text:
    The People of the State of Illinois, Defendant in Error, v. John Litcher, Plaintiff in Error.
    Gen. No. 18,819.
    1. Appeals and errors—contradiction of record. The record imports verity and may not be contradicted or impeached except by other portions thereof.
    2. Jury—execution of waiver of jury trial. Where the name “John Litcher “appeared in an information and a judgment of conviction and the name G. Liehard was signed to a waiver of a trial by jury, it appearing from the record that the written waiver therein contained was in fact signed by plaintiff in error, it is as effectual to waive his trial by jury as though he had signed it by his proper name.
    Error to the Municipal Court of Chicago; the Hon. Joseph Sab ath, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Aifirmed.
    Opinion filed June 30, 1913.

      Charles A. Ward, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

To an information filed in the Municipal Court charging him with the larceny of $5.97, plaintiff in error, John Liteher, pleaded not guilty and upon a trial by the court without a jury was convicted and sentenced to confinement in the House of Correction for the term of one year and to pay a fine of $100 and costs of suit. The judgment of conviction is sought to be reversed upon the ground that the record fails to disclose that plaintiff in error executed a formal waiver in writing of a trial by jury.

In the record following the placita and the title of the case appears the following:

“Now come the said People by the State’s Attorney, and the defendant John Liteher, in his.own proper person also comes, and the said defendant being duly arraigned and forthwith demanded of and concerning the charge alleged against him in the information herein how he will acquit himself thereof, for a plea in that behalf says that he is not guilty in manner and form as charged in said information.
“The said defendant being duly advised by the Court as to his right to a trial by jury in this cause, elects to waive a trial by jury, and now here executes a formal waiver in writing of a trial by jury, which waiver of jury trial is filed in this cause, and this cause is, by agreement in open Court between the parties hereto, submitted to the Court for trial without a jury.”

The written waiver of a trial by jury which was filed in the case is incorporated in the record as follows:

“The Municipal Court. Jury Waiver—State Case. In The Municipal Court of Chicago.

State of Illinois, County of Cook, City of Chicago. -SS.

The People of the State of Illinois,

vs.

John Litcher

For Larceny.

Criminal. No. 71641

I, the undersigned defendant in the above entitled cause, being duly advised by the Court as to my right to a trial by jury in the above cause, hereby waive a trial by jury in said cause and agree that said cause shall be submitted to the Court for trial without a jury._ _ _ Gr. Lichard.”

_ _ It is insisted that the difference between the name “John Litcher,” as the same appears in the information and in the judgment of conviction, and the name “Gr. Lichard,” as the same appears signed to the written waiver of a trial by jury, is so great that the inevitable conclusion is that two separate and distinct persons are thereby represented.

The record imports verity and may not be contradicted or impeached except by other portions thereof. The recitals in the record specifically identify John Litcher, the plaintiff in error, as the precise person who executed the formal written waiver of a trial by jury filed in the case and upon which the case was submitted to the court for trial without a jury and was so tried by the court. It appearing from the record that the written waiver therein contained was in fact signed by plaintiff in error, it was as effectual to waive his trial by jury as though he had signed it by his proper name.

If the record contained no recital that plaintiff in error executed the written waiver here involved, a different question would arise. Upon the record as made it must be held that plaintiff in error, John Litcher, executed the written waiver in question by signing the same as “Gf. Lichard. ’ ’

The judgment of the Municipal Court is affirmed.

Judgment c¡firmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Martin Mason, Plaintiff in Error.
    Gen. No. 19,084.

      Infants—contributing to delinquency of. An information based upon 2 J. & A. 1HT 3580 and 3386 charged defendant with contributing to the delinquency of a minor child, by asking said child to commit perverted sexual acts. Certain other minors testified that defendant made an indecent exhibition of his person in their presence and used certain language with reference thereto. Held, there was no proof of the identity of the child designated in the information or that such child was delinquent.
    Error to the Municipal Court of Chicago; the Hon. William N. Gem-mill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed June 30, 1913.
    E. C. Mapledoram, for plaintiff in error.
    Maclay Hoyne, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

The information filed in the Municipal Court charges that the plaintiff in error, Martin Mason, did on, to wit: October 12, 1912, unlawfully and knowingly and wilfully encourage, aid, cause, abet and connive at the delinquency of one Harold Nielson, a minor male child under the age of seventeen years of age, to wit: seven years, and did then and there knowingly and wilfully do acts that directly produced, promoted and contributed to conditions which rendered said Harold Nielson delinquent child, in that he the said Martin Mason did then and there ask the said Harold Nielson to commit perverted sexual acts at 1035 No. 50th court in the City of Chicago, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois.

Plaintiff in error waived trial by jury and upon a trial by the court was found guilty in manner and form as charged in the information and sentenced to pay a fine of $100 and costs of suit taxed at $8.50.

The information is predicated upon a section of the Criminal Code, which is, in part, as follows:

“Any parent or parents, or legal guardian, or person having the custody of any dependent, neglected or delinquent child, as defined by the statutes of this State, or any other person who shall knowingly or willfully encourage, aid, cause, abet or connive at such state of dependency, neglect or delinquency, or shall knowingly or willfully do any act or acts that directly produce, promote or contribute to, the conditions which render such child a dependent, neglected or delinquent child as so defined, * * * shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished,” etc. Paragraph 42 hb., Hurd’s Stat. 1911, p. 761.

The act relating to the treatment and control of dependent, neglected and delinquent children, provides, in part, as follows:

“The words ‘delinquent child’ shall mean any male child who while under the age of seventeen years or any female child who while under the age of eighteen years, violates any law of this State; or is incorrigible, or knowingly associates with thieves, vicious or immoral persons; or without just cause and without that (the) consent of its parents, guardian or custodian absents itself from its home or place of abode, or is growing np in idleness or crime; or knowingly frequents a house of ill-repute; or knowingly frequents any policy shop or place where any gaming device is operated; or frequents any saloon or dram shop where intoxicating liquors are sold; or patronizes or visits any public pool room or bucket shop; or wanders about the streets in the night time without being on any lawful business or lawful occupation; or habitually wanders about any railroad yards or tracks or jumps or attempts to jump onto (any) moving train; or enters any car or engine without lawful authority; or uses vile, obscene, vulgar, profane or indecent language in (any) public place or about any school house; or is guilty of indecent or lascivious conduct; any child committing any of these acts herein mentioned shall be deemed a delinquent child and shall be cared for as such in the manner hereinafter provided.”

There is not a scintilla of evidence in the record tending to show that a child named Harold Nielson or a child known by that name in fact exists or ever existed. The two witnesses who testified for the prosecution that plaintiff in error made an indecent exhibition of his person in their presence and used certain language with reference thereto, were Tom Nil-son, aged seven years, and Carl Norlein, aged five years, and there is no evidence tending to show that either of said witnesses was a delinquent child.

Proof of at least two elements essential to a conviction in this case are wholly lacking: First, the identity of the child designated in the information, and, second, that such child was delinquent. People v. Peterson, 171 Ill. App. 603.

The apparent impropriety of permitting this judgment to stand doubtless accounts for the fact that the appearance of defendant in error has not been entered in this court.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Fitch

text:
    Nicholas J. Mann, Defendant in Error, v. Henry Brown et al., Plaintiffs in Error.
    Gen. No. 18,097.
    (Not to Tbe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed July 3, 1913.
    Rehearing denied July 14, 1913.
    Statement of the Case.
    Action by Nicholas J. Mann against Henry Brown and others for two thousand dollars alleged to he due fof breach of a supersedeas bond. From a judgment for plaintiff, defendants bring error.
    William R. Brand, for plaintiffs in error.
    Vincent D. Wyman and Otto W. Jurgens, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number

   Mr. Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Damages, § 218 —default as an admission of plaintiff’s damages. Default entered for failure of defendant to file sufficient affidavit does not admit the amount of plaintiffs’ damages.

