text:
    John Doane, Appellant, v. Joseph Pierce, Appellee.
    Gen. No. 4,981.

      Verdict—when set aside as against the evidence. A verdict manifestly against the weight of the evidence will be set aside on review.
    Assumpsit. Appeal from the Circuit Court of Dekalb county; the Hon. Linus C. Ruth, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Rehearing denied October 9, 1908.
    Jones & Rogers and J. E. Matteson, for appellant.
    Faissler & Cochran, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This was an action in assumpsit brought by John Doane, appellant, against Joseph Pierce, appellee, to recover for 1060 bushels and 20 pounds of oats at thirty-nine and one-half cents per bushel. A jury returned a verdict for the defendant. A motion for a new trial was overruled and plaintiff appeals to this court.

The record shows that John Doane owns a farm near the village of Malta, in DeKalb county, Illinois. This farm had been occupied for many years by George Doane, a son of plaintiff, as a tenant of his father. The farm was rented on shares, the father getting as rent one-half of the crops raised or one-half of the proceeds of the sale of crops. Pierce is a grain dealer at Malta, having bought grain there for eighteen years, and knows the Doane farm. In the year 1906 when the oats were thrashed in August, John Doane was not willing to sell his share at the price oats were then selling at. George Doane desired to sell his share at that time. His half of the oats were hauled direct from the threshing machine to the market and sold to appellee, who paid George Doane at that time for his grain. Appellant’s share of the oats were hauled from the machine to a corn crib on the farm and there stored for him.

In January appellee claims that George Doane talked to him about selling him some grain, and borrowed $250 from him, but appellee does not claim that any grain was sold to him at that time. In April, 1907, appellant saw appellee at his elevator and inquired of him the price of oats. Appellee told him they were worth thirty-nine and one-half cents. Appellant asked how long he could have to deliver the oats and appellee said a week or so; appellant thereupon said all right he could have the oats. Within a week after this conversation the half of the oats that had been stored in the crib for appellant were delivered to appellee at his elevator, by Gus Carlson, a hired man of George Doane, and by Francis Doane, a son of George Doane. ■ Carlson and Francis Doane both testify they told appellee when delivering the oats that they were the oats of appellant. This the appellee denies. Thereafter appellant went to appellee to get his pay for the oats. Appellee told appellant that his son George owed him some money, and that he wanted to take it out of the pay for the oats, but appellant refused to let him and appellee would not pay. The appellant, his son George, George’s hired man, Carlson, and Francis Doane, the son of George, all testify the oats belonged to appellant and had been set off to him. No person testifies that they did not belong to appellant, neither was there any testimony denying the fact that the oats had been divided and set off to-appellant as his share when they were thrashed. There is no question that the value of the oats at the agreed prices was $419.09; even appellee does not claim but that appellant is entitled to $168.91. The only witness that testified that George Doane claimed any interest in the oats was one Crosby, and his testimony is that some time after the oats in question had been sold and delivered, in a conversation between George Doane and appellant, George said “they were his oats and he should- stay by Pierce,” and that appellant there claimed that he owned everything and that the oats were his. This evidence was offered as evidence in chief in behalf of appellee to show that the oats belonged to George. This evidence was improper for that purpose, as the appellant there claimed that he owned them, and George’s statement could not prejudice his claim. It might have been proper in impeachment of George Doane, if the proper foundation had been laid, but that not having been done it was not proper for any purpose. The clear preponderance of the evidence is that the oats belonged to appellant and were sold by him to appellee. The verdict should have been set aside as manifestly against the weight of the evidence, and for the error in refusing to do so the judgment must be reversed and the cause remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Thompson

license: Public Domain

text:
    Jennie Kilmer, Appellant, v. Alonzo Parrish, Appellee.
    Gen. No. 5,010.
    1. Amendments and jeofails—how ruling denying leave to amend must he preserved. The action of the court in denying leave to amend can only be preserved by bill of exceptions.
    2. Amendments and jeofails—when abuse of discretion to deny leave. The court should be liberal in permitting amendments in the interests of justice. After an attachment in aid has been levied, an affidavit may be filed setting up additional grounds for the attachment, even after the trial has begun upon the plea traversing the original affidavit.
    3. Amendments and jeofails—what essential to order of amendment entered after judgment term. After a case has been disposed of and the term adjourned, the court can only correct clerical mistakes of its officers, upon notice to the parties, so as to make the record conform to the judgment of the court as shown by the memoranda of the court without the aid of affidavits.
    4. Appeals and errors—what sufficient prayer for appeal to entitle review of final judgment upon attachment and upon merits. Where a judgment upon the attachment issue and upon the merits follow each other in the record in. immediate succession, an appeal from the “judgment” of the court is sufficient to raise for review the propriety of both judgments.
    5. Damages—when new trial may he awarded for inadequacy. At common law new trials were not allowed upon the ground that the damages allowed by the jury in actions for torts were insufficient, but the modern rule is that a new trial may be granted where the verdict is grossly inadequate, for the same reasons as those governing where the verdict is excessive.
    Trespass. Appeal from the Circuit Court of LaSalle county; the Hon. Edgar Eldredge, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Rehearing denied October 9, 1908.
    Statement by the Court. This is an action in trespass brought by Jennie Kilmer, appellant, against Alonzo Parrish, appellee, on August 29, 1906, to recover for personal injuries • received August 16, 1906, for money paid out for doctor’s bill and in repairing her carriage and for damages to her team. The decíaration alleges that the defendant, while intoxicated, drove his carriage with great force against the carriage of plaintiff and inflicted the injuries complained of and that the injury was caused by the negligent, wilful and reckless conduct of the defendant.
    After the beginning of this suit, the defendant went to Kansas and claims to have purchased land there; he then advertised his farm for sale at auction for November 20th, and also arranged for the sale of his personal property. In November, the plaintiff filed an affidavit that the defendant was about to fraudulently conceal and dispose of his property so as to hinder or delay his creditors; a writ of attachment was issued in aid of her suit and levied on 100 acres of the farm advertised for sale. The farm was not sold at the time fixed in the advertisement, but on November 25th the defendant mortgaged it for $8,000 and again on January 29,1907, for $15,000 and on January 17, 1908, he sold it.
    In February, 1907, he had a public sale of his personal property, and all that was not sold he afterwards took to Kansas, where he has since resided.
    The defendant filed the general issue at the June term, 1907, and on December 20th, at the October term, 1907, filed a plea denying the ground of the attachment. At the January term, 1908, the plaintiff moved for leave to file an amended affidavit alleging additional causes for the attachment. This motion the court overruled but no bill of exception was filed saving this question. Thereafter on a trial before a jury a verdict was rendered by the direction of the court for the defendant on the attachment; on the main issue the jury returned a verdict in favor of the plaintiff, and assessed her damages at one dollar. The plaintiff made a motion for a new trial, which was overruled and judgment rendered on the verdict in favor of the defendant on the attachment, and in favor of the plaintiff on the main issue; from that judgment the plaintiff prosecutes this appeal.

      Browne & Wiley and Lester H. Strawn, for appellant.
    Butters, Armstrong & Ferguson, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

It is contended by the plaintiff that the court erred in overruling the motion for leave to amend the attachment in aid made before the trial. The ruling of the court upon that motion can only be presented by a bill of exceptions setting forth the affidavit, the ruling and an exception thereto. Motions and affidavits are not a part of a proper common law record: it is not sufficient that the clerk copy them into the transcript but they must be preserved with an exception to the ruling by a bill of exceptions. McFarland v. Claypool, 128 Ill. 397; 8 Ill. Cyc. Dig. 364.

On the trial at the close of plaintiff’s evidence the defendant moved to exclude the evidence in support of the attachment in aid. The plaintiff again moved for leave to amend by adding new grounds for the attachment. This motion was overruled, and is contained in the bill of exceptions, with an exception to the ruling. The court should be liberal in permitting amendments in the interests of justice; after an attachment in aid has been levied, an affidavit may be filed setting up additional grounds for the attachment, even after the trial has begun upon the plea traversing the original affidavit. Keith v. Ray, 231 Ill. 213; Bailey v. Valley National Bank, 127 Ill. 332. We are of the opinion that under the facts proven in this case the court should have permitted the amendment.

In writing up the judgment, the clerk wrote up the judgment for the defendant upon the attachment in one sentence, and the judgment for the plaintiff on the merits in the next sentence. This is followed by the sentence “thereupon the plaintiff having entered her exceptions herein prays an appeal from the judgment of this court to the Appellate Court in and for the Second District of the state of Dlinois, which said appeal is granted.” At the succeeding term of the court plaintiff moved to amend the judgment by changing “appeal from the judgment of this court” to “appeal from the judgments of this court,” and filed an affidavit in support of the motion and produced the original minutes of the judge. This motion the court allowed. The defendant took a bill of exceptions from that order, and has moved this court to strike out the amendment in the record, wherein the word “judgments” was substituted “judgment.” After the case was disposed of and the term adjourned the court could only correct clerical mistakes of its officers upon notice to the parties so as to make the record conform to the judgment of the court as shown by the memoranda of the court, without the aid of affidavits. Coughran v. Gucheus, 18 Ill. 390; Gage v. The People, 207 Ill. 377; 1 Black on Judg. 154. The two judgments follow each other in immediate succession and the plaintiff prays an appeal from the judgment. We think the prayer for an appeal raises every question that can properly be raised upon the record and the bill of exceptions. The bill of exceptions properly filed shows an exception to the ruling of the court on the plaintiff’s motion for a new trial, and to the judgment both upon the attachment and upon the merits. The plaintiff in appealing appealed from the entire judgment, treating it as a unit. The amendment is immaterial, and it is unnecessary to determine whether the amended record should be stricken out or not.

