text:
    Michael Martin, Appellee, v. W. P. Rooney Company et al. W. P. Rooney Company, Appellant.
    Gen. No. 22,926. (Not to be reported in full.)
    Abstract of the Decision.
    1. Judgment, § 196

      —when against defendants served with summons is proper. Under section 14 of the Practice Act (J. & A. V 8551), judgment may properly be entered in an action ex contractu against those defendants who are served with summons, notwithstanding other defendants are not served.
    2. Judgment, § 276*—when motion to vacate is properly denied: A motion to vacate a judgment, in an action ex contractu, was properly denied where the affidavit filed in support of the motion denied an account stated between plaintiff and defendants but contained no allegation that the amount claimed by plaintiff, in whose favor judgment was rendered, was not due or that there was any defense to the action.
    Appeal from the Municipal Court of Chicago; the Hon. Chables . A. Williams, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    • Action by Michael Martin, plaintiff, against W. P. Rooney Company, a corporation, William P. Rooney, Fred Sondergard and William McMullen, defendants, on an account stated. From a judgment for plaintiff, defendant corporation appeals.
    Louis W. McIntyre, for appellant.
    No appearance for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice McDonald

license: Public Domain

text:
    Nicolos Grotz, Appellee, v. John Engel, Appellant.
    Gen. No. 22,931. (Not to be reported in full.)
    Abstract of the Decision.
    1. Guaranty, § 7

      —when requires no new and independent consideration. Where a guaranty, although collateral, is connected with and forms the inducement for the execution of the principal contract or is the result of a previous promise upon the faith of which the principal contract was made, it requires no new and independent consideration to give it force.
    2. Landlord and tenant, § 72*—how lease providing for payment of rent in instalments construed. A lease providing, after describing the premises, that the lessee should also have a certain room in the barn “for the term of four years less two months and one-half, to commence on the 15th day of October, 1912, and to end on the first day of August, 1916,” and should “pay * * * the four years’ rent or sum of $5,400, payable December 15, 1912, $300, and thereafter paying $300 every three months for the first year’s rent, being $1,200 all told; and $350 every three months thereafter, making a total sum of $1,400 per year, or $4,200 for the last three years,” construed as requiring payment of $5,400 rental for the term of three years, nine and one-half months, in instalments as therein set forth.

      Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by Nicolos Grotz, plaintiff, against John Engel, defendant, to recover on defendant’s written guaranty of the payment of rent and performance of all covenants contained in a certain lease entered into by plaintiff and one August Turnes. From a judgment on a directed verdict for plaintiff, defendant appeals.
    Thompson, -Tyrrell & Chambers, for appellant.
    Vincent D. Wyman, Harry C. Kinne and Charles E. Carpenter, for appellee.

      See Illinois Notes Digest, Veis. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Henry A. Todd, Appellee, v. McKenzie Cleland, Appellant.
    Gen. No. 22,942. (Not to be reported in full.)
    Abstract of the Decision.
    1. Attorney and client, § 135

      —when evidence sustains finding as to value of legal services. Evidence held to support a special finding of $224 as the value of defendant’s legal services, where the testimony was a mere approximation of the value of the services and. the estimates varied from $26 to $500.

      Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Weils, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 12, 1917.
    Statement of the Case.
    Action by Henry A. Todd, plaintiff, against McKenzie Cleland, defendant, to recover on a promissory note, to which defendant filed a set-off for $395, and interest for legal services rendered. From a judgment for plaintiff for the balance due on the note after deducting $224, on special finding as to the value of defendant’s services, defendant appeals.
    Lester E. T<f.f. and Egbert Gt. Phelps, for appellant.
    Beach & Beach, for appellee.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.

2. Bills and notes, § 420*—when evidence properly excluded as irrelevant in action on note. Parts of defendant’s letter to plaintiff replying, to plaintiff’s letter demanding payment of defendant’s note which consisted of defendant’s self-serving statements and charges reflecting upon plaintiff’s character, which had no bearing upon the issues in the case, held, properly excluded, in an action on the note.

3. Appeal and erbob, § 1491*—when exclusion of evidence is harmless error. In an action on a note, in which defendant claimed a set-off for legal services performed in proceedings before a justice of the peace, the exclusion of the record of the proceedings offered to corroborate defendant’s testimony as to the number of continuances taken in the case before the justice of the peace, while improper, was not reversible error, defendant’s testimony on the point not being positively denied by any of plaintiff’s witnesses.


text:
    James E. Gordon, Administrator De Bonis Non of the Estate of Joseph Kosecki, Deceased, Appellee, v. Grand Trunk Western Railway Company, Appellant.
    Gen. No. 22,944.
    1. Railroads, § 498a

      —who. are invitees on tracks of railroad. Where a railroad company knew that the employees of its lessee of a grain elevator located on its property and adjacent to its railroad tracks were obliged to and did enter upon and across its tracks and frequently had to pass between freight cars in doing so, such employees were invitees of the railroad company, which owed them the duty to exercise ordinary care for their safety while they were so upon oh across the tracks of the company.
    2. Death, § 50b*—when proof of due care at and just prior to injury is not essential. Proof that plaintiff’s decedent was in the •exercise of due care at and just prior to the time of his injury, held not indispensable, in an action to recover damages for his death, where there were circumstances in evidence from which the jury might reasonably infer that he was in the exercise of ordinary care at and just prior to such time.
    3. Death, § 50b

      —when evidence shows due care of decedent crushed while crossing tracks between freight cars. Evidence of a witness that he and decedent after lunch together proceeded to their respective duties, that decedent started across a certain railroad track between two freight cars, that a moment later witness heard the crash of freight cars violently brought together and a sharp cry from decedent, who witness then discovered had been caught between the cars and severely injured, that witness was only three or four steps from decedent when it happened, that he heard no bell or whistle or other warning that the cars were to be moved prior to the accident, and that it was customary for the railroad employees to give warning at such times, held sufficient to warrant the inference that decedent was in the exercise of due care for his own safety at and just prior to the time of the injury.
    4. Railboads, § 569*—what does not constitute variance between declaration and proof. Evidence of defendant’s failure to give warning that it was about to move its railroad cars was admissible under an allegation charging the defendant with negligent operation of its road, notwithstanding another allegation charging another defendant, dismissed from the case, with negligencia in failing > to warn, in an action to recover damages for death of an employee of the lessee of a railroad grain elevator while crossing the tracks.
    5. Railboads—when omission in instruction of question whether decedent killed by cars was an invitee is not error. An instruction properly omitted the question whether plaintiff’s decedent killed by defendant’s railroad cars was an invitee of defendant at the time he entered upon defendant’s tracks, where the question was uncontroverted and the undisputed evidence showed he was such invitee.

    6. Death, § 36*—when term next of kin used in declaration deemed to mean surviving spouse. Where the evidence showed a decedent left no next of kin within the literal meaning of that expression, held that the term used in the declaration was merely descriptive of his surviving spouse, in an action to recover damages for his death.
    7. Removal of causes, § 5*—when motion to remove cause to federal court is properly denied. A motion to remove to the federal court an action brought in the State court against a resident and a nonresident corporation charged with liability for the death of plaintiff’s decedent who was an employee of the resident corporation, made upon dismissal of the case as to the latter corporation at the close of plaintiff’s case upon its special plea, opposed by plaintiff, that plaintiff’s remedy against it was by arbitration under the Workmen’s Compensation Act, held properly denied, where plaintiff’s contention, opposing the special plea, was bona fide and there was no proof "of the allegation in the resident corporation’s petition in support of the motion of plaintiff’s fraud in joining such corporation as a party defendant.
    Appeal from the Superior Court of Cook county; the Hon. William E. Deveb, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Rehearing denied January 2, 1918.
    Kretzihger & Kretzinger and L. L. Smith; for appellant.
    Elmer & Coheh, for appellee.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.

This action was brought by James E. Gordon, in his representative capacity, against the Grand Trunk Western Bailway Company and the Hooper Grain Company, for wrongfully causing the death of Joseph Kosecki, who was employed by the latter company in and about a grain elevator located in the City of Chicago. At the close of all the evidence, the court, upon motion, directed a verdict in favor of the Hooper ,Grain Company. Thereupon appellant filed a petition to remove the cause to the federal court, which the court denied. Upon the evidence submitted on behalf of the appellee, the cause was submitted to the jury, who found the issues against the appellant, assessing appellee’s damages in the sum of $5,000,, upon which the judgment herein complained of was entered.

The elevator where the deceased was employed was owned by appellant, who leased it to the Hooper Grain Company. It was located on appellant’s premises, adjacent to its tracks, one of which entered a shed" adjoining the elevator, where freight cars were placed for loading and unloading. To reach the elevator in question, it was necessary to cross appellant’s tracks, which the evidence showed were frequently occupied by freight cars, about which the deceased was obliged to be in the performance of his duties. It was the custom of the railroad employees, before moving any cars on the track where deceased was killed, to give notice- thereof. On the day of the accident, appellant was about to remove certain cars that were on the track leading into the unloading shed. This was done, however, without giving the customary warning, and while the deceased was passing between two of these cars they were suddenly and violently brought together, causing the injury and death complained of.