2. Damages, § 231*—rights of defendant in assessing damages after default. After default for want of plea or affidavit of merits, defendant with respect to the amount of damages has right to cross-examine plaintiff’s witnesses, introduce evidence, ask for instructions and preserve his rights for review by bill of exceptions.

3. Damages, § 221*—right of court without jury to assess, after default. A proceeding for assessment of damages after a default is not a “trial” within the meaning of section 30 of Municipal Court Act, J. & A. V 3342, preserving to the parties the right of trial by jury. Grldley, J., dissenting.

4. Municipal Court of Chicago, § 13*—-when affidavit of merits may be stricken from files. Affidavits of merits which are ambiguous and evasive and fail to state nature of defendant’s defense may be stricken from the files.

5. Municipal Court of Chicago, § 13*—procedure on failure to file affidavit of merits. Default may be entered for failure of defendant to file sufficient affidavit of merits.

6. Municipal Court of Chicago, § 5*—what governed by rules. Whether damages may be assessed by the court or by a jury, after default has been entered for want of a plea or affidavit of merits, is a matter of practice only which may be governed by the rules of the Municipal Court.

7. Municipal Court of Chicago, § 5*—rules of court construed. Rule 17 of Municipal Court, in so far as it authorizes court after default to assess damages without a jury, was adopted in lieu of section 59 of Practice Act, J. & A. If 8596, and such rule is not in conflict with section 30 of Municipal Court Act, J. & A. 3342, preserving to the parties the right of jury trial.


author: Mr. Presiding Justice Baker

text:
    City of Chicago, Defendant in Error, v. Joseph Biel, Plaintiff in Error.
    Gen. No. 19,212.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus T. Robinson, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed July 7, 1913.

      Abstract of the Decision.
    1. Appeal and error, § 1713

      —argument of assignments of error in brief. Matters not argued .in brief for plaintiff in error are waived.
    2. Appeal and error, § 956*—effect of striking bill of exceptions from record. Matters shown only in the bill of exceptions cannot be considered where such bill of exceptions has been stricken from the record.
    Statement of the Case.
    Prosecution on complaint against Joseph Biel for violation of section 2012 of the Municipal Code of Chicago. From a judgment imposing a fine of two hundred dollars and costs, defendant brings error.
    Richard Donovan, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.


author: Mr. Justice Brown

text:
    The People of the State of Illinois, Defendant in Error, v. Charlie Young, Plaintiff in Error.
    Gen. No. 18,054.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed July 7, 1913.
    Statement of the Case.
    Prosecution on information against Charlie Young for pandering. From judgment of sentence to house of correction for six months and to pay a fine of five hundred dollars, defendant brings error.

      Abstract of the Decision.
    1. Prostitution, § 2

      —when information charging pandering sufficient. Information charging offense of pandering in the words of the statute is sufficient.
    2. Prostitution, § 2*—when information charging pandering sufficient. Information charging offense of pandering need not set out facts to show that offense was committed.
    3. Criminal law, § 366*—insufficiency of information as grounds for motion to arrest judgment. Insufficiency of an information charging pandering cannot be taken advantage of on motion for arrest of judgment.
    4. Criminal law, § 476*—when evidence presumed sufficient on review. Evidence presumed sufficient when not preserved in the record.
    5. Indictment and information, § 45*-—Bill of particulars. Defendant may ask for bill of particulars when charge of offense in information is general.
    Louis Greenberg, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Zach Hoeheimer, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.


author: Mr. Justice Smith

text:
    The People of the State of Illinois, Defendant in Error, v. Michael Scarlet, Plaintiff in Error.
    Gen. No. 18,754.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed July 7, 1913.
    Statement of the Case.
    Prosecution on information against Michael Scarlet charging him with assault with deadly weapon with intent to inflict upon Elsie Scarlet bodily injury. From judgment sentencing defendant to thirty days in the house of correction “at labor” and to pay a fine of one hundred dollars and costs, etc., defendant brings error.
    Abstract of the Decision.
    Criminal law, § 384

      —when sentence to house of correction “at labor” may be imposed. Person convicted of assault with a deadly weapon with intent to inflict hodily injury, without provocation and showing an abandoned and malignant heart, may be sentenced to house of correction “at labor” under J. & A. fl 4148, Hurd’s R. S. 1911, ch. 38, f 448.
    A. N. Gualano and George Remus, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Zach Hofheimer , of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the court.


author: Mr. Presiding Justice MoSurely

text:
    Abe E. Friedman, Defendant in Error, v. Joseph Shuflitowski, Plaintiff in Error.
    Gen. No. 17,532.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Abe E. Friedman against Joseph Shuflitowski for damages for personal injuries from alleged assault by defendant upon plaintiff. From a judgment for plaintiff for five hundred dollars, defendant brings error.
    Abstract of the Decision.
    1. Evidence, § 423

      —when expert cannot testify as to cause of injury. Where there is a conflict in the evidence whether plaintiff received an injury as claimed, the opinions of medical witnesses upon that subject are not competent.
    2. Evidence, § 471*—what weight necessary. The jury are not required in a civil case to be “satisfied” from all the evidence.
    3. Assault and battery, § 7*—what constitutes self-defense. An instruction in an action for assault which requires defendant to establish that an act of alleged self-defense was necessary instead of requiring, him to show that it reasonably appeared to be necessary, is erroneous.
    4. Instructions, § 62*—assuming facts. An instruction in an action for assault, which -allows the jury to award exemplary damages if malice has been shown without conditioning it upon defendant’s having been found guilty, is erroneous.
    J. G. Grossberg and George M. Weichelt, for plaintiff in error.
    Henry T. Chace, Jr., for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice MoSurely

delivered the opinion of the court.


author: Mr. Presiding Justice McSurely

text:
    James F. Porter, Plaintiff in Error, v. D. E. Delihant Duzeski, Defendant in Error.
    Gen. No. 17,599.
    1. Judgment, § 444

      —former adjudication. Recovery in a suit against husband and wife for use and occupation of premises as a family expense, held no bar to a subsequent action against the wife alone on her written lease.
    2. Landlord and tenant, § 310*—when failure of landlord to relet no defense. In suit to recover for the actual use and occupation of leased premises, a plea that landlord failed to attempt to reduce the claim by reletting the premises is incompetent.

      3. Landlord and tenant, § 306

      —recovery of rent as family expense. In an action against husband and wife to recover for use and occupation of premises as a family expense, a claim by husband that he did not join with his wife in a lease is immaterial.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Bbitleb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    William Eliot Furness, for plaintiff in error.
    Frederick A. Brown and William R. T. Ewen, Jr., for defendant in error.

      See Illinois Notes Digest, Yols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This is a suit for rent under a written lease. The defense was a prior adjudication, which the trial court sustained and entered judgment against the plaintiff. We are asked to reverse this on the ground that the court erred in holding the former judgment to be res judicata.