The évidence shows that the defendant was in Ottawa on the afternoon of the day the defendant received the injuries complained of; that he left Ottawa for his farm eleven miles from Ottawa, where he arrived that night so intoxicated that in driving from the highway through his gate he drove against the gate-post, smashing his road wagon and injuring himself; that the plaintiff was injured about eight o’clock that evening. Witnesses testify that the defendant drove his team at a reckless speed on the streets of Ottawa and against the buggy of the plaintiff. The plaintiff was injured, it may be not as seriously as she contends. Her carriage was damaged and it required several dollars to repair it. The physicians bill for treating her injuries amounts to $88.50. The defense of the appellee is an alibi. He claims that he left Ottawa an hour or two before the accident occurred. ■

The jury in finding for the plaintiff in the sum of one dollar, found that defendant was guilty of inflicting the injuries sued for. If the plaintiff was entitled to recover she was entitled to substantial damages. The damages allowed should be equal to the pecuniary loss sustained. There is a fixed measure of damages for the value of physician’s services and for the amount of damages to a carriage and team, of which proof was made. At common law new trials were not allowed upon the ground that the damages allowed by the jury in actions for torts were insufficient. But the modern rule is that a new trial may be granted where the verdict is grossly inadequate, for the same reasons as those governing where the verdict is excessive. Paul v. Leyenberger, 17 Ill. App. 167; Hackett v. Pratt, 52 Ill. App. 346; Hamilton v. Pittsburg, C., C. & St. L. Ry., 104 Ill. App. 207; Bourke v. Anglo-American Provision Co., 90 Ill. App. 225; 14 Encye. of Pl. & Pr. 764, and cases cited. A verdict for a grossly inadequate amount stands on no higher ground on legal principles than a verdict for an excessive or extravagant amount. The defendant is either liable or he is not liable. The jury having found he was guilty of the wrongs alleged, we can conceive of no theory upon which the verdict for one dollar can be sustained. The motion for a new trial should have been allowed, and the verdict set aside because of its absurdity. The judgment both on the attachment and on the merits is reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Appellee, v. E. B. Trenner, Appellant.
    Gen. No. 5,033.
    1. Evidence—what not competent in behalf of person charged with practicing medicine without license. In an action of debt to recover a penalty for practicing medicine without a license a pamphlet in nowise supported by the testimony of the defendant or other witnesses, showing the treatment employed by such defendant, is not competent in his behalf.
    2. Ckiminal law—what practicing medicine without license within meaning of statute. One who without a license professes and undertakes to heal by the laying on of hands, together with mental suggestion, comes within the provision of the law requiring a license to practice medicine.
    Action of debt. Appeal from the Circuit Court of Livingston county; the Hon. Geokqb W. Patton, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed August 10, 1908.
    Rehearing denied October 9, 1908.
    A. C. Norton, for appellant.
    A. C. Ball, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action of debt by the People, for the use of the State Board of Health, against E. B. Trenner, appellant, to recover a penalty for practicing medicine without a license, contrary to the provisions of the act of 1899 regulating the practice of medicine in this state. The record does not contain any process or return of service. The declaration contains twenty-five counts alleging that the defendant at different times within eighteen months had practiced medicine and surgery in the county of Livingston on various parties without a certificate issued by the Illinois State Board of Health. The defendant appeared and filed a plea of the general issue and also a plea of the eighteen months Statute of Limitation. Upon a trial before a jury the issues were found for the plaintiff on the 7th and 15th counts, and plaintiff’s damages assessed at $100 on each count. A motion for a new trial was overruled and judgment entered on the verdict. From that judgment the defendant appeals to this court.

The error that is relied upon and most strenuously argued is that the evidence does not support the verdict. A number of witnesses testified that the appellant at different times within eighteen months prior to the beginning of the suit had treated them for various diseases and ailments. The proof clearly showed that he had treated parties for nervous prostration, diseases of the throat, kidney trouble, headache, growth of bone on the heel, dislocated hip and many other physical ailments ; that in his treatment of a number of the parties, they were disrobed, and the defendant rubbed and manipulated their bodies with his hands, some of the witnesses saying that he treated them the same as an osteopath treats diseases. The rubbing and manipulating in some instances occupied from twenty to thirty minutes or longer, and some of the parties were so treated as many as twenty times.

The proof also shows that the defendant advertised in the public prints that “Prof. Trenner, magnetic-healer and osteopath, has had a fine location in business already established in a large town offered him recently, but after considering the matter decided he liked Pontiac so well that he would remain. It is hoped that the people will appreciate his ability,” etc. This advertisement was headed by a picture of the defeddant and is entitled “A Wonderful Success.” It was admitted that the defendant never had any license from the State Board of Health to practice medicine.

The defendant did not take the witness stand or offer any proof denying the proof made by plaintiff. The defendant did offer in evidence a pamphlet purporting to be signed by S. A. Weltmer, professing to be an exposition of the Weltmer method of healing; this the court admitted in evidence over the objection of the People. This was offered as the evidence the defendant would testify was the treatment given by him if he had been sworn as a witness. This was clearly improper; it was admitting in evidence a printed statement published by an irresponsible and unknown person as the statement of the defendant on his own behalf, without any opportunity to the opposite party to cross examine. We quote the following excerpts from the pamphlet.

“The process of physical healing, by suggestion, laying on of hands, or any other physical manipulation, causing mental action which will result in physical change, is a simple, easily taught science. This has often been demonstrated in the author’s experience * * * : Suggestion is identified with everything that the healer does. However, there are other helps which the healer uses in effecting cures. These are important, and should not be overlooked * * *: * * * If the man is suffering from a severe pain, do not the moment he sits down tell him he is easy. He knows better than that, and you will only arouse an antagonism in his mind, which you will have to overcome, before you can succeed with him. Tell him he will be better, and then by stroking with your hands or by placing them over the parts affected, showing him you are doing something for his benefit, and continue to assert that he will become easy. * * * One of the chief aids to suggestion used by the drugless healer is what is known as ‘Animal Magnetism,’ ‘Animal Electricity,’ ‘Odie Force,’ ‘Electro Biological Force,’ or as we call it ‘Vital Magnetism.’ This name is intended to be suggestive than otherwise. * * * Some authors claim that water charged with this ‘fluid’ will remain sweet long after water not so treated will become stagnant. I have often seen the experiment tried, and successfully too, of magnetizing one of two glasses of water, just alike in appearance, giving them to a sensitive person to see if he can tell the difference between them. He almost invariably does. This may be the result of suggestion, it may not; but whatever it is, it is a great aid to the healer when properly used. It is often very helpful for a healer to magnetize a bottle of water which the patient takes home with him after his treatment and drinks at stated intervals, with the understanding that certain beneficial effects will follow.” '

If the defendant practiced mental suggestion only and strictly according to the Weltmer method, still this pamphlet states “It is often very helpful for the healer to magnetize a bottle of water which the patient takes home with him and drinks at stated intervals with the understanding that certain beneficial effects will follow,” and suggests the use of “Animal Magnetism” and “Electro Biological Force” through the laying on of hands over the affected part.

It is very questionable whether these practices do not come within the statute which was enacted for the protection of the citizens of the state from such practitioners. However the defendant in no way denied the proof of manipulation that was made on behalf of plaintiff. The ease of the People v. Gordon, 195 Ill. 560, lays down the rule, that one who advertises himself as a magnetic healer and who gives treatments by rubbing or kneading the body for the purpose of freeing the nerve force, in the nature of osteopathic treatment, is not within the exception in favor of those treating the sick by mental or spiritual means, even though he accompanied his treatment by mental suggestion, but is practicing medicine within the meaning of the statute and liable to the penalty. It is unnecessary for us to say anything more on the merits of this case as the case cited decides the question argued by appellant against him.

The instructions were much more favorable to the defendant than he was entitled to. Under the proof the defendant should also have been found guilty on several of the other counts. There is no error of which he can complain. The judgment is affirmed.