The first point made by appellant is, that the deceased was a trespasser or a mere licensee while on its tracks, and that therefore it owed him no duty except to refrain from wilfully and wantonly injuring him. The undisputed evidence shows that deceased was an employee of the Hooper Grain Company, who had leased the grain elevator from the appellant; that appellant knew that in the course of their duties the employees of the grain company were obliged to and did enter upon and cross its tracks, and that they frequently had to pass between freight cars in doing so. Under these circumstances, the deceased was upon appellant’s track for a purpose connected with the business which appellant permitted to be conducted on its premises, and he was, therefore, an invitee of the appellant, who consequently owed him the duty to exercise ordinary care for his safety while there. Purtell v. Philadelphia & Reading Coal & Iron Co., 256 Ill. 110.

Appellant next contends that there is a total lack of evidence of due care on the part of the deceased at and just prior to the time of the injury. While no ond saw the deceased at ,the precise moment he was struck, and there was no testimony as to his previous habits of care, such proof was not indispensable, provided there were circumstances in evidence from which the jury might reasonably have inferred that he was in the exercise of ordinary care at and just prior to the time of the injury (Schaffner v. C. F. Massey Co., 270 Ill. 207). One witness testified that he and the deceased ate lunch together at the elevator on the day of the accident, after which they proceeded to resume their respective duties; that in leaving the elevator, the deceased started across the aforesaid unloading track between two freight cars, and that a moment later the witness hoard the crash of freight cars violently brought together, and a sharp cry from the deceased, who he then discovered had been caught between the cars and severely injured; that he was only three or four steps from the deceased when it happened.. The witness testified further, that he heard no bell or whistle sounded nor any other warning given that cars were to be moved, prior to the accident, and that it. was customary for the railroad employees to give warning at such times. In our opinion there was sufficient evidence to warrant the inference that the deceased was in the exercise of due care for his own safety at and just, prior to the time of the injury.

The next point made by appellant is, that there was a variance between the allegations of negligence in the declaration and the proof submitted. The declaration charged the Hooper Grain Company with negligence in failing to warn the deceased that appellant was about to move the cars, while appellant is charged with the negligent operation of its road. It is insisted that inasmuch as the declaration charged the Hooper Grain Company with negligence in failing to warn the deceased, evidence of appellant’s failure to do so was inadmissible under the general charge of negligent operation of its road. The Hooper Grain Company having been dismissed out of the case by direction of the court, the question presented for determination on this point is,- whether or not under the charge of negligent operation of the road against appellant, proof of its failure to so warn was admissible. This question arose in Illinois Cent. R. Co. v. Aland, 192 Ill. 37. In that case the declaration averred that the defendant had .negligently and carelessly propelled its engine, etc., and it was there held that the failure to give warning off the moving or approaching of an engine was a circumstance or fact tending to prove that the engine and train were carelessly and negligently propelled and also had a hearing upon the question of due care on the part of the plaintiff.

Complaint is also made of the giving of instruction No. 1 on behalf of the appellee. The‘vice pointed out in this instruction is that it omits the question whether or not the deceased was an invitee at the time he entered upon appellant’s track. vThe undisputed evidence discloses that the deceased, at the time and place in question, was an invitee of the appellant, and since this was not a controverted question of fact, the instruction properly omitted this element from the consideration of the jury.

The, declaration alleged that the deceased left him surviving a widow and next of kin, and that by reason of his death his next of kin have been deprived of his support, etc. The argument is made that, because of this latter averment, proof, that the deceased had given his wages to his widow was inadmissible as his widow is not his next of kin. In our opinion, this contention is not well founded. As the evidence shows that the deceased left no next of kin within the literal meaning of that expression, the term next of kin, as used in the declaration, was merely descriptive of the surviving spouse. Pittsburgh, C., C. & St. L. Ry. Co. v. O’Donnell, 118 Ill. App. 335.

Finally it is urged that the court erred in denying appellant’s motion to remove the cause to the federal court. The declaration charged the Hooper Grain Company, a resident corporation, and the appellant, a nonresident corporation, with liability for the death of the deceased. At the close of appellee’s case, the court directed the jury to find the Hooper Grain Company not guilty, it appearing that appellee’s remedy against it was by arbitration under the Illinois Workmen’s Compensation Act. Thereupon appellant filed its petition for the removal of the cause to the federal court, alleging fraud on the part of appellee in joining the said grain company with appellant as a party defendant, and also alleging that the cause, upon the elimination of the said grain company then for the first time became removable. The record shows that the said Hooper Grain Company pleaded the general issue, also a special defense that both it and the deceased came under the said Workmen’s Compensation Act. The issue raised by this special plea was brought to the attention of the appellant a long time before the appellant filed its plea of general issue. Because of the nature of the employment of the deceased, it was an unsettled question whether or not he came within the provisions of the said Workmen’s Compensation Act, which the court at the close of appellee’s case decided in the affirmative, and accordingly directed a verdict in favor of the said grain company. This ruling was made upon motion of the said grain company, and was apparently adverse to the bona fide contention of appellee. And while appellant’s petition alleged fraud on the part of appellee in joining the said grain company as a party defendant, no proof of such alleged fraud was made by it. On this state of the record, the trial court properly denied appellant’s said petition. Kansas City Suburban Belt Ry. Co. v. Herman, 187 U. S. 63; Whitcomb v. Smithson, 175 U. S. 635.

There being no error in the record which justifies a reversal, the judgment will be affirmed.

Affirmed.


text:
    George Ornstein for use of Bernard Kriewitz and Charles Kriewitz, trading as Kriewitz Brothers, Appellee, v. Pittsburgh Steamship Company, Appellant.
    Gen. No. 22,946.
    Garnishment, § 35

      —what wages are not subject of. A seaman employed- on a steamship operated upon the Great Lakes is within section 12 of the Seaman’s Law, approved-March 4, 1915, providing that no wages due or accruing to any seaman or apprentice shall be subject to attachment or. arrestment from any court, and such, wages are not garnishable.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed.
    Opinion filed December 21, 1917.
    Knapp & Campbell, for appellant.
    No appearance for-appellee.

      See Illinois Notes Digest, Vals. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.

Appellant was sued as garnishee for the sum of $46.65 on an indebtedness due Bernard and Charles Kriewitz from one. George Ornstein, the latter being in the employ of the appellant. Appellant pleaded, by way of defense, that it operated steamships upon the Great Lakes and that the said George Ornstein was a seaman .in its employ, and- that hence his wages were not subject to garnishment. The court held otherwise, however, and entered judgment against appellant for $46.65 and costs.

Section 12 of the Seaman’s Law, which was approved March 4, 1915, provides as follows:

‘ ‘ That no wages due or accruing to any seaman or apprentice shall be subject to attachment" or arrestment from any court, and every .payment of wages to a seaman or apprentice shall be valid in law, notwithstanding any previous sale or assignment of wages or of any attachment, encumbrance, or arrestment thereon; and no assignment or sale of wages or'of salvage made prior to the accruing thereof shall bind the party •making the same, except such allotments as are authorized by this title. This section shall apply to fishermen employed on fishing vessels as well as to seamen. * * *”

Except for a proviso added thereto which does not apply to the case at bar, this section is substantially a re-enactment of section 4536, U. S. Rev. St., which has been construed to prohibit the attachment of seamen’s wages by garnishment proceedings or otherwise. (The Amelia, 183 Fed. 899; Wilder v. Inter-Island Steam Nav. Co., 211 U. S. 239.) So far as the issues .in this case are concerned, we think section 12, sufra, should receive a similar construction, and there being no denial that the said Ornstein was a seaman in the employ of appellant, it follows that the court erred in entering the judgment herein complained of.' Accordingly the judgment will be reversed.

Reversed.


text:
    Anton J. Cermak for use of Utah Copper Company, Appellant, v. Charles H. Aldrich and William E. Dodson, Appellees.
    Gen. No. 22,970.
    1. Execution—what does not constitute valid, delivery or tender o/ property under redelivery bond. Where a judgment debtor gave a redelivery bond for certain personal property levied upon under an execution issued on the judgment against him, and while the bond was yet in force filed a voluntary petition in bankruptcy, upon which the bankruptcy court issued and served an order upon the officer taking the bond restraining him from taking any further action on the judgment, on .the day preceding which .the debtor for himself and his bondsman informed the officer of the debtor’s contemplated petition in bankruptcy and requested him to retake the property, which remained at the place designated in the bond for its redelivery, held that there was neither a valid tender nor a valid delivery of the property as contemplated by the bond.
    2. Execution—when surety on redelivery bond is not discharged from liability. The surety upon a redelivery bond given by a judgment debtor upon levy of an execution issued under the judgment against him is not discharged from liability on the bond by the debtor’s discharge in bankruptcy upon his voluntary petition filed prior to a legal redelivery of the property under the bond, where the debtor at the time he filed his petition in bankruptcy had an order issued and served upon the officer taking the bond restraining him from taking further action on the judgment.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed December 21, 1917.
    Rehearing denied December 29, 1917.
    S. O. Irving, for appellant.
    .Park Phipps and Walter F. Cooling, for appellees; Charles H. Aldrich, of counsel.
   Mr. Justice McDonald

delivered the opinion of the court.