Duchess E. Delihant Duzeski, at that time unmarried, in March, 1910, executed as lessee a written lease from James F. Porter, hereinafter called plaintiff, of an apartment at a monthly rental of forty dollars, for a term beginning May 1, 1910, and ending April 30, 1911. On July 2, 1910, -she married Paul E. Duzeski. In December, 1910, plaintiff commenced suit against Mrs. Duzeski and' her husband for rent for August, September, October, November and part of December, 1910, at the rate of forty dollars per month, claiming a statutory joint and several liability under section 15, chapter 68, Revised Statutes of Illinois. (J. & A. 6152.) By this section of the statute it is provided that the husband and wife, jointly or severally, may be sued for the expenses of the family. In this suit the husband filed an affidavit of merits, alleging in substance that he was not liable because he had not married until July 2, 1910, and therefore was exempt from any contracts or liabilities incurred by his wife prior to her marriage with him. .The wife also filed an affidavit of merits, claiming as a defense that the plaintiff had “failed to exercise such efforts as the law requires of him to reduce the claim of plaintiff; that with proper efforts the said plaintiff could have reletted the premises mentioned in the plaintiff’s statement of claim, immediately after this defendant vacated them.” Thereupon that suit was tried, and the trial court held that the plaintiff should recover from the defendants the sum of eight dollars and costs. We are informed by statements made by both counsel that this judgment, with costs, was paid and satisfied.

Subsequently, in February, 1911, the plaintiff caused a judgment to be entered against Mrs. Duzeski, hereinafter called defendant, and who is the sole defendant in the case before us for determination, under the power of attorney contained in the lease, for rent due under said lease for the months of August, September, October, November and ten days of December, 1910, at the monthly rental named in the lease of forty dollars, amounting to one hundred and sixty-five dollars, and attorney’s fees as therein provided. Upon motion by defendant, said judgment was “opened” and leave given to defend. Thereupon the defendant filed an affidavit of merits, claiming among other things that the judgment and satisfaction in the first suit above described was a bar to a recovery, for the reason that the issues in the first cause included the issue in the pending suit. Upon trial of the latter suit the record of the first one was introduced in evidence, and the court held that the judgment in this first suit was res judicata and that it “estopped the plaintiff from any judgment under this suit.” The controversy before this court centers upon the correctness of this finding.

There is no controversy over the proposition that a prior judgment is no bar unless there is identity of issues, and therefore the immediate question before us is whether the issues were identical in these two suits.

It is clear that the claim of plaintiff in the first suit was for the use and occupation of the premises involved. The first suit1 sought to recover from both husband and wife the rental value of the premises occupied by them, under the statute making both liable for the expenses of the family, rent being a family expense. Therefore, the only liability possible in that cause was for use and occupation, and also for the actual time that said premises were used and occupied by the defendants. This makes immaterial any claim by the defendant husband that he had not joined with his wife in any lease, for the reason that the liability upon him is created not by contract but by the statute. The plea of the wife that the landlord failed to exercise efforts to reduce the claim is also incompetent, as there could be no such defense where the only recovery possible was for the actual period of occupation. It follows that when the trial court found in the first case that there was due and owing to the plaintiff from the defendants the sum of eight dollars, this finding was based upon the rental value of the premises for the actual time they were occupied and used.

It is argued that we must presume from the record that the amount of the finding of the trial court in the first case covers the entire period for which recovery is sought in plaintiff’s statement of claim. Whether this is a correct presumption, in the absence of any indication in the record, we are not called upon to decide, for it appears affirmatively from the affidavit of merits made by the wife that the premises were vacated some time during the period mentioned in the plaintiff’s statement of claim. Just what time tin's was does not appear clearly, but sufficient does appear to throw the burden upon the defendant to show that the period of time of occupation for which judgment was rendered in the first suit was the same as that in issue in the second suit. Any presumption favorable to the defendant on this point is overcome by the fact affirmatively appearing that the premises had been vacated.

We are of the opinion, therefore, that the issues in the two cases are not identical. The claim of the plaintiff in the first suit was against the husband and wife, under the statute, for the use and occupation of the premises in question for the time they were so actually used, while the second cause of action, being the case for our determination, is solely against the wife, and arises from her written contract and not from the fact, whatever it may be, as to the period of time she occupied the premises. The judgment in the first suit is not a bar to recovery in the second suit.

As to the claim that this may mean two recoveries for rent for the same period of time, it is sufficient to say that the defendant is entitled to credit for any sums already paid for rent for any portion of the period covered by the statement of claim in the suit at bar.

Other considerations are urged upon this court as grounds for holding the judgment in the first case not a bar, which are not without merit, but it is sufficient to express only the one point above discussed.

For the reason indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Leopold Brodowicz, Appellee, v. Dominik Giaczas, Appellant.
    Gen. No. 17,686.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911,
    Affirmed.
    Opinion filed October 9, 1913.

      Abstract of the Decision.
    1. Judgments, § 298—power to vacate, after term. Court has no power after the term has expired to vacate a judgment entered by court on motion of plaintiff in violation of a rule of court requiring notice to the opposite party.
    2. Judgments, § 298*—when cannot Be vacated for errors of law. Court’s entry of a judgment in violation of a rule of court is an error of law for which court cannot set aside judgment after the term has expired.
    Statement of the Case.
    Action by Leopold Brodowicz against Dominik Giaczas. Judgment on motion of plaintiff was entered against defendant for failure to file sufficient affidavit of merits. From an order of court denying motion to vacate the judgment, defendant brings error.
    Michael B. Roderick, for appellant.
    John O. Wagner and Ignatius Beckman, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Cornelius Wiersema, Defendant in Error, v. Lockwood & Strickland Company, Plaintiff in Error.
    Gen. No. 17,744.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Tobbison, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Cornelius Wiersema against Lockwood & Strickland Company, a corporation, for personal injuries received by plaintiff while in the employ of defendant. -From a judgment for plaintiff for five hundred dollars, defendant brings error.
    Abstract of the Decision.
    1. Master and servant, § 826

      —when special findings of jury conclusive as to conduct of plaintiff. In action against an employer for injuries resulting from an unsafe place to work, special findings of the jury to the effect that plaintiff did not know that machinery was unguarded, that he was in the exercise of ordinary care and that the risks were not so imminent that a man of ordinary prudence would not have incurred them, held conclusive as to conduct of plaintiff.
    2. Master and servant, § 376*—when no assumption of risk by Knowledge of danger. Employe does not, by working on an unguarded machine, with knowledge that it is unguarded, assume risk of injury from master’s failure to suitably guard the machine in compliance with an ordinance or statute.
    3. Master and servant, § 779*—when instruction not based on theory of negligent order of foreman. Instruction is not based on the theory of a specific negligent order of foreman because it incidentally refers to orders of the foreman, when plaintiff’s statement of claim is not based on such theory and the instruction permits recovery only on proof of the negligence charged therein.
    4. Municipal corporations, § 828*'—where ordinance for safety of employes valid. City ordinance providing for safety of employes in factories, -workshops, etc., must be held a valid exercise of the police power delegated to the municipality, when no question is raised as to its reasonableness.
    5. Appeal and error, g 541*—what necessary to review special findings of jury. Special findings are conclusive where appellant did not in its motion for new trial, or otherwise, move that they be set aside.
    6. Appeal and error, § 531*—how questions of validity of ordinance preserved. To raise question of validity of an ordinance on ground that it is in violation of a statute or the constitution the question must be embodied in a proposition of law, and exception preserved to the ruling thereon.
    F. J. Canty and P. L. McArdle, for plaintiff in error.
    Gallagher & Messner, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Edith A. Dieke, Appellant, v. William H. Dieke et al., Appellees.
    Gen. No. 17,836.
    1. Assignments, § 4