Affirmed.


text:
    D. Heenan Mercantile Company, Appellee, v. William J. Welter, Appellant.
    Gen. No. 5,042.
    1. Justice of the peace—when demands may be set off. Under the statute all demands within the limit of the justice’s jurisdiction should he brought in by the parties for determination and the defendant is entitled to interpose by way of set-off a debt accruing to him either under an implied or an express contract.
    2. Set-off—what proper subject of. Demands for work and labor performed, board, goods sold and delivered, are of such a nature that they may be set-off in an action ex contractu, whether they arise out of the subject-matter of the plaintiff’s suit or not.
    Action commenced before justice of the peace. Appeal from the Circuit Court of LaSalle county; the Hon Edgar Eldredge, Judge, presiding.
    Heard in this court at the April term, 1908.
    Reversed and remanded.
    Opinion filed August 10, 1908.
    Rehearing denied October 9, 1908.
    Chubbuck & Jones, for appellants.
    Reeves, Osborn & Griggs, for appellee.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $168.31 entered upon a directed verdict for the plaintiff in an action originally brought before a justice of the peace. The evidence shows that the appellee is a mercantile corporation and that it brought this suit to recover a balance claimed to be due for goods sold by it to appellant. The appellee filed a statement of the account between the parties, the first item of which is “Feb. 1, 1900, suit $12.00.” This is followed by several pages of items charged at various times from February. 1, 1900, to January 30, 1907, the total of which amounts to $750.93. Appellee’s account also gave the appellant credit for various items of which the following is a copy:

“May 1, 1900, to July 1, 1900, salary._$ 69.00
July 7,1900, to Jan. 1,1901, salary.. 102.00
Jan. 1,1901, to Jan. 1, 1902, salary...... 221.00
Mar. Shirts returned,................ 4.00
1906
Jan. 1,1902, to Sept. 27,1902, SS1/^ wks. 162.86
June 19, Due bill...................................... 1.38
Nov. 20, Cash.......................................... 19.24
29, Due bill.................................... 2.14
1907
Jan. 30, Damper.......................................50
30, Cash.............................................50 582.62”

The difference between the two totals is $168.31, for which sum the court directed a verdict, and rendered judgment.

The statements of counsel contained in the bill of exceptions and the evidence offered by appellant show that the appellant was a salesman in the shoe department of appellee’s store at Streator for ten years prior to September, 1902. He received a salary of $1000 per year or $19.23 per week. During part of the time he drew $12 cash weekly, and the balance was credited to his account. The appellee claims that in November, 1900, Heenan, the president of appellee, called appellant into the office and informed him that the manager of the shoe department was about to leave and that they had considered appellant in connection with that position, and assured him there would be additional pay for the added responsibility. No additional compensation was agreed upon, Heenan saying it was necessary to talk it over with Miles Finlen, his associate. Appellant insists that Heenan there told him to go ahead and assume the responsibility of the department and they would pay him what it was worth. Appellant claims he had several conversations with Heenan regarding the salary he was to receive as manager, but Heenan put him off by saying he had not seen Finlen, and assured him he need not worry, that they would pay him what it was worth. At one of these conversations appellant suggested $3.50 a week additional would be reasonable compensation for Ms extra services as buyer and manager, and that Heenan said “All right, I will see Pinlen about it.” Matters ran M this way until September, 1902, when appellant told Heenan the salary question must be settled. Heenan then told appellant they would not pay him any additional salary. The appellant then tendered his resignation, but remained in the store two weeks at Heenan’s request. Heenan then offered appellant $1,500 per year if he would stay with appellee. Appellee claims that during the last two years appellant drew $15 per week and the balance of his salary was credited to his store account, while appellant filed a set-off and contends that the credits given him were erroneous and that he was entitled to a credit of an additional $3.50 per week, for the time he acted as buyer and manager.

The trial court refused to permit appellant to make proof of the alleged agreement that he should be paid what his services were worth for the extra services rendered by appellant, additional to the $19.23 per week, and the value of such additional services. The rulmg of the court was based on the theory that the accounts were not mutual and that the claim for additional compensation to appellant was not liquidated and therefore not the subject of set-off.

Under the statute, when suit is begun before a justice, “each party shall bring forward all his demands against the other, existing at the commencement of the action, which are of such a nature as to be consolidated, which do not exceed two hundred dollars when consolidated into one action or defense; and on refusing or neglecting to do so shall forever be barred from suing therefor.” Hurd’s Stat. chap. 79. sec. 53. Appellee credited appellant, m its statements of the account, with the following items; “Jan. 1, 1901, to Jan. 1, 1902, salary, $221.00; 1906, Jan. 1, 1902, to Sept. 27, 1902, 38% wks. $162.86,” bemg the balance of salary during the time appellant insists he is entitled to an additional credit. Appellant claims those credits are not what he is entitled to under the conversation he had with Heenan, when Heenan promoted appellant to be buyer and manager of the shoe department. Appellant also undertook to prove that it was the agreement, that his earnings over the amount he drew weekly, should be applied to his store account with appellee. We can see no legal reason why appellant should be bound by the credits given him by appellee, if they were not as much as he was entitled to under an implied contract. The suit having been begun before a justice, each party was required to bring forward all his demands existing against the other which are of such a nature as to be consolidated, if the balance does not exceed two hundred dollars, or be barred. from .thereafter suing therefor. This applies as well to implied as to express contracts. The balance, if any, due appellee depended upon whether the items of credit it had given appellant were for the correct amounts. To hold otherwise would be to hold that the books of appellee are conclusive, and that the items therein are not open to contradiction, even although it appears from them that the credit for thirty-eight and one half weeks services rendered in 1902 was not given until 1906. Demands for work and labor performed, board, goods sold and delivered, are of such a nature that they may be set off in an action ex contractu, whether they arise out of the subject-matter of the plaintiff’s suit or not. East v. Crow, 70 Ill. 91; Lloyd & Co. v. Manufacturers & Merchants Warehouse Co., 102 Ill. App. 551; Kelley, Maus & Co. v. Caffrey, 79 Ill. App. 279. We hold that the set-off for services claimed by the appellee leaving a balance of less than $200, whichever contention prevails, is that character of a claim or demand that the justice act requires shall be presented or it will be barred, and that the court erred in the rejection of the evidence offered. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Andrew A. Strauch et al., Plaintiffs in Error.
    Gen. No. 4,958.
    1. Verdict—what essential to set aside, because of prejudice of juror. The testimony as to previously expressed opinions by persons called as jurors should be of a clear and satisfactory character in order to warrant setting aside a verdict.
    2. Conspiracy—what proof of, sufficient. Conspiracy is necessarily proved by circumstances and when the circumstances proven are such that no other reasonable conclusion can be drawn from the evidence but that the defendants are beyond a reasonable doubt guilty as charged, the conspiracy is proven.
    Criminal prosecution for conspiracy. Error to the Circuit Court of Carroll County; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 14, 1908.
    W. H. A. Renner and Orion M. Grove, for plaintiffs in error; E. E. Wingert, of counsel.
    Franklin J. Stransky, for defendant in error.
   Mr. Presiding Justice Thompson

delivered the opinion of the court..

Andrew A. Strauch and Oswald Strauch, plaintiffs in error, were indicted with Herbert E. Hughes in the Circuit Court of Carroll county, on a charge of conspiracy to prevent competition in the letting of contracts to build certain bridges in the town of Fair Haven, in Carroll county, which were advertised to be let on June 30, 1906. Hughes entered a plea of guilty and was fined $500. On a trial plaintiffs in error were found guilty and a fine of $500 assessed against Andrew A. Strauch and a fine of $300 against Oswald Strauch. Judgment was entered on the verdict and an order made that each defendant stand committed until the payment of their respective fines and the costs. To reverse that judgment this writ of error is sued out.

It is assigned for error that one of the jurors was prejudiced against Andrew A. Strauch and that the plaintiffs in error were not tried by an unprejudiced jury. The court heard the evidence of two witnesses, W. J. Lamereaux and Frank. Roberts, on the motion for a new trial, as to two alleged statements of John Iler, one of the jurors, which if made would show he was prejudiced. The juror denied having made any such statements. Evidence was also offered showing that the reputation of Frank Roberts for truth and veracity was bad. Lamereaux admitted he was a strong partisan of Strauch, and a number of witnesses who were present at the time and place of the conversation testified to by W. J. Lamereaux, say that they heard no such statement made by Iler. The testimony as to previously expressed opinions by persons called as jurors should be of a clear and satisfactory character in order to warrant setting aside a verdict. Hughes v. People, 116 Ill. 330; Davison v. People, 90 Ill. 221. The court, under the showing made, properly refused to grant a new trial upon the ground of prejudice of the juror.