By this appeal it is sought to reverse a judgment in favor of appellees, in an action hy appellant, for the use of the Utah Copper Company, against appellees, on a delivery bond.

On September 16, 1913, the Utah Copper Company recovered a judgment for $1,611.40 and costs against Charles H. Aldrich, one of the defendants herein. On October 25th an execution was issued thereon, and on December 4th the bailiff of the Municipal Court of Chicago made a levy upon certain personal property located in the home of the said Aldrich at No. 700 Irving Park boulevard in the City of Chicago. This property was released shortly thereafter upon the giving of a delivery bond by the said Aldrich, in accordance with section 44, ch. 77, Rev. St. of Illinois (J. & A. ¶ 6791), executed by himself as principal and defendant William E. Dodson as surety. The condition of the bond was that if the property therein described should be redelivered to the said bailiff "at No. 700 Irving Park boulevard on December 22, 1913, free from injury, etc., the bond was to be void, otherwise it was to remain in full force and effect.

On December 20, 1913, the said Aldrich filed in the Federal District Court a voluntary petition in bankruptcy, and in the forenoon of the same day caused to be issued by the said court and served upon the bailiff of the Municipal Court an order restraining the latter from taking any further action on the judgment obtained by the Utah Copper Company and from selling the property in question. Then followed this suit on the delivery bond.

Both defendants joined in an affidavit of merits alleging that on the 19th day of December they notified the bailiff that they desired to surrender the said property and obtain a release of the bond and that the said bailiff promised to retake possession thereof on the morning of December 20th; that again, on the morning of the 20th, defendant Aldrich saw the bailiff at the latter’s office and advised him that he was about to file a petition in bankruptcy and that he desired, on behalf of himself and his bondsman, to surrender the property in question before the petition was filed, and that the bailiff again assured him that he would retake immediate possession thereof; that some hours thereafter the said Aldrich filed a voluntary petition in bankruptcy, and that before the bailiff repossessed himself of the property in question, the Federal District Court issued an order restraining the bailiff from taking any further action on the judgment and from selling the said property; that the property levied upon, and for which the delivery bond was given, was at the place designated in said bond on December 22nd as required; and that the said Aldrich had within four months from the rendition of the judgment in favor of the Utah Copper Company been duly adjudged a bankrupt, whereby the said lien acquired by plaintiff by reason of the execution and levy was discharged by operation of law.

Plaintiff moved the court to strike the aniended affidavit of merits from the files, but the court overruled said motion and entered the judgment herein complained of.

While in some instances the mere presence of the property at the time and place set forth in the bond may constitute a delivery thereof, yet we are of the opinion that this was. not the situation in the case at bar. Had the bailiff of the Municipal Court attempted to take possession of the property in ‘question after the filing of Aldrich’s petition in bankruptcy and the issuance, and the serving upon the said bailiff of the restraining order, such action would have constituted a contempt of court. He was therefore rendered powerless to retake the said property by the voluntary action of the principal in the delivery bond. And the fact that defendants requested the bailiff on December 19th to retake' the property immediately does not alter the situation. This was a mere attempt to evade liability on the bond, which provided for the delivery of the property to the bailiff at the time and place of sale. In our opinion, there was neither a valid tender nor a valid delivery of the said property as contemplated by the delivery bond.

Counsel for defendants refers us to several cases wherein the defense of bankruptcy was available to both the principal and the surety on the bond. An examination of the authorities cited'reveals that these were mainly, actions on attachment bonds, the condition of which was to pay any judgment which might be subsequently rendered against the attachment debtor; the reviewing court held that the lien created by the attachment levied within four months next preceding the filing of the petition in bankruptcy was rendered null and void by section 67f of the Bankruptcy Act, and that no action would lie against the surety on the bond because no judgment could be procured against the principal, and that inasmuch as no breach of the bond could be shown, the statutory liability could not arise. (House v. Schnadig, 235 Ill. 301.) In the case at bar, however, the undertaking in the bond was to redeliver the property in question to the bailiff at a certain time and place, and not to pay any judgment which might be subsequently rendered against the principal; and it appearing that the said property was not legally redelivered as required by the bond, we fail to perceive how the surety can escape liability under cover of his principal’s bankruptcy. Section 16 of the Bankruptcy Act makes it clear that the discharge of the principal shall be a personal defense in nowise affecting the liability of his surety or guarantor. A case very much in point is that of Brown & Brown Coal Co. v. Antezak, Ann. Cas. 1912 B, p. 778 [164 Mich. 110]. The undertaking in the bond there sued upon was that if the principal should prosecute an appeal with all due diligence to a decision in the Circuit Court, etc., the bond was to be void, otherwise it was to remain in full force and effect. Instead of doing so, the principal filed a petition in bankruptcy and was subsequently duly discharged. The court, in a well-considered opinion, held that the surety was liable notwithstanding the judgment debtor’s discharge in bankruptcy, and we think the following language on page 781 is applicable to the situation now confronting us:

“Now, did the principal comply with this condition of the bond? Instead of prosecuting his appeal, he voluntarily sought relief through bankruptcy in the federal court, and interposed that'proceeding * * * as an absolute bar to a recovery. These acts are clearly inconsistent with his obligation as expressed in the bond.”

And, in an analogous case, the court in San Francisco Sulphur Co. v. Ætna Indemnity Co., 11 Cal. App. 695, stated:

" There, is an affirmative defense set forth in the answer, and the parties admit that W. F. Clark & Bro. filed a petition in bankruptcy within four months after the levying of this attachment, and it is claimed by defendant that, by reason of this petition and the adjudication of bankruptcy which followed, the attachment became void from its inception, and that therefore the bond given to release the attachment was without consideration, and null and void. This contention rests on section 67f of the Bankruptcy Act of 1898. * * * The obligation of the surety was to pay the debt when it should be established by a judgment. A judgment was recovered in that action by plaintiff, and we think the liability of the surety to pay it was unaffected by the subsequent proceedings in bankruptcy. It has been so held in this State and elsewhere.”

To the same effect are, McCombs v. Allen, 82 N. Y. 114, and Rice v. Nirdlinger, 41 Pa. Super. Ct. 238. While it is true that the court, in Chalker v. Thompson, 72 Ga. 478, held to the contrary, this decision is against the weight of authority. We conclude, therefore, that defendant Dodson cannot avail himself of Aldrich’s discharge in bankruptcy; and defendants having filed a joint affidavit of merits, it is obvious that the court erred in overruling plaintiff’s motion to strike same from the files.

For the reasons above assigned, the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Michael J. Collins et al., Appellants, v. Daniel F. Crilly, Appellee.
    Gen. No. 23,072. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Fbederick A. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Bill by Michael J. Collins and others, as and comprising the Board of Education of the City of Chicago, complainants, against Daniel F. Crilly, defendant, to have certain appraisements of complainants’ property modified or set aside. From a decree in favor of defendant, complainants appeal.
    For a similar case, controlling as to the points of law involved, see Collins v. McVickers Theater Co., 207 Ill. App. 240. See also, Collins v. Chicago Title Trust Co., post, p. 211, and Collins v. Macey Securities Co., post, p. 212.
    Angus Boy Shannon, for appellants; Chauncey M. Millar and John E. Foster, of counsel.

      Abstract of the Decision.
    Landlobd and tenant, § 293

      —when tenants not required to pay into court amounts admitted to he due under appraisement. Motion by complainants to require defendant as tenant to pay into court a certain amount admitted in defendant’s answer to be due under appraisement made, held properly denied, in a suit to modify or set aside the appraisement, where defendant had tendered to complainants the amount of rent due as fixed by the appraisement and which complainants repeatedly refused to accept, and the object of the bill of" complaint'was to modify or set aside the appraisement on which the rent was based and not to recover the rent thereunder.
    Cassoday, Butler, Lamb & Foster, for appellee; Bush C. Butler, E. O. Best and Carrol S. Loeb, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Michael J. Collins et al., Appellants, v. Chicago Title & Trust Company et al., Appellees.
    Gen. No. 23,135. (Not to be reported in full.)
    Abstract of the Decision.
    Landlord and tenant, § 293

      —when tenants not required to pay into court amounts admitted to he due under appraisement. Motion by complainants to require defendant tenants to pay into court certain amounts admitted in defendants’ answers to be due under appraisements made, held properly denied, in a suit to modify or set aside the appraisement, where defendants had tendered to complainants the respective amounts of rent due as fixed by the appraisements and which complainants repeatedly refused to accept, and the object of the bill of complaint was to modify or set aside the appraisements on which the rent was based and not to recover the rent thereunder.