      —when interest of devisee assignable. Interest of a devisee in his grandfather’s estate may he assigned in equity, though under the will distribution is not to be made until the youngest grandchild becomes of age.
    2. Assignments, § 4*—effect of assignment of interest in an estate before vested. Contract by a devisee assigning his contingent interest in an estate amounts not to an assignment of a present interest but only to a contract to assign when the interest becomes vested.
    3. Husband and wife, § 265*—when assignment by husband to evade paying alimony may be declared void. Husband’s assignment of his interest in an estate as devisee to evade payment of alimony may be declared void as to wife on her petition in separate maintenance proceeding, after the decree awarding a weekly allowance.
    4. Husband and wife, § 265*—when husband’s assignment of his interest as devisee is valid against claim for alimony. Where an order for the payment of alimony does not make the allowance a lien on the husband’s interest in an estate, the husband’s assignment thereof pending the wife’s petition to have such interest subjected to payment of alimony is valid, when made in good faith and for a valuable consideration.
    5. Trusts, § 10*—when spendthrift trust created. A will does not create a spendthrift trust unless such intention clearly appears from the language of the entire will.
    Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed October 9, 1913.
    Alonzo M. Griffen, for appellant.
    F. J. Griffen, for appellees.

      See Illinois Notes Digest, Yols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

In 1905 the appellant, Edith A. Dieke, filed her bill for separate maintenance, and a final decree was entered in the same year allowing her five dollars a week for the support of herself arid two minor children given into her custody, gome of this allowance was paid, but thereafter William Dieke, the husband, disappeared and was gone for about five years, by which time the accumulated and unpaid instalments of alimony amounted to more than one thousand dollars. In the attempt to collect this appellant filed a petition, now before us, in the separate maintenance suit, seeking among other things to reach the interest of her husband in the estate of his grandfather, who had made to him a devise by will. 'The petition prayed that such interest be subjected to the payment of the alimony by sequestration, and that the decree be made a continuing lien thereon; also that certain assignments made by the husband be declared null and void as to the petitioner. After hearing, the chancellor ordered the petition dismissed for want of equity, from which order appeal is made to this court.

Prior to the commencement of the suit for separate maintenance, William Dieke had executed an assignment of a portion, amounting to $1,600, of his interest in the estate of his grandfather, Henry Dieke, to Gustav H. and Jacob Bohlander and Martin H. Bormann, appellees herein, to secure them for losses sustained by them as sureties on William Dieke’s bond as tax collector for the town of Proviso, Cook county.

By the will of the grandfather, duly proved and admitted to record in the Probate Court in February, 1901, he devised to certain trustees “all the Beal, Personal and Mixed Property of every name, nature and description that I may die seized and possessed of;” and further he ordered said trustees when the youngest living of his grandchildren should arrive at the age of 21 years “to make a distribution of the trust property in their hands, names or under their control, among my said grandchildren.”

Apparently from the record before us, the youngest of these grandchildren was eighteen or nineteen years old in April, 1911, so that the time for the distribution of the trust property may have arrived at the present writing.

It is argued that William Dieke having at the date of the assignment to Bohlander and Bormann no present interest in Henry Dieke’s estate, he therefore had nothing which could be conveyed by the assignment to them. The general statement of the rule touching this point, as made in Cyc., vol. 4, p. 15, and supported by abundant authority, is:

“Whether the mere naked possibility or expectancy of an heir apparent or heir presumptive can be made the subject of assignment or release has been the subject of controversy; but it is now settled law that such assignment or releases, if made bona fide and for an adequate consideration, will be enforced in equity after the death of the ancestor.”

In Ridgway v. Underwood, 67 Ill. 419, the Court quotes with approval from Story’s statement of the rule in his Equity Jurisprudence, section 1040c, as follows:

“Contingent interests and expectancies may not only be assigned in equity, but they may also be the subject of a contract, such as a contract of sale, when made for a valuable" consideration, which courts of equity, after the event has happened, will enforce. But until the event has happened, the party contracting to buy has nothing but the contingency, which is a very different thing from the right to immediately recover and enjoy the property. He has not, strictly speaking, a jus ad rem any more than a jus in re. It is not a mere interest in the property, but a mere right under the contract. Indeed, the same effect takes place if there be an actual assignment; for, in contemplation of equity, it amounts not to an assignment of a present interest, but only to a contract to assign when the interest becomes vested. Therefore a contingent legacy, which is to vest on some future event, such as the legatees coming of age, may become the subject of an assignment or a contract of sale. So, even the naked possibility or expectancy of an heir to his ancestor’s estate may become the subject of a contract of sale or settlement; and, in such case, if made bona fide, for a valuable consideration, it will be enforced in equity after the death of the ancestor; not, indeed, as a trust attaching to the estate, but as a right of contract.”

Counsel for appellant correctly states the rule with reference to the time when an interest is vested under language of a devise such as was used in the will before us, that is, that where the distribution is to be when the youngest living of the grandchildren arrives at the age of twenty-one years, no interest vests until the happening of the contingency; but we do not understand that this renders void a contract by the devisee assigning this contingent interest. As Story says : “It amounts not to an assignment of a present interest, but only to a contract to assign when the interest becomes vested.”

In Ebey v. Adams, 135 Ill. 80, cited by appellant as in point, it was held that where the devisee had died before any estate vested in her, the grantees in her warranty deed seeking to convey her interest took nothing, but that is not a holding that the grantees would take nothing if the grantor had lived.

We cannot assent to the claim that the supplemental assignment to Bohlander and Bormann cannot be considered because it was made and filed after the commencement of these proceedings. Conceding that the first assignment purported to convey a present interest, and that the second assignment was executed to apply to future property, we do not see how appellant is in a position to complain. The order for the payment of alimony does not make this allowance a lien upon the property sought to be assigned. We discern nothing inequitable in giving consideration to the second contract of assignment to Bohlander and Bormann, and nothing appearing tending to impeach its good faith and adequate consideration, we are of the opinion that it is valid and that the order of the chancellor, in so far as it denied the prayer of the petition seeking to have it declared null and void, was justified and proper.

Without discussing appellant’s point, that by the terms of Henry Dieke’s will a spendthrift trust is created, we are content to say that the intention of the testator to create such a trust must clearly appear from the language of the entire will, and we find nothing herein even slightly indicating that Henry Dieke had any such intention.

The petition also averred a certain deed of assignment, dated November 1,1905, from William H. Dieke, the husband, to his brother, George Dieke, assigning the right and interest of said William H. Dieke to the extent of four thousand dollars in the estate of his grandfather, Henry Dieke, said petition averring that said assignment was made fraudulently and collusive,ly, with the purpose and intent of defrauding the petitioner and preventing her from collecting her alimony for the support of herself and her said minor children. The petition prayed that said assignment be declared null and void as to said petitioner.

Without entering into a full discussion of the testimony on this point, it is sufficient to say that after consideration we have arrived at the conclusion that the said assignment was not bona fide but was made for the purpose of preventing the petitioner from collecting her allowance as averred in said petition. A few of the facts leading us to this conclusion are briefly as follows: The amount purported to be assigned is a much larger sum than was owing from William Dieke to George Dieke, and for a much larger sum than William Dieke by any reasonable estimate would at any time become entitled to under his grandfather’s will. It further appears that prior to the filing of the bill for separate maintenance William Dieke threatened to assign all his property away so she would get nothing, and that this threat was made is not disputed. The father of petitioner was also told by the attorney for William Dieke, who was also the attorney for George Dieke, that if Mrs. Dieke would not give him a divorce his property would be assigned away; that there was no memorandum of writing of any of the alleged loans from George Dieke to William Dieke; that part of the money claimed to be a consideration for the assignment was not loaned until after the assignment had been made.

