948-50 Indiana avenue, owned by J. B. Waller, and Knipp informed appellant that Waller would be willing to make an even exchange of the two properties. This proposal was declined by appellant and further negotiations resulted in a proposal by Waller to exchange the Indiana avenue property and 30 feet of vacant property on Buena avenue which was also owned by him for appellant’s property. This proposal was also rejected by appellant, and appellant made a counter proposition to make the exchange provided Waller would pay him $7,500 in cash. The counter proposition was declined by Waller. From July 1, 1909, to July 26, 1909, Knipp had frequent interviews with appellant and Waller, and on the latter date appellant gave to appellee a written authorization to accept in exchange for his property, subject to a mortgage of $38,000 and to the taxes and assessments levied after 1908, the properties on Indiana avenue and Buena avenue with $5,000, appellee to retain as his own commission whatever he might realize in excess of $5,000. This authorization was limited to ten days and upon being submitted to Waller was declined by him. This proposal appears to have been made by appellant in response to a proposal by Waller to make an exchange of the properties mentioned and pay appellant $2,500 in cash, which latter proposal appellant had declined to accept. Further negotiations were had with a view to disposing of appellant’s property, and on August 16, 1909, appellant gave appellee a written option, until the Monday following, to effect an exchange of the same properties upon substantially like terms for a commission of $1,500.

At this time Waller was absent from the city, and did not return until September or October, but in the meantime appellee called the attention of appellant to several other properties for the purpose of effecting an exchange. About September 7th appellant procured a loan of $5,000 and secured the same by a second mortgage upon the property. This loan was negotiated through the firm of Mulholand & Snelling, and in consideration for their services appellant gave them an exclusive agency for three months to sell his property for $68,000. On October 29th following, a contract was entered into between appellant and Waller for the exchange of the same properties, subject to encumbrance amounting to $40,000 on appellant’s property and to the payment of accrued interest from February 1, 1909, on $35,000 of said encumbrance. This contract of exchange was concluded by Mulhol- and and was consummated by the execution and delivery of deeds on November 2nd following.

The evidence tends to show that appellant informed Mulholand of the negotiations that had been theretofore carried on by appellee to effect an exchange of the properties with Waller; that appellant knew that Mulholand had tendered his services to appellee in making an effort to consummate the deal, providing appellee would divide the commissions,. and that appellee had refused to do so; that subsequent to the time appellant gave Mnlholand & Snelling an exclusive agency for the sale of the property, he continued to negotiate with appellee with a view to effecting an exchange of his property.

Appellee testified that he had a conversation with appellant about the middle of October, 1909, in regard to'the Waller deal, and that in response to appellant’s statement that in the future he would be represented by Mnlholand, appellee said he would not consider Mnlholand in any deal then or thereafter pending, and appellant replied, that was all right he would take care of Mnlholand, if a satisfactory deal was made. Appellant denied that he negotiated with appellee or his agents with reference to an exchange of properties with Waller, after he gave an exclusive agency to Mulhol- and & Snelling, but appellee, Knipp and Rutledge testified to the contrary.

A careful consideration of the voluminous and contradictory evidence impels us to the conclusion that the jury were not unwarranted in finding that there was a studied effort on the part of appellant to deprive appellee of the fruit of his services and to have the same inure to the benefit of Mnlholand. Appellant had declined to make the exchange with Waller upon more favorable terms when the same were procured by appellee. As in Day v. Porter, 161 Ill. 235, the evidence tends to show that appellant was not neutral or fair as between the two brokers whom he permitted to negotiate for an exchange or sale of his property. A broker, in order to be entitled to his commission, must bring about an agreement unless he is wrongfully prevented by his principal from so doing. Under the latter alternative the liability of appellant may be sustained.

It is urged that “the court erred in permitting evidence to be given regarding the rules of the real estate boards in Chicago as to the rates of commission charged for selling property.” The abstract of the testimony of appellee suggests that reference was made to commissions charged in the City of Chicago, “by the real estate boards,” but in this respect the abstract is a departure from the record. No such rules were offered in evidence and the record contains no reference thereto.

There is no error in the record and the judgment is affirmed.