      Appeal from the Circuit Court of Cook qounty; the Hon. Fbedbkiok: A. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Bill by Michael J. Collins and others as and comprising the Board of Education of the City of Chicago, complainants, against Chicago Title & Trust Company and others, defendants, to have certain appraisements of complainants’ property modified or set aside. From a decree in favor of defendants, complainants appeal.
    See a prior opinion, Collins v. McVickers Theater Co., 207 Ill. App. 240, which is controlling as to the points of law involved. See also, Collins v. Crilly, ante, p. 209, and Collins v. Macey Securities Co., post, p. 212.
    Angus Boy Shannon, for appellants; Chauncey M. Millar and John E. Foster, of counsel.
    Musgrave, Oppenheim & Lee, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Michael J. Collins et al., Appellants, v. Macey Securities Company, Appellee.
    Gen. No. 23,137. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Fbedeeick A. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Bill by Michael J. Collins and others, as and comprising the Board of Education of the City of Chicago, complainants, against Macey Securities Company, defendant, to have certain appraisements of complainants’ property modified or set aside. From a decree in favor of defendant, complainants appeal.
    See a prior opinion, Collins v. McVickers Theater Co., 207 Ill. App. 240, which is controlling as to the points of law involved. See also, Collins v. Crilly, ante, p. 209, and Collins v. Chicago Title & Trust Co., ante, p. 211.
    Angus Boy Shannon, for appellants; Chauncey M. Mu,lar, and John E. Foster, of counsel.
    Howard Ames, for appellee j Thomas W. Beilly, of counsel.

      Abstract of the Decision.
    Landlord and tenant, § 293*—when tenants not required to pay into court amounts admitted to be due under appraisement. Motion by complainants to require defendant as tenant to pay into court certain amounts admitted in defendant’s answer to be due under appraisements made, held properly denied, in a suit to modify or set aside the appraisement, where defendant had tendered to complainants the amount of rent due as fixed by the.appraisement and which complainants repeatedly refused to accept, and the object of the bill of complaint was to modify or set aside the appraisement on which the rent was based and not to recover the rent thereunder.
   Mr. Justice McDonald

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    Felicie M. Modjeski, Appellant, v. Ralph Modjeski, Appellee.
    Gen. No. 22,653.
    1. Husband and wife, § 264

      —when evidence sustains bill for separate maintenance. Evidence held sufficient to sustain a bill for separate maintenance, where there was no evidence showing complainant ever voluntarily consented to a separation or deserted defendant or was guilty of conduct justifying divorce or of any fault legally sufficient to defeat her right to separate maintenance, and defendant had absolutely refused to live with her.
    2. Husband and wife, § 219*—when husband has no right to cast off wife. The law does not permit a husband to cast off a wife because she has disagreed with him as to the manner in which the children shall be educated, or because- with his acquiescence and consent she has lived with them in Europe, or because she has written to him letters which, although harsh and unwise, show no desire to destroy, or legitimate tendency to disrupt, the marital relation.
    3. Husband and wife, § 217*—when wife is guilty of such fault as prevents suit for separate maintenance. A wife may be guilty of such fault as would prevent her from maintaining a suit for separate maintenance, first by conduct on her part which would give the husband just reason for divorce, second, by voluntarily consenting to a separation, or third, by desertion, although the time has not elapsed which would give the husband cause for divorce' on that ground.
    McDonald, J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed December 21, 1917.
    Rehearing denied January 2, 1918.
    Guerin & Barrett, for appellant.
    Scott, Bancroft, Martin & Stephens, for appellee.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by Felieie Modjeski, complainant below, from a decree of the Superior Court of Cook county which dismissed for want of equity her bill for separate maintenance brought against her husband, Ralph Modjeski.

The bill which was filed June 12, 1914, alleged that the complainant had been compelled to and was living-separate and apart from the husband without fault on her part. The answer of the defendant admitted that the parties were living separate and apart, but alleged that it was by reason of fault on the part of the wife.

The evidence covers the history of these parties from and even prior to the 28th day of December, 1885, at which time they were married in the State of New York.

The husband and wife were bom in Poland. They were related distantly and had known each other from infancy. At the time of their marriage she was 17 and he 23 years of age. Three children were bom to them, a daughter now 21 years of age, a son 26 years of age, and a son Charles, or Karolek, 18 years of age.

The defendant at the time of the marriage was a civil engineer earning a salary of $50 per month. He has prospered and now has an income of about $24,-000 per year.

The husband testified he would not any longer live with appellant. He also testified to many matters of which he complained against his wife covering all the years of their married life, most of which were either denied, or explained by her testimony.

We do not think it necessary to weigh this conflicting evidence relating to the things complained of as they were testified to as having taken place prior to December, 1910, when the husband visited his wife, who with two of their children were then in Europe (with his acquiescence and consent), and during that visit lived with her as her husband. -

If the defense of the husband is to prevail, some subsequent wrongful conduct on her part must, therefore, be shown. Hence, it becomes important to consider their subsequent conduct.

On his homeward journey from Europe the husband wrote his wife two very kind and affectionate letters and on February 2, 1911, after his arrival wrote:

“5326 East End Ave.,
Feb. 2nd, 1911.
“My Beloved Felus:
Today is your birthday, I was with you in thought and wished you many, many good things. * * * You were very honest and good to me in Paris and the remembrance of those days will always be with me my beloved Felus. I am very lonesome for you. I do not dare to think decisively about the future but I imagine as through a mist a house in Poland which I will visit year after year,—and according to how business will improve, will be making visits longer and longer, so that eventually I will stay there for good. It is a dream—will it come to a realization? God only knows. I only know, that as long as I will have the strength for it, so long will I not do without work.. I must go now—I cuddle you to my heart my dear Tuneczka beloved—hug Marylka.
Yours always,
Tunek.” -

The first subsequent disagreement arose from the determination of the husband that the youngest son, Charles, or Karolek, who was then attending a school at Ettal in Bavaria, should return to America, and concerning this the husband testifies:

“Charles went to Ettal to school under protest, I left my wife to choose the school from her experience, —I left it to her. In the winter of 19 Í0 and 1911 I visited at Ettal. I approved that school at that time. In the spring of 1911 I insisted that the boy should remain at Ettal for two years and then suddenly in the summer of 1911, I changed my mind and ordered him back to this country.”

The wife in many letters protested bitterly; insisted that since the opinion of the parents was divided Karolek should decide between them, and finally telegraphed her husband:

“Letter received. Have written. Karolek has decided to stay until next year.”

To which the defendant replied:

“Karolek has nothing to decide. He must be here September 20th; otherwise allowance will cease. Will write by first mail.”

She sent the boy but wrote the husband on September 2, 1911, as follows:

“Karolek sails 14th inst. on ‘Canadian.’ * * * In acting as you did you proved yourself willing and ready for public acquaintance of our standing towards each other, giving me as it were tie chance for divorce or separation, both of which you are ready for considering your late actions. I will not give you that chance though you forget the children. You forget that I could claim my due support from you, therefore, your threats of leaving me without funds were baseless. Am I your mistress, that you should have the right to say: ‘Your pension will cease’ * *

This letter is signed with her initials only.

The husband testifies that by the beginning of the year 1912 he had consulted a lawyer for the purpose of obtaining a divorce. Keeping that in view, the contents of his letters indicate his purpose to obtain letters from his wife which might be used for that purpose. That he knew he had not succeeded is evident by the appearance in his behalf of his.friend Charles Schauffler at Paris in July, 1912, with a request that his wife permit him to secure a secret divorce.

Her evidence (uncontradicted) shows that Schauffler followed her from day to day trying to persuade her in every way to consent. She refused, cabled her husband, and on July 26, 1912, wrote him a letter in which she expressed the shock which his plans for divorce had caused her and urged him to relent. She closed: “You know I have never broken my word to you, and never will. Having made it under the will of God, I held it sacred, and today upon making the one of ‘Never to speak of the past nor anything pertaining to what may be or not be between us, I swear to hold my word sacred and will so respect it, so help me God. Your wife, Felicie.”

By September of that year she had returned to Chicago. He at first refused to meet her, closed the apartment where he had been living, stored the furniture and took rooms at his club. She afterwards saw him, begged him for the sake of the family and of appearances that their relations might be resumed, but he refused, cut her allowance to $150 per month, thus making good Schauffler’s threat, and on the 20th day of January, 1914, claiming residence in Oregon, filed a bill for divorce in the Circuit Court of that State in which he charged that his wife had deserted him in June, 1910. When she appeared and answered, appellee dismissed his suit.

It is not easy to collect from the cases a judicial definition of the words “without fault” as used in the separate maintenance statute. Counsel calls our attention among others to: Johnson v. Johnson, 125 Ill. 510; Finch v. Finch, 160 Ill. App. 639; Winterberg v. Winterberg, 177 Ill. App. 493; Wahle v. Wahle, 71 Ill. 510; Porter v. Porter, 162 Ill. 398.

From these cases we gather that a wife may be guilty of such fault as would prevent her from maintaining her suit: First, by conduct on her part which would give the husband just reason for divorce; second, by voluntarily consenting to a separation; third, by desertion although the time has not elapsed which would give the husband cause for divorce on that ground.