The question most strenuously argued is that the evidence does not support the conviction of Andrew A. Strauch. The evidence shows that Andrew A. Strauch is and was for a number of years a supervisor of the town of Fair Haven, the keeper of a store and the editor and proprietor of a newspaper called the Chadwick Clarion. Oswald Strauch is a son of Andrew A. Strauch, twenty-eight years of age, and up to some time in June, 1906, was a student in the civil engineering department of the State University at Champaign. The commissioners of highways of the town of Fair Haven had made application for county aid in building two iron bridges in June, 1905. That application was denied. It was renewed in June, 1906. The petitions for county aid in June, 1906, were delivered by the commissioners of highways to Andrew A. Stranch, who presented them to the chairman of the county board and made a request that certain supervisors be named as the committee of the board to act on the petitions. The county board agreed to assist in building the two bridges. The time for letting the contracts was advertised for June 30, 1906. The letting of contracts for building some smaller concrete bridges was also advertised for the same day. Andrew A. Strauch, prior to June 30, went to Chicago and to Minneapolis, Minnesota, to see bridge building companies for the purpose of getting estimates on the bridges. He wrote to Oswald Strauch about these visits to the bridge building companies. The letters were not produced, but Oswald, who testified for the defendants, said his father wrote that he went for the purpose of getting-estimates. The only estimate he got was from a Chicago company. This he turned over to his sons, they say for the purpose of aiding them in making a bid on the work. On June 29, the sons say they gave up the idea of bidding on the iron bridges, and on that day Andrew A. Strauch went to Clinton, Iowa, to get estimates on the iron bridges, but without taking with him any plans or specifications. Andrew A. Strauch said to the Clinton Bridge and Iron Company that his visit was in reference to getting prices on steel for bridges, and with a view to purchasing metal in case his sons secured the contract. He told the Clinton Company that, if it would give him prices, it need not attend the letting; that his sons would look after the matter; that his sons were contemplating- going into the business, and if they could make satisfactory arrangements to purchase metal they would be glad to buy from the Clinton Company, if the sons secured the contracts. The Clinton Company declined to give any estimates without plans and specifications, and also because it was unwilling to give estimates to any one who might be a competitor. He told the Clinton people that if he could not get estimates from them he would get them somewhere else. Andrew A. Stranch reported to Oswald the next morning that he could not get anything satisfactory, as the Clinton company was going to be represented at the letting of the contracts. On June 30, Herbert E. Hughes, president of the Continental Bridge Company of Chicago, one of the defendants, and who plead guilty to the indictment, was the only person present to bid on the iron bridges. Andrew A. Strauch introduced his son Oswald to Hughes and told Hughes his sons were intending to bid on this contract and.that he would like to have him talk it over with them. Hughes testifies that he and both plaintiffs in error went to Andrew A. Strauch’s private office and there Andrew left Hughes and Oswald, saying to them “What ever you do don’t get me mixed up in any of your deals; you and Hughes figure it over but don’t mix my name in any of your deals.” Oswald Strauch testifies that Hughes there showed his figures on the two bridges to him, $1250 on one and $1000 on the other, and then Hughes changed the figures to $1175 and $900 and that he, Oswald, went into the other room and reported this change to his father; that his father said the figures were too high, and Oswald went back to Hughes and Hughes again changed them to $1175 and $860. Andrew A. Strauch, during the forenoon of June 30th, approached Joseph Warner, one of the supervisor’s committee having charge of the letting of the contract, and told him there was only one bridge man present to bid, and Warner told him he had never let a contract on one bid. Strauch then told Warner he had a boy who had been figuring with different iron men, and wanted to know if there was any objection to his boy bidding. Warner saw Hughes, Oswald and Andrew A. Strauch together after this conversation. After these occurrences, Hughes raised his figures, putting in a bid on the bridges for his company at $885 and $1183 and Oswald Strauch testifies that he put in an accommodation bid $50 higher than Hughes because his father wanted the contract let, and Hughes agreed not to bid on the concrete bridges, and agreed that Oswald Strauch might do the hauling for him. The contract for the two iron bridges was let to the company Hughes represented on June 30. Two days later Oswald Strauch visited the office in Chicago of the bridge company that Hughes represented and received a check for $50 and gave a receipt for $50 on account of services at Chadwick on June 30.

The foregoing matters shown by the evidence are not controverted. Hughes plead guilty and counsel for Oswald Strauch say in their argument, “It is not contended that plaintiff in error, Oswald Strauch, stands free from censure in this matter. The placing of the accommodation bid is censurable, and would naturally raise a suspicion. The payment of the $50 together with the receipt adds materially to such suspicion.” This amounts to an admission of the guilt of Oswald Strauch. The evidence shows that Andrew Strauch was engaged in attempting to get the contract for his sons, which was inconsistent with his duty as a supervisor. It is also shown that the Clinton Bridge Company intended to be present at the letting of the contract, but when Andrew A. Strauch visited that company the day before the contracts were to be let, and had the peculiar conversation he had in the office of that company, it would hardly be expected that that company would be represented at the letting the contracts. An agreement was obtained by plaintiff in error Oswald Strauch from the Continental Bridge Company the day the contracts were let not to bid against the sons on the concrete bridges. After the making of that agreement the sons secured the contracts for building those bridges. The sons also secured $50 graft from the Continental Bridge Company besides the withdrawal of that company from competing for the building of the concrete bridges in return for the sons not bidding in good faith on the iron bridges but putting in a sham bid slightly above the bid of the Continental Company. All the facts and circumstances surrounding the undisputed facts point to the participation of Andrew A. Strauch in the conspiracy. His statement “whatever you do don’t get me mixed up in any of your deals,” after introducing his son to Hughes, is very suggestive. No explanation is offered of all the many circumstances pointing so unmistakably to the guilt of the plaintiffs in error. Conspiracy is necessarily proved by circumstances, and when the circumstances proven are such that no other reasonable conclusion can be drawn from the evidence but that the defendants are beyond a reasonable doubt guilty as charged, the conspiracy is proven. It is unnecessary to recite the many minor incriminating circumstances and acts of the plaintiffs in error shown by the record. Sufficient of the evidence has been recited to show that the indictment was clearly proven.

Complaint is made concerning the language of the attorneys in stating and arguing the case. When the nature of the case under discussion and the character of the evidence is considered, we do not think the language used is seriously objectionable.

It is assigned for error that the court erred in giving five instructions at the request of the people. We have examined them and do not find that they are incorrect. Plaintiffs in error insist that all the law on any branch of the case must be stated in each instruction. The first instruction given directed the jury to consider all the instructions together as one series, and the twenty-seven instructions given for the plaintiffs in error removed any obscurity there might be in the people’s instructions. We find no prejudicial error in the case, and the judgment is affirmed.

J firmed.


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    Mary C. Merrifield, Defendant in Error, v. Western Cottage Piano & Organ Company et al., Plaintiffs in Error.
    Gen. No. 4,961.
    1. Executions—effect of restraining as to one defendant. An execution, the enforcement of which is restrained as to one defendant, may be executed as to the remainder, in which case the execution runs against all defendants named in the judgment including the one against whom its enforcement is restrained.
    2. Amendments and jeofails—when execution may he amended. An execution may be amended provided there is that in the judgment by which to amend.
    Assumpsit. Error to the Circuit Court of LaSalle county; the Hon. Edqab Eldeedge, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 14, 1908.
    Statement fey the Court. On January 18, 1907, the Western Cottage Piano and Organ Company (hereinafter described as the company) executed three notes for $5000 each, payable four months after date to the order of W. T. Rickards & Co. Each of the notes was indorsed by L. W. Merrifield and T. W. Burrows. On May 24,1907, a similar note for $5000 was made with the same indorsers. The four notes were indorsed without recourse to Mary C. Merrifield by W. T. Rickards & Co. Mary C. Merrifield brought suit in assumpsit to the June term of the Circuit Court of LaSalle county on these notes, so indorsed to her, against the maker and also against the indorsers, whom she declared against as guarantors. Summons was duly served ten days prior to said term on all the defendants. On the 21st of June the defendants were defaulted and judgment rendered against all of them for $20,084.49. On the 29th day of June the defendant, Burrows, made a motion to set aside the default and open up the judgment and for leave to plead. The court on hearing the motion made an order “that execution herein be and the same is hereby restrained, grants leave to said defendant to plead and orders that the judgment entered herein stand as security for the debt. ’ ’ The defendant Burrows filed a plea of the general issue with notice of special matters intended to be relied on, and filed with his plea and notice, an affidavit that he had a good defense upon the merits and that his defense is particularly set forth in the notice of special matters relied on. On the 22nd of October at the October term, counsel for Burrows gave notice that on the next day they would ask for leave to file an additional plea for Burrows and also ask leave to file a plea for the defendant company, but the record does not show any such motion was ever made on behalf of defendant company. On October 23rd the defendant Burrows moved for leave to withdraw the notice finder the general issue and for leave to file special pleas. This motion was granted. Thereupon the defendant Burrows filed three special pleas and the plaintiff filed a replication concluding with a verification. The record does not show that the pleading was closed. On February 8, 1908, an execution was issued on this judgment against the company and L. W. Merrifield to the sheriff of LaSalle county. On February 11, at the January term, the attorneys for T. W. Burrows, professing to act in the name of the company, made a motion to recall and quash the execution, and the plaintiff made a cross motion to set aside the order “entered herein on June 29, 1907, setting aside the default as to the defendant T. W. Burrows, opening up the judgment and granting leave to said defendant to plead.” On February 18, the court sustained the motion made by defendant in error, “to vacate order setting aside default as to T. W. Burrows” and “overrules the motion to recall the execution made by the company.” The defendant, Burrows, excepted to this order and prayed an appeal therefrom. Thereafter' on February 25, the plaintiff moved the court to amend the execution so as to make it conform to the judgment by inserting the name of T. W. Burrows. This motion the court allowed and ordered that the execution be amended by inserting the name of the defendant Burrows. The defendant Burrows excepted to this order.
    This case is in this court by virtue of two writs of error sued out by the plaintiff in error, T. W. Burrows, and which were consolidated in this court on his motion. One of these writs of error is in Ben. No. 4968, sued out to reverse the order of February 18 vacating the order permitting Burrows to plead. The other is in Ben. No. 4961, sued out to reverse the order of February 25, directing the amendment of the execution. We originally filed an opinion covering the entire case as consolidated. Since that opinion was filed plaintiff in error has practically abandoned the consolidation by appealing No. 4961 to the Supreme Court and by petitioning for a rehearing in No. 4968. It therefore becomes necessary to sever the opinion. That, part of the opinion which relates to No. 4961 is as follows:
    Jarvis R. Burrows, Eddy, Haley & Wetten and Butters, Armstrong & Ferguson, for plaintiffs in error; P. C. Haley, of counsel.
    McDougall & Chapman, for defendant in error.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

There was no order restraining execution as to any of the defendants except Burrows. The execution was restrained on his motion, and the order did not interfere with proceeding under the execution against the other defendants. An execution must follow the judgment and appear to be against all the defendants, notwithstanding for some cause no levy can be made on the property of some. Freeman on Executions, sec. 42. Where an execution is stayed as to one defendant it may be enforced against the others. Sheetz v. Winkoop, 74 Penn. St. 198.