A number of other minor matters might be adduced, all of which impel the conclusion that the deed of assignment was not for a bona fide consideration but was executed solely for the purpose of attempting to prevent Mrs. Dieke from collecting anything due upon her alimony allowance. We are of the opinion that the chancellor should have granted the prayer of the petition in this regard, and have decreed that said assignment from William Dieke to George Dieke was null and void as far as any rights of the said petitioner are concerned.

We are somewhat in doubt as to the proper order upon the prayer of the petition that the amount of alimony specified by the decree be made a lien upon the share and interest of William H. Dieke in the estate of Henry Dieke, deceased. We have not been favored with any argument or citations upon this point other than general statements concerning the right of a wife to be supported. The particular question before us, however, concerns the right of a court in chancery to order that alimony shall be a lien upon such a remote contingent interest as that now under consideration. The points made by appellant’s counsel against the effectiveness of the assignment of William Dieke’s interest to Bohlander are equally if not more potent against his position in asking that the court decree the alimony to be a lien upon this interest. However, this point may not be of practical importance, for, as we understand the record, by the time this opinion is delivered the contingency of the youngest grandchild arriving at the age of twenty-one years will have accrued, and William Dieke will then have a vested interest which may be made the subject of such a lien as is here sought by the petitioner. However, as that contingency is not directly before us, we do not wish to be understood as expressing any positive opinion thereon.

In view of our conclusion that the assignment to George Dieke should be held for naught, as far as the petitioner is concerned, and in view of what may now be the condition of the parties interested, the decree of the chancellor dismissing the petition for want of equity will be reversed and the cause remanded with directions to take such further steps and to enter such further orders herein as equity may demand, not inconsistent with the views expressed in this opinion.

Reversed and remanded with directions.


text:
    Joseph Pecchia, Appellee, v. International Harvester Company, Appellant.
    Gen. No. 17,779.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Joseph Pecchia against the International Harvester Company, a corporation, to recover damages for personal injuries resulting from plaintiff’s hand being caught between a belt and revolving shaft while in the employ of defendant. From a judgment for plaintiff, defendant brings error.

      Abstract of the Decision.
    1. Master and servant, § 411

      —when servant assumes risk in obeying orders of foreman. An employe ordered by his foreman to repair and replace a broken belt assumes the risk of injury, though the work was more dangerous than his regular employment where he knew, or from his experience or by the exercise of his senses should have known, of the dangers.
    2. Master and servant, § 411*—when command of foreman does not relieve from assumption of risk. When the dangers in repairing a belt are apparent and understood by the servant; he assumes the risks, though a foreman orders him to “fix the belt or go home.”
    3. Master and servant, § 786*—when instruction on assumption of risk is misleading. Instruction that it is a question of fact to be determined by the jury whether plaintiff assumed the risk, is misleading when not touching on plaintiff’s knowledge of the dangers and not conveying any idea as to what is meant by “assumption of risk.”
    4. Master and servant, § 797*—proper instruction as to assumption of risk, when extra work is more hazardous than regular work. Defendant held entitled to an instruction to the effect that where a servant is ordered temporarily to do other work more hazardous than his regular work, the servant assumes the risk, if the extra hazard and danger are open and obvious and may be observed by the exercise of ordinary care and prudence.
    David A. Orebaugh, for appellant; Edgar A. Bancroft, of counsel.
    C. H. Sippel and Anson H. Brown, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Patrick E. Hogan, Appellee, v. John Carlson, Appellant.
    Gen. No. 17,865.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bailments, § 11

      —care required of agisters. Whether a bailee under a contract of agistment is liable for the value of a horse which disappeared from pasture, held in this case to depend upon the condition of the fence surrounding the pasture.
    2. Appeal and error, § 1406*—when verdict will not be disturbed as excessive. Verdict will not be.disturbed as excessive where a greater amount was recovered on a former trial, and the jury were better able to judge.
    3. Appeal and error, § 1410*—when verdict not disturbed as against weight of the evidence. In determining whether a verdict is against the preponderance of the evidence the preponderance is not necessarily on the side of the greater number of witnesses.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied October 23, 1913.
    Statement of the Case.
    Action by Patrick E. Hogan against John Carlson for breach of a contract of agistment of a horse. From a judgment for plaintiff for two hundred dollars, defendant appeals.
    Childs & Childs, for appellant.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The American Trust & Savings Bank, Trustee, Appellee, v. William J. Ellis, and Albert Ellis, trading as William J. Ellis & Company, Appellants.
    Gen. No. 17,932.
    (Not to be reported in full.)
    Abstract of the Decision.
    Bankruptcy, § 23

      —unlawful preference. Evidence of an unlawful preference held sufficient.
    Appeal from the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by the American Trust' and Savings Bank, now known as Continental and Commercial Trust and Savings Bank, trustee of the estate of Charles J. Felt, bankrupt, against William J. Ellis and Albert Ellis, copartners, to recover the value of property alleged to have been unlawfully transferred by Felt-to defendants immediately prior to his bankruptcy. From a judgment in favor of plaintiff, defendants appeal.
    Edmund P. Kelly, for appellants.
    Silber, Isaacs, Silber & Woley, for appellee; Clarence J. Silber, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The Title Guaranty and Surety Company, Appellee, v. W. J. Turnes, Appellant.
    Gen. No. 17,959.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 305
      —when officer of pretended corporation is personally liable. Under J. &. A. T[ 2435, Hurd's R. S. Ch. 32, § 18, an officer executing a contract in the name of a pretended corporation to indemnify a person becoming surety on a bond of such corporation is personally liable to such surety for reimbursement, though recovery on the bond was not against such officer personally.
    2. Corporations, § 320*—proof to establish personal liability of officer. To recover against an officer for liabilities contracted by him in the name of a pretended corporation, plaintiff must prove that defendant acted as officer of the corporation, that there was no such corporation and that such officer contracted in the name of the corporation.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by The Title Guaranty and Surety Company, a corporation, against W. J. Turnes to enforce the personal liability of the defendant as an officer of a pretended corporation, under Hurd’s R. S. ch. 32, § 18, J. & A. H 2435, on a contract of indemnity made by defendant in the name of such corporation. From a judgment for plaintiff, defendant appeals.
    James Hibben, for appellant.
    Sheriff, Dent, Dobyns & Freeman, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

3. Corporations, § 305*—when judgment not res adjudicata on question of officer’s liability. Judgment against a pretended corporation on its bond is not res adjudicata on question who is liable on a contract executed by its officer in the name of the corporation to indemnify a surety on the bond.

4. Indemnity, § 8*-—words in contract construed. In a contract to indemnify a surety on a bond bearing a date subsequent to that of the contract, the words “by reason of its having executed said bond’’ refer to a future time when surety may sustain loss.


text:
    William E. Hatterman, Appellant, v. Mary L. Tieman et al., Appellees.
    Gen. No. 17,960.
    (Not to foe reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 886

      —what abstract of record must include. Ruling on objections and exceptions to a master’s report cannot be considered when such objections and exceptions are not included in the abstract of record.
    Appeal from the Superior Court of Cook county; the Hon. Ear-tin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Creditor’s bill filed by William. E. Hatterman against Mary L. Tieman and others to set aside a conveyance as fraudulent. From an order dismissing the bill for want of equity, plaintiff appeals.
    William D. Johnson, for appellant.
    Geeting, Potts & VanDellen, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, game topic and section, number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Appeal and ebbob, § 789*—when hill of exceptions unnecessary. Bill of exceptions in a chancery cause is neither necessary nor proper, unless it he to preserve oral evidence introduced upon the hearing under the statute allowing it to be done.