The rule as stated in Johnson v. Johnson, supra, is: “ The fault’ here meant and contemplated is a voluntary consenting to the separation, or such failure of duty or misconduct on her part as ‘materially contributes to a disruption of the marital relation. ’ ”

We will not say that the wife in this case was wholly without fault in the sense in which that term is commonly understood. Yet while she may have made mistakes and been unwise in many respects, we search this record in vain for evidence which proves that she voluntarily consented to a separation, or has deserted her husband or was guilty of conduct that would justify a divorce, or guilty of any fault sufficient in the eyes of the law to defeat her right to separate maintenance, and especially when the record discloses an absolute refusal of the husband to live with her. In this connection it may be said that the absence either by letter or conversation of any'request from the husband for her return to him from Europe; his employment of a lawyer; his hasty removal from his flat to the club upon knowledge «that his wife would arrive in Chicago; the later change of residence to Oregon and the filing of the bill there which was dismissed of his own motion;. his cutting her allowance to the sum of $150 per month, thus making good the threats of Schanffler, are significant facts in this record to which a court may not close its eyes when considering his defense to this bill.

The law does not permit a husband to cast off a wife because she has disagreed with him as to the manner in which the children shall be educated, or because with his acquiescence and consent she has lived with them in Europe, or because she has written to him letters which, although harsh and unwise, show no desire to destroy or legitimate tendency to disrupt the marital relation.

As the decree must be reversed' it is not necessary to consider alleged error on refusal of the chancellor to allow appellant further sums for expenses of suit and solicitor’s fees. The decree is reversed and the cause remanded with directions to hear the evidence of the appellant upon that subject as well as upon the proper amount of allowance to be made appellant, and for other proceedings in conformity with views herein expressed.

Reversed and remanded with directions.

Mr. Justice McDonald dissents.


text:
    James F. Bishop, Administrator, Appellee, v. Victor Chemical Works, Appellant.
    Gen. No. 22,667.
    1. Master and. servant, § 98

      —how section of Factory Act relating to removal of dangerous fumes arising from any process or injurious dust construed. The phrase “of a character injurious to the health of the persons employed, which is created in the course of a manufacturing process,” used in section 12 of the Factory Act (J. & A. If 5397), providing that “all poisonous or noxious fumes or gases arising from any process, and all dust of a character injurious to the health of the persons employed, which is created in the course of a manufacturing process * * * shall be removed,” etc., refer to and modify the preceding word “dust” and not the preceding words “fumes or gases,” making the true intent and meaning of the sentence to be that all poisonous or noxious fumes or gases arising from any process and also all dust of such described character shall be removed.
    2. Master and servant, § 98*—mandatory effect of section of Factory Act relating to removal of dangerous fumes or injurious dust. Section 12 of the Factory Act (J. & A. If 5397), providing thát poisonous or noxious fumes or gases arising from any process and all dust of a certain' character which is created in the course of- a manufacturing process within a factory, mill or workshop “shall be removed, as far as practicable, by either ventilating or exhaust devices,” defines what constitutes negligence and is mandatory.
    3. Master and servant, § 685*—when evidence shows negligence per se in violation of Factory Act as to removal of dangerous fumes or dust. Evidence held to show negligence per se under section 12 of the Factory Act (J. & A. 1f 5397), requiring the removal, as far as practicable, by either ventilating or exhaust devices, of poisonous or noxious fumes or gases arising from any process, where deceased was killed by hydro-cyanic gas in endeavoring to rescue fellow employees from a tank which contained no ventilating or exhaust devices.
    4. Master and servant, § 190*—what does not constitute violation of order of superior officer as to change in appliances or materials. The adding of an additional outlet to a tank similar to others already existing, for the purpose of draining the contents of the tank, by defendant’s foreman, held not to violate an order given him by his superior officer that no changes were to be made in the materials used in the manufacture of anything in that department or the appliances without consulting defendant’s superintendent.
    5. Master and servant, § 190

      —when foreman is not volunteer in interpreting order of superior as to change in appliances or materials. The ordering by defendant’s foreman that a certain tank under his supervision should be cleaned out did not make him a volunteer as to an order given him by his superior officer that no changes were to be made in the materials used in the manufacture of anything in that department or the appliances without consulting defendant’s superintendent, as the question whether the proposed work was within the rule of the order was one it was necessary for him to decide, and he could misunderstand, misapprehend, misinterpret or disobey it without becoming a mere volunteer.
    6. Master and servant—when duty lies upon foreman to endeavor to save employees placed in dangerous position. Where defendant’s employees were placed in a perilous position while working within the scope of their employment, held that defendant and plaintiff’s decedent, as defendant’s foreman, had the duty to do everything that gave promise of saving the employees’ lives, regardless of difficulty or expense, in an action to recover damages for the death of decedent while attempting to save the employees.
    7. Workmen’s Compensation Act, § 2*—what is effect of electing not to pay compensation under. If defendant’s negligence caused the peril of its employees from which plaintiff’s intestate as defendant’s foreman tried to rescue them, defendant would be liable notwithstanding the intestate may have gone outside of the scope of his authority in doing so, in an action for damages against an employer who had elected not to pay compensation under the Workmen’s Compensation Act.
    8. Master and servant, § 760*—when question for jury whether negligence of master proximately contributes to death of servant. Whether defendant’s negligence in violation of section 12 of the Factory Act (J. & A. 5397), requiring removal as far as practicable of certain poisonous or noxious fumes or gases and certain dust in a factory, mill or workshop, proximately contributed to the death of plaintiff’s intestate, held to be a question for the jury, even though defendant could not foresee its negligen.ee would result in the particular accident.
    Appeal from the City Court of Chicago Heights; the Hon. Charles H. Bowles, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Rehearing denied January 2, 1918.
    Thomas C. Angerstein and Craig H. Hood, for appellant; George W. Angerstein, of counsel.
    Francis X. Busch, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal, by the defendant below, Victor Chemical Works, a corporation, from a judgment entered by the City Court of Chicago Heights in favor of James F. Bishop, as administrator of the estate of Ross Wreath, deceased.

. The action was on the case to recover damages for alleged neglig’ence resulting in the death of the administrator’s intestate on November 12, 1914, while employed by defendant in its factory at Chicago Heights where it was engaged" in the manufacture of chemicals.

.Deceased met his death in an attempt to rescue from a tank in defendant’s factory, under circumstances hereinafter stated, two servants of the defendant.

The tank in question was located on the second floor of defendant’s factory and upon a platform about five feet above the floor. A stairway led' from the floor to the platform. The tank was four feet in diameter and six feet high, was of wood and lined with lead. On one side of the tank there were five lead teats or outlets, through which the liquid was drained from the tank. These outlets were about three-fourths of an inch in diameter, the lowest one being about two or three inches from the bottom of the tank. Above the tank was a box in which was placed sodium ferrocyanide. This was siphoned into the tank which contained phosphoric add. A sediment, called prussian blue was produced, which, being heavier than the liquid, settled to the bottom of the tank. Fumes of prussic acid formed in the process and this was held mechanically in the solution. Prussic acid when confined is perhaps the strongest and quickest acting poison known.

On the morning of the day of the accident, deceased, who was defendant’s foreman in that department, decided to have this tank cleaned out in order to put a valve seat in the bottom of it, and at noon on that day told one Boyce, who was acting as assistant foreman to the deceased, to tell the men to clean out the tank after dinner and also to tell them not to stay in the tank too long. There is a conflict in the evidence as to whether this warning was given as directed, but Boyce directed two of the laborers, whose names were Razinsky and Luderman, to clean out the tank, who, in doing so, while under the control of Boyce, were overcome by the 'gas, cried for help, and deceased, who responded to tEeir cries and tried to rescue them from the tank, was himself overcome and taken out dead. His death was immediately due to the hydro-cyanide gas.

The defendant was doing a business which brought it within the scope of the Workmen’s Compensation Law. It had, prior to the accident, filed with the Industrial Board its written election not to pay compensation. It thereby deprived itself of the defenses of contributory negligence, assumed risk and fellow-servant. Nevertheless, it was necessary for plaintiff to prove negligence as alleged in his declaration, or some count thereof.

The declaration contained four counts, the third and fourth of which charged negligence under the twelfth section of the Factory Act. This section is as follows :

“All factories, mercantile establishments, mills or workshops shall be kept free from gas" or effluvia aris - ing from any sewer, drain, privy or other nuisance on the premises. All poisonous or noxious fumes or gases arising from any process, and all dust of a character injurious to the health of the persons employed, which is created in the course of a manufacturing process, within such factory, mill or workshop, shall be removed, as far as practicable, by either ventilating or exhaust devices.” Hurd’s Rev. St. ch. 48, see. 12 (J. & A. ¶ 5397).

There were no ventilating or exhaust devices upon or in the tank, and the proof tended to show that there was at the time of the accident in general use such devices, and that these were practicable and if used would have prevented the accident.

The defendant contends this section is not applicable. We think it is. If we analyze the last sentence of the section, which is the part which must be construed, it is apparent that the phrases “of a character injurious to the health of the persons employed, which is created in the course of a manufacturing process” refer to and modify the preceding word “dust” and do not modify the preceding words “fumes and gases.” The true intent and meaning of the sentence seems to be, that all poisonous or noxious fumes or gases arising from any process and also all dust of such described character within such factory, mill or workshop, “shall be removed, as far as practicable, by either ventilating or exhaust devices.” This language is mandatory. It defines what shall constitute negligence. It does not leave open for other determination the question of whether the' situation is dangerous or not dangerous to which its provisions apply. The only limitation which it places upon the direction to use these devices for removing fumes or gases arising from any process within such mill, factory or! workshop, is “as far as practicable.’’ This limitation was covered by the evidence of plaintiff, and the violation of the statute as proved was negligence per se. Commonwealth Elec. Co. v. Rose, 214 Ill. 545; Wahlman v. C. Becker Milling Co., 279 Ill. 612.