Upon the question presented concerning the issuing and amendment of the execution, the following considerations appear to us to control. Burrows could only appear and defend for himself. The other defendants did not claim that this debt had been paid, or that they did not owe it. Although Burrows, who was apparently a mere guarantor on the note, obtained leave .to plead, he had no right to prevent plaintiff from collecting the judgment against the other defendants. It was proper to overrule the motion of Burrows to recall the execution as against the other defendants. An execution ought to conform to the judgment, and the execution as originally issued omitted the name of Thomas W. Burrows, a defendant against whom the judgment still stood. There was therefore an informality in the execution. An execution •can be amended, provided there is that in the judgment by which to amend. Revised Statutes, Chap. 7, “Amendments and Jeofails”; Bybee v. Ashby, 2 Gilm. 151,166, where common law authorities are cited; Lewis v. Bindley, 28 Ill. 147; Durham v. Heaton, 28 Ill. 264; McCormick v. Wheeler, 36 Ill. 114; Bissell v. Kip, 5 Johns. 89, where it was held that the execution could be amended where there was something to amend by, namely, the judgment. We are of opinion that in view of the fact that there were two other defendants who were not claiming a defense nor resisting the collection of the judgment, the original order should have permitted an execution to issue against all the defendants upon the face of the judgment, and should have only stayed the collection of the execution as against Thomas W. Burrows. The order of the January term, 1908, permitting the amendment by inserting the name of Burrows in the execution was practically a modification of the former order, and it is therefore affirmed. The court should, however, upon again repossessing itself of the case, enter an order that the execution he not collected as against Thomas W. Burrows till the further order of the court.

The order in No. 4961, allowing the amendment of the execution, is therefore affirmed.

Affirmed.


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    Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 4,625.
    1. Change oe venue—propriety of granting, from one county to another. A petition for a change from one county to another is addressed to the sound discretion of the court; the -propriety of the granting or refusing the change should not be determined necessarily with the side presenting the greater number of affidavits.
    2. Change oe venue—how question of propriety of, saved for review. Where a change has been granted from one county to another the propriety of the change should be preserved by a motion to remand with an exception, if such motion to remand, is overruled.
    3. Pbactice—what not reached hy motion in arrest. A judgment after verdict can only be arrested for substantial faults. All defects which would not have been fatal on a general demurrer are cured by pleading to the issue, and are aided by verdict. When the pleading states the essential requisites of a cause of action, the court will presume that the particular fact or circumstance which appears to be defectively or imperfectly stated or omitted was proved at the trial. A defective or inaccurate statement of a cause of action is cured by a general verdict but where no cause of action is stated a verdict will not cure the defect.
    4. Pleading-—what sufficient allegation of ownership. After verdict averments that “plaintiff was possessed as of its own property” and “the property of the plaintiff was destroyed or injured,” amount to an allegation of ownership by the plaintiff.
    5. Pleading—when venue sufficiently alleged. In an action under the statute rendering cities, etc. liable for the loss of property from mob violence, the location of the mob which destroyed the property is sufficiently set up by an averment that “within the territorial limits of the city of Chicago, aforesaid, in consequence of a certain mob or mobs, riot or riots, each of which was then and there composed of twelve or more persons within the territorial limits of said city of Chicago, a large quantity” etc.
    6. Cities, villages and towns—when notice under statute concerning loss of property through mobs sufficient. A notice in the language of the statute which renders cities liable for the property of citizens destroyed through mob violence, is sufficient which has attached a schedule describing the property in detail, and whether destroyed or injured, the place of loss, the date of the loss, and the amount of damage to each item of property, and which was served by the solicitor for the party suffering the loss upon the mayor of the city claimed to be liable, by handing to him a true copy thereof within the time fixed by statute.
    7. Cities, villages and towns—%ohat not competent against city. In an action against a city to recover for property alleged to have been destroyed through mob violence, a dispatch by the mayor of the city to the governor of the state describing conditions and asking for troops, prepared by the legal department of such city, is not a part of the res gestae and is not competent against the city.
    . 8. Evidence—what not part of res gestae. Declarations to be res gestae must be spontaneous and not statements which are deliberate and prepared for a purpose.
    9. Appeals and ebboes—when affirmance is by operation of law. Where there are but two justices acting in a cause and they are unable to agree whether the case should be affirmed or reversed, it is affirmed by operation of law.
    Action in case. Appeal from the Circuit Court of DuPage county; the Hon. Abthtje H. Feost, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed November 20, 1908.
    Thomas J. Sutherland, for appellant; Edward J. Brundage, Stephen S. Gregory and Charles Wayne, of counsel.
    Loesch, Scofield & Loesch, for appellee; L. C. Cooper and Charles J. Scofield, of counsel.
   Mr. Presiding Justice Thompson

delivered the opinion of the court.

This is an action in case begun the 16th day of May, 1895, in the Circuit Court of Cook county, Illinois, by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company against the city of Chicago to recover three fourths of the damages sustained by it on account of the destruction of property of which “the plaintiff was possessed as of its own property,” during riots there in July, 1894.

The declaration avers that the plaintiff is a corporation of the state of Illinois and other states; that the defendant is a municipal corporation of said state; that on July 6, 1894, plaintiff was a common carrier of freight and passengers over a line of railroad leading from the city of Pittsburgh in the state of Pennsylvania to the southern boundary of the city of Chicago, at a point near the intersection of Western avenue with said southern boundary line, thence northerly within the limits of the city of Chicago across various" streets to near Canal street; that “plaintiff was possessed as of its own property of a large quantity of railway equipment, supplies, goods, merchandise and property,” describing in detail a large amount of property consisting of railway equipment of various kinds and merchandise of the value of, to wit, $500,000, and particularizing the extent and places of loss; that on, to wit, the day and year aforesaid, and within the territorial limits of the city of Chicago aforesaid, in consequence of a certain mob or mobs, riot or riots, each of which was composed of twelve or more persons within the territorial limits of said city, a large quantity, to wit, all the above described equipment and property, was destroyed, to wit, etc.; that the said property, goods, etc., at the time of said injury were not in transit; that said injury and destruction were not occasioned or in any way aided, sanctioned or permitted by any carelessness, neglect or wrongful act on the part of the, plaintiff, or through any neglect on the part of the plaintiff to use reasonable diligence to prevent said injury and destruction. It is further averred that the plaintiff within thirty days after said injury and destruction of said property, to wit, on August 6, 1894, gave due notice to said defendant of said injury and destruction and then and there demanded payment of three-fourths of the amount of said loss and damages, to wit, $337,268.25, whereby and by reason of the premises, and by force of the statute in such case provided, it became and was the duty of said defendant to pay to said plaintiff the sum of $337,-268.25, etc. The defendant did not demur to the declaration but filed the general issue.

In August, 1904, the plaintiff applied for a change of venue from Cook county because of the prejudice of the people. An order granting a change of venue to DuPage county was made in December of that year. The plaintiff thereafter in March, 1905, moved for a change of venue from all the judges of the sixteenth circuit, one of the judges of said sixteenth circuit being now one of the justices of this court; that motion was allowed and the cause was at the request of the said judges of the sixteenth circuit, tried by a jury before one of the judges of the seventeenth circuit in DuPage county, the trial lasting from May 1 to August .26, 1905. A verdict was returned in favor of the plaintiff for $100,000; motions for a new trial and in arrest of judgment were overruled and judgment was rendered on the verdict on September 25, 1905. The defendant appeals to this court.

A change of venue having been taken from one of the justices of this court, he deems it his duty to refrain from taking part in the consideration of this appeal. The record is a very long one, consisting of more than 11,000 pages, the printed abstract containing more than 3000 pages, and the case appears to have been very closely contested. Objections were made to almost every step taken by the plaintiff in the case, and exceptions were preserved to the rulings of the court. Many assignments of error have been argued in detail, and they present questions some of which are new, serious and important, concerning the competency of the evidence admitted for the plaintiff and the right of the plaintiff to recover for some of the property that was destroyed. The case was continued from time to time in this court by agreement of the parties until it was argued and submitted for adjudication at the April term, 1908.