3. Appeal and ebbob, § 855*—when certificate of evidence not necessary. Evidence need not be preserved by a certificate of the chancellor when there is a report of the master in chancery. The master’s report is a part of the record.


text:
    Margerete Hengen, Appellee, v. Gustave B. Hengen, Appellant.
    Gen. No. 18,002.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Husband and wife, § 233—when right to temporary alimony presumed. Wife suing for separate maintenance is presumed entitled to temporary alimony.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied October 23, 1913.
    Statement of the Case.
    Action by Margerete Hengen against Gustave B. Hengen for separate maintenance. From an order allowing plaintiff temporary alimony of one hundred fifty dollars per month and two hundred dollars solicitor’s fees, defendant appeals.
    E. G. Lancaster, for appellant.
    Patrick H. O’Donnell and C. A. Toolen, for appellee; James Hartnett, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

2. Husband and wife, § 234 —when wife entitled to allowance of temporary alimony and solicitor's fees. Wife apparently suing for separate maintenance in good faith is entitled to temporary alimony and attorney’s fees, notwithstanding husband’s answer charges her with adultery, since the time for determining such issue is upon trial to the merits.

3. Appeal and ebbob, § 1357*—when amount allowed as temporary alimony not an atuse of discretion. Claim of husband that most of his property produces no income, held not to warrant Appellate Court in interfering with discretion of chancellor as to amount allowed for temporary alimony.


text:
    O. F. Browder, Appellee, v. The Northwestern Gas Light and Coke Company, Appellant.
    Gen. No. 18,327.
    (Not to he reported in full.)
    Appeal from the Circuit Court of .Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied October 23, 1913.
    Statement of the Case.
    Action by 0. F. Browder against the Northwestern G-as Light and Coke Company to recover for personal injuries sustained by plaintiff through the negligence of defendant’s servant. From a judgment for plaintiff, defendant appeals.
    Sears, Meagher & Whitney, for appellant; James F. Meagher and Edwin Hedrick, Jr., of counsel.
    Chase R. Rankin and John W. Lee, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number»

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 848 —when gas company liable for acts of its servants. Gas company is liable for the acts of its servants where a servant goes to plaintiff’s home to repair a gas leak in basement and on leaving fails to close a trap door in the floor near the outer door, and plaintiff on returning home falls through and is injured.

2. Master and servant, § 848*—when negligence of others cannot be imputed to plaintiff. Negligence of plaintiff’s wife cannot be imputed to plaintiff to relieve master of liability for negligence of his servants.

3. Master and servant, § 868*—when contributory negligence a question for jury. Whether plaintiff was guilty of contributory negligence in failing to observe an open door in floor is a question for the jury.

4. Negligence, § 208*—when instruction that plaintiff may rely on due care, erroneous. Instruction that plaintiff had right to presume that servant of defendant would use ordinary care held erroneous as omitting duty of plaintiff to exercise due care.

5. Negligence, § 218*—meaning of words “negligence, if any” contained in instruction. The words “negligence, if any” contained in an instruction held to mean that the court would not have the jury infer that the court assumed that defendant was negligent.

6. Appeal and error, § 1474*—when opinion evidence harmless. When verdict is not argued as excessive, the fact that a physician who examined plaintiff for purpose of testifying based his opinion partly on subjective symptoms, is harmless error.


author: Mb. Presiding Justice McSurely

text:
    John Regan, Appellant, v. The Excelsior Printing Company, Appellee.
    Gen. No. 18,362.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Max Ebebhardt, Judge, presiding. Heard in the Branch Appellate Court
    at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by John Began against The Excelsior Printing Company, a corporation, to recover possession of certain property or its value. From a judgment finding plaintiff entitled to possession and finding defendant not guilty under count in trover, plaintiff appeals..
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 27

      —when hill of exceptions may be stricken from record. Bill of exceptions in a first class case from the Municipal Court held properly stricken from record when not tendered to the judge within sixty days from entry of final order.
    2. - Appeal and error, § 867*—style of type in abstract of record. Abstract of record printed in smaller type than provided' for in Appellate Court rules cannot be considered.
    Joel W. Stevens and John M. Lonergan, for appellant.
    Charles R. Whitman, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mb. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Clarence A. G. Kuipers, Appellee, v. Math. Thome, Appellant.
    Gen. No. 18,374.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook County; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action in behalf of Clarence A. Gr. Kuipers, a minor, by Annie E. Kuipers, his next friend, to rescind a contract and to recover one thousand dollars advanced thereunder, on ground of infancy. From a decree rescinding the contract and ordering a return of the money advanced, defendant appeals.
    Abstract of the Decision.
    1. Infants, § 23

      —when may rescind partnership agreement. A minor entering into a partnership agreement and advancing money for a half interest in the business may, on ground of infancy, file bill to rescind the agreement and recover the sum advanced.
    2. Infants, § 23*—when may repudiate contract. An infant having advanced money upon a contract, voidable because of his infancy, may repudiate the contract and recover the money advanced.
    3. Infants, § 23

      —grounds for rescission of contract. Infant is entitled to relief on bill to rescind contract without any averments concerning fraud and misrepresentations.
    Thornton & Chancellor, for appellant.
    Albert Goetz, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered- the opinion of the court.


text:
    John McCarren, Appellee, v. A. Isaac Radzinski et al. On Appeal of Wilmer A. Radzinski, Administrator, Appellant.
    Gen. No. 18,381.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied October 23, 1913.
    Statement of the Case.
    Action by John McCarren against A. Isaac Radzinski to recover damages for personal injuries sustained by plaintiff while engaged as worker on a building in process of erection belonging to defendant. From a judgment for five thousand dollars, defendant appeals.
    Abstract of the Decision.
    1. Negligence, § 118

      -—when averment as to owner's control of building sufficient. Declaration in an action against owner for injuries under Act of 1907 (J. & A. ft 5368), requiring owner to provide for safety of persons in the construction of buildings sufficiently avers that owner retained control of building where it states that defendant constructed a derrick in an unsafe manner.
    2. Negligence, § 126*—when averment as to due care on part of plaintiff, not necessary. Declaration averring wilful violation of Act of 1907 (J. & A. H 5368), in failing to provide for safety of plaintiff, states a cause of action without alleging due care on part of plaintiff.
    3. Negligence, § 118*—when declaration states cause of action though statement of details insufficient. Declaration in action against owner under Act of 1907 (J. & A. j[ 5368), for injuries resulting from falling of derrick, held not defective in stating a cause of action though it failed to state clearly the details of the construction of the derrick.
    4. Negligence, § 185*-—sufficiency of evidence. Evidence held insufficient to sustain defense that plaintiff settled claim with other defendants.
    Blum & Blum, for appellant.
    Jacob C. LeBosky and T. D. Hurley, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Presidirg Justice McSurely

text:
    E. G. Tisdale et al., Appellants, v. Davis and Rankin Building & Manufacturing Company et al., Defendants. (Maud R. Davis, Administratrix, Appellee.)
    Gen. No. 18,396.
    1. Judgment, § 49

      —form- of. Litigants are not entitled to any particular form of a judgment order other than that which sufficiently expresses the judgment of the court.
    2. Judgment, § 269*—when motion to change form of, should he denied. A motion to change the form of a judgment should he denied when no convincing reason is pointed out for making the change.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied October 23, 1913.
    Boyle, Mott & Haight, for appellants.
    Alden, Latham & Young, for appellee; Charles Martin, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presidirg Justice McSurely

delivered the opinion of the court.