The defendant offered evidence for the purpose of showing that the deceased acted outside the scope of his employment in ordering a valve seat put in the tank. The trial court in instructions to the jury ignored this defense, and ’ particularly in instruction No. 5, given at the request of the plaintiff (which directed a verdict), omitted this from the essential things to be proved. It is urged this was error. We do not think so for the reason that, as a matter of law, the supposed defense was not established. The evidence which is most relied on by appellant is that of Holbrook, the chief chemist, who placed the deceased in charge of the department in which deceased worked and who testifies he at that time told the deceased “that no changes were to be made in the materials used in the' manufacture of anything in that department, or the appliances without consulting Mr. Bum-ham or myself.” This evidence of Holbrook is uncontradicted. Burnham was the superintendent of the factoiy.

There were five lead outlets in the side of the tank. The proposed work to be done "was making another similar outlet in the bottom of it. We are unable to see how the doing of this work violated the order to which Holbrook testifies. Certainly it would not make any change in the materials used in the manufacture, nor do we think it would amount to a change of appliances. It was apparently to be done to remedy an existing defect in an appliance which was not to be changed, and if it had been done before the sediment had been allowed to collect in the bottom of the tank, would have made the accident impossible.

Even if the action of Wreath in ordering the tank cleaned out could be construed as disobeying the order of Holbrook, this would not make him a volunteer for the reason that he was acting wdthin the sphere of, and not-outside the scope of, his employment. He was the foreman and, as such, the question of whether the proposed work was within the rale announced by Holbrook was one which under the circumstances it was necessary for him to decide. He could misunderstand, misapprehend, misinterpret or disobey it without becoming a mere volunteer. Spokane & I. E. R. Co. v. Campbell, 241 U. S. 497 [12 N. C. C. A. 1083]. Moreover, the trial court may have proceeded upon the theory that the question of whether the deceased acted within the scope of his employment at the time he ordered the tank cleaned out was wholly immaterial and that the question was whether Luderman and Razinsky were within the scope of their employment at the time they were overcome and cried out for help. If the court did so hold, we think this was the correct view.

There was no evidence which tended to show that Luderman and Razinsky were acting outside the scope of their employment, or violating any order of their superiors at the time they were overcome, and, since they were put in a perilous position while working within the scope of their employment, it became the duty of the defendant, and the deceased as its foreman representing the defendant, to do everything that gave promise of saving their lives regardless of difficulty and expense. Bessemer Land & Improvement Co. v. Campbell, 121 Ala. 51. Even assuming that deceased went outside the scope of his employment either in giving the order to clean out the tank, or put the valve seat in, this would not affect the right of his administrator to recover if the negligence of the defendant caused the peril from which deceased tried to rescue them. The cases cited by appellant are not applicable where, as here, the defendant may not avail itself of the defenses of contributory negligence, assumed risk and fellow-servant.

As was said in the recent case of Eugene Dietzen Co. v. Industrial Board of Illinois, 279 Ill. 11: “A volunteer is one who introduces himself into matters which do not concern him, and does, or undertakes to do, something which he is not bound to do or which is not in pursuance or protection of any interest of the master, and which is undertaken in the absence of any peril requiring him to act as on an emergency.” Conversely the court states that an accident occurs to an employee in the course of his employment if it takes place “while he is doing what a man so employed may reasonably do within a time during which he is employed and at a place where he may reasonably be during that time to do that thing.” Within that rule Wreath was in the course of his employment when he met the accident which resulted in his death.

It is also urged that the alleged negligence was not the proximate cause of the death of deceased. Undoubtedly if the violation of the statute did not proximately contribute to the death of deceased, plaintiff could not recover. This, however, was a question for the jury to decide under proper instructions from the court. We cannot hold, as a matter of law, that the negligence alleged and proved was not the proximate cause of the death of Wreath, even if it be conceded that the defendant could not foresee its negligence would result in this particular accident. Siegel Cooper & Co. v. Treka, 218 Ill. 559; Pullman Palace Car Co. v. Laack, 143 Ill. 242.

We think that an ordinarily and reasonably prudent employer would have foreseen that some such catastrophe would probably result from the negligence which is here established. At any rate that question was submitted to the jury under proper instructions. There is no serious error in the record and the judgment will be affirmed.

Affirmed.


text:
    J. S. Ziegler Company, Appellant, v. Jewel Tea Company, Appellee.
    Gen. No. 22,734.
    Appeal and ebrob, § 1303

      —when presumed that missing exhibits justified decree. Where a certificate of evidence recited the introduction of certain exhibits which were necessary to a proper disposition of the case, but they did not appear therein, although certain labels, packages and bottles in the custody of the clerk might be supposed to be such missing exhibits but were not contained or described in the certificate of evidence, nor attached to the record, nor identified by a certificate of the trial judge, nor otherwise so identified that it could be determined that they were such exhibits recited as having been introduced, held that such missing exhibits would be presumed to justify the decree appealed from.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Rehearing denied January 2, 1918.
    Joshua R. H. Potts, for appellant; Brayton Gr. Richards and Arthur A. Olson, of counsel.
    . Stein, Mayer & Stein and Albert W. De La Tour, for appellee; Sydney Stein, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal hy J. S. Ziegler Company, a corporation, complainant below, from a decree of the Circuit Court of Cook county dismissing its bill of complaint for want of equity.

Appellee urges that the certificate of evidence is incomplete in that exhibits which were produced and offered by - both complainant and defendant are not contained therein, and urges that the decree, therefore, be affirmed.

The certificate of evidence recites the introduction of certain exhibits but they are not made to appear therein. The following is a sample of the condition of the record in respect thereto:

“Mr. Potts: Q. When was that label printed? A. That was printed in the spring. I think in the month of June, 1913.
“The Court: You offer that in evidence, and there is no objection, ! understand.
“Mr. Stein: No objection.
“Said paper was thereupon received in evidence and marked Complainant’s Exhibit 1’ and is in the words and figures as follows, to-wit.”

But no label is attached or described.

Substantially the same condition of the record exists as to complainant’s exhibits 2, 3, 4, 5, 6, 6a, 12 and 14, and defendant’s exhibits 1, 2, 9,10 and 11.

There appears in the record an order entered in the cause to the effect that it was the opinion of the trial court that an inspection of the original packages and labels offered or introduced in evidence at the trial was important to a correct decision of the case on appeal ; that said original packages and labels should be delivered to and retained in the custody of the solicitors for the respective parties and they should be delivered to and filed with the clerk of the Appellate Court with the authenticated copy of the record by the respective solicitors upon due notice..

We find in the custody of the clerk of this court certain labels, packages and bottles which, if we were permitted to guess, we might conclude were a part of the missing exhibits, but they are not contained nor described in the certificate of evidence, nor attached to the record, nor identified by a certificate of the trial judge, nor otherwise so identified that we can determine that they are the same exhibits that appear as aforesaid to have been offered in evidence. A certificate of -evidence or bill of exceptions is in the nature of a pleading which is taken most strongly against the party who presents it, and error being assigned upon the matters and things contained in the certificate of evidence, we must, in the absence of these exhibits which were manifestly necessary for a proper determination of the case, presume that if they were made a part of the record, they would' show that the trial court was justified in entering the decree appealed from. Abel v. Poe, 199 Ill. App. 391; Roy v. Galloway, 54 Ill. App. 610; Fred Miller Brewing Co. v. Beckington, 54 Ill. App. 191; Spangenberg v. Charles, 44 Ill. App. 526; Imperial Hotel Co. v. H. B. Claflin Co., 55 Ill. App. 337.

The decree of the trial court will, therefore, be affirmed.

Affirmed.


text:
    Hildur M. Hallin et al., Appellees, v. George E. Penney et al., Appellants. Hildur M. Hallin et al., Defendants in Error, v. George E. Penney et al., Plaintiffs in Error.
    Gen. No. 22,770. (Not to be reported in full.)
    Gen. No. 22,921. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county in Gen. No. 22,770. Error to Circuit Court of Cook county in Gen. No. 22,921; the Hon. Jesse A. Baldwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Bill by Hildur M. Hallin and others, complainants, against George E. Penney and others, defendants, to contest the validity of the purported last will and testament of Ernest Hallin, deceased, charging that the probate of the will was without notice to complainants as heirs at law of the decedent and denying that he ever signed and executed the instrument, and alleging also that he was not of sound mind and memory at the time of its alleged execution. From a decree granting the relief prayed for, defendants appeal and also bring error.
    Abstract of the Decision.
    1. Judgment, § 148

      —when counter-affidavits should not he considered on motion to set aside. So far as counter-affidavits, filed in opposition to a motion to set aside and vacate a judgment or decree, relate to the merits of the case, it is error in a court to consider them.
    2. Appeal and error, § 1573*—when consideration of counter-affidavits is not reversible error. The erroneous consideration by a court of counter-affidavits, filed in opposition to a motion to set aside and vacate a judgment or decree, so far as they relate to the merits of the case, is not alone reversible error.
    Two issues of fact were ordered made and submitted to the jury: First, whether the writing purporting to be the last will and testament of the deceased was such last will and testament; and second, whether he was of sound mind and memory at the time of the execution of the instrument, to each of which the jury answered “No.” The defendants offered no evidence and no appearance on their behalf was made at the trial. At the same term defendants presented a motion, supported by affidavits, asking that the verdict and decree be set aside and vacated, which after sev-eral continuances was overruled.
    Melville B. Thomson, for appellants and plaintiffs in error.
    Anderson, Anderson & Anderson, for appellees and defendants in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.