It is insisted that the court erred in granting a change of venue from Cook county to DuPage county, and that the very great preponderance of the showing made by the parties demonstrated that there was no reason for changing the venue from the county where the suit was begun. Affidavits were made by eleven persons in support of the petition for a change of venue, while seventy-five persons made counter affidavits. The petition was addressed to the sound legal discretion of the court. The number of affidavits on either side is not necessarily a controlling factor in passing on such an application. The defendant went to trial in the Circuit Court of DuPage county without objection. Where a change of venue is improperly granted the proper practice for the party complaining seems to be to move to remand the cause to the county from which it was sent, and if the motion is overruled to take an exception. Johnson v. Von Kettler, 66 Ill. 63; Hitt v. Allen, 13 Ill. 592. This was not done. Moreover the appellant did not include any such reason in its written motion for a new trial, wherein the grounds of the motion were specified in detail. Yarber v. Chicago & Alton Ry. Co., 235 Ill. 589. If, however, the original exception to the order granting the change saved the question for review, yet as the affidavits were conflicting and the matter within the sound discretion of the court, we should not feel warranted in reversing because of the change of venue.

The action is based upon a statute of this state providing as follows:

" That whenever any building or other real or personal property, except property in transit, shall be destroyed or injured in consequence of any mob or riot composed of twelve or more persons, the city, or if not in a city then the county in which such property was destroyed, shall be liable to an action by or in behalf of the party whose property was thus destroyed or injured for three-fourths of the damages sustained by reason thereof.
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“No person or corporation shall be entitled to recover in any such action if it shall appear on the trial thereof that such destruction or injury of property was occasioned or in any way aided, sanctioned or permitted by the carelessness, neglect or wrongful act of such person or corporation; nor shall any person or corporation be entitled to recover any damages for any destruction or injury of property as aforesaid, unless such party shall have used all reasonable diligence to prevent such damage.
**********
“No action shall be maintained under the provisions of this act, by any person or corporation whose property shall have been destroyed or injured as aforesaid, unless notice of claim for damages be presented to such city or county within thirty days after such loss or damage occurs and such action shall be brought within twelve months after such destruction or injury occurs, * * *”

It is urged the motion in arrest of judgment should have been sustained because the declaration is insufficient in that it does not state a cause of action by failing to state facts but only stating conclusions in several particulars. It is argued (1) “that ownership is not alleged as a conclusion, nor by way of uncertain or incomplete statement, by way of argument, by evasion, nor is there any allegation from which it can necessarily be inferred. All that is alleged is possession”; (2) “that the declaration should locate the mob as within the city of Chicago”; (3) the statute “requires that such party shall have used all reasonable diligence to prevent such damage,” while the declaration only avers that the injury was not occasioned through any neglect on the part of the plaintiff to use reasonable diligence to prevent such injury; (4) that “the declaration does not aver that a notice of plaintiff’s claim for damages was presented to the city within thirty days after the destruction or damage to its property occurred.”

The numerous alleged defects in the declaration which have been presented for our consideration are purely formal. The defects complained of could not have been reached by a general demurrer. They could only have been grounds for a special demurrer assigning the causes. A judgment after verdict can only be arrested for substantial faults. All defects which would not have been fatal on a general demurrer are cured by pleading to the issue, and are aided by verdict. When the pleading states the essential requisites of a cause of action, the court will presume that the particular fact or circumstance which appears to be defectively or imperfectly stated or omitted was proved at the trial. A defective or inaccurate statement of a cause of action is cured by a general verdict but where no cause of action is stated a verdict will not cure the defect. G-ould on PL, chap. X.

Counsel for appellant state in their original argument (p. 21): “The declaration states the name of the plaintiff. It states that ‘said plaintiff was possessed as of its own property,’ of the railway equipment, etc., described and claimed to have been injured or destroyed,, and for which judgment is asked. It also avers ‘that the property of the plaintiff was destroyed or injured. ’ These averments only amount to an assertion that the plaintiff was the otoner of the property mentioned and that the legal title was in the plaintiff. Such an averment is only a mere statement of a conclusion of law and amounts to nothing as an averment.” At common law the possessor of personal property is prima facie the owner of the property. The averments that “plaintiff was possessed as of its own property,” and “the property of the plaintiff was destroyed or injured,” amount to an allegation of ownership by the plaintiff, when the declaration is first questioned after verdict. Beigen v. Riggs, 34 Ill. 170. On a motion in arrest of judgment “every intendment will be indulged in favor of the declaration, and if it contains terms sufficiently general to comprehend by fair and reasonable intendment any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express averment in the declaration has been cured by the verdict. ’ ’ Danley v. Hibbard, 222 Ill. 88; Fountain Head Drain Dist. v. Wright, 228 Ill. 208. We hold that the conclusion to be drawn from the averments of the declaration is that the plaintiff is the owner of the property destroyed or injured.

The declaration avers that “within the territorial limits of the city of Chicago, aforesaid, in consequence of a certain mob or mobs, riot or riots, each of which was then and there composed of twelve or more persons within the territorial limits of said city of Chicago, a large quantity,” etc. This language locates the mob within the city of Chicago in the language of the statute and fully answers the second reason urged in arrest of judgment.

We do not think it necessary to comment on the third and fourth reasons urged in arrest of the judgment further than to state that under the rule announced in Danley v. Hibbard, supra, the allegations contained in the declaration concerning these matters are sufficiently general to comprehend by fair and reasonable intendment the matters necessary to be proved in the respects complained of, and the court did not err in overruling the motion.

The proof shows that in June, 1896, a general strike was declared by the American Railway Union, and that many thousands of railway employes abandoned their work. This general strike was a sympathetic strike in aid of the employes of the Pullman Company, who had been on a strike since some time in May of that year. The city of Chicago appears to have become the center of the strike hostilities. The employes of the railroads having abandoned their work and refusing to return, the railroads brought to Chicago “strike breakers” and endeavored to run their trains with these men, many of whom were inexperienced but were willing to take the places of the old employes. When the railroads began to try to operate their trains with the strike breakers and new men, mobs began to gather along the lines of the railroads and interfered with the operation of the trains. Counsel for appellant state in their argument that “The fact that so many men became idle at once, in connection with the animosities engendered and the doubt and uncertainties existing as to the future relations of the men with the companies, produced a condition somewhat alarming and was supposed to threaten the peace and welfare of the city. The strike also succeeded in stirring up to some extent the rougher elements.” At the commencement of the strike there were 3000 policemen in Chicago and about 500 more were sworn in on the fifth and sixth of July. The United States Marshal, who under ordinary circumstances has ten deputies, had about 1600 special deputies, all sworn in because of the strike difficulties, and he swore in some 2600 railway employes as special deputies of the various railroads in Chicago who acted under the direction of the railroad officials during the strike in endeavoring to protect the railroads against the disorderly persons. About 250 of the special deputies were employes of plaintiff and acted under plaintiff’s officials. On July 6, the mayor of the city of Chicago sent to the governor of Illinois a request by telegraph for the state militia to aid in preserving the peace and suppressing violence. The governor in compliance with the request sent several regiments of militia to Chicago. The president of the United States also ordered government troops sent to Chicago to assist in quelling the disturbances. The regular troops arrived in Chicago on the fourth of July. Between the first and seventh days of July, but principally on the sixth, a large amount of railroad equipment and several hundred cars, many of them stored with merchandise, were totally destroyed by fire in the yards of the plaintiff in Chicago. The equipment destroyed and many of the cars destroyed belonged to the plaintiff, but a great number of the cars destroyed were only used by plaintiff and belonged to other railroads. The merchandise destroyed belonged to third parties.

Appellant argues that the notice and demand for damages offered and admitted in evidence, which is a notice and demand combined, is not sufficient to sustain the action. This notice and demand is in writing, signed by the second vice-president of appellee, the officer who under appellee’s by-laws has charge of the legal and contract department. It is in the language of the statute, and has a schedule attached describing the property in detail, and whether destroyed or injured, the place of loss, the date of the loss, and the amount of the damage to each item of property; it was served by the solicitor for appellee on the mayor of the city by handing him a true copy on July 28, 1894. Many extremely technical points are attempted to be urged concerning this notice. It was clearly sufficient, and we fail to find any merit in the points raised in the argument upon this contention.

Appellant insists that it was not shown by the evidence on the trial that appellee’s property was destroyed in consequence of any mob or riot composed of twelve or more persons. The property destroyed was mostly in two of appellee’s yards; one called the Brighton Park yards, located between Forty-third and Forty-seventh streets in Chicago; the other, the Fifty-ninth street freight yard, located between Fifty-fifth and Sixty-third streets in Chicago. The appellee’s railway is properly known as the Pan Handle, and is frequently so called by the witnesses.

A great number of witnesses testify to acts of violence and to facts showing that a reign of terror existed at both yards, that the crowd in the vicinity of the yards were overturning cars, setting fire to them, obstructing the police of the city, and threatening and terrorizing the employes of appellee that remained at work or were newly employed. The evidence shows that some twenty-three railroads running into Chicago were involved in this strike. The railroads acted together in resisting the strike through what is known as the General Managers Association, which had an office in the Rookery Building in Chicago.