Judgment affirmed.


text:
    Thomas Kelly, Appellee, v. Northwestern Elevated Railroad Company, Appellant.
    Gen. No. 16,898.
    1. Damages—when $1,000 for injuries to head is not excessive. Where a steamfitter forty-five years old, in good health, working “pretty steady” and receiving $5.50 a day, is struck on the head by a five-pound bolt falling from an elevated railroad structure and he suffers almost constantly with headache and dizziness, so that up to the time of the trial two years later he had been unable to work at his trade more than four months, a verdict for .$1,000 is not excessive.
    2. Appeals and ebrobs—discretionary act. To permit a physician to testify in rebuttal in a personal injury case is so far a matter of discretion that error may not be assigned thereon.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed January 29, 1913.
    Sheriff, Dent, Dobyns & Freeman, for appellant; Clarence A. Knight, of counsel.
    David K. Tone and H. M. Ashton, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

In his action on the case to recover damages for personal injuries, etc., the plaintiff, Thomas Kelly, recovered a verdict and judgment against defendant, the Northwestern Elevated Railroad Company, in the Superior Court for $1,000, to reverse which judgment the defendant prosecutes this appeal.

We quote from the appellant’s “Statement of Pacts” as follows:

“The declaration charges, in substance, that on the 30th day of May, 1908, the defendant ran its cars over an elevated structure which projected above the sidewalk at the southwest corner of the intersection of ■ Wells and Michigan streets, in the City of Chicago, and that while the plaintiff was walking in a southerly direction on the west side of Wells street, he passed under said structure, and that an iron bolt six inches in length, weighing five pounds, fell from said elevated structure and struck him on the head, and that he thereby sustained severe injuries to various parts of his body, and that the drum of his left ear was broken, and that in consequence thereof he was deprived of his hearing in his left ear, and will so continue to be deprived of his hearing in said ear during the rest of his life. That by reason of said injuries he became sick, lame and disordered and suffered great pain, and was hindered from performing his usual occupation, and was prevented from earning his livelihood.
“The tracks of the Northwestern Elevated Railroad Company are upon an elevated structure about twenty feet from the surface of the street and run in the center of Wells street to Michigan'street where they curve to the west. At the intersection of Michigan and Wells streets the structure passes above the west sidewalk of Wells street.
‘‘ On the 30th day of May, 1908, there were a number of men working on this structure at that point. Thomas Kelly, the plaintiff, who is a steamfitter, was walking north on the west side of Wells street. When • he reached the intersection of that street with Michigan street, the point at which the structure of the defendant company curves to the west, a bolt fell from said structure and struck him on the left side of the head, about an inch and a half or two inches back of the ear. The accident which occurred between nine and nine-thirty o’clock in the morning produced a scalp wound which was dressed by a doctor at about six o’clock in the evening of the same day. A few days later pus appeared in the left ear. This condition continued for several months, the ear being treated by an ear specialist. The plaintiff worked only a few weeks from the time of the accident until the trial which took place in the middle of March, 1910.
“There was no conflict in the evidence upon these points. ’ ’

The liability of appellant to respond- in damages is not controverted, but it is insisted, as grounds for reversal, that the damages awarded are excessive and that the trial court erred in permitting Dr. Payne, a witness called by appellee, to testify in rebuttal over the objection of appellant.

In addition to the uncontroverted facts heretofore stated the record discloses the following: At the time of the accident appellee was 45 years of age, a steamfitter by trade, working “pretty steady,” and receiving $5.50 per day. Since the accident, and up to the trial in March, 1910, he had, in addition to an injury to his ear, if any, suffered almost constantly with headache and dizziness to such an extent that he had been unable to work at his trade more than four months. Previous to the accident his health had been good.

If the alleged injury to his ear be wholly eliminated as an element of damage, it is manifest that the damages awarded to appellee are not fully compensatory.

The action of the trial court in permitting Dr. Payne to testify in rebuttal over the objection of appellant was so far a matter of discretion that error may not be assigned thereon. Hartrich v. Hawes, 202 Ill. 334; Beyer v. Peoria, Bloomington & Champaign Traction Co., 156 Ill. App. 47.

There is no error in the record and the judgment is affirmed.

Judgment affirmed.