3. Judgment, § 144 —how affidavits in support of applications to set aside judgment by default construed. In applications to set aside judgments by default or entered in ex parte proceedings, affidavits in support of such applications are to be construed most strongly against the party making the application.

4. Judgment, § 132*—when by default should be set aside. When a judgment which is plainly unjust has been rendered against a party by default, if a reasonable excuse is shown, for not having made a defense, and the party against whom the judgment is rendered exercises reasonable and ordinary diligence in moving to set it aside, it is the duty of the court to exercise its discretion by granting the motion, especially if- it be made at the same term at which the judgment is rendered.

5. Appeal and error, § 1380*—when discretion in setting aside judgment by default not disturbed. A motion to set aside a judgment rendered by default is always addressed to the discretion of the trial judge, with which an Appellate Court will not interfere unless it has been abused.

6. Judgment, § 146*—when affidavits in support of motion to set aside by default do not show due and proper diligence. Affidavits filed in support of defendants’ motion to set aside the judgment rendered against him by default, held not to show due and proper diligence on behalf of their solicitor, where it appeared that he had been severely injured while absent from the place of trial but had returned 10 days before, and did not show he was unable to inquire in regard to the case or to secure some one to present to the court a motion to postpone it, and no affiant stated he was unaware of the case being on trial, and the solicitor’s affidavit showed he had an office associate on whom he depended to try the case in his own absence whose affidavit was not procured, and who was not stated to have been uninformed of the trial, and motion was not filed until 9 days after the judgment.


text:
    Rita Dorothy O’Connell by Mary O’Connell, Appellee, v. West Side Hospital of Chicago and Richard J. O’Connell, Appellants.
    Gen. No. 22,803. (Not to be reported in full.)
    Abstract of the Decision.
    1. Trial, § 216

      -—what evidence not considered in reviewing motion for directed verdict. Evidence introduced after withdrawal from the case of a defendant upon his motion for a directed verdict at close of plaintiff’s evidence cannot be considered in reviewing the motion.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by Bita Dorothy O’Connell, a minor, by her next friend, Mary O’Connell, plaintiff, .against West Side Hospital of Chicago, a corporation, and Richard J. O’Connell, defendants, to recover for the alleged negligent care of plaintiff’s mother and of plaintiff at the birth of plaintiff whereby plaintiff’s eyes became infected, and the infection through the negligence of defendant O’Connell as physician and surgeon was allowed to spread, etc. From a judgment for plaintiff, defendants appeal.
    Bars L. Howard, Edward W. Rawlirs and R. J. Folorie, for appellants.
    Mttesor T. Case and Quir 0’Brier, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XX to. XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the. court.

2. Tbial, § 192 —when direction of verdict for defendant is proper. An instruction for a directed, verdict on motion of defendant should be given if the court is of opinion that a verdict for plaintiff must be set aside for want of any evidence to sustain it.

3. Physicians and surgeons, § 21*—what is subject of expert medical testimony. Whether a physician has treated a case skilfully is a question of science which must be determined not by lay evidence but by the testimony of skilful physicians and surgeons.

4. Physicians and surgeons, § 22*—when negligence of defendant in caring for child after birth not shown. Evidence held insufficient to go to the jury as to the alleged negligence of the defendant physician charged, with responsibility for an infection of plaintiff’s eyes arising some time after her birth, where upon its discovery an expert was, upon defendant’s advice and with consent of plaintiff’s parents, placed in charge of the case, and the expert evidence showed that this was the proper and best practice for a general practitioner, which the evidence showed the defendant was.

5. Appeal and bbbob, § 1793*—when judgment reversed as to both defendants. A judgment against two defendants which is erroneous as to one must be reversed as to both, in an action to recover damages for alleged negligence.


text:
    In the Matter of the Last Will and Testament of Henry Rahn, Deceased. William Rahn, Appellant, v. John O. Krause et al., Appellees.
    Gen. No. 22,857. (Not to be reported in full.)
    Appeal frqm the Circuit Court of Cook county; the Hon. Lockwood Honoee, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    In the matter of the last will and testament of Henry Rahn, deceased, William Rahn, contestant. From an order admitting the will to prohate, the contestant appeals.
    Abstract of the Decision.
    1. Appeal and ebbob, § 1365

      —when discretion in advancement of cause for hearing not disturbed. The advancement of a cause for hearing is a matter which rests in the sound discretion of the trial court, with the exercise of which the Appellate Court will not interfere unless it appears it has resulted in manifest injustice.
    2. Executobs and administbatobs—what is policy of law as to estate matters. The policy of the law favors the speedy hearing of matters connected with the settlement of the estate of a deceased person, and, in the absence of an affirmative showing of injury by the party complaining, the fact that the litigation has been speedily heard and disposed of does not constitute error.
    3. Witnesses, § 207*—when cross-examination is within discretion of court. The extent to which cross-examination of a witness as to his reasons for concealing his whereabouts prior to testifying should he permitted is a matter largely in the discretion of the trial court.
    4. Depositions, § 34*—when denial of motion to suppress deposition is proper. Where a witness refused to answer further on cross-examination after having been questioned at length along the same general line, and the questions refused to he answered went only to the matter of his credibility and not to the merits of the case, held, under the particular circumstances, that there was no abuse of the trial court’s discretion in denying a motion to suppress the witness’ deposition.
    5. Wills, § 143*—when prima fade case for proponents is made out. Evidence held to make out a prima facie case for the proponents, in the matter of a probate of a will, opposed by a contestant.
    Rothschild & Schaffheb, for appellant.
    Goldzier, Rodgers & Froehlich and Huttmahh, Olotes & Carr, for appellees. .

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.


text:
    William H. Bradley, Appellee, v. Joseph D. Hubbard, Appellant.
    Gen. No. 22,896. (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 167

      —what is not evidence of acquiescence in facts stated in letter. The mere fact that a letter received is not answered is not evidence of acquiescence by the party receiving it in the fact stated in it.
    2. Evidence, § 164*—when letter is not admissible in evidence. A letter is not admissible in evidence on behalf of the writer merely because it was in reply to a letter from another party.
    3. Evidence, ' § 165*—what does not make self-serving letter, admissible. A self-serving letter written by one party is not made admissible in evidence on his behalf by his first offering in evidence a self-serving letter written by another party to which the former letter was a reply. ' . , 3'-,. ,
    Appeal from the Superior Court of Cook county; the Hon. William Fenimobe Cooper, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed December 21, 1917.
    Rehearing denied January 2, 1918.
    Statement of the Case.
    Action by William H. Bradley, plaintiff, against Joseph D. Hubbard, defendant, in assumpsit. Prom a judgment for plaintiff, defendant appeals.
    Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and Walter H. Jacobs, of counsel.
    Zane, Morse & McKinney, for appellee; John M. Zane, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.

4. Evidencie, § 164 —when reply to letter operating as admission against interest is inadmissible. Although defendant’s letter was admissible in evidence when offered by plaintiff as an admission against interest, such admission would not make competent or relevant plaintiff’s reply thereto when offered by him.


author: Mr. Justice Hatchett

text:
    Fehr Construction Company et al., Appellees, v. Postl System of Health Building, on appeal of Chapin & Gore, Appellant.
    Gen. No. 22,920. (Not to be 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 October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Bill by Fehr Construction Company, a corporation, and others, complainants, against Postl System of Health Building and Chapin & Core, a corporation, the owners, defendants, for foreclosure of mechanics’’ liens. From.»a decree foreclosing liens in favor of certain intervening petitioners, the .defendant Chapin & Core appeals.
    See 189 Ill. App. 519, for the appeal from a former decree.
    William S. Newbttrger and Benjamin P. Ruekberg, for appellant.
    M. D. Dolan, for appellees; Freeman K. Blake, of counsel.
    Btjlkley, More & Tallmadge, for appellees Harty Bros. & Harty Company.

      Abstract of the Decision.
    1. Appeal and error, § 1725

      —what is effect of decision on former appeal. Questions decided on a former appeal cannot be reopened.
    2. Mechanics’ liens, § 196*—when evidence shows knowledge By owners of rendering of work and furnishing of materials. A finding that defendant owners had knowledge of the work to be done and material furnished hy the respective lienors, held not against the manifest weight of the evidence, in a suit on mechanics’ liens.
    3. Mechanics’ liens, § 196*—when evidence supports finding as to lienahle and nonlienahle items. Evidence held to support finding as to lienable and nonlienahle items, in a suit on mechanics’ liens.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, .same topic and section number.