John M. Egan was in charge of this office, and to him the officials of the railroads severally reported where disturbances and difficulties existed or were expected from the strikers or their sympathizers. Egan communicated the information to the police inspectors and to the chief of police. As early as June 29, Egan, acting for the appellee and other railroads, sought to have the mayor of the city secure the state militia to preserve the peace, and made arrangements to convey peace officers to where, from the reports received, difficulties might be expected. On the afternoon of July 6, Charles Watts, superintendent of the Pennsylvania lines west of Pittsburgh, which include the Pan Handle, acting for the appellee, called on the chief of police with reference to furnishing protection for appellee and told him of threats and requested that officers should be sent to its yards; and again on the same evening Watts asked the city officials over the telephone why men were not sent to the yard and was told the city did not have the men to send. Appellee’s Fifty-ninth street yard is the yard most distant from the center of the city. The rioters from the evidence appear to have first fired cars in the Brighton Park yards, and then went south into the Fifty-ninth street yard where from 800 to 900 cars were stored. Henry C. Maher, a day watchman in the Fifty-ninth street yard, testified that about 12:30 on July 6 about fifty people came from Forty-third street and turned over a car at the north end of the Fifty-ninth street yard, and that at about four o’clock, six or eight persons came from the vicinity of the Northern Pacific tracks, and three or four of them went to the office and tore down the telephone, and some boys undertook to take out a handcar; that he chased them away and put the handcar off the track, and on going back to the office saw a car had been fired, and being unable to put it out went to the telephone, when he saw that another fire had been started, further north, and then he telephoned to the city offices that fires were being started; that at that time there was a big crowd of men, a couple of hundred, working south through the yard.

Stephen Lancto, a carpenter working on a roof, testified that he saw twenty to twenty-five men at Fifty-fifth street throwing at the little flag house and breaking the gates; that he saw these men go south towards Fifty-ninth street along the tracks, and could see a blaze once in a while where another fire would be started; that he saw this in several places. The next day he saw that the cars had been burned.

Honima Huicanga, a gardener, living three blocks south of Fifty-fifth street on the west side of plaintiff’s tracks, testified that on the afternoon of the fire he saw many people, probably fifty, come and tip over some cars; one car was tipped on appellee’s tracks at Fifty-fifth street. Afterwards he saw a fire near Fifty-fifth street, and then right along the line up to Sixty-third street as far as he could see the cars were on fire; that there were from fifty to two hundred people there, and some boys with a handcar were going up and down and going into the cars with a five gallon oil can, and in a few minutes fire would come out.

Oscar Therien, a foreman in a cigar factory, who lived at Fifty-sixth street and Western avenue at the time of the fire, testified that hundreds of cars were destroyed; that the yard was filled with cars before the fire; that he saw a crowd of a hundred or more telling an old man to come down from the tower at Fifty-fifth street, that they were going to fire the tower; that a man came with an oil can and set the tower on fire, that they broke the gates at both sides; that the crowd followed a fellow with a handcar; that “they went right into the Pan Handle yards, and then the whole thing was in blazes around here and there. ’ ’

Mrs. Bertha Delude testified that on the afternoon of July 6th she saw three or four cars burning on the Pan Handle track between Fifty-first and Fifty-second streets; there was a big crowd around those cars, over fifty persons, who were throwing stones at a passenger train.

Emma Mansel testified to the crowd moving south from Brighton Park yard to the Fifty-ninth street yard; that there were two hundred to three hundred persons right on the tracks, and they went into the yards at Fifty-fifth street and started fires there.

Josephine Osburn testified to seeing about one hundred men come up the track, upset and burn a car; that she saw about eight of them go into the yards towards Fifty-ninth street; they were gone about half an hour and when they came back all the cars were on fire; that the men ran Schwartz, the gateman, away, and that a boy climbed into the tower, saturated it with kerosene and set it on fire; that Schwartz ran away at that time to keep from being' killed; that a gang of about fifteen men told the people in the depot to get out, cursed them and called them scabs.

Frank Schwartz, the gate crossing or tower man at Fifty-fifth street, testified that he saw trouble at Fifty-second street; there was a big crowd there and they dumped a car at that street; this was about two o ’clock in the afternoon and there were thirty or forty of them. Some of the crowd came to where the witness was and climbed up on the tower and lighted a fire there; they broke down the gates; there were two hundred people there at that time.

Charles E. Danke, a police officer at the time of the fire, testified he, with other policemen, was sent over to the Fifty-ninth street yard about seven o’clock and there was a crowd of from three to four, hundred peoplé around the track and at least half of the cars standing there were on fire; “when we got there the crowd was running in and around the cars, some of them on top of the cars, carrying firebrands from car to car, I saw them break open car doors and carry fire from one car to another”; that there were from eight to twelve policemen there, but no arrest was made that he knew of.

. Paul Bessmer, then a police officer, testified that he, with eight or ten officers and a sergeant, went to the Fifty-ninth street yards; when they got there the tower house was burning; a good many hundred cars were there and they started to burn in all directions, one car here and another there; they tried to get the crowd away, there were several thousand people around there; some of them tried to overthrow the cars, and there was fire in different places; they stayed until the troops came.

A great many other witnesses testified in a similar strain to the origin and progress of the fire from the Brighton Park yards to and in the Fifty-ninth street yards. The evidence shows that at some places there were but a few persons engaged in the work of destruction, at others there would be a crowd of twenty or thirty, and from that number up to several hundred, all co-operating and encouraging each other in the destruction of property, breaking switches, and overturning cars on the tracks so as to obstruct the movement of cars or trains, and setting fire to cars and anything that would hum. The evidence would appear to be conclusive that the property was destroyed in consequence of a mob or riot composed of more than twelve persons. The evidence is also clear that the appellee used all reasonable diligence to prevent such damage with such few employes as remained at work, in securing the assistance of United States marshals, in making demands for police protection, and by requesting the city authorities to secure the services of the state militia in advance of the strike assuming serious proportions.

On July 6, while the strike was in progress and property was being destroyed, John P. Hopkins, the mayor of Chicago, sent a telegraph message to John P. Alt-geld, the governor of the State of Illinois, notifying him that there were within the city “numerous riotous bodies of men acting together by force with attempt to commit violence, to offer violence to persons and property, and by force and violence to break and resist the laws of the state; that the civil authorities of this city by means of the large territories over which these men are scattered, the comparatively small number of police and other police officers at the disposal of said authorities and the large number of said riotous bodies of men, are unable to restore the peace and to prevent violence to persons and property”; and requesting that the governor order five regiments of the state militia immediately to assist the civil authorities in suppressing violence. This dispatch was offered by appellee and admitted as original evidence over the objection of the appellant. The dispatch was prepared by the legal department of the appellant city and signed by the mayor. It is insisted on the part of appellee that it was competent as part of the res gestae. The description of the riotous conditions was not a part of the res gestae for the reason that it was not a spontaneous expression of the mayor but was a deliberate statement of the legal department of ■ the city prepared for the purpose of securing troops. Declarations to he res gestae must be spontaneous and not statements which are deliberate and prepared for a purpose. The mayor simply signed a paper prepared for his signature, possibly knowing nothing about the facts except as they were reported to him. The mayor afterwards was a witness for appellant and testified to his knowledge of the facts quite differently from the language of the dispatch, and the dispatch might thereafter have been competent by way of impeachment, but it will scarcely be insisted that it was competent to impeach him before he had testified; he might not have been called as a witness if the dispatch had not been admitted in evidence. We hold the dispatch was improperly admitted in evidence, but the facts stated therein were so conclusively proved by competent evidence that its admission was harmless error.

After a careful consideration of the case the two members of the court taking part in this case are clearly of the opinion that under the pleadings and the evidence no other verdict than one in favor of the appellee could reasonably have been returned.

We are unable to agree upon "the right of appellee to recover for the destruction of merchandise belonging to other parties and of ears belonging to other railways, and upon the competency of much of the secondary evidence composed of copied records of train reports, “Historical records” of cars, and the “Borner Record,” which is a record of the movements of cars upon appellee’s lines in Chicago, which were admitted in evidence over the objection of appellant. One of the justices is of the opinion that in view of the facts and questions of law upon which we agree, and the great value of the property destroyed, there being about 100 cars destroyed in the Brighton Park yards and nearly 700 in the Fifty-ninth street yards, many of which were loaded with merchandise, besides much other property, three-fourths of the value of which far exceeded the amount of the verdict, that there is ample evidence to sustain the verdict and that the errors complained of concerning which we agree, if they were errors, are not of sufficient magnitude to require a reversal, while the other justice is of the opinion that the matters complained of and concerning which we disagree are errors and are of such importance that they require a reversal of the case. There being but two justices acting in the case, and they being unable to agree as to whether the case should be affirmed or reversed, it is affirmed by operation of law. Binder v. Langhorst, 139 Ill. App. 493.

Affirmed.