On February 24, 1897, in the Circuit Court of Cook county, by his Honor, Judge Windes, in the case of E. Gf. Tisdale and O. D. Tisdale, Plaintiffs, v. Davis & Rankin Building & Manufacturing Company, Daniel J. Davis and William J. Davis, Defendants, a judgment was entered in the following form:

“Finding and assessment of damages on default heretofore entered against Daniel J. Davis and Davis and Rankin Building and Manufacturing Co,, in sum of $10,750. Motion of defendant company for new trial overruled. Judgment on finding for $10,750 against Daniel J. Davis and Davis and Rankin Building & Mfg. Co., and order for sci. fa. vs. W. J. Davis. Leave to defendant Davis and Rankin Building & Mfg. Co., to file bill of exceptions in 60 days.”

Subsequently Daniel J. Davis died, and Maud E. Davis was appointed administratrix of Ms estate. On June 16, 1911, attorneys for the aforesaid plaintiffs moved the court to direct the clerk of the court “to extend of record in full and proper form as of the 24th day of February, 1897,” the aforesaid judgment. A counter motion was made by Maud B. Davis, administratrix of the estate of Daniel J. Davis, to strike the name of Daniel J. Davis from said judgment order. These motions were heard by Judge Windes and denied. From the order denying these motions the plaintiffs have appealed to this court, and Maud R. Davis, administratrix, has assigned cross-errors.

It seems to be a fact that the clerk of the court entered the judgment in the usual expanded form but subsequently cancelled this and entered it in the form above set forth, which form it is claimed, and not denied, was drafted by the attorneys for the plaintiffs. It was approved under the signature of Judge Windes.

The gist of appellants’ claim is that they are entitled to have the expanded form of the judgment entered of record. We are not referred to any authority for the proposition that litigants are entitled to any particular form of a judgment order other than that which sufficiently expresses the judgment of the court. If the judgment order herein is sufficient, there would be no reason for the trial court to grant the motion of appellants, and in the absence of anything to the contrary we must assume that to be the reason for the refusal of the court to allow the motion.

The appellants do not point out in what respect the judgment is insufficient, but in argument assume this is so, in which assumption appellee of course willingly joins. The sufficiency of the judgment is not questioned by any assignment of error.

Inspection of the judgment order above set forth does not disclose to this court the omission of any element essential to its validity. As stated in Cyc., vol. 23, p. 670 :

“According to the modern doctrine a judgment is to be tested by its substance rather than its form, and the form is not very material, provided that in substance it shows directly and not inferentially the judicial character of the act, the nature and scope of the adjudication, and its application to the controversy before the court.”

And in Morgan Hastings Co. v. Gray Dental Co., 108 Ill. App. 98, the Court said: “The form of a final judgment is immaterial, but in substance it must show distinctly and not inferentially that the matters in the record have been finally disposed of in favor of one of the litigants, or that the rights of the parties in litigation have been finally adjudicated.”

No convincing reason appearing for changing the form of the judgment as prayed for, the refusal of the trial court to allow the motion was proper.

As to the counter motion to strike the name of Daniel J. Davis from the judgment, we must assume that Davis was properly in court at the time of the entry of the same, and that the trial court in refusing to allow this counter motion had this in mind.

The order of the court will be aErmed.

'Affirmed.'


text:
    Maggie Robinson, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,410.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Wikdes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.

      Abstract of the Decision.
    1. Carriers, § 404

      —when starting of car while passenger is alighting, is negligence. Street car company suddenly starting its car while plaintiff, as passenger, was attempting to alight, held liable for injuries sustained by being thrown from car.
    2. Appeal and error, § 1241*—when modification of instruction cannot he complained of. Appellant cannot complain of court’s modification of one of his instructions so as to include another of his, where the giving of the modified instruction was practically the same as giving both.
    3. Appeal and error, § 1241*—when party cannot complain of requested instructions. Appellant cannot assert as error the giving of an instruction he has requested.
    Statement of the Case.
    Action by Maggie Bobinson against the Chicago City Bailway Company for injuries sustained by plaintiff while attempting to alight from one of de- . fendant’s cars. From a judgment of one thousand five hundred dollars recovered by plaintiff, defendant appeals.
    W. H. Robinson and C. LeRoy Brown, for appellant; L. A. Busby, of counsel.
    Pattison & Shaw, for appellee; William H. Holly, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    Frederick Bausman, Trustee, Appellee, v. John A. Mead et al. On Appeal of Carl B. Hinsman, Appellant.
    Gen. No. 18,425.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bankruptcy, § 38

      —when judgment on bond given trustee cannot be sustained. Where the condition in a bond given to a trustee in bankruptcy provides for the payment to legal creditors of “whatever pro rata sum may he adjudged to be due them,” there is no basis for a judgment permitting a recovery for breach thereof, when no rate of distribution was fixed by the bankruptcy court.
    2. Bankruptcy, § 29*—what essential to rate of distribution. Rate of the dividend to he distributed among creditors depends upon the amount of proved claims, the amount of assets and the fixing of the rate of distribution by the bankruptcy court.
    3. Bankruptcy, § 38*—evidence of trustee’s discharge. Evidence held insufficient to show an admission by plaintiff that he was discharged as trustee in bankruptcy before commencing suit.
    Appeal from the Circuit Court of Cook county; the Hon. Oscab E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action "by Frederick Bausman, trustee in bankruptcy of the Alaska Smelting Company, against John A. Mead and others to recover in an action of debt on a penal bond given plaintiff by the defendants. From a judgment in favor of plaintiff, Carl B. Hinsman, one of the defendants, appeals.
    Bayley & Webster, for appellant.
    Cratty Bros, and Charles Hudson, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: M-r. Presiding Justice McSurely

text:
    Mollie Jenkins, Conservatrix, Appellee, v. La Salle County Carbon Coal Company, Appellant.
    Gen. No. 18,431.
    1. Mines and minerals, § 74

      —proximate cause. Permitting a car to be lowered into a mine without a linch-pin in an axle to keep wheel on, held to be the proximate cause of the injury, where an employe, engaged in removing cars from cage at bottom of shaft, is injured by falling coal while reaching into the shaft to recover a wheel which came off.
    2. Mines and minerals, § 181*—proximate cause as question for jury. Whether the negligence of the defendant was the proximate cause of the injury is a question for the jury.
    3. Negligence, § 49*—rule as to proximate cause. Where the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of a third person will not excuse the first wrongdoer.
    4. Damages, § 111*—when not excessive. Award of twelve thousand five hundred dollars to a miner, held not excessive where plaintiff received a compound fracture of the back of the skull and the optic nerve of both eyes was injured so that the central vision of the eyes was absent.
    5. Mines and minerals, § 85*-—when use of car without linchpin is negligence. Permitting a car to be lowered in a mine without a linch-pin to keep wheel on axle, held negligence.
    Appeal from the Superior Court of Cook county; the Hon. Wilt.tatvt E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Robert J. Slater, for appellant.
    James C. McShane, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   M-r. Presiding Justice McSurely

delivered the opinion of the court.

This is an appeal from a judgment against appellant, hereinafter called defendant, obtained by appellee on account of personal injuries received by William Jenkins while in the employ of the defendant.

The salient facts are as follows: Defendant owned and operated a coal mine in La Salle county, Illinois, with a shaft about four hundred feet deep. Jenkins was employed by the defendant to work at the bottom of the shaft, assisting in placing loaded small coal cars upon cages used in raising and lowering coal cars in the shaft, and also assisting in removing empty cars when lowered into the mine.