   Mr. Justice Hatchett

delivered the opinion of the court.


text:
    Pauline Roessler Kremser, Guardian, and Federal Union Surety Company, Appellees, v. Meeker-Magner Company et al., Appellants.
    Gen. No. 22,924. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Peter C. Walters, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by Pauline Roessler Kremser, formerly known as Pauline M. Roessler, guardian of the person and estate of Fedora Roessler and Carl Roessler, minors, and Federal Union Surety Company,, plaintiffs, against Meeker-Magner Company, a corporation, William A. Rogan and Thomas J. Magner, defendants, in replevin, to recover possession of nine certain bonds and coupons thereto attached, upon nondelivery of which on the writ statement of claim in trover was filed by leave of court. From a judgment for plaintiffs, defendants appeal.
    Abstract of the Decision.
    1. Corporations, § 322

      —when evidence is insufficient to show individual liability of defendants. Evidence held insufficient to show cause of action against certain individual defendants, one an official of the defendant corporation and the other attorney for the latter, in an action of trover for conversion of certain property.
    2. Evidence, § 185*—when conversation with one not agent inadmissible to bind another. A conversation of plaintiff’s attorney testified to by him with one defendant not an agent for another defendant, tending to show a cause of action against the latter, was inadmissible as against the latter.
    The plaintiff Surety Company, for which the defendant corporation was agent, signed as surety the bond of plaintiff guardian in the Probate Court, who deposited the bonds in question with the defendant corporation, taking its receipt therefor, which stated “to be held by us in connection with joint control,’’ the joint control referred to being that of the guardian and the Surety Company. The bonds were stolen by one of defendant corporation’s employees, and were recovered by the corporation after suit. The corporation claimed expenses and attorney’s fees incurred in recovering possession, and the right to hold the property until these were paid. Defendant Bogan was the corporation’s attorney.
    Elbribge Hanecy and William A. Bogan, for appellants.
    Huttmantn", Cloyes & Carr, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.

3. Evidence, § 128 —necessity of foundation for admission of copy of receipt. A purported copy of a certain receipt was improperly received in evidence in the absence of proof to lay the foundation for its introduction.

4. Appear and error, § 1793*—when judgment reversed as to all defendants. A judgment in trover which is erroneous as to some defendants must be reversed as to all.


text:
    United States Fashion & Sample Book Company, Appellant, v. W. D. Schmidt, trading as W. D. Schmidt & Company, Appellee.
    Gen. No. 22,925. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action "by United States Fashion & Sample Book Company, a corporation, plaintiff, against W. D. Schmidt, trading as W. D. Schmidt & Company, defendant, to recover $686.75, on account for goods, wares and merchandise. From a judgment for defendant on a directed verdict, plaintiff appeals.
    Defendant filed claim of set-off for credits and damages of $484.20" “due the defendant less the sum of $686.75 as sued for by plaintiff ’ ’; also, after trial was begun, an affidavit setting up that plaintiff was a corporation for profit organized under the laws of the State of Pennsylvania, etc., and that it was and had been doing business in the State of Illinois, although never authorized to do so, and by reason of the statute approved May 18, 1905, could not maintain its action, on which ground verdict was directed.

      Abstract of the Decision.
    1. Municipal Court op Chicago, § 13

      —when statement of claim is sufficient. A statement of claim demanding a certain sum claimed to be due plaintiff on account for goods, wares and merchandise, held to state a good cause of action.
    2. Sales, § 325*—what constitutes a prima facie case in action for goods sold. In an action for goods sold to defendant, a claim of set-off for a certain sum “less” the amount as sued for, held, to be an admission by pleading making a prima facie case for plaintiff, and casting on defendant burden of proving set-off.
    3. Cobpobatxons, § 709*—when foreign corporation is doing business within State. Plaintiff, a foreign corporation, was doing business within the State, where it maintained an office in the State in charge of its vice president, and orders were taken and accepted within the State on samples for shipments of the corporation’s goods from the place of manufacture without the State to the customer within the State. '
    4. Commerce, § 4*—what constitutes interstate. Where a foreign corporation made contracts within the State contemplating the manufacture of its goods without the State, and their shipment from the place of manufacture to the customer within the State, held that the transaction would constitute interstate commerce.
    Hoyne, O’Connor & Irwin, for appellant.
    D. K. Cochrane, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Panagiotis Kaperonis, Appellee, v. Kalodimos Brothers Ice Cream & Candy Company, Appellant.
    Gen. No. 22,930. (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 13a

      —when evidence of ~co-partnership is inadmissible under affidavit of merits. Evidence on behalf of defendant of a copartnership between it and plaintiff, held erroneously admitted, over plaintiff’s objection, under rule 17 of the Municipal Court, relating to the requisites of an affidavit of merits, where the only defense set up in such affidavit was that neither the balance set up in plaintiff’s statement of claim nor any other sum was due from defendant to plaintiff.
    2. Appeal and error, § 1238*—when party cannot complain of judgment. Appellant may not complain of a judgment which cannot be reversed except by considering evidence which he improperly introduced.
    Appeal from the Municipal Court of Chicago; the Hon. Harby C. Moran, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Affirmed.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by Panigiotis Kaperonis, plaintiff, against Kalodimos Brothers Ice Cream & Candy Company, a corporation, defendant, to recover a balance of $1,289.36 due for wages on account of services. From a judgment for plaintiff, defendant appeals.
    Thompson, Tyrrell & Chambers, for appellant.
    A. A. Pantelis, for appellee; Alexander J. Besa, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Joseph Moffett, Appellee, v. Calumet & South Chicago Railway Company, Appellant.
    Gen. No. 22,936. (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 399

      —when answer of medical witness invades province of jury. The answer of a medical witness to a hypothetical question and as to his opinion whether or not a connection existed between the supposed accident and plaintiff’s appendicitis several months later, that “this was a traumatic appendicitis due to this accident,” held erroneously admitted over objection, as invading the province of the jury.
    2. Damages, § 250*—when errors cannot be cured by a remittitur. Where a verdict was excessive upon the evidence properly admitted, and evidence was improperly admitted and' also evidence improperly excluded as to a connection between the injury complained of and appendicitis occurring some time later, in an action to recover damages for such injury,- held that the errors in such improper admission and exclusion of evidence could not be cured by a remittitur.

      Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthiií, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed December 21, 1917.
    Statement of the Case.
    Action by Joseph Moffett, plaintiff, against Calumet & South Chicago Railway Company, defendant, to recover damages for injuries sustained by plaintiff while a passenger on defendant’s car. From a judgment for plaintiff for $3,000, defendant appeals.
    John E. Kehoe and Charles Le Roy Brown, for appellant; John R. Guilliams, of counsel.
    Coburn & Bentley, for appellee.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Holdom

text:
    Patrick McCarthy, Appellee, v. C. H. Morgan and J. H. Sullivan, trading as C. H. Morgan and Company, Appellants.
    Gen. No. 23,477. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. G-bmmill, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment of nil capiat and for costs here.
    Opinion filed December 24, 1917.
    Statement of the Case.
    Action by Patrick McCarthy, plaintiff, against C. H. Morgan and J. H. Sullivan, trading as C. H. Morgan & Company, defendants, to recover for injury to plaintiff’s horse. From a judgment for plaintiff for $100, on remittitur, defendants appeal.
    Plaintiff’s statement of claim was:
    “Plaintiff’s claim is for damages to his horse; for vetérinary services expended in attempting to cure said animal; for loss of services, all occasioned by the negligence of the defendants, and each of them, their agents and servants in that behalf, in carelessly and negligently operating their automobile on, to-wit: October 20, 1913, at or near the intersection of 51st street and Vincennes avenue in the City of Chicago; and without giving any warning of the approach of said automobile, and for running the same at a dangerous and reckless rate of speed, and for the negligent operation thereof, resulting in damage to the plaintiff as follows: depreciation of value of horse, $275; loss of services of horse, 24 days at $6 per day, $144 (said horse being part of double team). Veterinary bill for attending said horse, $10. Total $429.”

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when pleadings do not state cause of action for negligent operation of automobile. Statement of claim or pleadings altogether, held not to state a cause of action for injury to plaintiff’s horse, by the negligent operation of defendant’s automobile.
    2. Municipal Court of Chicago, § 13*—what is effect of failure to malee motion for more specific statement of claim. Failure to make a motion for a more specific statement of claim does not waive the defect of a total failure of a statement of claim to state a cause of action.
    3. Municipal Court of Chicago, § ?>l*~when final judgment rendered without remanding. Where an amended statement of claim, if filed upon remanding, would be vulnerable to a plea of the statute of limitations, judgment will be reversed and judgment of nil capiat and for costs entered in Appellate Court.
    Winston & Lowy, for appellants.
    John F. Bolton and Moses H. KAMERMAN,.for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Holdom

delivered the opinion of the court.