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


author: Mb. Presiding Justice Thompson

text:
    Edward Brophy, Appellee, v. Illinois steel Company, Appellant.
    Gen. No. 5,017.
    • 1. vaaDIcT-when not disturbed as against the evidence, where there is evidence upon which a verdict may be sustained, it will not be set aside on review as against the evidence unless passion, prejudice or other undue influence has entered into the verdict.
    2. Vasnsc~-when not excessive. In an action for personal injuries, a verdict for $5,000 is not excessive where the injuries were to a boy of the age of 16 years and consiscea, In addition to suffering, in the loss of a leg.
    Action in case for personal injuries. Appeal from the Circuit Court of will county; the Hon. Douusucu DIBSLL, Judge, presiding.
    Heard in this court at the April term, 1908.
    Affirmed.
    Opinion filed October 14, 1908.
    Garnsey & Wood, for appellant; Knapp, Haynie & Cambell, of counsel.
    J. W. D 'Arcy, for appellee.
   Mb. Presiding Justice Thompson

delivered the opinion of the court.

Edward Brophy, appellee, brought suit and recovered a verdict and judgment for $5000 damages against the Illinois Steel Company, appellant, for personal injuries. The declaration contains three counts. The first count charges the defendant company with negligence in failing to provide a reasonably safe place, appliances and machinery, in and around which the plaintiff, then and there an employe of defendant of the age of sixteen years, could work in the performance of his duties as a switchman, and that by reason of the unsafe place and appliances plaintiff was injured by a heavy mould of defendant’s falling from an elevated crane without notice or warning to plaintiff, whereby, etc. The second count alleges negligence in permitting an elevated crane and machinery belonging thereto to become worn, defective, impaired and unsafe for the conveyance of certain moulds weighing, to wit, ten tons, etc., whereby, etc. The third count alleges negligence in failing to inspect and repair and in permitting its elevated crane to become defective and unsafe, etc. Each count avers that plaintiff was in the exercise of due care, and that the injury was not caused through the negligence of a fellow-servant or from an assumed risk. It is contended that there is no proof sustaining the third count, and that the court should have directed a verdict for the defendant on that count. The record does not show that any such instruction was asked, and shows that only a general instruction to find for the defendant was requested at the close of all the evidence. If there is evidence on which the verdict can be sustained on any count then there was no error in refusing that instruction.

The proof shows that on Sunday, September 16, 1906, the date of the accident, the appellee was a boy sixteen years of age working as a switchman in the yards of appellant company at Joliet where he had been employed three or four months; that appellee had only worked at the place where he was injured upon one occasion before the day of the injury, and that the accident happened in the convertor mill of appellant while appellee, acting as such switchman, was endeavoring to get upon the foot-board of a small locomotive engine. This engine is used in the steel mills and is so small that only the engineer can ride on it, and he acts as engineer and fireman. The engine moved small cars called buggies for transporting moulds on a narrow gauge track two feet and eight inches wide. The cars are about four feet long, there feet wide and two feet high. Three of these mould cars with a “push-car” and engine make a train. Each mould car is supposed to carry two moulds, but a train only carries five moulds. Between the engine and the train is a small “push-car” with a steel top of the same size as the others. The “push-car” between the engine and train contains the coupler for attaching the mould cars to the engine. The couplers are operated by levers on the push-car; a lever is on each side of the push-car so that a man standing on the foot-board of the engine can operate the coupler from either side. The moulds are made of cast iron, and are about two feet square at the bottom and six feet high, and each weighs two tons. The moulds are lifted on and off the cars by a crane with .a chain and hooks; two hooks catch into lugs near the top of each mould. The crane is an electric crane with a universal motion by which heavy weights can be moved in any direction. The craneman manages the crane from a cage about thirty-five feet above the tracks. These small trains are operated by two men, the engineer, and a switchman whose duty it is to turn switches and couple and uncouple the cars from the “push-car.”

The mills were closed on the day of the accident, with the exception that moulds were being carried on these small trains to and from what is called the cleaning platform where the moulds and buggies were cleaned. Sometimes these moulds were lifted with the crane off the buggies at the platform to get the scrap off the buggies. After being cleaned the moulds were carried on the buggies to other parts of the mills. The cleaning platform is four or five feet wide, fifteen feet long and six feet high. On the south side of this platform is a track running in a curve, while on the north side is a straight track; the curved track unites with the straight track about forty feet from either end of the platform, and there is some three or four feet of space on each side between the tracks and the platform. The engine runs in with a train of cars on the track on one side of the platform, leaves the train by the platform, then runs upon a switch and runs back on the other track and takes the cars with the moulds which have been cleaned from the other side of the platform and so the work goes on, there having been about two hundred moulds cleaned that day. At the time of the injury a train of cars with moulds was standing, being cleaned on the south track at the southeast corner of the platform. The engine came into the convertor mill with a train from the east, and was moving on the straight track on the north, towards the platform. The appellee threw the switch, which was on the south side of the track behind the train, and then ran on the south side of the train, which was moving slower than a walk, to get on the foot-board ahead of the push-car to uncouple the train when it got to the platform. The crane had picked up two moulds at the east end of the platform between the tracks, and had raised them about two feet from the ground between four and five feet south of the north track as the engine cleared the moulds by about four feet. The evidence does not disclose whether. these moulds were being put on or off the buggies on the south track. Some other employes called to the engineer to stop as they saw the moulds being raised close to where the engine would pass, but the engineer did not hear them and appellee ran between the moulds which were being raised and the train. The craneman undertook to stop the moulds and keep them suspended while the train passed, but the brake slipped and the moulds fell to the ground and one of them toppled over upon the push-car catching appellee and breaking his leg below the knee so that it had to be amputated.

There are but two questions involved: first, was the appellee at the time of the injury in the exercise of ordinary care, or did his acts contribute to the injury, and second, was the defendant company negligent in the care of the crane?

The proof shows that appellant had actual notice that the crane had a defective brake, which had been slipping more or less for about two months. The craneman testified that he had complained about the brakes; that he had asked to have them fixed many times, but they would not fix them; “they all knew the brakes would not hold”; it would not do any good to complain because they would not fix them; that the brake had slipped three weeks before the date of this accident in the presence of the foreman, and that the foreman then said to the craneman, “why don’t you fix it?” and the craneman replied that he could not fix it, and they let it go that way. The evidence is clear that the brake slipped very often, and there is no evidence showing that any attempt was made to repair the brake after the foreman- knew about its slipping. The foreman testified he did not remember about the complaint made by the craneman that the brake needed fixing, but would not say the complaint was not made, and said he would not have fixed it anyway; that it was up to the mechanical department to fix it. It is also shown that the appellee had not heard of the brake slipping, that he knew nothing about it and did not know but that it was in perfect order. It is conclusively shown that the -brake was out of repair and the foreman and craneman knew it, so that the negligence of appellant was clearly proved.

Appellant contends that appellee was not •exercising ordinary care for his own safety but that he was negligent and contributed to his own injury. The switch that appellee had turned just prior to the time of the injury and from which he was running was on the south side of the train, the side upon which appellee was injured. There is a maze of tracks in the vicinity where the injury occurred. There was a space of four or five feet between the moulds that were suspended on the crane and the train by the side of which he ran to get on the push-car, although some of the evidence tends to show the space was less. It was the duty of the appellee to run and get on the foot-board of the engine to work the coupler on the push-car. The side of the train the switch was on was the side the switch-man would naturally take to overtake the push-car. There was at least as much space between the suspended moulds and the track as there was between the cleaning platform and the track. There was ample room between the moulds and the train for the appellee to pass in safety to reach the push-car if the machinery of the crane had been in proper condition. The appellee had only worked at the place where he was injured on one other occasion before the day of the injury, which was the day he became sixteen years of age; he knew nothing about the brake being defective on the crane; he had never seen or heard of it slipping. Appellee did not pass under the mould but by its side, and because of the brake slipping the mould fell and toppled over- against the push-car, crushing his leg. If the brake on the crane had not slipped appellee would not have been injured, and it would not have slipped if it had been in proper condition. There is no proximate connection between the action of the appellee in his attempt, in the performance of his duty, to get on the engine foot-board and his injury. The jury, finding for the appellee, found from the evidence that the appellee was exercising ordinary care and that he was not guilty of contributory negligence. The jury were very fully and particularly instructed that, before appellee could recover, he must prove by a preponderance of the evidence that he was in the exercise of ordinary care and that he was not guilty of negligence contributing towards causing his injury. That was a question purely for the jury, and there being-evidence upon which the verdict can be sustained we should not disturb it.

Appellant argues that the damages awarded are excessive, and states that the loss will be but a slight obstacle to appellee and will help him gravitate to an employment requiring a higher degree of intellect than a switchman, and that the payment of $5000 “into the hands of a young boy often proves his ruin.” Such arguments do not appeal to reason. Appellant is not an eleemosynary corporation, and when it runs its machinery out of repair it is not because it is concerned for the financial betterment or intellectual elevation of its employes. The fact that appellee may secure a cork leg will not relieve him of many of the difficulties in life resulting from the loss of his natural leg. We think the damages awarded are reasonable compensation for the pain, physical suffering, surgical treatment and reduction of his capacity to earn money and pursue the course of life which he might otherwise have done. We think the sum awarded is a cheap price for the leg of a young man. The judgment is affirmed.

Affirmed,.

Mr. Justice Dibell having presided at the trial of this case in the lower court, took no part in its consideration here.