Upon the occasion in question an empty car was lowered to the bottom of the shaft. Jenkins and his assistant attempted to remove it from the cage, when, owing to the absence of a linch-pin, a wheel of the car came off the axle. Jenkins was in the act of reaching into the shaft to recover the wheel when something struck him on the head, inflicting the injuries complained of. It is a fair inference that the object which struck Jenkins was a piece of coal or other hard substance falling down the shaft.

The negligence complained of is the failure to supply the axle of the car with a linch-pin or other suitable device to prevent the wheel from falling off the axle.

It is argued that the defendant was not charged with notice of the absence of the linch-pin, and that it was not negligence to use the car without a pin in the axle. We cannot assent to either proposition. Defendant was charged with the duty of furnishing- reasonably safe cars, with no necessary part omitted therefrom. Chicago Union Traction Company v. Sawusch, 218 Ill. 130. It was within the duties of one of the workmen at the top of the shaft to inspect the cars before they were let down into the mine, and he testified that he saw and permitted the car in question to descend the shaft with a linch-pin missing. It is self-evident .that it was negligent to use the car with no device to keep the wheels on the axles.

The vital question presented is whether the negligence alleged was the proximate cause of the injury to Jenkins. Was there a continuous succession of connected events proceeding from the failure to supply the linch-pin, to the infliction of the blow on the head of Jenkins by a lump of coal or other material falling down the shaft? The rules for determining whether a negligent act is the proximate cause of an injury are stated in many authorities, and with special fullness in Seith v. Commonwealth Electric Co., 241 Ill. 252. The gist of this statement applicable here is that “the negligent act or omission must be the cause which produces the injury, but it need not be the sole cause nor the last or nearest cause. It is sufficient if * * * it sets in motion a chain of circumstances and operates on them in a continuous sequence, unbroken by any new or independent cause. The question is not determined by the existence or non-existence of interven-, ing events, but by their character and the natural connection between the original act or omission and the injurious consequences. To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence.” Much more might be quoted pertinently from this opinion. Applying these' rules to the facts before us, we are of the opinion that it would be an immediate sequence of the omission of the linch-pin that the wheel would come off when the workers at the bottom of the shaft attempted to move the car, and that it might roll into a place from which it would become necessary to remove it in order to proceed with the work in hand. There was evidence tending to show that it did roll to a point where it became an obstruction to the operation of the cages, thus threatening the workmen of the mine so long as it remained in that position. The necessity of its removal from this obstructing point would follow immediately, and that this might require Jenkins or his assistant to extend his head into the shaft would follow naturally.

However, it is argued with force that, admitting this to be true, we have a situation where, quoting from the Seith case, supra, “the negligence does nothing more than furnish a condition by which the injury is made possible,” and that the injury was caused by a subsequent and independent act, namely, the falling of the material down the shaft. The evidence tends to show that the falling of this material was not a single isolated instance not reasonably to be foreseen, but that the falling of coal or rocks down the shaft was frequent, if not constant, and that the defendant anticipated that one unshielded in the shaft would be struck by falling objects.

Therefore, applying the rule stated in the Seith case, supra, “where the circumstances are such that the injurious consequences might have been foreseen as likely to result from the first negligent act or omission, the act of the third person will not excuse the first wrongdoer,” we have reached the conclusion that the negligence alleged was the proximate cause of the injury.

In Missouri Malleable Iron Co. v. Dillon, 206 Ill. 145 (p. 157), the Court said, with many supporting citations: “The question, whether or not the negligence of appellant was the proximate cause of the injury, was a question of fact for the jury, and they have settled it against appellant.”

Upon the point of assumed risk, evidence was presented and argued to the jury tending to show that the risk which occasioned the injury was not an ordinary risk, and we cannot say that the jury was in error in its conclusion that the risk was not assumed.

We also see no reason to disturb the jury’s opinion as to whether the plaintiff was guilty of contributory negligence. Both counsel argue this point with such a wealth of detail of facts as to make clear the impossibility of holding the verdict, in this respect, to be manifestly against the weight of the evidence.

We see no reason for holding that errors, i'f any there be, in the giving and refusing of instructions, or that the alleged improper conduct of the plaintiff and his counsel, are sufficiently serious as to require a reversal.

It is claimed that the damages awarded by the jury are excessive. Plaintiff received a compound fracture of the back part of the skull, and it appears that the fractured bone contused and lacerated the brain. Among other results of the injury is atrophy of the optic nerve of both eyes, so that the central vision of both eyes is nearly absent. The jury awarded $12,500, which was not disturbed by the trial court. We have no sufficient grounds for concluding that the verdict is excessive.

Finding nothing in the record which in our opinion would justify a reversal, the judgment will be affirmed.

Affirmed.


text:
    Schwarzschild & Sulzberger Company, Plaintiff in Error, v. Morris Shapiro, Defendant in Error.
    Gen. No. 17,580.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action in tort by Schwarzschild & Sulzberger Company against Morris Shapiro to recover damages for false and fraudulent representations made by defendant as to his credit in inducing plaintiff to sell him certain goods. From an order granting defendant’s motion to dismiss the suit, plaintiff appeals.

      Abstract of the Decision.
    1. Election of eemedies, § 13

      —when action not tarred. Plaintiff suing on contract for purchase price of goods does not waive right to sue for fraud practiced by defendant in inducing plaintiff to make the contract.
    2. Election of eemedies, § 3*:—when doctrine is applicable. Doctrine of election of remedies applies only when the remedies are inconsistent. Where coexistent remedies are consistent with each other plaintiff may adopt all or select one, and only a satisfaction of the claim in one case constitutes a bar in the other.
    3. Election of eemedies, § 3*—when remedies are consistent. The remedy by action in tort for fraud and deceit in the purchase of goods is not inconsistent with the remedy by an action on the contract for the purchase price or the value of the goods.
    4. Judgment, § 680*—pleading former adjudication. Affidavit of merits setting up a defense of former adjudication is insufficient where it fails to state whether the former judgment was on the merits or whether it was satisfied.
    5. Appeal and erbob, § 1595*—presumption as to proof of facts defectively pleaded. The rule that after verdict and judgment it will be presumed that proof was made of facts defectively stated in the pleadings, not applicable where bill of exceptions affirmatively states that no evidence was introduced.
    William R. Brown, for appellant.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    George R. Neff, Defendant in Error, v. Forrest J. Alvin, Plaintiff in Error.
    Gen. No. 17,637.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Aetetob W. Deselm, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed October 9, 1913.

      Abstract of the Decision.
    1. Attachment, § 230

      —when defects in process, waived by general appearance. Defendant In attachment by coming in to court and filing a motion that plaintiff be ordered to file statement of claim, waives all objections to process by publication.
    2. Attachment, § 93*—presumption, when no jurat to affidavit. After attachment writ has issued, it will be presumed that affidavit was in fact sworn to, though not so certified by a jurat.

    3. Appeal and eebob, § 390*—when objections for irregularities in attachment, not preserved. Defects in attachment affidavit, attachment writ, and attachment bond held mere irregularities, for which objections come too late when first made in Appellate Court.
    Statement of the Case.
    Action "by George R. Neff against Forrest J. Alvin in attachment upon a claim for attorney’s fees. From a judgment sustaining the attachment and awarding plaintiff seventy-five dollars, defendant brings error.
    Ernest Saunders and Frank A. Ramacitti, for plaintiff in error.
    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Fitch

delivered the opinion of the court.